Black Days

Tuesday, April 21st, 2009

Information has been swirling around about the torture memos.

We have Dick Cheney pressing his typical case:

“I haven’t talked about it, but I know specifically of reports that I read, that I saw, that lay out what we learned through the interrogation process and what the consequences were for the country.

“I’ve now formally asked the CIA to take steps to declassify those memos so the American people have a chance to see what we obtained and what we learned and how good the intelligence was.”

Other big narratives have to do with the Harmon case.

We have this in this morning’s Times

Others pushing for more investigation included Philip D. Zelikow, the former State Department counselor in the Bush administration. On his blog for Foreign Policy magazine and in an interview, Mr. Zelikow said it was not up to a president to rule out an inquiry into possible criminal activity. “If a Republican president tried to do this, people would be apoplectic,” he said.

Frederick A. O. Schwarz Jr., who was chief counsel to the Church Committee, the Senate panel that investigated C.I.A. abuses in the 1970s, said Mr. Obama was “courageous” to rule out prosecutions for those who followed legal advice. But he said “it’s absolutely necessary” to investigate further, “not for the purpose of setting blame but to understand how it happened.”

The same article provides this:

The decision to promise no prosecution of those who followed the legal advice of the Bush administration lawyers was easier, aides said, because it would be hard to charge someone for doing something the administration had determined was legal. The lawyers, however, are another story.

On Sunday, Rahm Emanuel, the White House chief of staff, said on the ABC News program “This Week” that “those who devised policy” also “should not be prosecuted.” But administration officials said Monday that Mr. Emanuel had meant the officials who ordered the policies carried out, not the lawyers who provided the legal rationale.

I interpret a number of significant ideas here. One goes to the question of “fault,” the other to what goes unsaid in the language and the implications of distractions. Placing fault on the “lawyers” is a type of red herring, in that “the legal rationale” distracts from the bigger picture of who was behind the direction and decision making. Anyone can ask for advice about a decision. I can ask if a decision is “legal” and then move to the next critical thinking level and ask whether it’s right to do. It’s childish to assume “right” from a legal argument without considering ethical continuities.

The judgement to torture, whether deemed legal or not, is precisely the point. If this administration does not go after the heart of the matter, we are left as Americans in a situation of moral and ethical complicity in that torture. “The lawyers, however, are another story” is beside the point. In truth, prosecutions should go where the law requires not as a question of political card games but because, as Obama has said, we should follow the “rule of law.” Because it’s the right thing to do.

Permission Slip Logic

One of the larger issues I see coming out of the “reluctance” to investigate with serious intention is the potential for arbitrary actions and judgments.  It’s one thing to protest a tax, quite another to rationalize in the context of “greater good arguments.”  If indeed woman A knows when the annihilation bomb is going to go off and woman B is assigned by C to get the information from A.  B goes about a program of waterboarding and case 1 learns when the bomb will go off and thus prevents it or case 2 does not learn when the bomb will go off and it does or malfunctions we have a demanding and interesting  dilemma.  But, in either case, a law may be on the books that makes B’s  and C’s actions out of bounds.  Whether case 1 or case 2, C and B must be treated inside the framework of the circle in which they work.  To what extent should we probe responsibility in the case of B and C?


2 responses to “Black Days”

  1. Jeremy says:

    You make an interesting point, and we can all hope for that. But sadly, I think the only thing we might be able to count on in Washington is mastery of political decks.

  2. Josh says:

    Given how this Administration wants to handle the war on terror, I hope Club Gitmo is shut down and I hope that all this hand-wringing and self-righteous legalbabble is adopted into law.

    The result will of course be that our military will kill more of the enemy on the battlefield and conduct spot interrogations that will likely go undocumented for the talking heads to pontificate over. Works for me.