Torture and Pragmatism in Washington

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