If one focuses one can smell the reluctance in the political atmosphere to hold the Bush administration accountable for their systematic use of torture. This reluctance can be explained by various considerations such as the ferocious battle Republicans are likely to put up in Bush and Cheney’s defense; the subsequent loss of political capital for the Obama administration; etc. These are more or less practical difficulties. But there is, according to a Washington Post’s editorial, a matter of principle too.
The principle is that an incoming administration does not prosecute previous administrations for what they did “within the channels of government” as long as they did it for the sake of the country. In the absence of grounds to suspect selfish motivations we should measure the previous administration with a very loose bar (or, more precisely, a very loose legal code). This principle, the editorial claims, is a tradition in the US that has fostered cooperation between Democrats and Republicans and prevented them from seeking revenge for past political skirmishes. It prescribes that incoming administrations should scratch off the page and look the other way while doing so. Doing the opposite, the Post suggests, would encourage political vendetta and chaos.
Let us explore the implications of this argument.
First of all, the principle deprives high government officials of any kind of accountability. From the viewpoint of high government officials, there is no legal limit to how they can pursue the interest of the country. True, the country does have a constitution but if at some point it becomes an obstacle in seeking the interest of the country, the principle implies that high government officials can sidestep it without having to answer for that. But unless I’ve been confused all these years, the whole point of having a constitution is that nobody can’t ignore it when convenient, not even the president.
The reasons why you can’t ignore the Constitution are not mere patriotic mythology. The Constitution is literally the foundation of a country. It is the basic institutional framework that shapes what the nation is over and above a piece of land with inhabitants. Toying with the Constitution is therefore to discredit all the institutions of the nation including the nation as a whole. What can be a more serious threat to a nation than a massive loss of faith in it by its citizens, i.e. its own delegitimization? Is terrorism more dangerous?
But not only do fellow citizens lose faith in their country when they see their authorities manipulating the Constitution, so do international observers. The principle is completely oblivious to this fact. However, the US cannot possibly succeed in such an interdependent world as we witness today without forging honest alliances with other countries. Playing loose with the Constitution, as the principle prescribes, projects an image of unprincipled mercenaries in relentless pursue of their selfish interest. This is a hotbed for hatred and terrorism. Moreover, this makes it harder to find allies and, more importantly, to expect loyalty from them.
In fact, much of the mistrust toward the US in the Middle East and Latin America (to mention only a couple of cases) can arguably be explained by the systematic application of the principle. For example, the disclosure of private communications between Nixon and Kissinger in the 70s has revealed political plotting hardly reconcilable with the Constitution in their effort to stop the spread of Socialism in South America. One may debate the legitimacy of such a goal, but there can be no doubt that the inhumanity of the methods alongside the impunity of those who ordered them created a sensation of powerlessness and bitterness toward the US that has hindered cooperation with South American countries up to these days.
Aside from the implications of the principle, its motivation is also debatable. The risk the principle is design to ward off is that of permanent political vendetta and chaos as a result of giving incoming administrations permission to prosecute previous ones when their decisions were beside the Law. But should we assume, as the principle does, that every incoming administration is going to misuse their right to revise the previous one in order to get political benefit? Maybe—if there were no penalty for defamation. In legal systems where there are suitable penalties for defamation people make sure that they accuse others only when they have strong grounds to support their accusations. I don’t see why American politicians would be the exception.
I envision a much different outcome of dropping the principle. I believe the result would be that high government officials would have to be much more careful to stay within the limits of the Law. There would probably be some accusations here and there, some of them unjustified perhaps, but they would only serve to teach politicians to be impeccable during their time in office. In short, rather than vendetta and chaos, I think dropping the principle would encourage transparency and the rule of law.
Why then has the principle become a tradition in the US—as the Washington Post naively asserts? The fact that the reason offered by the Post is so dubious suggests less honorific motivations. The persistence of the principle could also be explained by a secret culture of extreme pragmatism in Washington. If politicians in Washington took the rule of Law as defeasible when governing requires it, the principle would serve as a secret code of etiquette to preserve that chance for future presidents and high government officials. In other words, incoming presidents would not seek legal measures against their predecessor, even when they deserved it, in order to be able to play that card themselves.
If this speculation were true, it would be quite serious. Pragmatism can be useful on occasion, but, taken to these extremes, it can also be sign that the spirit of the nation is in decline (cf. the last centuries of the Roman Empire). Obama seems to be of a different kind than most politicians in Washington. He seems clear and transparent, unaided by stratagem. Let’s hope that Obama will once for all drop the principle and restore a culture of transparency in Washington by going after the obvious violations to the Constitution that took place during Bush’s administration.
Matias Bulnes, NYC
Tuesday, April 28, 2009
Torture and Pragmatism in Washington
Posted by Matias Bulnes at 10:31 AM 0 comments
Thursday, April 23, 2009
Challenging Cheney
I don't believe the question of whether America's torture regime is legitimate rests on the question of its effectiveness in gathering intelligence. Nevertheless, it is intelligible for someone to make that question the decisive question to ask and answer.
there was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics...Defenders of these [torturous--mtn] techniques have claimed that they got Abu Zubaydah to give up information leading to the capture of Ramzi bin al-Shibh, a top aide to Khalid Shaikh Mohammed, and Mr. Padilla. This is false. The information that led to Mr. Shibh’s capture came primarily from a different terrorist operative who was interviewed using traditional methods. As for Mr. Padilla, the dates just don’t add up: the harsh techniques were approved in the memo of August 2002, Mr. Padilla had been arrested that May.If true, this would put the final nail in the coffin of the torture regime. It yielded literally nothing of value, and we have come to the end of intelligible rationales for its existence. And what is left but to conclude with Paul Krugman, if one hadn't already, that the authors of this regime are monsters.
Posted by MT Nguyen at 2:02 AM 0 comments
Labels: torture
Tuesday, April 21, 2009
Question of responsibility
I believe that there is a significant moral distinction between interrogators and those who legally authorized them to torture.
The difference is two-fold. First, the authors of torture regime are authors. They shaped and otherwise made possible the kinds of actions in question. Generally speaking, we believe that the authors of actions are chiefly responsible, and hence chiefly to blame, for them. On my understanding, the CIA frequently abstained from certain techniques and carried them out only after requests for legal guidance were returned in the affirmative. So, from what we know, the following counterfactual is true: were it not for the OLC memos and the political authority of Cheney’s office, America’s torture chambers would not have existed (I’m leaving aside the evidence that it existed in places other than Bagram, Abu Ghraib and Guantanamo). Secondly, there is a significant difference in authority and power between the two classes, and this can generate conditions of duress which can be mitigating and perhaps excusing. There was an incredible amount of pressure placed on the intelligence community to manufacture results, and given the structures of authority in place, that pressure could not have been just ignored—at least not without consequences.
To be sure, these two considerations alone won’t settle the whole question of responsibility if only because the interrogators aren’t automatons—they too author their own behaviors. This is quite clear in interrogation, since it leaves much room for maneuverability and hence deliberation—and all this needs to be decided upon, and hence authored, by each individual interrogator. Moreover, the degree of exerted pressure is unknown, and independently of that, it is difficult to imagine that it amounted to a form of duress which would be excusing. In the end, one imagines, they could have walked away from the torture chambers and obeyed the Socratic doctrine to do no wrong intentionally.
I believe both points speak against the view, held by Spain’s attorney general, that if prosecutions are to go forward, they should be launched against individual interrogators and not the authors of the regime. Obama has finally made it clear (even after his attack dog Rahm Emanuel suggested otherwise just last weekend) that he believes otherwise. In response to questions this morning, he asserted that any investigation and prosecution of the torture authors will be, as it should be, the Attorney General's office to decide and pursue. Hopefully, and as early indications of Holder already suggest, our AG is less politically driven than Spain's AG.
Posted by MT Nguyen at 6:16 PM 0 comments
Labels: responsibility, torture
Friday, April 17, 2009
Flip-flop
Yesterday, Obama said that the failure to release the torture memos "could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States." This suggests that their eventual release should settle some questions. I suggested that this was a sort of preemptive attack on Spain's criminal investigations into who authorized what. Lo and behold, today, after just last week announcing that they would pursue indictments, Spanish prosecutors did a flip-flop. According to Spain's Attorney General, Cáandido Conde-Pumpido, any prosecution should focus on the interrogators, not the legal advisors. He therefore believes the case is flawed and does not recommend its pursuit. Evidently, the career prosecutors have been overruled.
Is there a connection between Obama's statement and the Spanish AG's decision? Inquiring minds want to know.
When asked by reporters about the case, Obama gave his standard, "I'm a strong believer that it's important to look forward and not backwards," claptrap. It's time he talk to the public like adults and offer a reasonably complete picture of his views on this matter. Leadership requires more than clever aphorisms; we need guidance and transparency.
Posted by MT Nguyen at 5:15 PM 0 comments
Labels: torture
Wednesday, April 15, 2009
Uncovering and maintaining secrets
...I believe that exceptional circumstances surround these memos and require their release.
First, the interrogation techniques described in these memos have already been widely reported. Second, the previous Administration publicly acknowledged portions of the program – and some of the practices – associated with these memos. Third, I have already ended the techniques described in the memos through an Executive Order. Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time. This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States.
In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.
Posted by MT Nguyen at 1:48 PM 0 comments
Tuesday, April 14, 2009
Competing conceptions of human rights by MT Nguyen, The Empire, CA
What counts as a human rights violation? Or, alternatively, What counts as a fundamentally illegitimate government action?
These are very important questions. Answering them is a condition of our capacity to understand and critique political authority.
I think there are two basic and distinct approaches to these questions, one moral and the other political. While the moral approach has its inherent appeal, I am no longer convinced that it can be sustained. Its answers and the methods by which it arrives at them are, so to speak, too facile. As applied to the current controversy over America’s interrogation regime, for example, its argument is too short: torture is morally impermissible; therefore, it is politically illegitimate. On the other hand, the political approach, though it arrives at the same negative conclusion, avoids this problem by correctly bringing more considerations into the fold while at the same time, in a way I’ll describe, integrating the moral point of view--but in a subordinate role to which morality is not accustomed. I'm not entirely convinced by the political approach, and neither am I entirely clear what it involves, but it strikes me as more relevant and applicable to our heterogeneous political world.
The most common approach to human rights is expressly moralistic. It rests on a moral picture of human beings, and sets to answer our questions by reference to violations which would undermine or constrain human beings (as painted by that picture). This approach is moralistic partly because it places moral characteristics front and center, particularly dignity and autonomy. Additionally, the approach wants to understand the concept of human rights as a moral concept. The study of human rights is fundamentally the study of a part of morality; and, the application of a human right requires only a recognition of the relevant moral principles in conjunction with a perception of the salient moral reasons.
On this approach, all one needs to evaluate the legitimacy of a political decision is to know its moral standing.
For some time now, I’ve found this moralistic approach laudatory. The connection between morality and a human rights violation, crudely put, is this: a political activity constitutes a human rights violation whenever it expresses a morally illegitimate exercise of political authority. This formula allows us to arrive at an assessment of political activities in a ‘pure’ manner, expressly setting aside all irrelevant considerations, i.e. all non-moral considerations. Moreover, since morality takes itself to apply everywhere rational activity exists, the approach’s scope is basically total and unconstrained. That is, anyone can transport the moral viewpoint, correctly construed, and use it to judge political activity wherever and whenever it exists.
As operating on political institutions and its activities, the moralistic approach has the great and heavily advertised advantage of being outside of what it judges. Often and clearly so, this is the correct standpoint. For example, this external view constrains the human tendency to exaggerate the weight and importance of self-serving considerations, e.g. nationalistic ones. Another advantage is morality’s integrity or holism. The univocal nature of its pronouncements and its refusal to countenance compromise are what make morality so beautiful and appealing.
This is nicely exemplified, for example, in the character of Socrates. Unlike all true statesmen, Socrates cares little that a political decision is necessary to save the state if that decision is, judged from the standpoint of the moral virtues, wrong. He couldn’t make any such decision because, being the virtuous man he was, he couldn’t see the reasons in favor of it. Most of us understand Socrates’ moral incapacities as virtues, and we have a strong tendency to judge political life from this perspective. We recoil, for example, when we witness President Obama’s evident betrayal of Senator Obama’s promises on government transparency. We applaud, on the other hand, the alacrity with which he announced the closure of Guantanamo (but, let us not forget, not Bagram). Here the expressions of blame and praise spring from the same moral source. Just as lying for political gain warrants moral repugnance, curbing torture deserves moral praise.
Our admiration for Socrates’ integrity should not blind us, however, to what it sacrifices. In particular, Socrates understood that he could never be a politician. He predicted that his inability to compromise, operating within the political, would have meant an even quicker death than he actually suffered. We can learn something here. I believe Socrates rightly sensed the deep incompatibility between moralism and the political. His a(nti-) political stance isn’t just a peculiar fact about himself, it belies the thought that the political can be adequately evaluated by just the moral standpoint. If so, then the moral incapacities which are so valuable to correct individual behavior become vices in political decision-making.
Is there another approach?
The philosopher, Bernard Williams, constructed a concise, expressly political, formulation of what constitutes a fundamentally illegitimate policy: (roughly) any governmental policy the effect of which makes the existence of government worse than its absence. Government exists to solve and resolve certain basic social problems; but, when its policies make government appreciably worse than the problem, that amounts to a paradigm case of a human rights violation. In short, when political authority approximates unmediated coercive power, we have an illegitimate exercise of state power; we have a human rights violation.
It is a weakness of our current human rights regime that, philosophically, it is grounded in moral concepts like human dignity and autonomy. Although morally powerful, these concepts are politically stunted (especially in America which has made no explicit use of them). Williams’s political formulation avoids this problem because, like his ethical approach in general, it embraces minimalism and avoids moralism. It does this by working only with concepts like power, coercion and authority. These are taken to be non-moral concepts which nevertheless any conceivable political construction must employ. Even if it is true that criminals or terrorists have no dignity, and that no accommodation is made for an individual's moral autonomy, we can still hold that, in its ambitions, a government can overreach and, in taking action, make itself more monstrous than the problem its ambitions attempt to resolve. Anyone can make this comparative judgment, irrespective of their substantive moral standpoint.
Even an amoral fanatic like Dick Cheney recognizes this. You can see it in how he defends the interrogation regime no doubt he had a hand in shaping and making into policy. In numerous interviews, Cheney virtually contemns moral considerations emphasizing instead the mantra that his methods directly helped thwart untold (literally, since the details of the supposed upside were, and continue to be, conveniently classified) number of attacks. If he's telling the truth, it would at least render intelligible how Bush’s government did not make itself worse than the problem. This is true even if it does not make the regime any more morally acceptable, for his is not an attempt at moral justification. Cheney’s defense is expressly political and offers a story (Williams calls this type of story a legitimation story) for how an interrogation regime can take the shape his did and yet maintain its legitimacy. In particular, this story places great stress on the necessary connection between these policies and the basic responsibility of government to protect its citizens.
As I suggested, the moral approach to assessing a Cheney-style legitimation story is too quick. Since no decent human being could help but arrive at the conclusion that torture is morally repugnant and hence wrong to do no matter the context, adopting this viewpoint leaves us with the puzzle of how a regime taking this shape could sustain itself over so many years and even after the facts about the nature of the interrogations have been known for nearly 5 years. Since ignorance of the morally relevant facts is not at issue, the only way out of the puzzle is to point to a virulent moral weakness induced by fear. For reasons I cannot get into, I find this utterly implausible.
The political approach’s evaluation goes beyond a narrow moral assessment of the interrogations themselves. It takes in all the political conditions required to make interrogations of this type possible. In the case of our torture regime, here are some of them. At the highest levels of government (not to mention the lower levels), generally there existed a pervasive and mendacious secrecy; unendingly imaginative forms of obfuscation and, when these failed, outright lies were told to Congress, to the courts, to foreign governments, to domestic and international organizations, and to the American public; powerful and influential members of Congress colluded with the executive to maintain the regime as well as pass laws designed to offer legal cover for its criminal acts; international covenants the US ratified were repeatedly violated and, in general, our moral and legal obligations were repeatedly and maliciously ignored, thereby making a mockery of international law; when they weren’t kept completely in the dark, institutions like the press, the OLC and the DOJ were subverted and/or used to propagandize; and, in sum, the domestic law and, really, our entire legal tradition was turned on its head and perverted.
All this is interconnected and interlocked to support the government’s project to manufacture the authority needed for its interrogation regime. When we have all of this before us, it is difficult to see how the Bush/Cheney government did not make itself worse than the problem it attempted to solve. The secrecy with which it carried out its policies points to the explanation for its illegitimacy. In particular, it rests to a large extent on how we understand ourselves here and now: no modern legitimation story can depend on the belief that political good and the means to it are the sole provenance of political authority. So, even if we are charitable and entertain the notion that the principal architects of this government aimed at the benefit of the citizenry, to protect us—if necessary, from ourselves—that alone wouldn’t serve to legitimize anything (this remains true even if, more fantastically, the regime served to actually protect us). This is a political and not a moral explanation, but through it we can see how the political can acknowledge the moral. It does so not necessarily as an independent constraint (that would be moralism all over again), but rather because its field of operation can, and in our case does, involve beings whose self-understanding includes morality. Lastly, this helps explain why Machiavellianism, although it can make a temporary appearance, can’t really work for us. Only a fanatic can suggest that we should just discard the moral understanding of ourselves and return to a ‘simpler’ time (if it ever existed) during which statesmen, with their good intentions, could run things without running them by citizens. This is fanaticism, not because it is immoral (although that’s a conceivable reason), but rather because any such suggestion is now beyond the political pale. If it is to exist at all, it must hide and remain underground, just as the interrogation regime and its instigators have been doing. And as with all forms of fanaticism, killing it doesn’t require moral arguments, but rather a spotlight.
Posted by MT Nguyen at 12:38 AM 0 comments
Labels: an essay, human rights
Wednesday, April 8, 2009
Let's do it
Posted by MT Nguyen at 2:09 PM 0 comments
Labels: human rights, war on terror
Tuesday, April 7, 2009
Full IC Red Cross report
Now leaked in full at the New York Review of Books. Go here.
For Mark Danner's companion article, 'The Red Cross Torture Report: What it Means', go here.
Danner's article is worth reading, so don't miss it.
It's hard to see how this document will not have significant political ramifications. Hopefully, all the investigations that have been shelved and put into abeyance will be fast tracked.
As Danner points out in his article, the contours of the Bush administration's torture program have been known since 2004. What more needs to be revealed before action is taken?
Obama continues to assert that he wants to move forward. Moving forward is appropriate under certain circumstances, but in this case it is unequivocally the wrong path. This is not only because the current administration has no standing to 'forgive' and forget (only the victims have that authority), it is evident that the issue won't just pass away. Not only are many Americans rightfully vociferous on this issue, it has a determined international following. Even if America should allow its politicians to continually obfuscate, the rest of the world will not. Specifically Spain, the UK and Poland are now undertaking investigations.
In this case, the only way forward is to look backward and come to grips with what we have done and what it means for us. To do that, we need a full accounting.
Posted by MT Nguyen at 12:57 AM 0 comments
Labels: guantanamo, torture
Thursday, April 2, 2009
Ward Churchill's Victory
After more than two years of trial, the University of Colorado was found guilty of wrongful termination in the case versus Ward Churchill. Though claiming academic integrity reasons, it is by all lights clear that the University of Colorado dismissed Churchill due to an article he wrote in 2005 about the terrorist attacks of 2001. In that article, Churchill suggested the view that the terrorist attacks were not simply a case of targeting innocent civilians but that they were strategically aimed at the financial structure of the military machine of the US. Let me say a few comments about this decision.
1) It is unacceptable that the New York Times is so shamelessly biassed on the issue. When the reputation of the powerful is at stake the New York Times walks on eggshells despite all evidence against them ("Scooter" Libby got a lot more deference from the New York Times). But when the reputation of an unpopular, marginal and powerless professor is at stake the New York Times comes out of the house, bat in hand, to beat up on him and please its enraged readers. Thanks again New York Times for courageously defending the truth...
2) The issue is not a dispute between freedom of speech and academic integrity, as the New York Times says. It is entirely about academic freedom. Churchill advanced a view that may not be true but which is perfectly conceivable. As such, it should be judged dispassionately aside from nationalistic sentiments. If found lacking, one should not be offended by its falsity. Plus, it presents the terrible events of 9/11 in a different light which arguably provides insight into the psychological motivations of Islamic terrorists--whether or not their motivations are justifiable. Furthermore, having no apparent Arab roots or connections with Al Qaeda, it is hard to explain Churchill's article as a conspiracy to destabilize the US. It seems to be the spontaneous work of a fellow who has a particularly critical view of his own country.
3) Finally, it is conspicuous that the jury was so intent on giving Churchill no economic reparation for the years he has been unemployed. Unable to award him no money while finding the University of Colorado guilty, they granted him a symbolic $1. They went as far as to ask the judge if they could grant such a ludicrous amount with the opposition of only one member and, when answered negatively, if they could simply replace that member. Pending further clarification, it gives the unfortunate impression that the jury was trying to apply the law reluctantly.
Posted by Matias Bulnes at 9:53 PM 0 comments
