The Torturous Debate
By Al Giordano
I am a free speech absolutist.
Every government document ought to be available to the public.
Every single one.
That includes the 29 photographs of Bush-era torture that the White House, last month, was going to release but now, this month, says it won’t.
And I don’t buy the President’s stated excuse, that releasing these particular photos would “further inflame anti-American opinion and to put our troops in greater danger."
That said, I don’t really care that deeply about it, except as an opportunity to address the many colleagues for whom this seems to be “the most important issue,” and to simultaneously address the related issue over whether those Bush administration officials and soldiers responsible for the acts of torture will or will not be prosecuted.
Truth is, there is as much intellectual dishonesty coming from leading voices that urge the immediate release of those photos as there is in the president’s less than forthright excuse for not releasing them. And among others, for whom emotion trumps strategy, there isn’t dishonesty, per se, but, rather, a rigid and anally retentive view of what “The Law” is (or should be) that clouds their judgment not just on this issue but on a whole string of related matters.
I also feel fairly confident that those photos will see the light of day during Obama’s first term, whether by court order or by whistleblower leak. And I think the President knows that very well, too, and is not bothered by it. For the President, the matter is tactical: whether the photos, once out, are perceived as having been released by his decision, or by somebody else’s hand, and tactically, the latter is so much more desirable in the context of other moves he is making to regain civilian control over an Armed Forces brass with rogue tendencies.
That’s a very different motive than the simpleton accusation that the President seeks to “cover up for Bush crimes.” This is the very same President, after all, that recently released 250,000 classified documents that tell the story behind those photos in far greater detail than 29 images ever could. If that's a "cover up," then give me more, please. So those that accuse that the motive is “cover-up” can bite me. I have zero respect for them and their effort to be make-believe prosecutors in the tradition of Roy Cohn. It’s a childish impulse and I choose, once again, to disassociate myself from anyone that plays that petulant game. If they really believe that Obama wants to protect Bush, they're idiots and I'll leave them at the children's table with cookies and milk.
The President is, as is oft said, the Commander in Chief of the Armed Forces, a military that has gone rogue on many prior presidents and I don’t envy his job of having to get that institution back under civilian control.
The suggestion that the way to make sure torture doesn’t happen in the future is to prosecute it is not reality based. Did the prosecution of so many Nixon era presidential appointees prevent future ones from violating the Constitution? Not at all. Did the 1989 indictment on sixteen felony counts of Colonel Oliver North for crimes in the Iran-Contra drugs-for-arms scandal end the complicity of US agencies and agents in the cocaine trade? Nine years of investigative reporting by this newspaper have demonstrated otherwise.
North was convicted on three of those counts, but all that his prosecution served to accomplish was to make him a martyr-hero of the right. This known narco-trafficker has, ever since he was elevated by the prosecution against him, been pulling down six-figure lecture fees on the university and speaker circuits. The prosecution against him was the best thing to ever happen to his career. I know how that works.
And did you know what lawyers got North’s convictions overturned? They were from the very same American Civil Liberties Union (ACLU) that today sues to get the 29 torture photos released (a litigation, again, that I support, because it can accomplish getting the photos released by court order, and thus not impede the President's ability to accomplish bigger things).
And if and when the US government does prosecute a Bush-era official for his role in authorizing or executing torture, it will not surprise me at all if the ACLU similarly shifts gears and defends that person in court. Prosecutions intended to please political factions or public opinion almost always involve some shortcuts around the law of the kind that the ACLU is very good at opposing.
“The Law” is an ass. And I say that as one who generally likes how the US court system works, compared to those in other lands, when it works. In at least thirty courtroom appearances of my own – as criminal defendant, as civil defendant and as civil plaintiff – I’ve had great luck with US law, thanks to that document known as the US Constitution and the case law built upon it over more than two centuries. I have more courtroom experience as a pro se lawyer (a layman who represents himself) than tens - maybe hundreds - of thousands of licensed attorneys. It gives me a certain perspective on “The Law,” of what is good about it, but also of its severe limits.
In 2003, at the Narco News School of Authentic Journalism in Isla Mujeres, Mexico, we held a debate and discussion that is relevant to the current debate over torture-related matters titled “What Is Democracy?” Two very articulate advocates offered very different visions. One offered the traditional liberal view: that democracy is something that comes from a document (for example, the Constitution) and is codified by law, and that if society follows those laws, a kind of utopia ensues. Another said we shouldn’t kid ourselves, that democracy is a lot messier than that: that democracy requires a lot of pushing and shoving and what is ethical and right in one circumstance isn’t necessarily so in another. Social movements and governments alike engage in a little duplicity now and then, and it's not always "wrong" in every single case. Sometimes it's wrong not to bend the rules a bit. This is certainly true, she noted, of the great social movements that have improved every democracy that they’ve touched. My students and I were far more persuaded by the latter definition of democracy because we had already been out there accompanying such social movements across the hemisphere and had lived the rough and tumble realities that the speaker described.
Which brings me back to the current gathering of the Poutrage Club over the two related issues: The release of 29 photos and that of whether or not to prosecute those responsible for authorizing or implementing the tortures that shamed the United States.
What I see and hear in the words of those who are upset and calling for such prosecutions are that they are mainly adherents to that first definition of “democracy”: essentially, a Fundamentalist view of “The Law.” And it frightens me, somewhat, to think what society would be like if they ever got their way (which they won’t, because human beings are not automatons, so I’m not really that concerned). There are times when “The Law” is dressed up in liberal language in a way that masquerades the bloodlust behind witch hunts and impulses to scapegoat individuals for crimes or taboos that, in a democracy, we’re all responsible for having enabled.
The same tendencies that have always placed me squarely against McCarthyism and Red Scares put me on the opposite side of some liberal and progressive colleagues today when they demand the prosecution of Bush, or of Cheney, or of some of their underlings. Such blind faith in “The Law” is very much related to how liberal and progressive America simply gave up after the Supreme Court ratified the electoral fraud of 2000 that put those birds in power. Since they can't accept their own complicity-through-inaction in the events that brought Bush and Cheney to power, they lash out today looking for scapegoats to burn at the stake.
I frankly don’t buy the suggestion that prosecuting Bush, Cheney or others over torture or anything else is going to have any impact at all toward preventing similar crimes in the future. Nor do I think that if the President releases, by his own hand, those 29 photos, that the shock of the images will at all deter torture at all in the future. That's like saying that photos of child porn would somehow deter child abuse, when the opposite is often the case. (Again, I repeat, I’ll bet a hundred dollars with any other blogger that wishes to part with his money and wager against my claim that those photos will be coming out during Obama’s first term, but by another hand’s work.)
In the end, this is not a moral debate, but one of strategy and tactics. It comes down to whether one believes, as some clearly do, that releasing photos or prosecuting the former administration over torture, will impede torture and official law breaking in the future - or not. We have very recent examples in US history – Watergate and Iran-Contra – that demonstrate crystal-clearly that “The Law,” by itself, is pretty damn impotent as a deterrent force (an impotence that is on display in courtrooms every day, as millions of citizens break all kinds of laws even as they're aware that others were prosecuted and punished severely for doing the same).
In the end, preventing torture is a political struggle and also a power struggle, so much more than a matter of "The Law." It’s about changing society and its presumptions, and changing institutions, like the military and police agencies, where the culture is so prone to that kind of abuse. (Anybody that thinks a few hundred prisoners at Abu Ghraib or Guantanamo were the only people recently tortured by officials in the USA is being willfully ignorant of the daily occurrences in police stations and prisons across the fruited plain, and I thus find their poutrage very selective.)
President Obama has a gargantuan task when it comes to the Armed Forces, and also intelligence agencies like the CIA, and police agencies (Homeland Security, FBI, DEA, IRS, etcetera) that have always, since their inceptions, acted above the law and insubordinately. The placing of a vehemently anti-torture civilian, Leon Panetta, at the helm of the CIA, and the executive orders to ban present and future tortures, are two examples of the very positive ways he is addressing such festering sores after other presidents, including Democrat Bill Clinton, turned a blind eye to them. (Again, anybody that believes that US officials didn't engage in torture prior to George W. Bush's presidency is also woefully ignorant.)
Washington Post columnist David Ignatius calls Obama’s shift on the release of the torture photos a “Sister Souljah moment,” intended to “upset some liberal supporters” and, in doing so, to have “polished his credentials as a centrist.” Some liberals and progressives clearly buy into that spin and feel personally offended at the thought that they could be mere props in the President’s maneuver. But I don’t observe that that’s what has happened at all. People who talk about "Sister Souljah moments" are merely fighting the last Democratic presidency all over again. They're stuck in a previous century.
To deduce why the President shifted in just a few weeks, we have to look at what has changed over the past month since the administration first said it would release the photos.
I can find only one major factor that has changed that has any relation at all to this dust-up, and it was unearthed this week by Michael Crowley at The New Republic, in a scoop titled, “Obama Breaks With Gates, Cancels Nuke Program.”
The ban on new nuclear weapons is the most historic act, to date, of the Obama presidency, and the national media, punditry and blogospheres have barely touched it. The US government now, for the first time since the Manhattan Project of the 1940s, has a policy of producing no new nuclear arms. To accomplish that, the President overruled his own Defense Secretary and many of the top military brass. And when you make a move like that, as a civilian head of state, you have to take very deliberate steps to make sure that the rank-and-file military soldiers and the mid-level brass will be inoculated from manipulation toward “going rogue” or, as has happened in too many nations, conjuring a military coup d’etat by assassination or other means.
It hasn’t been by happenstance that the young President has personally gone to Langley to address and praise employees of the CIA, and to the FBI building to do the same there, and, of course, he's gone multiple times to the troops of the Armed Forces, always bearing gifts of better pay and health care and benefits and such. It is what must be done to remain strong enough in position as a real commander in chief to be able to buck the military brass on matters as sweeping and important as ending the production of nuclear weapons by the United States.
The flap over the release of 29 photos of torture has bought the President the cover he needed to issue this historic anti-nuclear order, one that will bolster and give credibility to his nuclear non-proliferation negotiations with other countries of the world.
Those that argue that the President should not have shifted positions on the photos – or that similarly argue that he should unleash prosecutors upon members of the previous administration – are essentially asking him to forfeit his ability to do bigger and more important things: like ending the production of nuclear weapons and stopping actual acts of torture from happening under his watch.
Basically, they’re so whipped up in their anal and fundamentalist view of “The Law,” infused by their own bloodlust for revenge and scapegoating that poses as “justice,” with an added dose of pornographic interest in the snuff photographs, that they are blinded to the bigger chess game going on right now between the White House on one end, and the Pentagon and law enforcement agencies on the other.
Me? I’d trade having no new nuclear weapons for a delay in seeing 29 photos or even for the pleasure of watching Dick Cheney in handcuffs being escorted into court. I don’t really want to look at either spectacle. Either would be torture for me. And, regarding the photos, although I still believe that those who want to see them should be able to see them, I think that most folks are closer to my distaste for it than to the obsessive fascination by the legal fundamentalists and their illusions about what “The Law” can accomplish.
So, yes, the excuse about protecting US troops from harm is an act of political pandering to those very troops and their brass. But I'm not at all ashamed to say that, toward the gargantuan goals of changing the culture of the Armed Forces, I'm not partiuclarly bothered by a little duplicity or a less than honest public excuse for actions that a more accurate public explanation would only serve to undermine.
The real task at hand is to evolve American society – and with it, military and law enforcement culture - to change in ways that “The Law” will never be able to touch. That’s what I observe that the President is, step by step, doing. And the legal fundamentalists who fail to consider that larger context are going to continue to be upset, again and again, until they open their eyes to the bigger chess game going on between the new President and the institutions of defense and law enforcement, the only steps that can ever accomplish a permanent ban on torture and more.