Terror, Torture and Tyranny

On March 15, 2009 the former American Vice President, Dick Cheney, launched a very pointed attack on the Obama administration for its abandonment of policies that had been pursued by the Bush-Cheney administration in the course of its "War on Terror." The criticisms, coming less than two months after the inauguration of Barack Obama as President, marked the end of the "Cold Peace" between the former Vice President and the new administration that had prevailed over the transition period following Obama's victory in November 2008. Cheney's remarks followed upon the decision by the Obama administration to close the Guantánamo detention camp and other secret prisons, to ban the use of torture, and to end the use of the term "enemy combatant" to describe the detainees held in Cuba and to treat them in accordance with principles of international law.

Cheney advanced his view on March 15 that the Obama administration was "making some choices that in my mind will raise the risk to the American people of another attack." In his justification of the detention policies adopted by the Bush administration, Cheney asserted that they had been "absolutely essential to the success we enjoy, of being able to collect the intelligence that led us to defeat all further attempts to launch attacks against the United States since 9/11. I think it's a great success story. It was done legally, it was done in accordance with our constitutional practices and principles."

In defense of the Obama administration's decisions, the White House Press Secretary, Robert Gibbs, offered a sarcastic rejoinder to Cheney's criticisms - "Well, I guess Rush Limbaugh was busy, so they trotted out the next most popular member of the Republican cabal..." - in a jab at the intellectual disarray that has overtaken the Republican party after the drubbing it received in the 2008 election. The current White House has assiduously used the bombastic style and incendiary right-wing rhetoric of the radio-talk-show host, Rush Limbaugh, who seeks to influence debate within the Republican Party, to portray the Republican Party as a hostage to extremist currents in American life. It is a campaign that has left the Republican leaders in a quandary since Limbaugh has built a strong following among various Republican constituencies and several of those leaders are wary of appearing to be hostile to Limbaugh. Cheney's appearance on national television may have been designed to show that the traditional party leadership had not been muted either by Obama's popularity or Limbaugh's rhetorical excesses. However, in response to Cheney's remarks, Obama was even more pointed in his repudiation of the former Vice President - "I think that Vice President Cheney has been at the head of a movement whose notion is somehow that we can't reconcile our core values, our Constitution, our belief that we don't torture, with our national security interests. I think he's drawing the wrong lesson from history."

Cheney's criticisms and Obama's response highlighted the stark divide that has emerged in American politics between the Republicans and Democrats. For Cheney and his supporters within the Republican Party, the War on Terror had provided an opportunity to expand the power of the Executive branch at the expense of the other branches of government - the Legislature and the Judiciary. The Bush-Cheney administration had sought to elevate the Presidency to a position that would allow it to escape its accountability to the other branches of the federal government that is a key tenet in the balance of power envisioned by the Constitution. It was also this vision of the unfettered power of the American President that emerged in the rush to war in Iraq - the Bush administration would not be constrained by either the United Nations or by international law and/or international public opinion. The justification of this expansionist vision of Executive authority and governance during the Bush-Cheney era was articulated in a series of legal memoranda prepared by the Office of Legal Counsel in the Department of Justice. These memoranda argued essentially that the attacks on September 11, 2001 required the Executive Branch to undertake all necessary measures to protect the United States, including the expansion of the President's use of military power to confront challenges emanating from within the United States.

Following the attacks upon the United States by Al Qaeda, the Office of Legal Counsel in a memorandum - Authority for Use of Military Force to Combat Terrorist Activities Within the United States - of October 23, 2001 advanced the argument that:

"The text and history of the Constitution, supported by the interpretations of past administrations, the courts, and Congress, show that the President has the independent, non-statutory power to take military actions, domestic as well as foreign, if he determines such action to be necessary to respond to the terrorist attacks upon the United States on September 11, 2001 and before."

It was an extraordinary assertion of the power of the Presidency in American political life and this reading of American constitutional history and law would inform  the workings of the Bush administration until October 6, 2008 when the Office of Legal Counsel, under new leadership, repudiated the 2001 memorandum. The 2008 opinion - Re: October 23, 2001 OLC Opinion Addressing the Domestic Use of Military Force to Combat Terrorist Activities - indicated that:

"...the 10/23/01 Memorandum did not address specific and concrete policy proposals; rather it addressed in general terms the broad contours of hypothetical scenarios involving possible domestic military contingencies that senior policymakers feared might become a reality in the uncertain wake of the catastrophic terrorist attacks of 9/11. Thus, the 10/23/01 Memorandum represents a departure, although perhaps for understandable reasons, from the preferred practice of OLC to render formal opinions only with respect to specific and concrete policy proposals and not to undertake a general survey of a broad area of the law or to address general or amorphous hypothetical scenarios that implicate difficult questions of law.

In effect, in its waning days, the Bush administration's extraordinarily broad conception of Presidential authority was quietly shelved to open the way for the incoming Obama administration to articulate an alternative vision of Presidential authority. The legal opinions of October 2001 and October 2008 were thus bookends of the Bush administration strategy of unilaterally expanding its power both at home and abroad.

The Justice Department's volte-face under the Bush administration followed upon the Republican Party's loss of control over the House of Representatives in 2006 and the rise of an energized Democratic majority and a skilled leader in Nancy Pelosi therein. The administration was confronted by a Democratic party determined to reverse the Republican control over both the executive and legislative branches of government. Further, the Supreme Court's 2008 decision in the case contesting the Bush administration's efforts to prevent Guantanamo detainees from seeking relief in US Courts - Boumedienne et al. v. Bush - had asserted that: To hold that political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say "what the law is." Faced with a House of Congress determined to exercise its oversight over the Executive, and a Supreme Court majority determined to reverse the administration's efforts to usurp the Court's authority and role in constitutional governance, the administration retreated in its final months from its post-9/11 claim to expansive authority.

However, that claim to expansive authority has left a legacy which the Obama administration will have to address. Under the Bush administration, the United States embarked upon the use of torture - with the Department of Justice providing legal justification for such actions - in the detention camps in the "War on Terror" operated by the Department of Defense. The CIA was specifically authorized to engage in the use of "enhanced interrogation techniques" including both mental and physical abuse of detainees. The administration has released the Justice Department documents that reveal both the legal reasoning for and the authorization of torture and which confirm previous reports of the practices used in the camps, including a report from the International Committee of the Red Cross.

The President, Barack Obama, offered the assurance of immunity to the people who had engaged in torture "relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution," but it is unclear whether the policymakers who devised the policies and authored the memoranda approving torture and abuse will enjoy similar immunity. However, Obama's initial position has already shifted towards a willingness to accept prosecution as influential Congressional leaders have indicated their desire to investigate the policies of the Bush administration. Obama's initial stance seemed to be shaped, in part, by his concern to avoid a hugely divisive political battle over the Bush administration's legacy in the War on Terror. In his statement explaining the decision to release the memos on the authorization of torture, Obama said:  ... at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. 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. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.

Obama's preference for "reflection, not retribution" in dealing with the revelations about the torture and abuse of detainees may reflect a pragmatic recognition that the entire Bush administration's record is so badly tainted that it is better to invest his political capital in articulating a new vision of America. To expend such capital in pursuit of investigations and prosecution of Bush era officials would open another chapter in a bitterly divisive issue that - like the My Lai massacre which exposed the callous behaviour of American troops in Vietnam - could poison American politics for another generation and seriously cripple Obama's ability to address the current economic crisis.

However, the release to the public of the memoranda authorizing torture and the efforts to claim extraordinary powers for the President has provided crucial evidence of the profoundly anti-democratic instincts of the Bush administration at its highest levels. Just as important, a prima facie case for the indictment of American government employees has emerged from the evidence of the abuse of detainees detailed in the documents and reports. In light of that evidence, it is clear that there is a growing desire across the political spectrum for a restoration of America's reputation as a society governed by law. For the Bush administration, officials of the CIA and other agencies, and the Republican Party, the "War on Terror" has been a self-inflicted wound and a serious blow to the image of America. The recent attacks on the Obama administration by Dick Cheney have backfired as the release of the memoranda have, in fact, raised fundamental questions about the Bush administration's disregard for the American constitution in the name of "national security" and the memoranda will remain a key statement of its historical legacy. The prosecution of Bush-era officials who facilitated or engaged in detainee abuse may provide one avenue for the refurbishment of America's battered image. Just as important, more profound institutional change is now necessary to ensure a return to accountability in the operations of the American government given the legacy of the Bush administration.

Obama's call for "reflection" suggests that it is perhaps time for the American public to recognize that the emergence of a culture of "permanent" war-preparedness within American life since 1945 constitutes a serious threat to American democracy - both as political theory and as institutions of governance.  The Iraq imbroglio has proven to be a strategic blunder of enormous magnitude but it also demonstrated the way in which a determined administration could manipulate the Congress and launch a foolhardy war which thoughtful citizens recognized would end badly. Of even greater significance was the fact that the most experienced military leader in the Bush Cabinet - Colin Powell - found himself isolated and eventually quiescent as his colleagues fanned the flames of war. Both the Executive and the Legislature demonstrated a serious lack of judgment and the prescient observation by the West Virginia Democratic Senator, Robert Byrd, during a speech on March 19, 2003 on the floor of the US Senate continues to haunt the American body politic six years later: - After war has ended, the United States will have to rebuild much more than the country of Iraq. We will have to rebuild America's image around the globe.

The case this Administration tries to make to justify its fixation with war is tainted by charges of falsified documents and circumstantial evidence. We cannot convince the world of the necessity of this war for one simple reason. This is a war of choice.

Byrd's admonition was rooted in the chastening experience of having previously supported a Democratic President, Lyndon Johnson, who manipulated the Congress to secure passage of the Gulf of Tonkin Resolution to support his plans for a massive military escalation in Vietnam in 1965. As Obama moves ahead with his plans to withdraw American forces from Iraq and to escalate the war in Afghanistan which has already expanded into the frontier regions of Pakistan, he may need to be reminded of Byrd's insight based upon historical experience. In effect, Obama's call for reflection may serve as a point of departure for American citizens to begin a campaign to save America from the miscalculations and hubris of its political and military leadership. Such a campaign would go a long way towards revitalizing citizen participation in American politics and breaking with the culture of war that has been shaped by the enormous expansion of the influence of the "military-industrial" complex against which President Dwight Eisenhower warned in his farewell address in 1961:

In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.

We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.

The Obama administration's decision to release the legal memoranda prepared by the Bush administration's Justice Department has opened the space to redefine the American political order in both domestic politics and foreign policy.  It is perhaps not insignificant that the torture memoranda were released as Obama was heading for the Summit of the Americas hosted by Trinidad and Tobago where Obama announced the American willingness to open a new era in Cuban-American relations. The use of the American military base at Guantanamo for torture of detainees in the War on Terror has been a major embarrassment for American policy in the Western Hemisphere. American criticism of the Cuban government's human rights violations ring hollow when American practices at Guantanamo have constituted flagrant violations of the rights of prisoners of war under the Geneva Convention. Further, Guantanamo serves as a reminder of the American-backed military dictatorships in the region which engaged in torture and other human rights abuses against their own populations during the Cold War.

The release of the memoranda provided a signal that America - by acknowledging its use of torture - is serious about turning a new page in inter-American relations as well as in the treatment of the current detainees. However, it is not clear whether the reluctance to prosecute the perpetrators will provoke doubts among hemispheric leaders about the ability of the administration to adapt to the ideological pluralism that has increasingly shaped inter-American relations. In the 1960s and 1970s, a variety of military regimes in Latin America had used torture to enforce ideological conformity in domestic politics - often with "technical assistance" from the United States. It is a legacy that the Obama administration will have to overcome as it seeks to pursue a strategy of diplomatic and commercial engagement with other hemispheric governments.

In terms of domestic politics, the Obama administration has effectively exposed the excesses of the Bush administration. It is not a decision that will sit well with many people who served within the Bush administration. It would not be surprising if those angered by the exposure of the excesses should begin a campaign of retribution that would seek to damage Obama's effort to secure a second term as President. However, Obama's decision has to be seen in larger historical context - he has effectively offered an alternative vision of Presidential power which seeks to educate and engage the American people. It is a marked departure from the efforts to centralize power within the Executive Branch that defined the Bush administration.

Obama's admonition that torture is neither compatible with core American values, nor should it be seen an instrument of national security, reflects his training as a constitutional lawyer and Cheney's criticisms have helped Obama to emphasize his commitment to working within the constitutional framework of American governance. The effectiveness of Obama's advocacy of deference to the constitution and the validity of his critique of Cheney's views were both anticipated by the Supreme Court  Justice, Hugo Black who wrote the Supreme Court's decision Chambers v. Florida U.S. 227 (1940). Black's opinion was a powerful argument against the use of "enhanced interrogation techniques" by police to extract "confessions" from African Americans in the American South. In Black's view:

We are not impressed by the argument that law enforcement methods such as those under review are necessary to uphold our laws. [n15] The Constitution proscribes [p*241] such lawless means irrespective of the end. And this argument flouts the basic principle that all people must stand on equality before the bar of justice in every American court. Today, as in ages past, we are not without tragic proof that the exalted power of some governments to punish manufactured crime dictatorially is the handmaid of tyranny. Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement. Due process of law, preserved for all by our Constitution, commands that no such practice as that disclosed by this record shall send any accused to his death. No higher duty, no more solemn responsibility, rests upon this Court than that of translating into living law and maintaining this constitutional shield deliberately planned and inscribed for the benefit of every human being subject to our Constitution - of whatever race, creed or persuasion. [p*242]

The turn to torture by the Bush administration has damaged the image of the United States as a democratic society and revived memories of the dark recesses of American history. The Obama administration's willingness to bring these memoranda, and the policies that they justified, into the open for public discussion signals its commitment to move beyond the anti-democratic currents in American life. Democracy cannot be pursued in tandem with torture.

First published in The Trinidad and Tobago Review, May 4, 2009