Sunday, September 6, 2009


A couple of years ago, I debated Robert Alt, ostensibly on the subject of warrantless wiretapping, in a forum put on by the Federalist Society at The Ohio State University Moritz School of Law. (They care about the whole name, especially that initial "The," which serves to distinguish OSU from all those other Ohio State Univerisities - wait, there are no others.) In fact, what we ended up debating (these things have a tendency to take on a life and direction of their own) was the foreign policy powers of the President.

Alt's position (which I'm oversimplifying here and which I'm certain he would say I'm misrepresenting, though he didn't say that at the time; he just said he was right and I was wrong), which roughly inheres in and follows from the idea of the unitary executive was something like this:
The President has plenary power under Article II of the Constitution to conduct foreign policy. Any limitation on that power, by Congress or the courts, violates the Constitution. Whatever the President does in the exercise of that power is legal because there can be no legal check on its exercise. The power ought, and certainly can, be exercised in secret. There is no right to oversight of what the President does in the exercise of that power. Not by Congress, the courts, or the public. The only Constitutional remedies for abuse are impeachment or defeat at the polls.
If you look at what he said carefully, it comes to this:
If we approve of the things the President does in secret and about which we don't know, we should reelect him. If we disapprove of the President's secret actions about which we don't know, we should remove him from office. Either way, it is constitutionally proper that we remain ignorant of the facts on which we should base that decision.
As I said at the time, I think that's nonsense. Alt, a distinguished scholar and professor and government insider who has a CV I can't possibly match for relevant credentials as a scholar of and expert on Constitutional Law and foreign policy, thought I was as full of shit as I thought, and continue to think, he was.

The debate was friendly and colleagial. A good time was had by all. Then we had a bit of pizza and went our separate ways, each convinced, I expect, that the other is both misguided and a fool.

Despite Alt and Dick Cheney and John Yoo and Gonzo and Shrub and the rest of them, it really is untenable to maintain that waterboarding isn't torture or that torture is legal when the President authorizes it.

This isn't news.

It's also not, ultimately, news to learn that torture doesn't work. And despite Cheney's public insistence that it does (now that he's emerged from his undisclosed location he's doing his best to be everywhere), the newly public record reveals what many of knew to begin with. Torture is worthless. Doubt it? Read this important piece by former FBI agent Ali H. Soufan, entitled "What Torture Never Told Us," in today's NY Times.

The "Us" in that title is real, since Soufan reveals how the FBI (and hence the government) got valuable intelligence from Khalid Shaikh Mohammed and other key Al Queda figures through traditional interrogation techniques. More, he explains that the flow of information stopped when they started torturing. Much of the evidence comes from the recently released CIA inspector general's report and other CIA memos on intelligence and "enhanced interrogations." Soufan concludes this way.
The inspector general's report was written precisely because many of the C.I.A. operatives complained about what they were being ordered to do. The inspecgtor general then conducted an internal audit of the entiree program. In his report, he questions the effectiveness of the harsh techniques that were authorized. And he slams the use of "unauthorized, improvised, inhumane and undocumented detention and interrogation techniques." This is probably why the enhanced interrogation program was shelved in 2005.
Meanwhile, the professionals in the field are relieved that an ineffective, unreliable, unnecessary and destructive program - one that may have given Al Qaeda a second wind and damaged our country's reputation - is finished.
So what now?

It's not a new question, and the administration and Congress and the public and Dick Cheney and activist organizations have been wrangling about it for some time. Roughly, here are the options:
  • Do nothing because everything that was done was right and proper and saved us from more 9/11esque attacks.
  • Do nothing and hope that it all goes away (the ostrich approach).
  • Do nothing because it would cost political capital to do anything and neither the administration nor Congress has any political capital, having dithered away what they once had.
  • Investigate with the promise that there will be no consequences should it happen that there were misdeeds.
  • Investigate with the promise that there will be no consequences for low-level folks who were just following orders because really, they're just poor schumck's who didn't know better, but that those who authorized and approved criminal behavior might be held accountable.
  • Investigate with the promise that there will be no consequences for high-level folks who authorized and approved criminal behavior because, well, because they're high-level folks, but stick it to any poor schmuck who just didn't know better.
  • Some sort of truth and reconciliation commission that will give a pass to anyone who fesses up and seems honestly apologetic.
  • Prosecute the hell out of everyone or someone.
Ultimately, the choice is political.

But if we're serious about the rule of law, that hazy fuzzy thing that means equal justice and that nobody's above the law and that government officials, especially, should be accountable for their actions and that what we do is the measure of who we are and how we should be perceived, then there's really no choice.

Except, as I said, the choice is ultimately political.

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