Apr 18th 2009

Expedience and the Torture Amnesty

President Obama's statement on releasing the Bush-era torture memos is a curious and depressing document, but it bears the marks of having been revised with care by the president himself. He takes the occasion to assure the country that a dark age has passed. At the same time he assures the agents of that darkness that they will be exempt from prosecution. The statement betrays an odd mixture of frankness and caution; the appearance of resolution, with a good deal of actual equivocation; a wish to channel the conspicuous truth to one's own cause without revealing a disadvantageous quantity of truth.

The best way to trace the path of the president's thinking is to examine in detail its three central paragraphs; the text, accordingly, is printed below a sentence at a time in boldface; my comment follows in brackets. Why, President Obama asks, was it necessary and useful that he release the torture memos?

First, the interrogation techniques described in these memos have already been widely reported. [If they were not reported, would it then be justifiable to conceal them? If not, why give this as a reason for divulging them?] Second, the previous administration publicly acknowledged portions of the program -- and some of the practices -- associated with these memos. [From the Cheney-Bush administration was extorted a long-delayed and self-serving acknowledgment, only after the truth became undeniable. This shows if anything how far the pressure of investigation and the threat of prosecution may succeed in bringing the truth to light. It does not show, as implied, that people in power have a tendency to tell the truth in any case. Only affected ignorance of the character of the previous administration could convert the timing and nature of its acknowledgment into a reason for the cessation of pressure. On the contrary: awareness of the circumstances of the admission makes an added reason for prosecution.] Third, I have already ended the techniques described in the memos through an Executive Order. [So a father of a delinquent son might tell his neighbors: yes, my son has committed serial acts of vandalism, arson, and assault, but I now have him under restraint; his crimes are in the past, and can safely be forgotten.] Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time. [But if they had not been in the public domain for some time, I might be justified in further denying them.] This could contribute to an inaccurate accounting of the past, and fuel erroneous and inflammatory assumptions about actions taken by the United States. [The projected outcome for the United States is here shown to trump the value of truth. We are free to release or suppress, edit, abridge, and transpose, just as we like, so long as our actions tend to cool inflammatory assumptions. We tell the truth in this case because to do so is the thing most to our advantage.]

The entire paragraph is slippery -- a tissue of equivocations. Outcomes are what it cares about. Justice, as justice, is not on the president's mind. The next paragraph turns from the reasons for releasing the memos to the reasons for protecting those who acted on the memos' permission (though contradictory advice was available, and knowledge of it did in fact inhibit some persons, including members of the FBI, from agreeing to follow the memos into the acts of torture the memos justify). Remember, in reading the sentences below, that President Obama is here describing not the men who refused to obey criminal orders, but those who did obey and who might therefore be suspected of having committed torture.

The men and women of our intelligence community serve courageously on the front lines of a dangerous world. [Yes, and some of them have delivered persons for interrogation into the dark back-allies of a dangerous world, in countries that practice torture. To our shame, we have turned out to be one of those countries.]Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. [Is every single American safer for the false imprisonment and illegal torments suffered by an innocent Arab whose sons and daughters learn of the wrong, and learn who committed it, and swear revenge against the country that did such things? Are we safer for this?] We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs. [A calculated distortion which confuses protection with impunity. Those who stood trial would surely be removed from the active service, and the identities of their associates protected by the court. This argument awards a life-contract to every employee of American intelligence, and life-immunity from prosecution for any crime. What sort of persons will clamor to join a service that affords such license?]

President Obama turns at last to address the country, in a tenor of conciliation of which he is the unrivaled master. Yet the deeper difficulties of genuine conciliation are a fact of moral life that he seems prone to simplify and misjudge. He invites mutual forgiveness before the enemies come into sight of each other's wrongs. He does this in many settings and on many issues. He builds the bridge before he sees the treacherous footing on either side.


This is a time for reflection, not retribution.
[A routine echo of Lincoln's Second Inaugural: this is getting to be a tiresome reflex in our new president. Not every human or historical context can earn the echo. To try individuals who have been accused of criminal acts, in a court of law, is not the same as exacting retribution against a country or region. If the ordinary course of the law is to be described as unseemly retribution, then all justice asks too severe a sacrifice of our self-love. Only in tranquil times, it seems, are we allowed to pursue justice as well as "reflect."] I respect the strong views and emotions that these issues evoke. [False candor. The dispute concerns judgments about justice. Judgments are not views, and judgments are not emotions. To describe one's opponent as "getting too emotional" puts oneself in the position of sober sanity, no matter how weak one's argument.] We have been through a dark and painful chapter in our history. [No. This tells a lie in the shape of a truth. We have been through a dark time. But we are many, and we are differentiated. Some, in that dark time, inflicted pain, and some had it inflicted on them. Some were victims, others were executioners. "We" did not all pass that dark time together, or in the same way; we do not deserve the comfort so lightly offered until we face the atrocities with a candor that approaches the whole truth.] But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. [Nothing will be gained except truth and the dignity of an honest self-reckoning.] Our national greatness is embedded in America's ability to right its course in concert with our core values, and to move forward with confidence. [A sentence for any leader, of any country, at any time. A sentiment for all seasons.] That is why we must resist the forces that divide us, and instead come together on behalf of our common future. [But truth does not divide us, unless we imagine our country to be dedicated to a value higher than truth. What could that value be? Justice, you say? But what is justice without truth?]

In an afterthought, President Obama reminds the nation that, though his conduct in releasing the documents and suppressing prosecutions before the fact may seem to have emptied the laws of their force, this is not a kind of action of which he generally approves. Nor is it a fair clue to what any chief magistrate properly means to do. We love the laws, though we defy them. George W. Bush, when asked on June 10, 2004 whether torture was ever justified, said it this way: "We're a nation of law. We adhere to laws. We have laws on the books. You might look at these laws, and that might provide comfort for you." So, laws on the books are a sort of consolation, in the absence of laws actually obeyed and kept in force. Barack Obama puts it this way:

The United States is a nation of laws. [And a nation in which the men and women who serve courageously as secret agents are not bound by laws.] My administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals. [Except when those ideals conflict with "unity" and the overcoming of collective "pain": these are more important than accurate history or equality under the law.] That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again. [But if a future president reasons as you reason concerning the past, the actions described in the memos will take place again and again.]

The total effect of the release of the torture memos, with the suppression of all prosecutions before consideration of any case and any particular facts, is baffling and self-contradictory. It will be taken by persons with a taste for paradox as evidence of the president's ability to hold two opposed ideas in his mind at once. But his actions and words at this moment are deeply disheartening. They show how a high-sounding construction can be placed on actions whose expediency is clear on their face. There were simpler ways, after all, for the president to admit he cannot afford to alienate the present leadership of the CIA; that the disgraceful practices were in some degree condoned by a group from Congress, in both parties, whom the president would rather not incriminate; that with all the chatter about "taking the gloves off" and the sadism of the popular arts, the spirit of the country itself sank to a dark place in the time of the torture memos. Such an admission would not amount to a reason for surrendering the possibility of prosecutions; but it might begin a process of honest accounting. Nothing of the sort, however, was attempted by President Obama.

It may seem that the worst of the torture amnesty is that by exonerating those who committed illegal acts, it discredits any eventual prosecution of those who gave the orders. The release of agents from the imputation of criminal conduct also implies a redefinition of the acts themselves as not criminal; and if no crime was committed when a person did a thing, no crime was meditated when a person ordered the thing done. Yet the most revealing fact about the president's statement was not its logic of exculpation. It was rather the forgetting, the pressing out of the picture, of certain actors central to the drama.

For we know about these crimes only through the courage of those who dared to speak about them. And they spoke at considerable risk; both moral courage and physical courage were here involved. We know of the deeds of a David Addington or a William J. Haynes III only thanks to the efforts of an Alberto Mora or a Colonel Morris Davis. It should have occurred to President Obama to name these persons as those to whom we Americans owe the largest debt of all. He could have named them as people who by the nature of their deeds can be known and named. They were not secret agents but public exemplars of virtue, in the public life of democracy. The president should have named them, and should have made them the heroes of the day.

Should you wish to publish your own article on the Facts & Arts website, please contact us at info@factsandarts.com.

Browse articles by author

More Current Affairs

Jun 19th 2021
EXTRACT: "Xi Jinping’s call for friendship gives us an opportunity to examine Chinese politics on both the domestic and international stage. On the face of it, it suggests the possibility of rapprochement between the rich liberal democracies represented by the G7 and the authoritarian Chinese state. However, despite appearances of a call for a closer relationship, there is more than one way of being friends – and Xi’s idea might be somewhat different to what many in countries attending the G7 might expect."
Jun 12th 2021
EXTRACT: "China’s recently published census, showing that its population has almost stopped growing, brought warnings of severe problems for the country. “Such numbers make grim reading for the party,” reported The Economist. This “could have a disastrous impact on the country,” wrote Huang Wenzheng, a fellow at the Center for China and Globalization in Beijing, in the Financial Times. But a comment posted on China’s Weibo was more insightful. “The declining fertility rate actually reflects the progress in the thinking of Chinese people – women are no longer a fertility tool.” "
Jun 12th 2021
EXTRACT: " I remember recounting fellow leaders of the story of a Rwanda schoolboy caught up in the genocide of the 1990s and now immortalized in the Kigali Genocide Memorial museum, where, in a section devoted to children, one can find his photograph and a plaque that reads: ----- David, age 11 ...... Ambition: to be a doctor ...... Favorite sport: football ...... Favorite hobby: making people laugh ...... Death: by mutilation ...... Last words: the UN are coming to save us ----- In his idealism and innocence, David believed the international community would save him and his mother. We didn’t. "
Jun 8th 2021
EXTRACT: " While many conservative Republicans opposed Trump and saw that he posed a danger to their party and democracy itself, they were hesitant to buck the mass movement they had created, fearing that it would turn against them. Some of these same conservatives assumed that with Trump's defeat, the horror of January 6th, and the former president's banishment from social media, the time had come to restore sanity to their party. But the GOP leadership’s continued cowering in the face of what they now call "Trump's base" has caused them to circle the wagons and purge their ranks of those who call for sanity. "
May 26th 2021
Editor's Note: This article is about the Federal Reserve, inflation in the 1970's, and possible similarities to today.
May 25th 2021
EXTRACT: "Netanyahu claims to be acting in the name of the Jewish people. He certainly is not. Many Jews around the world, including me, despise Netanyahu’s racist politics. As an American, I am also deeply troubled by the US government’s knee-jerk support of Israel. Fortunately, I am not alone in this view. A growing number of Democratic Congressmen, Jews and non-Jews alike, have called on the United States to stop supporting Israel’s lawlessness. The truth is that the US government’s uncritical support for Israel has come to depend more on evangelical Christians, such as former US Secretary of State Michael Pompeo, than on American Jews, who are deeply divided by Netanyahu’s actions. And the evangelicals’ real interest in Zionism is not Jews’ security, but Armageddon, the end of the world, which they believe will come only when all Jews are in Israel."
May 18th 2021
EXTRACT: "This period in US history could go down as the moment when America’s democratic system for electing a president – the most consequential duty of US citizens – was broken, perhaps for good."
May 16th 2021
EXTRACT: "While reading Human Rights Watch’s (HRW) monumental report “A Threshold Crossed,” I felt a range of emotions. It also left me with one big question. I was deeply impressed by the report’s rigorous scholarship. At the same time, it brought to the surface feelings of anger and profound sadness. It’s an extraordinarily complete study detailing not only the many ways Israel has violated a broad range of Palestinian human rights, but the ideology of racial superiority and entitlement that Israel has used to justify its repression." ..... "My advice to both Israel’s defenders and weak-kneed liberals is​, “Read the damn report.” "
May 16th 2021
EXTRACTS: .... "He transformed a transitioning market economy into a stable statist project that rests on an alliance of his inner circle," ..... "He transformed Russia from a respected member of the international community into a rogue state" .... ". He energized NATO by providing it with the adversary it lacked after the end of the cold war," ..... "He befriended hopelessly corrupt, dysfunctional, and unstable dictatorships..." ..... "He forged a quasi-alliance with China, thereby enhancing Russia’s dependence on the one country that might have reason to appropriate those Russian territories inhabited by Chinese."
May 15th 2021
EXTRACT: "On the face of it, the latest escalation of violence is following the template of all inter-ethnic wars. Muslims observing Ramadan shouted nationalist slogans and clashed with Israeli right-wing groups chanting “Death to the Arabs.” The Israelis haughtily marched with their national flag on Jerusalem Day, marking Israel’s capture in 1967 of East Jerusalem and the Temple Mount, the site of the biblical Second Temple, and of Al-Aqsa, completed in the year 705. Battles in and around the Al-Aqsa compound erupted, with worshipers inside throwing stones at the Israeli police, who responded by firing rubber-tipped bullets and other projectiles, wounding hundreds."
May 13th 2021
"Regardless of how the current and future violent conflicts between Israel and the Palestinians in Jerusalem will end, there will be no Israeli-Palestinian peace unless East Jerusalem becomes the capital of a Palestinian state while the city remains united."
May 7th 2021
EXTRACT: " Would the United States be prepared to risk a catastrophic war with the People’s Republic of China to protect the Republic of China, better known as Taiwan? "
May 5th 2021
EXTRACT: "Human history, ancient and contemporary, is replete with instances of genocide – that is, the effort to eradicate a people, erase their history, denigrate their culture, and destroy their physical presence. Many of these atrocities have been recognized by the victims and other nations who support them. But, with the notable exception of the German acknowledgment of the Holocaust, rarely have the perpetrators of these crimes accepted responsibility and offer recompense "
May 2nd 2021
EXTRACT: "The best way to defend liberal democracy is to practice it at home and abroad with the “courage and self-confidence” that Kennan touted at the dawn of the Cold War. This is also the best way to ensure the survival of our own conception of human freedom. And survive it will."
May 1st 2021
EXTRACT: "Ann Arbor (Informed Comment) – Sammy Roth at the LA Times/ Boiling Point Newsletter reports that California’s main power grid was powered for several hours last Saturday by 90% renewables. For just four seconds that day, the grid, which covers 4/5s of the state, reached 94.5% generation by green energy. California is the world’s fifth largest economy. The main grid does not cover Los Angeles County. On the other hand, these figures do not include the electricity generated by the Diablo Canyon nuclear plant, which is not counted as renewable but which is also very low-carbon."
Apr 23rd 2021
EXTRACT: "It is no accident that there has been an economic divergence in Central and Eastern Europe. Those countries that have joined the European Union have improved their economic governance, and GDP has begun to converge with Western Europe. Between 2014 and 2019, Hungary, Poland, and Romania grew at an annual average rate of 3.9%, 4.1%, and 4.7%, respectively. Meanwhile, Belarus and Ukraine experienced minimal growth during this period, and Russia’s economy expanded at an average annual rate of just 0.7%. Though Russia had a higher per capita GDP (in terms of purchasing power parity) than Croatia, Poland, Romania, and Turkey as recently as 2009, all of these countries have since overtaken it. Russians today are shocked to learn that they are worse off than Romanians and Turks. Among EU member states, only Bulgaria is still poorer than Russia. With its close proximity to the EU single market, Russia could have had higher growth if it had pursued sound economic policies. Instead,..... "
Apr 22nd 2021
EXTRACT: "As far as anyone can tell, the US military is not on the verge of an internal breakdown, let alone primed to stage a coup d’état. But few predicted anything like the US Capitol riot before protesters equipped with body armor, stun guns, and zip-ties breached the building. Before the US is blindsided again, its leaders must act resolutely to root out extremism in the military."
Apr 17th 2021
EXTRACT: "The new report on 2020 by the International Renewable Energy Agency reveals that the world’s renewable energy generation capacity increased by an astonishing 10.3% in 2020 despite the global economic slowdown during the coronavirus pandemic." .... "In 2020, the global net increase in renewables was 261 gigawatts (GW). That is the nameplate capacity of some 300 nuclear power plants! There are actually only 440 nuclear power plants in the whole world, with a generation capacity of 390 gigwatts. So let’s just underline this point. The world put in 2/3s as much renewable energy in one year as is produced by all the existing nuclear plants!"
Apr 16th 2021
EXTRACT: "When we examined the development of nations worldwide since 1820, we found that among rich Western countries like the United States, the Netherlands and France, improvements in income, education, safety and health tracked or even outpaced rising gross domestic product for over a century. But in the 1950s, even as economic growth accelerated after World War II, well-being in these countries lagged.
Apr 11th 2021
EXTRACT: "Some presidents indulge in the “Mount Rushmore syndrome” making an obvious effort to achieve greatness. Normally soft-spoken and apparently modest Biden is making his own bid for immortality."