Pruning Shears

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Dawn Johnsen is taking over the Office of Legal Counsel and she is on record that OLC must be willing to “say no” to the president.  That is good, and her record in this respect is encouraging as well.  On the other hand, Alberto Gonzales said in his confirmation hearings that “I am deeply committed to the rule of law. I have a deep and abiding commitment to the fundamental American principle that we are a nation of laws and not of men.”  How did that turn out?  Similarly, there was a spasm of excitement this week about president-elect Obama’s statement this week: “Under my administration, the United States does not torture.”  Does no one remember that our current president claimed “We do not torture” (more than once) as well?  It is a bit unsettling to see some on the left accept the same kind of advance proclamation of fidelity to the rule of law and firm assurance from those at the top, which they were (properly) deeply skeptical of in the current administration, at face value for the upcoming one.

As detainees are released they are beginning to tell their stories.  I cannot improve upon John Cole: “We have lost our damned minds.”  That is the best available summary of our approach to terrorism.

Guantánamo was born out of contempt for due process.  It is the product of a White House culture that is contemptuous of the Constitution, not of wartime necessity.  So it should not be surprising that the lawless nature of its very existence has been repeated on a larger scale in Afghanistan and orders of magnitude bigger in Iraq.  It’s hard to believe you are a law unto yourself on a small patch of an island but bound by it everywhere else.  God complexes are hard to compartmentalize.

The geniuses behind the unitary executive theory don’t appear to know or care that its principles don’t seem to survive contact with the courts.  Dick Cheney is probably not bothered by this; he just needed it to justify him doing whatever he wanted.  It served that purpose, he’s done with it now, and he may well be indifferent to its fate going forward.  But for the people who really believe this garbage in principle, does it give them pause is slowly, piece by piece, being dismantled?  Does it bother them that their signature cause of the last eight years - and presumably their reputations as well - are being entirely discredited?

UNPACKING JANE: Mayer writes of Alberto J. Mora, General Counsel of the Navy, on page 219.  He learns that abusive treatment is not an aberration originating well down the chain of command, but directed from the top:

“I was under the impression that the interrogation activities described would be unlawful and unworthy of the military services,” Mora said.  “I was appalled by the whole thing.  It was clearly abusive and assaultive.  It was also clear it would get worse.  It could lead to creep, where if the violence didn’t work well, they would double it,” as psychological studies like the Zimbardo experiment at Stanford, in which students guarding mock prisoners became abusive, had shown.  In Mora’s view, the state-sanctioned cruelty was also “clearly contrary to everything we were ever taught about American values…If cruelty is no longer declared unlawful, but instead applied as a matter of policy, it alters the fundamental relationship of man to government.  It destroys the whole notion of individual rights.  The Constitution recognizes that man has an inherent right, not bestowed by the state or laws, to personal dignity, including the right to be free of cruelty.  It applies to all human beings, not just in America - even those designated as ‘unlawful enemy combatants.’  If you make this exception, the whole Constitution crumbles.  It’s a transformative issue.”

Please keep this in mind when someone tries to use the argument that the Phoenix Program in Vietnam is just one example of other times when America has engaged in cruelty and torture of prisoners.  Prior to this it was still unlawful, and if word of it leaked there was an expectation that prosecutions if not convictions would follow.  What has transformed us in the current case is the assertion that all of it is legal.  This is what is different now.