On American Ignorance

An interesting article on a topic we've visited before.

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The Morality of Obama's Guantanamo Plan

No doubt Obama’s plan to close the Guantanamo Base prison is a step forward in fighting the threat of terrorism. Dick Cheney resents this fact for it entails that his own decisions were steps backward. But at this point who cares what Cheney says other than his reactionary cronies? After all, Cheney’s arguments do not pass a minimum test of cogency and vision. Nonetheless Obama’s plan brings to the surface a fundamental question that had been overshadowed by the numerous obscenities of the Bush administration. This is the question of preemptive incarceration.

Obama’s plan consists in transferring Guantanamo detainees to maximum-security prisons within the US borders but it does not include a discernible answer for the legal abominations these cases represent. During the presidential campaign, McCain warned Obama of the intricacies the new president was going to find once he had access to classified information on the Guantanamo detainees. And for all his gaffes, the facts seem to confirm McCain’s forecast. For what was once determination in Obama to close Guantanamo has now turned into feeble compromise. Barring an unexpected change of course, it seems that Obama’s plan is only symbolic vindication: Guantanamo detainees will be transferred to American soil but kept in the legal limbo they’ve dwelled for years.

God knows what information Obama and his legal advisors have come across in revising the Guantanamo cases. But I think it unlikely that anything short of imminent danger for the country would have persuaded Obama of the need to continue with this legal farce. So let’s suppose for the sake of the argument that Guantanamo detainees represent an imminent threat to the US. If they had not yet committed any punitive action, is it lawful and/or moral to restrain them?

Here we find the two traditional frameworks in philosophy of punishment giving opposite advice. According to the Utilitarian framework, punishment is morally justified by its beneficial consequences. Utilitarians typically mention the incapacitation of the offender as among these consequences. Thus it would appear permissible, according to this framework, to incarcerate an individual on the sole grounds that he or she represents a threat for the US.

The alternative to the Utilitarian framework is Retrubitivism. Roughly, Retributivism is the view that punishment is justified by an abstract balance representing our sense of justice. When somebody breaks the law he or she has upset that balance and punishment is required in order to restore it. It straightforwardly follows from this view that we are justified in punishing only those who have broken the law. Therefore, restraining Guantanamo detainees would be wholly immoral even if they are indeed a threat to the country and we know it, for they have yet to act on their impure intentions.

It would be presumptuous of me to attempt to adjudicate between these competing frameworks. Generations of philosophers have passed unable to do so. However, it is fair to say that even many Utilitarians, while rejecting the whole Retributive package, accept the idea that only the guilty should be punished. Guantanamo detainees cannot be guilty of anything yet as they have been denied the nowadays luxury of a due process. And having bad intentions is not recognized as a crime by any legal code. As a consequence, it seems really hard to reconcile Obama’s Guantanamo plan with any accepted morality of punishment.

Politicians are not only beholden to such abstractions as justice but also to their country. It seems therefore unlikely that Obama (or anybody for that matter) is going to clean this mess. No doubt politicians in positions of power have a responsibility to protect their country. But more importantly, the American electorate is extremely sensitive to the issue. Republicans have traditionally exploited the issue of national security to a point of absurdity. And Cheney as well as the Republican minority in Congress have made it clear that they will continue to pound it. This leaves the Obama administration with no margin to correct the abominations created by Republicans themselves.

As Nancy Pelosi has lately insisted, there is an important distinction to be drawn between those who caused this state of affairs and those who have failed to straighten it. There can be no doubt that Republicans fall in the former category and thus carry most of the responsibility for jeopardizing the Constitution of the US. However, they also carry some of the responsibility for politicizing the problem now in the hands of the new administration blocking any conceivable solution for it. As Eugene Robinson suggests, in history books hundreds of years from now Republicans will have to be charged with the decline of the US.

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Advice, policy and action

One major line of defense John Yoo offers for his role in torture relies on the distinction between advice and policy (authority to prescribe action). (See the prepared statement he made before his testimony to the House Judiciary Committee back in 2008).

The thought is that setting policy, but not giving advice, is related to action in a responsibility determining way. This is because policy not only endorses an action (as right/wrong, viable/unviable, legal/illegal), it motivates by being the reason for the action. In short, policy can be a constitutive part of an action which depends on it; it is the reason which explains the action. This connection explains why we tend to believe that if an action like torturing someone is wrong, then the authoritative policy which directly calls for it is also wrong.

On the face of it, advice is different. In an advisory role, the content of the advice is not taken to have motivational force. Additionally, I may not be advising you to do anything in particular but rather just laying out what I take to be your options. This is what John Yoo claims of his legal advice: it merely laid out an interpretation of legal options, and it was neither his intent nor within his authority to prescribe which options, if any, are to be taken. Yoo claims it follows that he cannot be held liable for the actions of those who were directed by policy to act in accordance with such advice. This is because, we can say, a ‘responsibility’ gap exists between advice and action, the gap filled by an independent judgment as to whether to follow the advice. So, if someone must be held accountable for the torture, it should be those who formulated the policy and carried it out. They have a direct responsibility bearing relationship to the vicious act.

Let’s examine the claim about advice. When someone asks for practical advice, it implies that he has not made up his mind on what to do. Typically, upon being offered a piece of practical advice, the advisee deliberates, takes the advice into consideration among all the other known considerations, and arrives at a decision about what to do. The process of deliberation arguably makes the advisee solely responsible for the ultimate decision. Plausibly, this shields the advisor from responsibility.

However, the conclusions are different when the advisor has practical authority over his advisee. Usually we distinguish between contexts of advice and authority, because advice is not often taken to be authoritative, but this is not a conceptual point, but rather just an expression of how we talk. When someone has practical authority over another, his pronouncements/directives/assertions possess preemptory status among the other reasons the advisee may have. That is, whatever other reasons the advisee may have, they are overruled (and are taken to be overruled) by the authority. In this context, when an advisor makes a pronouncement, he understands it to constrain and/or function as a sufficient reason for action.

What was the context in which Yoo wrote the OLC memo? As Yoo himself notes in his testimony before the Committee, his advice was requested in a very particular context: whether the recently (at the time) captured Abu Zubaydah could be subjected to enhanced interrogation techniques, given that such techniques, so Yoo claimed, would be extremely helpful to and desired by the executive.

But the relationship between executive and the OLC is not one of desire satisfaction, it is the latter’s job to constrain the actions of the former. This is confirmed by the particular institutional role the OLC occupies within the executive branch. The following statement from the OLC ‘best practices’ statement is relevant:

“Our Office is frequently called upon to address issues of central importance to the functioning of the federal Government, and, subject to the President’s authority under the Constitution, OLC opinions are controlling on questions of law within the Executive Branch” (emphasis added).

That is, should there be any dispute on how to understand (and hence how to obey) a law, OLC memos are preemptory. This applies to everyone in the executive branch, including the President.

This undermines John Yoo’s basic defense. Although his advice did not take the form of policy, it went beyond the typical function of advice to supply mere considerations for deliberation. Due to the institutional authority granted to him, his advice took on an imperative like form.

Given his knowledge of the advisee’s motivations (we already know of the ‘principals meetings’ during which this whole cabal got together to discuss strategies to implement torture), Yoo’s affirming advice must be recognized to be motivational—and hence a part of the advisee’s decision to formulate the torture policy. This is what makes him culpable for his advice.

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