A Man for All Seasons:
William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!
Embedding a clip of the scene that interchange comes from, Sullivan writes ("Obama, Bush And The Rule Of Law"):
This is the deepest and darkest aspect of the impact of Bush-Cheney's torture program on the constitution and the future. Leave aside for a moment the policy debate over torture in the abstract. From the very beginning, that has been largely moot. Why? Because even if you believe that the president has the duty to torture terror suspects, under the constitution, he has no legal right to do so without Congress' passage of legislation repealing the laws and treaties governing such torture. The use of torture is part of the laws of war and only Congress has the constitutional authorityTo declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water
It can't really be clearer than that.
On the flip: Sullivan goes on to spell why it can't be clearer, and then gets into the illegality of failing to investigate and prosecute torture--first by Bush, and now by Obama. After that, I cite Bruce Fein as another example of a high-profile conservative who gets it--my choice for a special prosecutor on torture, precisely because he is a high-profile conservative. And I try to elucidate the vast difference between a healthy liberal-conservative dialogue, in the context of history, and the diseased shadow-play that Obama is furthering, in which both sides undermine everything good America is supposed to stand for.
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Picking up where the Sullivan quote left off (with slight overlap):
It can't really be clearer than that. And the reason, of course, is the colonists' memory of the power of the monarch, especially with respect to torturing and mistreating prisoners of war. Now no legal authority in human history would judge the waterboarding of a prisoner 83 or 183 times in one month as anything but torture. If it were done to a US soldier, would Dick Cheney refuse to call it torture? Of course not, although it is telling that no reporter has ever asked him this obvious question directly.
And so it is simply an empirical fact that president Bush broke the law and violated his oath of office by ordering the torture of prisoners.
Sullivan goes on to cite the Feb 2007 Red Cross notification of Bush that his administration has engaged in torture--which triggers a legal requirement for investigation and prosecution. Bush refused to do so--"another breach of the law"--and now Obama is breaking the law (including the Geneva Conventions) as well:
And so Obama's refusal to investigate war crimes is itself against the law. And so torture's cancerous route through the legal and constitutional system continues, contaminating the future as well as the past, rendering the US incapable of upholding Geneva against other nations, because it has violated Geneva itself, and giving to every tyrant on the planet a justification for the torture of prisoners.
In this scenario, America becomes a city on a hill, where the rule of law is optional and torture acceptable if parsed into legal memos that do not pass the most basic professional sniff-test.
America becomes a banana republic.
Conservative Bruce Fein is Right, Too
Sullivan is not the only conservative who understands the inredibly high stakes here. as counterspin notes in Quick Hits, Bruce Fein, a high-level Reagan DOJ official, makes a similar, though more empirically-oriented argument. He gives a quick run-threough of how Obama has taken up the cause of defending Bush-era lawlessness:
Obama, however, promised non-prosecution of all CIA personnel complicit in torture who relied on the flawed OLC advice. He further pledged to defend them from criminal investigations initiated by foreign jurisdictions and to indemnify them if they are held liable in damages for constitutional or statutory wrongdoing. Obama is similarly defending former OLC Deputy Assistant Attorney General John Yoo against a torture suit initiated by Jose Padilla, convicted of terrorism in 2007 after the government dropped charges that as an "enemy combatant" he plotted to set off a "dirty bomb." The Yoo memoranda on torture have also been renounced and discredited. Obama also promised to follow the Bush-Cheney duumvirate in claiming secrecy for alleged national-security secrets because "the world is dangerous." Indeed, he did not voluntarily initiate release of the four OLC memoranda, but responded to a Freedom of Information Act suit. And President Obama has echoed the Bush-Cheney state secrets arguments to block lawsuits challenging the legality of spying on Americans without warrants in contravention of the Fourth Amendment or federal law, or seeking damages for torture.
He then points to the utterly Bushian, fact-free nature of Obama's "argument":
Moreover, Obama has been unable to recite a single instance where transparency proved more dangerous to the liberties of the American people than has secrecy, the birthplace of COINTELPRO, Shamrock, Minaret, Abu Ghraib, and torture of 14 "High Value al Qaeda" detainees in secret prisons abroad (according to the International Committee of the Red Cross).
Fein next notes the NYT story on further NSA lawbreaking--even after previous restrictions were relaxed, and goes on to say, regarding Obama's abandonment of his Constitutional duty, and the adoption of an imperialist mindset, rather than a republican one:
The evidence is now undeniable. President Barack Obama is flouting his unflagging constitutional obligation enshrined in Article II, Section 3 to "take Care that the Laws be faithfully executed." He is also reneging on his signature campaign promise to restore the rule of law, transparency, and accountability to the White House. He is displaying the psychology of an arrogant empire as opposed to a modest republic in continuing and escalating the Bush-Cheney duumvirate's global and perpetual war against international terrorism heedless of foreign sovereignties or the lives of civilians.
And goes on to take note of Obama's political cowardice:
Even more disappointing, Obama has proven a political coward dangerous to the republic. Before April 16, he had decided against any criminal investigation of the Bush-Cheney duumvirate or their inner circles for their boasted complicity in torture, i.e., waterboarding, which Attorney General Eric Holder has declared is torture. He has similarly declined investigations of extraordinary renditions that have occasioned, among other things, the indictments and in absentia trials of 26 CIA operatives in Milan, Italy, for the kidnapping and torture of Egyptian cleric Abu Omar.
Fein also draws attention to the foolish fruits of Obama's mindless "looking forward, not backward" rhetoric:
In sweeping the Bush-Cheney lawlessness under the rug, Obama has set a precedent of whitewashing White House lawlessness in the name of national security that will lie around like a loaded weapon ready for resurrection by any commander in chief eager to appear "tough on terrorism" and to exploit popular fear. Obama urges that the crimes were justified because the duumvirate acted to protect the nation from international terrorism. But Congress did not create a national-security defense to torture or commit FISA felonies.
As a conservative, it's only natural that Fein is far too forgiving of power's perogatives in some ways, but he insists on drawing the line at letting criminality go unacknowledged, which at this late date has become dividing line between preserving and undermining the rule of law (expanding the rule of law is clearly off the table here in the US, for the time being, at least). Thus he lays out the minimal conditions Obama should have met to preserve his charade:
President Obama should have invoked his pardon power if he believed circumstances justified the crimes by Bush and Cheney and the CIA's interrogators. A pardon or lesser clemency properly exposes the president to political accountability, as Bush discovered with Cheney's Chief of Staff Scooter Libby and President Ford with former President Nixon. More significant, a pardon does not set a precedent making lawful what was unlawful. It acknowledges the criminality of the underlying activity, and acceptance of the pardon is an admission of guilt by the recipient.
The Value of Conservatism
What we can see in Fein and Sullivan is the crucial difference between conservatism and movement conservatism. It's not that I approve of the former. I believe it is a seriously flawed political philosophy that holds back human progress. But at least it stands open to accepting--and even, in crucial ways, defending--the human progress of the past. Movement conservatism, OTOH, is wholly destructive of human progress, and even, potentially, the human race itself. What we see in both Sullivan and Fein's arguments is clear, full-throated defense of established principles of the rule of law.
Of course such principles were only established in the first place by the struggles of liberals and progressives, but this is quite simply the way of the world: Ideas start off as being crazy, proceed to the status of being radical, then over time, they become progressive, then liberal, then mainstream, then commonplace, and a generation or more later, finally, they become conservative.
This is why we have conservatives (as opposed to movement conservatives) embracing 16th- and 17th-century liberal rights to freedom of conscience and religion, 18th-century liberal rights to freedom of the press, 19th-century liberal rights to freedom from slavery, and 20th-century rights for women's suffrage. IN this respect, conservatives have functioned as a sort of political backstop insurance that the progress of the past shall not be forefeitted. The value of this can easily be taken for granted--until we are confronted with the likes of Barack Obama, heir to a generation and more of "New Democrat" "thinking" that has absolutely zero moral core.
If Obama were arguing for the principle of a restoring a civil dialogue between progressives and legitimate conservatism, as represented, in this instance, at least, by Fein and Sullivan, then I would have no objection to it, although I might not think it should be our prime consideration. Still, I would have no objection to it in principle. Indeed, I would regard it as a good thing, if not given precedent over other important agenda items, such as saving the planet from global warming. Under my broad endorsement of a walk-and-chew-gum approach to politics, it should not be hard to do both things at once, and so I could fully support such a trans-ideologically reaching out.
But as Fein and Sullivan's fundamental criticism of Obama makes clear, this is not what Obama is up to at all. In fact, he's up to the exact opposite: affirming support for, and even agreement with the lawless core of movement conservatism. Oh, yes, he will cut back on the extremes, at least he says so, and at least for now. But he will do so only to reaffirm the deepest foundations of lawlessness and arbitrary rule. He is, in short, joining with Bush/Cheney is seeking to establish a reactionary, pre-1215, pre Magna Charta "post-partisan concensus" that is fundamentally opposed to nearly eight centuries of Anglo-American law.
Is there anything about this that is not unspeakably evil? |
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