If you’re really old, as some of us are, you might remember something that predated Monty Python – Beyond the Fringe, a British comedy revue written and performed by Peter Cook, Dudley Moore, Alan Bennett, and Jonathan Miller. Most remember Dudley Moore from the movie 10 (1979) and Arthur (1981, and its sequel), or know him as writer, composer, and pianist, or the guy who spent his last years down in Venice Beach, running his fancy restaurant, “72 Market Street,” and sitting in at the piano now and then – or as the lucky bloke who was married to Tuesday Weld for a time.
But some of us remember Beyond the Fringe – it played in London’s West End and then on Broadway in the early sixties. It was the start of the worldwide craze for offbeat British humor, and led to Monty Python. And one of the best skits was “Take a Pew” – Alan Bennett as falsetto-voiced vicar doing what all hapless ministers do, taking a text from the Bible for his sermon and speaking on its implications. It’s a standard thing – “The text for this Sunday’s mediation is from…”
Bennett’s vicar is befuddled and distracted, and chooses Genesis 27:11 – “But my brother Esau is a hairy man, and I am a smooth man.” He keeps repeating that, the audience laughing louder each time, and riffing on it – “Life is like a tin of sardines with all of us looking for the key; some of us think we have found that key, so we open the tin and partake of the contents. But there is always a bit in the corner that you can’t get at. Is there a little bit in your life that you can’t get at? I know there is in mine.”
It’s every dull sermon you’ve ever endured, sitting quietly in the pew, caught between exquisite boredom, mounting frustration, and then an urge to giggle – which you know you cannot do. You can find this now on DVD – or you can just listen to a John McCain speech. It’s the same sort of thing – he has his text, keeps repeating it, and he grins his rictus grin (from the Latin rictus, “the open mouth,” from ringi, “to show the teeth”). It’s unsettling, and not very funny, until Jon Stewart or the like runs it all in an endless loop. Every sentence begins, “My friends…” – you cringe, and some of us old-timers are reminded of Alan Bennett’s vicar. There’s something oddly detached here, in the Church of the Republican Right. Everything is self-referential. It’s an echo-chamber that long ago excluded the outside world, the reality many of us know. McCain has become the befuddled, elderly vicar. Sooner or later he will end up saying those words – “But my brother Esau is a hairy man, and I am a smooth man.” What else can he say about Obama?
But the text for this particular mediation is not from Genesis. It’s from Slate, where Dahlia Lithwick offers Goodwill Hunting – on “authorizing torture with the very best of intentions.” She rightly lays into one of the major tenets of the Church of the Republican Right – the article of faith that torture is the right and proper thing to do, that it is both patriotic and somehow moral. That seems to be what is being discussed at the current hearings, and Lithwick doesn’t like the homilies from these vicars:
It isn’t easy to justify torture. It does, after all, violate centuries’ worth of human rights norms and international and domestic law. It has famously been used by the Nazis and Stalin, Saddam Hussein and Kim Il-Sung – not really the kinds of folk we usually strive to emulate.
And she cites Darius Rejali in his Torture and Democracy, noting torture just doesn’t work, “at least not as a means of extracting useful information.” She puts it this way – “It doesn’t work because, among other things, torture leads to false confessions, because interrogators are not skilled at detecting false confessions, and because tortured prisoners are inclined to misremember and misstate what information they do know.”
And this puzzles her:
You would think that having decided to permit torture, in the face of all these legal, moral, and practical objections, those members of the Bush administration who did so could assemble a coherent defense: We tortured because it works; we tortured because nothing else worked better. We tortured because after careful consideration, it was worth the moral price we paid. But as Congress begins the painful process of tracing the origins of the government’s abusive interrogation program, its members are now confronted by the last refuge of torturers everywhere: We tortured with the very best of intentions.
That’s what it all comes down to – all these folks saying they meant well. The road to hell is paved with… no, no need to say that.
Lithwick covers the Bush administration officials who “offered up the hazy recollections, circuitous chains of command, and the passing of the buck that are the hallmarks of any such investigation.” But she saves her wrath for the Senate testimony of William J. Haynes II, former general counsel of the Department of Defense:
If suspending the Geneva Conventions, then reverse-engineering torture-resisting techniques taught at the military’s Survival, Evasion, Resistance, and Escape School for use against prisoners had worked so well in the summer of 2002, you might think a Jack Nicholson moment would have been nigh this week. You might imagine someone brave would leap to his feet before the Senate committee and holler, “Yes, I walked on the dark side, and it saved you all!” But nobody seemed willing to explain or justify the momentous decision to violate the legal ban on torture. What we heard instead was that desperate times called for desperate measures, and thus any old desperate measure would do.
Hayes said you have to remember what it was like back in the Summer of ’02 – things were different then – “There was a limited amount of time and a high degree of urgency.” Everyone expected the coming September 11 would be just like the year before. As she notes – “The implication is that he’d have tried anything in that climate and that anything he’d tried would somehow have been justified.”
And she is not impressed with this from the Wall Street Journal’s editors, “excoriating congressional Democrats for persecuting noble men who authorized the torture of Khalid Sheikh Mohammed and ‘other murderers’ for the good of us all.” We are told that those men acted in good faith, and the Democrats did, in fact, but into this – “When the threat seemed imminent after 9/11, Democrats were only too happy to keep quiet and let the Bush administration and CIA do whatever it took to prevent another attack.”
Here’s her summary of the Wall Street Journal item – “Desperate times. Desperate measures. Case closed.”
And she cites something many of us missed, a speech delivered the previous month at Boston College by Attorney General Michael Mukasey. He said Americans who seek answers on just how the Bush torture policy came about are “hostile and unforgiving.” He talked about the “difficulty and novelty” of the legal questions faced by government lawyers in the aftermath of 9/11, when everyone was upset and confused. Lithwick says Mukasey suggested “it was enough that the questions were tough and that these government lawyers had acted ‘in good faith.’” And we should have faith in them, one supposes.
But they weren’t that tough. And at Tuesday’s hearing, Republican Senetor Lindsey Graham – who she notes is a lawyer by training – said that legal reasoning supporting the abusive interrogation program was “bizarre.” Lawyers don’t say that sort of thing often. In fact he said that the rationale for these torture techniques would go down in history – “as some of the most irresponsible, shortsighted legal advice” ever offered. But then he said it was okay. All these guys “acted with the country’s best interests at heart.” What are you going to do?
But torture is illegal. Lithwick notes that is clear. She refers us to Salon’s Mark Benjamin with a timeline of the torture program:
As early as November of 2002, “alarmed military officials from all four services raised questions about the legality and effectiveness of the techniques under consideration.” The Air Force cited “serious concerns regarding the legality” of the techniques. The chief of the Army’s international law division said some of the techniques “cross the line of ‘humane’ treatment” and “may violate the torture statute.” The Navy called for further legal review. The Marine Corps wrote that the techniques “arguably violate federal law.”
And she cites Marty Lederman explaining that Haynes either ignored all of these urgent warnings – making him “the least responsible and least competent attorney in the history of the Executive Branch,” – or he “simply relied on advice he liked better from the White House’s Office of Legal Counsel, insisting that the president had the constitutional power to ignore the anti-torture laws.”
She cites Philippe Sands explaining “if the latter is true, the Bush administration is in trouble” because “acknowledging any connection between his actions and the Department of Justice torture memos destroys the administration’s claim that decision-making was bottom up, not top down.”
Here’s Lithwick’s plea:
If we manage to erase one hideously bad idea from our collective memories of the law in the war on terror, please, please let it be this one: Legal questions are neither “hard,” nor “novel,” nor “open” merely because someone at the White House didn’t like the legal answer that followed them. Easy questions don’t morph into tough ones just because you can find some guy willing to argue the other side. And if – as both Sands and Lederman have observed – Haynes and his colleagues shut down efforts by Jane Dalton, the legal adviser to the chairman of the Joint Chiefs of Staff, to review the techniques, then we truly are witnessing something astonishing: Haynes turned an easy legal question into a hard one by avoiding it altogether.
And a question:
Is it enough to say in hindsight that the men who knowingly gutted the American anti-torture policy were genuinely terrified of the next attack, genuinely bending to intense White House pressure, or genuinely behaving in “good faith?” I suspect they were genuinely all of the above. Are we prepared to commit ourselves to a legal regime – particularly in times of great national fear and uncertainty – in which the good faith of those who act, and act in secret, is all that matters?
The question answers itself.
Virtually everyone who has studied the question of torture agrees that the reason it doesn’t work is that people subjected to extreme pressure and fear tend to make extremely bad decisions. The same can now be said of torturers. They made terrible decisions under horrible circumstances, and the mere fact that it was a time of crisis appears to be its own argument for exonerating them. When the war on terror began, it was considered unpatriotic to accuse government actors of breaking the law. Apparently long after it ends, it will be unpatriotic to suggest that there be legal consequences for doing so.
Oh, there will be legal consequences, but as Scott Horton notes, probably not in America:
In the past two years, I have spoken with two investigating magistrates in two different European nations, both pro-Iraq war NATO allies. Both were assembling war crimes charges against a small group of Bush administration officials. “You can rest assured that no charges will be brought before January 20, 2009,” one told me.
And after that? “It depends. We don’t expect extradition. But if one of the targets lands on our territory or on the territory of one of our cooperating jurisdictions, then we’ll be prepared to act.”
Oh my – that could be interesting.
See Larry Wilkerson, Colin Powell’s former chief of staff, on the critical memo that was signed allowing American interrogators to do anything to prisoners short of death or loss of a major organ:
As I compiled my dossier for Secretary Powell, as I did further research, and as my views grew firmer and firmer, I needed frequently to reread that memo. I needed to balance, in my own mind, the overwhelming evidence that my own government had sanctioned abuse and torture which, at its worst, had led to the murder of 25 detainees in a total of at least a 100 detainee deaths. Death, Mr. Chairman, seems to me to be the ultimate torture, indisputable and final. We had murdered 25 or more people in detention; that was the clear low point of the evidence.
Andrew Sullivan comments:
And all this was done not in the chaos of a battlefield or even by rogue units or POW camps. It was not done in a war with anything like as many soldiers and battles as World War II. It was done in a closely managed war by a professional military and intelligence service in every theater of combat as a concerted policy to get more intelligence about Jihadist terror and the Iraq insurgency. It was authorized directly in the chain of command by the president, who knowingly broke the law and hired lawyers to tell him he hadn’t. No clever argumentation that “only” 270 prisoners remain at Gitmo can gainsay that. And it is not, by the way, evidence against the fact that this administration seized countless innocents and tortured them to say that they eventually released most of them. It is no consolation to the torture victims at Abu Ghraib that they were eventually set free and their innocence confirmed. Those are the standards of benign dictatorships, not democracies.
Now, you could argue that the administration, after initial understandable over-reach, has tried to set things right. But you would be wrong.
They didn’t try to set things right:
They still refuse to take responsibility for torture and abuse and murder on their watch; and the CSRTs they eventually came up with have been revealed as kangaroo courts in which acquittals are deemed out of bounds and in which countless military lawyers have cried foul. It would be great if we had had a chance to set up clear guidelines in advance, with Congressional support, to give prisoners Geneva protections and non-habeas but robust military trials in what is, as everyone concedes, a very challenging conflict. But this president decided against that, to ignore the advice from the professionals and from the military lawyers, and to do it his own way, with appalling results. Once this record has been compiled and the indecency of Bush’s “new kind of war” revealed, it seems to me that no Supreme Court that gives a damn about the Constitution or the ancient traditions of Anglo-American justice or humane warfare would give the benefit of the doubt to a president like this one. Not if the word “court” and “justice” are to be deemed within the same universe.
And there were those we grabbed by mistake:
Now of course it may be true that the administration would, in an ideal world, have preferred that every person they seized was actually guilty; and that every person they tortured gave up accurate information. Police states would love it if this were true as well. But the point is that this cannot happen and has never happened in the real world – and recognizing this fact is a core principle of Western civilization. If you suspend the Geneva Conventions, give the green light to anything that will get intelligence, round up thousands all over the globe with reckless disregard for guilt or innocence, you are effectively and knowingly issuing orders to seize innocent people and torture them.
Any president who decides to do that and then says it was not his intention to do that is a fraud or a fool. It matters not a whit what fantasy the president had cooked up in his own mind about what he was doing. This is what he was doing.
So do you stand up to the sadistic, shallow frat-boy and the elderly bumbling vicar who would like to follow him and say, well, this is nonsense? The vicar drones on in his high falsetto.