Balkinization: To Our Great Shame

To Our Great Shame

The hearings on the nomination of Alberto Gonzales to be Attorney General of the United States have begun. Will no one in Congress say what should be obvious? That Gonzales has brought shame on our country by trying to devise legal strategies and arguments to circumvent laws against torture and to define away the abuse of prisoners? That such a man should not be the nation's chief law enforcement officer? This is not mere cronyism or financial corruption we are talking about. It is torture.

How can we tell the other countries of the world that we are genuinely interested in democracy or in human rights? Who will listen to us when our own soldiers are captured and abused?

The public has so far been largely silent about this great injury to America's image around the world. The feckless Democrats in Congress, humbled by their recent electoral loss, lack the courage to denounce what should be denounced, or to act on the courage of their convictions. And the party that runs the country is all too happy to sweep the problem under the rug. But the rest of the world is watching. And they will not soon forget. For years to come we will hear about America's mistreatment of prisoners, and how we failed to punish the architects of that policy, indeed, how we elevated and honored them, even after the sorry details were disclosed to a public unwilling to face them.

Almost a year ago, President Bush stood before the United States Chamber of Commerce and waxed eloquent about the importance of bringing human rights, the rule of law and democracy to the countries of the Middle East. He denounced the "[d]ictators in Iraq and Syria [who] promised the restoration of national honor, a return to ancient glories, [but who] left instead a legacy of torture, oppression, misery, and ruin." And he spoke eloquently of the key ingredients of successful societies throughout history, societies, he explained, who "limit the power of the state and the power of the military," who "protect freedom with the consistent and impartial rule of law, instead of selectively applying the law to punish political opponents," who "prohibit and punish official corruption," and who "instead of directing hatred and resentment against others . . . appeal to the hopes of their own people."

In the past months we have learned that our country systematically tortured and abused prisoners. It was not, we have learned, the work of a few bad apples, but a widespread practice. At the same time, lawyers for the Administration spent countless hours crafting legal mystifications and specious arguments to justify abusive prisoner interrogations by the CIA and military forces, and to explain why the President of the United States, who swears an oath to make sure that the laws be faithfully executed, has no legal obligations whatsoever to abstain from torturing people.

The question I want to know is this: Is America still a successful society?

Posted 5:07 PM by JB [link]

Comments:

Thomas, the criticisms of the work of the OLC and the DOD have not been simply that they justified immoral things although that the legal arguments were correct. The criticism, both from myself and a very large number of legal scholars, is that this work is bad lawyering and that it twists precedents and misinterprets laws, treaties, and the U.S. Constitution. For example, here is my discussion back in July of 2004, of Youngstown and its relationship to the OLC torture memo:
http://balkin.blogspot.com/2004/07/youngstown-and-presidents-power-to.html
You should also look at the discussions in Michael Froomkin's blog discourse.net in the Spring of 2004; Michael goes through the statutory and treaty claims in great detail. When he (or I) conclude that the work of these lawyers is shameful, you may assume that we are not simply criticizing people who are otherwise following the law. We are saying that bad lawyers twist the law improperly to achieve unjust results.

As for the issue of systematic torture and abuse, you should understand that the reason why the OLC and the DOD twisted the law was to jusftify what the CIA was already doing and planned to continue doing. See this Newsweek story from last spring:
http://www.msnbc.msn.com/id/5197853/site/newsweek/
and this story from December:
http://www.msnbc.msn.com/id/6733213/site/newsweek/

In fact, as Marty Lederman has pointed out to me, the new OLC memo, which has widely been touted as repudiating the old one, is still carefully written to give the CIA broad lattitude to engage in "inhumane" treatment in interrogations that does not rise to the level of a fairly narrow definition of torture in 2340A. I agree with Marty that this conclusion, too, is not justified by existing law.

Obviously, this short blog post cannot repeat everything I've said (or Froomkin and others have said) on the subject for the past year, but there is plenty of material out there on these questions if you are interested in further investigation.

# posted by

JB : 8:24 AM

Great post, I enjoyed reading it.

Adding you to favorites, Ill have to come back and read it again later.

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