the sad red earth

Talihina, Oklahoma: Dallas Street, 6 a.m.

JD

This entry was posted on Wednesday, May 27th, 2009 at 3:24 pm by A. Jay Adler and is filed under Indian Country, On The Road.

At Tahlequah, Oklahoma, Capitol of the Cherokee Nation:

Coming to a town near you in Nebraska, Iowa, Kansas, Oklahoma, and Texas

• 1. Setting Up

• 2. Base Camp: Indian Village RV Park
  

• 3. Carnival

• 4. Winding Down, Closing Down

The Cast

April Apodaca Barry Weddleton Becky Surber Brian Bishop Dan Peek

Debra Miller Jack Branam Jacob Holuby Jeremy Lamb Jodi Montgomery

Jon Campbell Larry Nieukirk Lucino Quijadio Marc Gagne Ricky Lane Cox

Ron Lancaster Ruby Robertson Sam Whitaker Sandido Felix Hernandez

Scott Wade Travis Hill

JD

This entry was posted on Sunday, May 24th, 2009 at 9:22 am by A. Jay Adler and is filed under Indian Country, On The Road.

It’s everywhere among the political class.

On ABC’s This Week with George Stephanopoulos, Liz Cheney, Dick’s daughter, and Steve Schmidt, late of John McCain’s campaign, joined Clinton stalwart James Carville and The Nation‘s Katrina Vanden Heuvel for a round table with venerable conservative George Will.

On the matter of potential removal of some foreign prisoners from Guantanamo to American prisons – about which Republicans have attempted to create such hysteria – Will, as he will be, was unideologically reasonable: some of the Guantanamo detainees may have killed Americans, but so have the Americans in American maximum security prisons killed Americans, and the prisons hold them just fine.

A nice rational point.

To which Cheney responds irrelevantly, by citing (and again appealing to emotion) the likelihood of groundless fear: she doesn’t think the residents of Colorado (for instance) would be happy at the prospect.

Yes – but to Will’s point? Nothing.

Schmidt argued, for his part, that there should be no torture investigations because the people who might be investigated were “sincere” in their efforts to protect the country.

To which one has to wish someone had responded, Pinochet was sincere in his patriotism to save Chile from the “threat” of communism. I think Franco was sincere, and Lenin and Trotsky and dare I say – no, I won’t.

Murderers sincerely want their victims dead.

Sincerity – as I discuss more fully here – has nothing to do with it.

People either tortured or they did not. They either broke U.S. and international law or they did not.

This is the level of argumentation of people who seek and enjoy a role in influencing U.S. public policy.

It’s sad.

I mean it.

Sincerely.

AJA

This entry was posted on Monday, May 18th, 2009 at 9:03 pm by A. Jay Adler and is filed under The Political Animal.

Maybe the most bitter inside Washington fight of the year was little known to the general public because it received scant attention from the mainstream media. However, while newspapers and television news nearly ignored ex ambassador to Saudi Arabia and China hand Charles Freeman – put forward by Dennis Blair, Director of National Intelligence as President Obama’s choice for Director of the National Intelligence Council – Washington insiders and the blogosphere fought another Mid-East war over him.

Supporters were many, in government and also in the  journalistic ranks, including The Atlantic’s James Fallows, Time Magazine’s Joe Klein (Jewish, as were some other supporters) and top blogger Andrew Sullivan. The primary argument in favor of Freeman was that he is a “contrarian” – an outspoken proponent of ideas that challenge those of the foreign policy establishment, including, most prominently, wouldn’t you know, those of the “Jewish lobby” and its supporters. It is crucial, the argument went, in moving past the Bush years, that the U.S. break free of its “lock-step support” of Israeli policy and “return” to a position of “even handedness” that it is purported the U.S. held prior to the Bush years and the ascension of the neo-conservatives.

Opponents were many, too, perhaps most prominently Senator Charles Schumer of New York, but also Speaker of the House Nancy Pelosi and a range of human rights supporters – supporters of Israel and the NGO Human Rights Watch as well. Supporters of Israel pointed to Freeman’s cozy relationship with Arab despots, his one-sided view of the Israeli-Palestinian conflict, and his suggestions – against all evidence – that 9/11 had been a response to U.S. support of Israel. Pelosi, Human Rights Watch and others focused on comments about the Tiananmen Square massacre that were critical of the protesters and strikingly sympathetic to China’s rulers.

However, many supporters – Sullivan for instance – were determined to make the issue the always subterranean influence of the “Jewish lobby,” and they scoffed at any argument against Freeman that, in their view, pretended that the “campaign” against Freeman was anything other than an attempt to maintain Jewish influence over American foreign policy judgments. Sullivan, who won this past year’s Weblog award as the Web’s top blogger – and previously generally sympathetic to Israel – has chosen, post Gaza, to beat his drum of pernicious Jewish influence over U.S. foreign policy like a new toy, and would see nothing but that influence in the Freeman controversy.

Ultimately, Freeman withdrew from consideration for the post, but not without releasing a broadside demonstrating the kind of reckless extremity of view that worried his opponents from the start. “The tactics of the Israel Lobby,” he charged, “plumb the depths of dishonor and indecency and include character assassination, selective misquotation, the willful distortion of the record, the fabrication of falsehoods, and an utter disregard for the truth.” He went on to further lambaste “a Lobby intent on enforcing the will and interests of a foreign government” rather than those of the United States, raising the specter of a Fifth Column.

I wrote briefly about the imbroglio at the time and was spurred to some further comment yesterday by the surprising news of former Chinese Communist Party General Secretary Zhao Ziyang’s smuggled memoir of Tiananmen and his fall from power. Zhao’s perspective offered such a striking contrast to that of Freeman. A reader replied (see the comments section at right) suggesting I didn’t know what I was talking about: “You might want to be a little more inquisitive about the quotes attributed to Charles Freeman about Tiananmen.” He also offered the standard defense of all those who explore their mouths with their feet (but never of those whose words have been praised) that they are the victim of misquotation and “inaccuracies.”

This is all part of the divergent post-mortems of the affair competing with each other to survive and evolve into history. Some points, then, about Freeman are worth making. First, if a major part of the opposition to Freeman came from supporters of Israel, nothing about his exit from the scene gave the lie to their concerns. It is one thing to disagree with Israeli policies, as I have always opposed Israel’s settlement policy; it is another to evince obvious hostility of the kind that those who rail against the “Jewish Lobby” almost always do. It is another, also, to express sentiments so peculiarly deranged that the radar of anyone about whose people the words were spoken is bound to blare “Danger, Will Robinson!” while supporters of the vocalist are compelled to contort themselves in order to achieve a position of defense.

In my April 6 post I cited Freeman’s Jewish Daily Forward phone interview of March 25, 2009 in which he said of Israel:

It’s a foreign country, and while maybe 40 years ago many of its values were convergent with ours, I think there’s been a divergence of values.

How very bizarre. I mean – aren’t they all foreign countries? Why apply this adjective particularly to Israel? Yet here “foreign” does seem to suggest something more fundamentally “gut” in nature for Freeman, as in something “alien,” something to which one uncomfortably cannot relate. More foreign than Saudi Arabia? Than China? Than Iran? Israel, whatever its flaws, is a democracy, a nation governed by the constitutional rule of law, with universal suffrage, equal rights for women and, like the U.S., expanding gay rights. It is fully a product – politically, culturally, and socially – of Western civilization, just as is the United States. But somehow in contrast to those nations just mentioned, and score of others, it is from Israel that we have experienced a “divergence of values”? Asked in the clearest and most direct way possible – What the fuck is Charles Freeman talking about?

A careful reader can’t help but wonder – what or who over the history of Western civilization has been so much of that civilization, yet cast repeatedly as somehow antithetically alien to it, “foreign” in it, divergent in values? Really. Again.

Nonetheless, and despite the desire of Freeman supporters to make the matter all about Israel, the other criticisms of Freeman – and an essential one fundamentally ignored – are just as cogent.

Supporters everywhere praised the “contrarian” in Freeman, which, once the range of his views and expression became known, felt a little bit like grasping for the warm milk to help the castor oil of crackpot loose cannon go down. However, when you get past the contrarian veneer and the anti-Israeli bias in almost every sentence that, for many, the “contrarian” garb was meant to dress up (yes, so he credits the remarkable talents of the “European” founders of Israel – and Shaquille O’Neal is very tall), what you find, in truth, is a man temperamentally aligned to the preservation and exercise of state power. It is one thing to possess the practical virtue of being able to see circumstances through the eyes of a contestant or adversary – a quality for which Freeman was much praised; it is another, Stockholm-style, to begin to see things, in fact, as does the adversary.

In Freeman’s much discussed 2006 US-Arab Policymakers Conference speech, the Palestinians are barely mentioned. Israel, alone, for good or ill, always ill, is considered the determining actor in events. Who else, we might ask, sees the Palestinian-Israeli conflict in that way? And in the same speech, Freeman uses, with apparent naturalness and ease, the word “rulers” when referring to the heads of the GCC states rather than “leaders” or “heads of state” or some other, republican or democratic nomenclature that might come more readily to the tongue were these individuals anything other than, in fact, despotic rulers. But this fact does not restrain Freeman’s encomiums or the intimacy of his wise counsel, as the essential democratic nature of Israeli society, in contrast to the nature of the Arab states or the Palestinian parties, shows no influence on his judgment making.

The equally much discussed remarks about the Tiananmen Square massacre reveal the same temperamental affiliation with state control and order. The “unforgiveable mistake” of the Chinese rulers was that they had been too cautious. This phrase is couched in terms of a description of the “dominant view” in China, but it is clear that Freeman agrees with it and he terms it a “very plausible” view. (Read the entire email for yourself here.) However, “For myself, I side on this — if not on numerous other issues — with Gen. Douglas MacArthur. I do not believe it is acceptable for any country to allow the heart of its national capital to be occupied by dissidents intent on disrupting the normal functions of government, however appealing to foreigners their propaganda may be” [emphasis added].

To be clear, it is Freeman’s historical judgment that the Hoover-MacArthur directed attack on the 1932 “Bonus Army” – hardly the U.S. government’s proudest hour – was correct, and a model for future government action by a democratic government toward aggrieved and protesting citizens. The Chinese leadership, he says, had engaged in “dilatory tactics of appeasement” with the protesters. The protesters’ aspiration to liberty he characterizes as “propaganda.” And, to the point, it is not “acceptable for any country to allow the heart of its national capital to be occupied by dissidents intent on disrupting the normal functions of government” – that is, Freeman makes no distinctions as to a government’s inherent right to rule. The United States in 1932, China in 1989, a democracy, monarchy, authoritarian regime – it makes no difference in the consideration of a government’s legitimacy in opposing and crushing the incipient popular will of its people.

“I cannot conceive of any American government behaving with the ill-conceived restraint that the Zhao Ziyang administration did in China.” Note that it is Freeman characterizing  Ziyang’s restraint as “ill-conceived.”

What Freeman pretends is a “realist’s” descriptive analysis of events is easily detected as a belief in the state’s – any state’s – imperative and right to maintain civil order, i.e. the condition for its continuance in power, regardless of the nature of the state or its rule and without any consideration to the political program of those who might oppose that state. The protesters at Tiananmen are reduced to, and belittled as, “exuberantly rebellious kids,” and Freeman is “aware of no evidence that Chinese currently consider their government less ‘legitimate’ or worthy of support than Americans do ours.” (Read this full email here.) This claim about general popular acquiescence to the rule of the existing government undoubtedly applied at the time of every native rebellion against the British Crown, as well as that by the American colonists, and the uprising against Louis VI. By Freeman’s “realist” and “contrarian” lights there would have been no Magna Carta and no American and French Revolutions.

Given this political alignment to power and “realist” disregard for the apparatus of democracy, it is no wonder that Freeman so easily operates without consideration to the essential difference in political nature between Israel and its enemies. “Even-handedness” that willfully ignores the differences between the adversarial parties has become again a fashion of the day – as in the foolish argumentative cry heard far too often after 9/11 that one person’s terrorist is another person’s freedom fighter – and this is a fashion that suits Freeman’s amorality perfectly. But contrarian perspectives are one matter; consistently unsound judgment contrary to the spirit of democracy is another.

AJA

This entry was posted on Saturday, May 16th, 2009 at 5:51 am by A. Jay Adler and is filed under The Political Animal.

The New York Times reports today of a rare and remarable occurrence, the publicly released memoir of communist Chinese leader – secretly recorded, in this case, during his 16-year house-arrest prior to his death, by former party General Secretary Zhao Ziyang, deposed in 1989 for being soft on the Tiananmen demonstrators before the ultimate crackdown and massacre. The twentieth anniversary arrives June 5. Zhao recounts how China’s then supreme, behind-the-scenes leader, Deng Xiaoping, turned against him. He also asserts his belief that the demonstrators ““were only asking us to correct our flaws, not attempting to overthrow our political system.”

That is how Zhao saw it. He may or may not have been right, but he was closer to events than nearly everyone else, and he can’t be accused – unlike those who opposed and deposed him – of perception distorted by the desire to maintain power. We do know that in the Soviet Union and the Eastern Bloc nations, once events were set in motion toward reform, they developed an irresistible momentum, and the same might have been so in China. Still, Zhao tells us, “I told myself that no matter what, I would not be the general secretary who mobilized the military to crack down on students.” This, in many alternative forms, was the decision made  by Mikhail Gorbachev.

Charles Freeman, on the other hand, who might have been the Chair of the U.S. National Intelligence Council had not there been a swell of protests against him – by many then vilified for their opposition to him, and their motives – saw matters differently. A man who was touted by his supporters as a much needed opponent of orthodox analysis, his record reveals, in fact, an empathetic advisor to the wielders of power, a Cromwell to varied Henry Tudors, whether Saudi Kings or Chinese party bosses. Gorbachev and Ziyang – strong, clever men who climbed to the top of treacherously slippery poles – chose their people and human progress over power. Charles Freeman, who has cited approvingly General MacArthur’s attack on the U.S. “Bonus Army” in 1932, advocated the preservation of power – regardless of whose – and only lamented the lateness of the action.

We’ll never know how lucky we were. But we can imagine.

AJA

This entry was posted on Thursday, May 14th, 2009 at 9:59 am by A. Jay Adler and is filed under The Political Animal.

The always worthwhile Yaacov Lozowick offers two strong posts today. Lots of Wars, Many Standards, Endless Hypocrisy is a short but not sweet jab on the subject of civilian casualties in war time.  A Pope at Yad Vashem (not this one), where Lozowick was once Director of Archives, is a perceptive glimpse into the nature of the holy.

AJA

This entry was posted on Wednesday, May 13th, 2009 at 1:19 pm by A. Jay Adler and is filed under Culture Clash, The Political Animal.

This released from the Indian Trust ListServ today:

WASHINGTON, May 11 — A federal appeals court was told today that it should offer 500,000 Native Americans some form of “rough justice” as a result of the federal government’s acknowledged mismanagement of their trust accounts.

Attorney Dennis M. Gingold, who represents the Indians in a 13-year-old class action lawsuit, said justice for the Native American trust account beneficiaries cannot be complete because so many records of what happened to their trust lands and funds are missing.

That means some form of “rough justice” is required, Gingold said, adding that any resolution of the case must be fair.

“If not, we’ll all be here another 13 years,” Gingold told a three-judge panel for the U.S. Court of Appeals for the District of Columbia.

Government lawyers said they want the case declared at an end and the Indians given nothing at all. Alisa Klein, an appellate lawyer with the Justice Department’s Civil Division, argued that the Indians are due nothing.

.  .  .  .  .  .  .  .  .  .

After the hour-long hearing, Lead Plaintiff Elousie Cobell, a member of the Blackfeet Nation from Browning, Mont., said that the government continued to mislead the appeals court about how the trust accounts have been managed.  The accounts have never been audited, she noted, pointing out that the lower court had held an accounting remains “impossible.”

“I am very optimistic,” she told reporters. “The court asked very good questions.”

As for the idea of “rough justice,” she said: “We all understand what’s going to happen.”  She said any sum that is finally approved by the court will be distributed after additional hearings and under court supervision.

The three-judge panel gave no indication when it would rule.

The Indian Trust was established by Congress in 1887. It included millions of acres of valuable lands in the West owned by individual Indians, whom lawmakers believed could not manage those lands.  That job was given to the Interior Department, which has repeatedly acknowledged in the lawsuit that it mismanaged the trust accounts.

The italics are mine. “Nothing at all.” (Never mind “rough justice.”) Is this the Obama justice department?

AJA

This entry was posted on Monday, May 11th, 2009 at 3:22 pm by A. Jay Adler and is filed under Indian Country.

The next several years of the torture debate will be variously instructive, not least in what we already see in the low form and manner of important public political argument among figures who should have been schooled to a higher level. The debate will last at least a few years, and it will distress in too many ways. To begin, there is, well, yes, the torture, distressing to the tortured to be sure, but distressing, too, to the fabric of the society that permits or institutionalizes it. We see that already.

The integrity of that social fabric – the health of the society, the democracy that necessarily engages in debate – is ensured in no small part by the quality of its argumentation. We can see that, too, in the arguments that formed our nation, including where, ahem, a few stitches were missed. There have always been shoddy arguments, sure. Always will be. And you appreciate your good view, in part, by a little perspective on the cheap seats.

So let’s examine some. Let’s start with the misdirection of focus by torture proponents on the recent most high-profile subjects of torture, Khalid Sheikh Mohammed and Ramzi Binalshibh.

You feel sympathy for them? proponents impugn.

Notice the hat? See the rabbit?

The eternal tortures of the damned for both of them, I say.

But let’s recall where the damned get tortured.

And who does the torturing.

It isn’t about them. Not to mention the reported one-hundred-plus dead in detention who weren’t KSM and RB?

It’s about us. As death penalty opponents often try to focus us sympathetically (the emotional appeal) on the innocence or injustice in the case of a particular prisoner, rather than the greater argument against capital punishment – that it dehumanizes the culture that creates a system for it, the more so the less it questions its righteousness in doing so – so, in reverse, torture proponents mislead us to the heinous subject of torture rather than the practice of it and what it means for the culture that endorses in it.

Let’s keep our eye on the argument. Rabbits come and go.

Then, too, notice how constantly is the red herring dragged across the ground of whether the torture is effective. This is done, in fact, on both sides of the debate – for obvious reasons by torture proponents, but why by opponents? In this one instance, they are the more disingenuous. The whole appeal of their argument is intended to be ethical, and then they resort to efficacy as a kind of sleight of argument piling on. (“I’ll just throw this in for extra measure, however irrelevant, and if it persuades anyone of the thusly invalid conclusion that torture is wrong, well, all’s fair in L, W, and political debate.”) What is more, opponents’ smug assertions that torture doesn’t work are hardly definitively supportable. (One form of cheap, or cheating, argument is to pretend there is nothing about which to argue.) Evidence is presented on both sides, almost always by self-interested or biased parties, and in neither case is it the pièce de résistance (“and it doesn’t even work!”) the promulgator of the half canard with plum sauce pretends.

You want to investigate torture as an enterprise in effective human engineering, fine. But that’s not what our current debate is about, now is it? Our continuing descent from the trees, marked over the past couple of hundred years by increasingly developed rules of war, codified in international law, did not lead us to define and ban torture because it doesn’t work. We decided it was inhumane, and, so, morally wrong. When then President Ronald Reagan – the patron saint of many now disturbing his rest – signed the UN Convention Against Torture, he didn’t do it because torture doesn’t work. He stated:

The United States participated actively and effectively in the negotiation of the Convention. It marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment. Ratification of the Convention by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today.

Reagan signed the Convention because torture is wrong – even if it does work. And to grasp at the crutch of its declared inefficacy is to falter in courage – the courage to believe in, and hold to, the force of moral reasoning even in the face of the brute: not just the torturer, but the effective torturer.

Another point of distress, then, are the many leading lights – journalists and government officials, think-tank intellects and media silverbacks – who do, in their argument, acknowledge this distinction by caring very little to pretend they are not advocating torture. But it is not some “third-world” tin-pot tyranny wrestling with the seaweed here, it isn’t some doctrine-drunk, authoritarian oligarchy, it is the United States of America (apply your own heart-felt encomium), and we see that people who have been raised in it – nurtured on the traditions of the first great modern republic and educated in its democratic universities – would now very readily turn back scores of years of social evolution and advancement in international affairs in order to rule, and righteously so, by the screw. As if the darkness of the Middle Ages and Inquisitions had never lifted. As if several centuries of perpetual European conflict had not managed to lead us – as some manner of solace – out of it.

Just so we know.

Just so we all may ponder how easily a kind of false consciousness can slip over us, the thug arrived at the family table – pretending that certain matters had not already once and finally been settled – and demanding his plate with fine words and songs of the nation-volk. Where we may proceed to feed him, until history delivers its slap in the face (its repertoire so varied) and we spend decades trying to understand how we brought ourselves to do it – trying, even, to acknowledge that we did.

Not just there. It can happen anywhere. It can happen here.

We see their stolid forms, their overcoats, the bent brims of their hats, the narrow bureaucratic lapels and the ruler-thin ties. We hear the drone of their banality. The Woos, the Bybees, the Bradburys and Addingtons. Educated men whose great distinction, once in life, was to become ready levers for the engineers of power that were Cheney, Rumsfeld, and the knavish naïf who led them.

And they will have done it, they’ll say, for us. They will even believe it.

It is obvious, though, that many torture proponents do know, yes, what they do, and paying their homage to virtue deny that all kinds of torture, not just waterboarding – don’t be fooled by that one – but a range of acts that inflict pain and suffering, are actually torture. How do they do it? With Orwellian “newspeak” and Inquisitorial casuistry. They warp reality by rending its linguistic fabric. “Enhanced” or “robust” interrogation techniques were just the start, as robust persuasion is only the first kick in the ass. And it is no accident that “enhanced interrogation” was a Nazi term of art, because the slayers of honest thought, however well they think of themselves, all are drawn to loiter in the same verbal death house.

Members of the Convention Against Torture (in green)

So we see in the recently released Justice Department Office of Legal Counsel memos how bureaucratic exactitude merges with a kind of theological casuistry to produce a bland moral derangement. In the August 1, 2002 memo from Assistant Attorney General Bybee to Acting General Counsel of the CIA John Rizzo, for instance, the mutual ass-covering purpose of the memo is all in the “reported” speech that constitutes most of it. Bybee reports back to Rizzo what Rizzo has purportedly already described elsewhere about the interrogation techniques being used. Every legal clearance Bybee offers, then, is dependent in its authority on the accuracy of Rizzo’s prior account, and each can hold the other accountable for any discrepancy producing legal jeopardy. And the discrepancies would be from the feigned precision in the application of the techniques. Page four tells us that during the waterboarding, “air flow is slightly restricted from 20 to 40 seconds” as if 15 or 50 seconds have through some formal methodology been established as beyond some regulatory pale, and with “slightly” surprisingly undefined. The water is “applied from a height of twelve to twenty-four inches” because the Office of Legal Counsel, or course, has had access to studies demonstrating that eight or thirty inches will miss some either humane or efficacious mark. Elsewhere, stress positions, where the subject leans back at a, no doubt, medically-determined “45 degree angle” produce “muscle fatigue” of a sort that “despite its discomfort” cannot “be said to be too difficult to endure” and so does not constitute “severe physical pain or suffering,” as mere drops of water dripping onto a forehead are merely uncomfortable in a technique Bybee presumably sought to have renamed the Chinese Water Annoyance.

Subsequently, and for near theological lunacy, nothing surpasses Fox News and its distinction and insistence that KSM was not waterboarded 183 times, but subjected to 183 “pours” of water, the “pour” now, sadly, a new technical term for journalists who cover the torture beat. We might almost be resorting to Aristotelian “substance” and “accidents” to distinguish what is from what is apparent in the Eucharistic transubstantiation. Or better, from Andrew Sullivan, the Inquisition’s non ad iterandum tormenta sed ad continuandum: to “continue” a torture (okay) was not to “repeat” it (not okay). Fox News: yesterday’s arugments for torture today.

Sullivan has addressed the essential point here:

The entire spirit of the UN Convention and the Geneva Conventions is not to see whether governments can find clever, legal loopholes in the ban on torture, abuse, inhuman treatment and outrages on human dignity – but to see that no government ever comes near the kind of prisoner abuse and torture that we have seen throughout history. I cannot begin to believe that those who drafted both conventions believed that waterboarding, for example, was okay if it is done in certain ways and not others. And to even countenance such a sophistry is to have capitulated to the logic that the executive – empowered with massive force and enormous secrecy – should always get the benefit of the doubt when applying the rule of law.  The lawyers we are talking about, after all, are lawyers for the president, whose oath of office demands that he faithfully execute the laws.

Beyond the mockery derivable from absurd efforts at self-justification, however, it is important to affirm that this debate – worldwide – has already long since been had, even before Reagan and the UN Convention, back to the Geneva Convention of 1929, revised as the Third Geneva Convention, which the United States signed in 1949 and ratified in 1955. When the U.S. signed the convention, it expressed only one formal reservation, regarding the death penalty, and it specifically rejected the reservations made by others at the time of signing, never mind fifty-plus year later when it might have suited any party’s new purpose. The debate was closed, and by the U.S. too. If certain elements of the U.S. polity now wish to reopen it, against the sweeping tide of civilized history in this matter, they are free to try to do so, but let them be honest and clear in their purpose and their language. Let them tell all, without subterfuge in language or manipulation of law, where the world has gone wrong in this regard and how they will lead us right.

Honesty in debate is incumbent on all sides, however. When torture proponents raise the “ticking bomb” hypothetical, not matter how unlikely opponents believe – or want to believe – that hypothetical situation is, proponents are offering a coherent counter-argument to a morally absolute claim (torture is always wrong, under all circumstances) made without qualification. This is a fundamental and frequently explored quandary of moral reasoning – whether to switch the runaway train onto a track to kill only one person rather than the five now in the train’s path (and now with the twist that the lone person set the train on that path) – and simply to derisively dismiss it due to its hypothetical unlikeliness is to fail to engage the moral problem and not to respond to the argument.

In fact, there are answers. Josh Marshall offers one here:

As I’ve argued before, I think the answer to the ticking time bomb rationale for torture is this: that in the extremely unlikely circumstance that government officials ever found themselves in that position of having a ticking time bomb ticking away, they might have to make the decision to break the law. Not fudge it or keep their actions hidden, but take the decision on their own responsibility that it was the best thing to do in the situation — despite it being wrong as a general matter — and then bring their decision to attention of the people and law enforcement authorities and throw themselves on the mercy of the public. Thomas Jefferson explored a similar question and argument for the position a president could find himself in when faced with extra-constitutional or even unconstitutional actions.

Note how Marshall’s argument opens up the necessary distinction between the legal and the moral, essential to a full discussion of the dimensions of this issue. A lie is always an admission of the known violation of a social code, regardless of whether one agrees with the code. If one does not, the disagreement should be acknowledged, not hidden by “enhanced term creation.”

In the end, we all come before the law; we can all be Kafka’s man from the country, who lifelong seeks admittance before the door, and its keeper, that none else ever approaches:

“Everyone strives to reach the Law,” says the man, “so how does it happen that for all these many years no one but myself has ever begged for admittance?” The doorkeeper recognizes that the man has reached his end, and to let his failing senses catch the words roars in his ear: “No one else could ever be admitted here, since this gate was made only for you. I am now going to shut it.”

AJA

This entry was posted on Friday, May 8th, 2009 at 4:03 pm by A. Jay Adler and is filed under The Political Animal.