Motley Moose – Archive

When a genuine democracy acts in the world it does so in the name of its citizens, especially when the preamble to its Constitution begins “We the people…,”  basically meaning all of us.  This is the foundation of our rights and also our responsibilities, not only as citizens of our own fair republic but as a people among the nations of the world.  And our values are fairly judged, domestically and abroad, by the intentions and outcomes of those actions.

The heavily redacted report of the Office of Professional Responsibility of the Department of Justice, Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of “Enhanced Interrogation Techniques” on Suspected Terrorists, published in July of 2009, weighs heavily on the scales of judgement of American moral ‘values’ in the modern world.  This report originally recommended that Jay Bybee, a federal judge on the United States Court of Appeals for the Ninth Circuit, and John Yoo, formerly with the Office of Legal Counsel, should face ‘disciplinary action’ for professional misconduct regarding flawed legal opinions they provided in support of the Bush administration’s extrajudicial authorisation of torture in their prosecution of the “war on terror.”  But it isn’t going to happen.

What is at stake for us as a nation?  From the perspective of history, perhaps quite a bit:

Seriously, this is a document that informed Americans should be familiar with, as a basis for any future discussion about the costs and consequences of a “global war on terror” and about the maintenance of American “values” in the world.

Through American history, there have been episodes of brutality and abuse that, in hindsight, span a very wide range of moral acceptability. There is no way to “understand” lynchings that makes them other than abominations. But – to use the extreme case – America’s use of the atomic bomb in Hiroshima and Nagasaki will always be the subject of first-order moral debate, about whether any “larger good” could justify the immediate suffering, the decades-long aftereffects, and the crossing of the “first use” frontier that this decision represented.

My point now is not to go through the A-bomb debate. It is to say that anyone who is serious in endorsing the A-bomb decision has to have fully faced the consequences. This is why John Hersey’s Hiroshima was requisite basic knowledge for anyone arguing for or against the use of the bomb. The OPR report is essentially this era’s Hiroshima. As Hersey’s book does, it makes us confront what was done in our name – “our” meaning the citizens of the United States.

If you want to argue that “whatever” happened in the “war on terror” was necessary because of the magnitude and novelty of the threat, then you had better be willing to face what the “whatever” entailed. Which is what this report brings out. And if you believe – as I do, and have argued through the years – that what happened included excessive, abusive, lawless, immoral, and self-defeating acts done wrongly in the name of American “security,” then this is a basic text as well.

James Fallows – The OPR Report: This Era’s ‘Hiroshima’ The Atlantic 21 Feb 10

So what have we done about this?  We seem determined to sweep the crumbs of our moral dilemma under the carpet.

The assessments of this extensive and controversial report have been ‘downgraded’ before it was even released:

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors-Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor-violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources.

Michael Isikoff and Daniel Klaidman – Justice Official Clears Bush Lawyers in Torture Memo Probe Newsweek 29 Jan 10

Very unpromising.  We seem inclined to frame this as a legal indiscretion on the part of a handful of rogue legal minds which had no greater implications for us as ‘accomplices before the fact:’

At issue is the question of whether the lawyers acted ethically and competently in writing a series of Justice Department legal opinions from 2002 to 2007.

The opinions permitted the Central Intelligence Agency to use a number of methods that human rights groups and legal experts have condemned as torture, including waterboarding, wall-slamming and shackling for hours in a standing position. The opinions allowed many of these practices to be used repeatedly and in combination.

David Johnston and Scott Shane – Interrogation Memos: Inquiry Suggests No Charges NYT 6 May 09

These ‘legal opinions,’ incidentally, seem to have always been more expedient than sound:

Two of the most controversial sections of the 2002 memo-including one contending that the president, as commander in chief, can override a federal law banning torture-were not in the original draft of the memo, say the sources. But when Michael Chertoff, then-chief of Justice’s criminal division, refused the CIA’s request for a blanket pledge not to prosecute its officers for torture, Yoo met at the White House with David Addington, Dick Cheney’s chief counsel, and then-White House counsel Alberto Gonzales. After that, Yoo inserted a section about the commander in chief’s wartime powers and another saying that agency officers accused of torturing Qaeda suspects could claim they were acting in “self-defense” to prevent future terror attacks, the sources say. Both legal claims have long since been rejected by Justice officials as overly broad and unsupported by legal precedent.

David Johnston and Scott Shane – Interrogation Memos: Inquiry Suggests No Charges NYT 6 May 09

The problem is that as a nation we acted aggressively on these ‘opinions’ and it seems we are unwilling to take reponsibility for them.  The solemn court of history judges these transgressions harshly, especially when there is no sign of contrition on the part of the defendants.