Keeping Mr. Franklin's Republic

“Well, Doctor, what have we got—a Republic or a Monarchy?”

“A Republic, if you can keep it.”

Benjamin Franklin in response to a query as he left Independence Hall on the final day of the Constitutional Convention.

Well, the Detainee Bill has passed. I had intended to dip into the vault for my next post and write about Social Security reform, but Shellshocked brought up some good points in the comments that I had intentionally, if reluctantly, left out. Upon reflection the topic is too important to let go.

Here's an interesting tidbit that I came across in reading about the Founding Fathers, who had a keen sense of history and the fragile nature of democracies. John Adams, of all of them, was most sanguine about the longevity of the American Experiment. At his most hopeful (his mood varied) he gave it 150 years before it became unrecognizably corrupt. For those of you keeping track, that would have been in the 1930's, but let's give ourselves the benefit of the doubt.

As it turns out a number of the Founding Fathers were witness to the first stages of decay in their own lifetimes. The next generation of politicians and leaders, reared in the aftermath of the Revolution, already showed signs of having forgotten the lessons that had been so self-evident to the Founding Fathers. It's not surprising, and I don't think it was to Adams, Jefferson and the rest, but I'm sure it was disappointing all the same.

What does this have to do with the Detainee Bill? Well, there are a few other provisions I didn't mention that are fairly difficult to swallow. The big one is the suspension of Habeas Corpus for certain individuals. From Wikipedia:

A writ of habeas corpus is a court order addressed to a prison official (or other custodian) ordering that a detainee be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he or she should be released from custody. The writ of habeas corpus in common law countries is an important instrument for the safeguarding of individual freedom against arbitrary state action. (emphasis mine)

The Founding Fathers (FF) felt pretty strongly about this. 'Arbitrary state action', in the person of an executive, whether the President or a King, was something they were especially wary about. There had been plenty of it under the British kings, and ultimately that's why we don't have a monarchy ourselves. The FF had passionate disagreements over just how powerful to make the Executive branch, with one faction wanting an extremely weak one. Habeas Corpus was meant to be a safeguard against the excesses of an Executive run amok.

The Detainee Bill allows the President wider prerogatives than is being reported. Glenn Greenwald, a First Amendment lawyer and excellent blogger on legal issues, sums it up nicely:

Opponents of this bill have focused most of their attention -- understandably and appropriately -- on the way in which it authorizes the use of interrogation techniques which, as this excellent NYT Editorial put it, "normal people consider torture," along with the power it vests in the President to detain indefinitely, and with no need to bring charges, all foreign nationals and even legal resident aliens within the U.S. But as Law Professors Marty Lederman and Bruce Ackerman each point out, many of the extraordinary powers vested in the President by this bill also apply to U.S. citizens, on U.S. soil.

As Ackerman put it: "The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights." Similarly, Lederman explains: "this [subsection (ii) of the definition of 'unlawful enemy combatant'] means that if the Pentagon says you're an unlawful enemy combatant -- using whatever criteria they wish -- then as far as Congress, and U.S. law, is concerned, you are one, whether or not you have had any connection to 'hostilities' at all."

How do they do this? By suspending Habeas Corpus, and also by restricting the right of the courts to review the process. The Executive branch will be able to, at its discretion, declare you an enemy combatant, a decision it won't have to defend or explain. It will then be able to hold you indefinitely without trial, during which time whatever procedures the President deems to be only 'minor' breaches of the Geneva Conventions can be used against you. No oversight. No accountability. Basically, it's just 'Trust me.' The arguments against this are legion, and I don't think I need to enumerate all of them. The FF would never have given this sort of unfettered power to the President; they were not ones to trust to the gentle nature of man. In reading through the Federalist Papers I am struck by the persistent theme of pragmatic cynicism that runs through them. This is precisely the sort of situation that led some to argue for a weak Executive in the first place.

Some, perhaps, are hoping that this will be challenged in the courts, and perhaps it will be. But a challenge does not ensure a repeal, and in this case, on 2 of the 3 offensive elements (Habeas Corpus and Judicial Review), there are good reasons to believe they are supported by the constitution:

On the Habeas Corpus issue, the Constitution is regrettably clear-cut. Article I, s.9:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Congress has the power, therefore, to suspend the Writ.... The jurisdiction-stripping issue is more complicated... the basic summary is that Matt is correct that there is a strong Constitutional basis for Congress' actions.

While the Court may review the issue of whether the President can reinterpret the Geneva Conventions (it may be unconstitutional), the other two provisions are likely out of the Court's jurisdiction. Beyond that, you have practical issues due to the ideological tilt of the court. Matt Yglesias (referenced above) notes that the courts generally defer to the Executive branch on issues of National Security (the rubric under which this is all being put forth), and that in particular, with this set of conservative judges, there's no guarantee that they would rule against these items even if they thought they had jurisdiction. I'd love to be proven wrong on this, but I'm not holding out for that.

So, where does this leave us? I have to say, we aren't tending to Franklin's Republic very well. At the risk of sounding alarmist about this, I'm going to bring up the F-word: Fascism. Stick with me now, I know that sounds over the top. It can't happen here, you say. Well, Sinclair Lewis wrote a book of the same name, a political satire that shows just how such a thing could happen, here. He said, famously, "When fascism comes to America it will be wrapped in the flag and carrying a cross." I have seen this quote repeated numerous times in regards to this situation in the last week, most recently in the comments of my previous post. To be fair, the issue is neither patriotism nor religious belief, per se, but the blind obedience to a leader that can sometimes arise from either, and so I think the quote is apt. Let's see what Wikipedia has to say about a definition for Fascism:

A recent definition is that by former Columbia University Professor Robert O. Paxton:

* "Fascism may be defined as a form of political behavior marked by obsessive preoccupation with community decline, humiliation, or victim-hood and by compensatory cults of unity, energy, and purity, in which a mass-based party of committed nationalist militants, working in uneasy but effective collaboration with traditional elites, abandons democratic liberties and pursues with redemptive violence and without ethical or legal restraints goals of internal cleansing and external expansion."

Paxton further defines fascism's essence as:

* "1. a sense of overwhelming crisis beyond reach of traditional solutions; 2. belief one’s group is the victim, justifying any action without legal or moral limits; 3. need for authority by a natural leader above the law, relying on the superiority of his instincts; 4. right of the chosen people to dominate others without legal or moral restraint; 5. fear of foreign `contamination."

There's a lot more in the article and they note that definitions for fascism are "complicated and contentious". Still, the above definition serves as a pretty good working one and we can see some obvious parallels with where we are today. The President and his political allies routinely describe the threat of terrorism as being of equal or greater significance than any conflict we have faced in the past. The War on Terror is one that is so epic that we must rethink our deepest held beliefs - "9/11 changed everything." I think points 1 through 4 can be safely said to apply, to a greater or lesser extent. If we don't quite meet all the requirements, or don't meet them all fully - if we are entering fascism-lite rather than full-blown Fascism - is beside the point to me. That America should find itself in a position where any comparisons can be drawn, where the question can even be entertained, is cause for deep concern. Once started down that road it's not so easy to turn back.

This is difficult to accept; it seems too outlandish. I think it's important to realize that fascism can take many forms, some more overt, some less so. It doesn't always arrive in jackboots. I think it's arguable that we are entering fascism-lite, rather than hard fascism. As such, it's probable that many people will see little effect in their lives. That hardly matters; it's not a principled argument. You look to our own history and we have had our dalliances before, most recently in the '50s with McCarthyism. Not everyone was affected by it, but those who were were harmed greatly. It was and remains a shameful abrogation of our core beliefs. I can only hope that this too will pass. My honest fear is that there is a significant chance it won't and, in purely personal terms, I found this to be quite disturbing:

As we ponder how this torture legislation might develop in the future, it's probably a good idea to check out how the intelligence community of the United States sees the threat of terrorism developing in the future. From the NIE (National Intelligence Estimate):

Anti-US and anti-globalization sentiment is on the rise and fueling other radical ideologies. This could prompt some leftist, nationalist, or separatist groups to adopt terrorist methods to attack US interests. The radicalization process is occurring more quickly, more widely, and more anonymously in the Internet age.

No mention of rightist groups, which actually have attacked US interests, using terrorist tactics. I'm speaking of Timothy McVeigh and Eric Rudolph. No, it's the leftists to worry about, though. I'm a liberal, and I'm using the internet to communicate (not so anonymously) with you right now. You might think that it's quite a leap from that line in the NIE to being dragged off myself. It is, until this sort of thing becomes a little more prevalent and mainstream (the context is that the NY Times had printed photos of Donald Rumsfeld's vacation house. The publication of these photos had been given the OK by Rumsfeld and [more importantly, perhaps] the Secret Service, but that fact was glossed over. Radical conservative David Horowitz took issue with these photos being published, ostensibly exposing the Secretary to personal terrorist threats):

This was about beating the drum to eliminate the enemy. Horowitz set the rhythm:

Make no mistake about it, there is a war going on in this country. The aggressors in this war are Democrats, liberals and leftists who began a scorched earth campaign against President Bush before the initiation of hostilities in Iraq.

And pretty soon everyone else joined in, including commenters like this:

...since we've so civilized ourselves that it's highly unlikely that an angry mob with torches will show up on the NYT's doorstep.

Pity, that.

(Emphasis is mine. This is a relatively tame example. Dave Neiwert, linked above, blogs about hate speech and hate groups at Orcinus.) Just to be clear, the position here is that the NY Times, as the flagship of the liberal (Democratic) war on America, ought to be burned to the ground, as would have been done in better times. I intend to write a post eventually about the demonization of liberals and the very word itself, but this will have to suffice for now.

Perhaps an outside viewpoint will prove more compelling? I came across a discussion with a Ugandan who had emigrated to Canada. He had grown up during the time that Idi Amin rose to power in Uganda and he had an interesting perspective on what is occurring now in America. I would encourage you to read the whole thing. I found this quote, based on his experiences with an authoritarian regime, particularly telling:

My experience tells me this. I don't really know. But if I had to guess, I would guess that your government is doing the worst things you can possibly imagine. Liars are lying because they cannot tell the truth... I feel for you really. Because I don't think you have any idea how far down the road you already are.

In the end I think I can perhaps sum it up using a rule a friend related to me once: the Cynic's Law of Conservation:

"1 ton sewage + 1 tsp wine = 1 ton sewage
1 ton wine + 1 tsp sewage = 1 ton sewage"

In America, a little Fascism means it's not America anymore. To me it's not a question of whether we are too much like a fascist or dictatorial state. We should never have anything in common with either. This is another debate that should never even arise in America. In America, it should always be crystal clear; any such comparison should be laughable. We haven't been giving Mr. Franklin's Republic wine, of late, and I think we'll find she's ailing because of it.

Rules of the Road

Just a note, to help me out. My intent really is to foster a dialog with those close to me. Many of you are coming from a similar page, politically, as I am, but that's not true of everyone. The same can be said of religion; my friends and family span a range of religious beliefs. Politics and religion being two of the most difficult topics to address in America, I naturally chose to write a blog about them. More, really, about politics, but it is my impression that religion has come to play a greater part in politics in the last generation and the two can no longer be as easily separated.

In any event, for my part I'm going to be avoiding the four letter words that do, sadly, make up a fair part of my daily discourse. Similarly, I want to avoid emotional reasoning as much as possible. I won't get anywhere if I devolve into a rant and people feel like they are being attacked when they come to read here.

So, please, be respectful in the comments. It isn't just the choir that's invited here. If that were my target, my writing style would be pretty different.

Thanks!

WWJT: Who Would Jefferson Torture?

Hopefully you are aware of the latest brouhaha in Washington, in this case having to do with a difference of opinion over the President's preferred interrogation techniques and the degree of clarity, or lack thereof, in the Geneva Conventions. The Republicans have been squabbling over this for a week or so, while the Democrats sat back and watched. The GOP came to a compromise on Thursday, and have a bill they are ready to push. Long story short, if it passes, we'll be sanctioning torture as official US policy. The President will be the final arbiter of what is or is not a violation of the Geneva Conventions, and how bad that violation will be. The bill explicitly forbids anyone from trying to bring the courts into the matter. There was a lot of theater over it, but in the end the President is getting what he wants. Just ask this guy:

Dan Bartlett, counselor to the president, said: “We proposed a more direct approach to bringing clarification. This one is more of the scenic route, but it gets us there.”

Scenic route, ha ha ha. How droll. Sadly, we're not talking about a Sunday drive here, but torture. I wonder if the people flown to secret prisons across the world thought it was scenic. In any event, I can't support this, but there's a lot to say about why.

To start, let me ask you a not-so-hypothetical question. In the days after 9/11, would you have predicted that five years out the country would be debating torture? That we would be trying to figure out, à la Goldilocks, what type or amount of torture was just right? The common refrain at the time, and one I wholeheartedly agreed with then (and still do now), was that we should not bow under the threats of terrorists and allow our ideals to be sacrificed on the altars of fear and uncertainty:

I ask you to uphold the values of America, and remember why so many have come here. We are in a fight for our principles, and our first responsibility is to live by them. No one should be singled out for unfair treatment or unkind words because of their ethnic background or religious faith.

That's the President, from his address to a joint session of Congress shortly after 9/11. To give him his due, I agree with that sentiment. The proof is in the pudding though, so let's dig a little into those values, and see how well we've done.

In general I think most of us have a pretty good idea what I'm talking about here: honesty, integrity, courage. The sorts of things that Americans at a deep level believe are part of the fundamental fabric of America. These values are part of the mythology of America which informs our national psyche. I'll give you my take on them.

Courage means taking the hard road in the face of difficult sacrifices, and hewing to that road despite personal fears and the blandishments of cowards. Honesty means telling the truth, simply and straightforwardly. It's not enough to adhere to the letter of the truth; its spirit must be honored as well. Integrity is a little trickier to define simply, but it certainly entails taking responsibility for one's actions and decisions. It could perhaps be summed up as 'doing the right thing'. And one other that I'll add: competence. I think most Americans think we are, if nothing else, a practical folk who gets things done.

Honesty
The President has been clamoring for a bill that would retroactively legalize the illegal (or 'tough alternative' in the President's words) interrogation techniques that have been in use for some time now.

The senators agreed to a White House proposal to make the standard on interrogation treatment retroactive to 1997, so C.I.A. and military personnel could not be prosecuted for past treatment under standards the administration considers vague.

The techniques are torture and they are illegal. Having signed onto the Geneva Convention, it is as legally binding as any domestic law we might pass. From Article 6 of the Constitution:

This Constitution, and the laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be Supreme Law of the land;

We signed onto the Geneva Convention; we have to adhere to it. When the President says that his alternative procedures are legal, understand that this is based on the judgement of his Attorney General, Alberto Gonzales, a man who famously called the Geneva Conventions 'quaint'. Quaint or not, they are the law. Aside from that, many legal and Constitutional scholars have not been kind to the professional opinions of Mr. Gonzales. These arguments are not honest, and they are not made in good faith.

The same can be said for the claim that they need clarification. This is insulting in the extreme. We managed to get through some fifty-odd years, during which time we were involved in a number of struggles (not least the Cold War), without having to clarify them. This is the argument of a type of mind known as a Rules Lawyer. You know the sort: they nitpick and argue over the slightest nuance of every rule, in the process destroying the spirit of the thing. Rules Lawyers never argue in good faith. Their only intent is to win the argument, by hook or by crook. This is a habit that one would hope men in their sixties would have outgrown. Instead, we have to catalog every possible horrifying act we can think of lest we find ourselves dealing with this: "Ok, we can't cut their thumbs off, but it doesn't say anything about smashing them with a hammer. I guess that's not torture."

Please. Let me clear this up. Shorter Geneva Conventions: Treat people with respect and dignity.


Courage
Let's assume for the sake of argument that torturing people is something we feel we shouldn't do. Are we, as a country, going to let a rabble of cave-dwelling fanatics scare us into tinkering with that ideal, or abandon it? I understand that many people are truly afraid of the terrorist threat. Speaking for myself, as someone who lived in Boston, launching pad for 9/11, and in Seattle, the target of the foiled Millenium Plot, terrorism doesn't particularly scare me. The statistics of it just aren't compelling to me. I can respect it if other people don't feel that way though. BUT, that's where courage comes in. Courage says, "No! I won't take the easy road. I'll take the hard road, and I may fail, but I'm going to stick to it." In this case, the hard road is abiding by the Geneva Conventions.

As for the President's personal behavior, asking for a retroactive bill is craven, and the fact that it bars the courts from any jurisdiction in the matter speaks for itself. Given the conservative bent of the Supreme Court, he must know he's on extremely shaky ground if he feels he needs to protect himself this way. Coming from a Republican, a member of the party that promotes itself as the responsible one, I find it strange that he's not willing to take responsibility for his actions. He made the choice -- he should deal with the consequences, not look for a 'Get-out-of-jail-free' card from Congress.

In the end, the President is neither showing, nor appealing to, American courage.

Competence
The President has said that if he didn't get this bill, the interrogation program would not be able to continue. Let me parse that out a little bit more clearly. The President is saying that if torture is not in the toolbox, that there is no way any meaningful interrogation can be done. The Government wouldn't know where to start. This is a laughable, all-or-nothing argument. We've been questioning people for a long time; the Military has a lengthy manual on it, which for some time included no torture (there's been a some revising back and forth of late), and it was generally pretty successful. Either the President is admitting to incompetence of a level that should be of concern to everyone, or again, this is not a good faith argument. Even if we take him at face value, do we really believe that as Americans this is the only way we can succeed?

Integrity
I've saved this for last, in part because I wanted to get the drier, more technical arguments out of the way. So let me return to the question I asked above. For me, I can say that it never crossed my mind. In your heart of hearts, in the America of your dreams, would we be torturing people? Would we be skirting the edges of this pit, a pit that we have condemned others for entering? Stalin was known to use a technique called 'The Conveyor' (CID stands for 'cruel, inhumane and degrading'):

Now it appears that sleep deprivation is "only" CID and used on Guantanamo Bay captives. Well, congratulations, comrades! It was exactly this method that the NKVD used to produce those spectacular confessions in Stalin's "show trials" of the 1930s. The henchmen called it "conveyer," when a prisoner was interrogated nonstop for a week or 10 days without a wink of sleep. At the end, the victim would sign any confession without even understanding what he had signed.

CID is deemed necessary for the war on terror. If you can, go read the whole article above. It's by former Soviet dissident Vladimir Bukovsky, who suffered torture himself. It's good perspective. As a side note, I'm not going to get into whether torture works or not, but I'd ask you to note the bolded sentence above (my emphasis).

Think about Jefferson for a moment. I am aware of his imperfections and self-contradictions (he was a slave owner). Yet, among our Founding Fathers, he is the one most regularly appropriated by both sides of the political spectrum as ancestor and patron. Having read a few books about him, I don't think that he can honestly be placed in either camp. The simple fact is that the positions of the parties at that time don't map well to today (he was a fiscally conservative Republican who did everything in his power to reduce the size of the Army and Navy, for starters). So why is he so popular? Because of his rhetoric. Read the Declaration of Independence. It is sweeping, majestic, bold, and uplifting. It speaks to the noblest impulses in all of us. It is a document whose sentiment is one that anyone, in any nation, would be proud to own as part of their cultural heritage. Jefferson, in his writings, planted the seed for the idea of American Exceptionalism that forms such a strong core of our own mythology. America does have its own mythology. Gunslinging is our martial art, cowboys are our knights errant, we are an egalitarian meritocracy (aka the American Dream) and a beacon of light to the world, a "shining city on a hill" (a phrase that has come to mean rather more than it did when originally coined).

With that in mind, I ask you, can you honestly say that Jefferson would torture people? Would anyone claim that? It just doesn't register for me, it is completely disconnected from my entire impression of the birth of our nation. I can't square that circle. Who would Jefferson torture? No one. George Washington? No one. The reason for this is simple. Torture is not American. American's. Don't. Torture.

Now, I know that if you look through our history, even recent history, you're going to find some pretty bad things going on. This guy makes an utterly valid point that torture isn't, in fact, such an anomaly. Ok, so we've got some history of it, and I consider that reprehensible as well. The difference is that if this bill goes through, torture will shift from being a shadow policy to an overt, official one. That change is HUGE. Any pretence to adhering to the Geneva Conventions is rendered laughable. Any claim to moral superiority, a defining aspect of America's role in the world for the last few generations, ceded.

Those are practical considerations though, and the reason I have finally been galvanized to write about this issue, of the hundreds that have stirred my outrage over the past few years, is hard to explain. This has touched me at a deep emotional level. I find myself somewhere between rage, horror and despair. Through my head keeps repeating this refrain: "This must not be. This can not be. I am not a torturer. Never in my name!". If this essay has seemed a little dry or dispassionate at times, it is because I can't find the words to properly express the depth of my feelings on this, like a victim of physical trauma who has gone into shock and isn't really feeling the pain. I'm refraining from using four letter words, in order not to seem shrill, but understand that this is a cri de cœur.

Moral reasons aside, here's a scenario that presents a pragmatic reason not to torture. Imagine being identified as a member of a terrorist organization. You are denied the right to a lawyer and questioned forcefully. The US gov't. decides to fly you to Syria (ironically a country that the US has publicly berated for their human rights record), where you are locked in an unlit 3-foot-wide cell known as 'the grave'. You are kept there for months, during which time you are beaten with a cable, threatened with electrocution, and otherwise tortured and intimidated. You don't see the sun for 6 months, and suffer a near nervous breakdown. You sign all sorts of confessions to keep from being tortured (a common failing of torture). Eventually, you get the chance to speak to an official of your country. Four years after your ordeal started, your government starts an inquiry. Eventually, they clear you of any suspicion of terrorist activity.

That is the story of Maher Arar, a Syrian-born Canadian citizen. He was arrested in 2002, and cleared only a week or so ago. As I said, this is a purely practical reason not to torture. In the end, for me, it's not a question of practicalities, though. It's a clear, bright line we don't cross, ever. Think about waterboarding, simulated drowning. I myself have a modest fear of drowning. I can't imagine going through this. Imagine a loved one of yours being subjected to torture, physical or psychological. The after-effects of torture, both on the body and mind, linger for years. I could not bear it if this were to happen to someone I love. For me, to turn my back on it as it is practiced on others would be hypocrisy. I'm going to be calling my Representative, my Senators, and the House and Senate Minority leaders to tell them to defeat this bill - by filibuster if necessary. I'd call the House and Senate Majority leaders, but frankly I don't think it would help much. I'm going to tell them, no hyperbole, that I think this is a battle for the soul of the country. I'm going to tell them that I'd rather be killed in a terrorist attack than have agents of the US Government torture in my name. I mean it.

Who would Jefferson torture? No one. Who will I torture? No one. Not in my name. Never. In. My. Name.

UPDATE: I added a link to back up my assertion that these techniques are torture. After WWII, waterboarding by the Japanese was cited as torture.