October 27, 2007
It depends what you mean by “torture”
How depressing–but then, not so surprising–to hear Rudy Giuliani say that waterboarding may not be torture, that it all depends on how it’s done. He insists that the United States is opposed to torture, as though seeking high moral ground on the issue, and then makes a mockery of that position by saying that waterboarding, done right, might fall outside the prohibition. In the case of electrocution, presumably, it all depends on where you put the electrodes.
This is not to say there are no grey areas when it comes to "aggressive questioning" . The line between interrogation and torture is not clear-cut. But I cannot understand how anybody could doubt which side of that line simulated drowning is on. If anything is torture, simulated drowning is torture. If you need to remind yourself what waterboarding entails, read how the Khmer Rouge did it (thanks to Jim Fallows for the link).
Giuliani and other defenders of such techniques need to probe their residual instinct to oppose "torture". Why do they even feel obliged to say that? What, in their view, is wrong with torture? Why not just say that torture is a useful weapon in the war against terror? If they are repelled by that idea–as they damn well should be–then the revulsion ought surely to extend to practices like waterboarding. Which principled defence of "aggressive questioning" permits simulated drowning but prohibits thumb-screws or the rack?
The White House’s nominee for attorney-general, Michael Mukasey, told his confirmation hearing recently that he was unsure whether waterboarding was unconstitutional. If waterboarding is torture, he said firmly, then yes it is unconstitutional–but it may not be torture. "I don’t know what is involved in the technique," he said. Please. How could he not know? Perhaps he used to know but no longer recalls. If it had slipped his mind, he should have refreshed his memory. That question hardly came as a surprise.
This mode of thinking–"It may be legal, let me think about it"–reminded me of "The Terror Presidency", an excellent new book by Jack Goldsmith, a former head of the office of legal counsel in the Department of Justice. Goldsmith shows that this administration has not been lawless in its war on terror, as many critics charge, but almost the opposite. It has been too much preoccupied with deciding what was strictly legal to spend any time wondering what was wise. (My review is here.) Giuliani and Mukasey should read that book, if they haven’t already. An instinct to value legal authority over justice, morality and expediency is a bad enough flaw in an ordinary lawyer, for heaven’s sake. In an attorney general–let alone in a president–it is a calamity.
Clive Crook seriously misunderstands the point of Jack Goldsmith’s book “The Terror Presidency” and this adminstration’s approach toward the rule of law. If one reads the book carefully, I believe that it will become clear that President Bush and Vice-President Cheney began with the proposition that the White House is not subject to any legal constraints and then just looked for ways to give this doctrine a pseudo-legal justification. The book gives many instances of clashes between Mr. Goldsmith, who seems to have made the mistake of actually taking the White House at its word that it was committed to following the law, and Vice-Presidential Consigliere David Addington, the most vocal (and ruthless) proponent of absolute executive power. The winner of these clashes is clear: Mr. Addington is still making policy, while Mr. Goldsmith is on the book circuit.
Mr. Crook might also find it useful to read some other books, such as “Unchecked and Unbalanced” by Frederick A. O. Schwartz and Aziz Z. Huq, and “Takeover”, by Charlie Savage, showing that the movement to expand executive power, far from being a reaction to 9/11, has been growing ever since the time of Watergate and the committee led by Senator Frank Church, which tried to limit executive power in reaction to the abuses under president Nixon. Mr. Crook might also wish to revisit the works of Hannah Arendt, whose writings give many examples of how totalitarian governments attempt to surround themselves with a veneer of legality, when the real power lies elsewhere.
To give just one example of this pseudo-legal approach, one could point to the infamous “torture” memo by the Justice Department under Alberto Gonzales. While ostensibly seeming to follow legal norms, this memo defined torture so narrowly that almost any form of barbaric treatment short of actual murder would be permissible. The failure of this kind of sophistry is now evident in Attorney General nominee Mukasey’s tortured attempts to create the impression that he is opposed to the sadistic technique of waterboarding, without actually going against the wishes of his masters in the White House, who are all too eager to use it. The danger of course, is that, one day, torture and other methods of authoritarian state power will be used not only against “terrorists” (as they have been used in the past against “bolsheviks” or “class enemies”) but against political opponents, as has been the case in every other dictatorship.
Roger Algase
Posted by: Roger Algase | November 1st, 2007 at 2:33 pm | Report this commentNew York NY 10024