Anne Applebaum On What The Rule Of Law Requires

Since electrons are free, I hope no one will mind if I cut and past all of Anne Applebaum’s column from today’s Washington Post. My only comment is that the guilty can’t be forced to testify, as Ms. Applebaum proposes, since they have the right not to incriminate themselves under the Fifth Amendment.

“America is a shining city upon a hill whose beacon light guides freedom-loving people everywhere.”

— Ronald Reagan, 1974,

echoing John Winthrop, 1630

From the earliest days of our republic, Americans have been drawn to the idea of their nation as different, exceptional, an example for others. Sometimes that view has been shared by outsiders, who really did strive to be guided by our “beacon light,” and sometimes not. Never mind: We came up with the notion of ourselves as an exception, and over time we have become exceptional — though not because we are morally superior to anyone else. We are exceptional because we periodically feel obliged to hold our most senior leaders to standards with which others might not comply. We made Nixon resign. We made Clinton testify. Sooner or later, we will also have to hold accountable the American leaders who ordered American citizens to torture prisoners who were captured in Afghanistan and elsewhere, in violation both of our Constitution and of international conventions we ratified long ago.

I say “American leaders” quite deliberately: Before any investigation has taken place, it is pointless to name names and needlessly politicize what should in principle be a neutral legal process. That crimes were committed is no longer in doubt. Mark Danner, writing in the New York Review of Books, has just published excerpts from a previously confidential report by the International Committee of the Red Cross on the interrogation methods used by the CIA in its “black site” prisons. Unlike Guantanamo Bay in its current incarnation, these prisons did not ever officially exist. They are, or were, in the cellars of military bases in Afghanistan or in the back rooms of Thai, Moroccan or perhaps Eastern European jails.

They may not have held hundreds or even dozens of prisoners. The Red Cross report, based on interviews its officials conducted in 2006, mentions only 14 detainees. Yet the horror of the CIA interrogation tactics in these places lies not in their scale but in the doggedness with which they defied American and international law. “Waterboarding” is one of the more benign methods on a list of “alternative” interrogation methods that included many hours of forced standing, nudity, beating and kicking, confinement in a box, sleep deprivation, and exposure to cold. Detainees spoke of being “strapped to a bed, in a very white room,” of being smashed “repeatedly against the hard walls of the room,” of being forced to listen to unbearably loud music and deprived of solid food. Describing these techniques, Red Cross officials deliberately use the word “torture,” with all of its legal and moral connotations.

These techniques, horrific in and of themselves, did deep political damage. As I have written before, and as Danner concurs, there is still no evidence that information obtained through torture was of any special value: People under extreme physical stress will say anything to make the pain stop. On the other hand, there is plenty of evidence that the use of torture damaged some of the central goals of what I am still happy to call the war on terror. Certainly the use of these techniques made it impossible to publicly try the 14 men, so that the whole world could hear of their horrific crimes and feel disgust for their cause. The confessions of Khalid Sheikh Mohammed — mastermind of the Sept. 11 attacks and one of the 14 “special” detainees — were widely ignored two years ago precisely because many people assumed, rightly, that these confessions were obtained using torture. Certainly the knowledge that Americans use torture alienated millions of potential allies, in the Muslim world and outside it, convincing them that America is “no different,” after all, from the fanatics it is fighting. As Danner put it, “we freely chose to become the caricature they made of us.”

But the political rights and wrongs of this failed policy are no longer the point. What matters now is that our laws be enforced. The United States is not and never was a fascist state, and the CIA prisons were not and never were the Gulag. These 14 men were not tortured as part of an ordinary and accepted routine, in other words, but according to special rules and procedures, set up at the highest level of government, by people who surely knew that they were illegal; otherwise, they would not have limited them so carefully. What we need now, therefore, is not an endless, politicized circus of a congressional investigation into every aspect of George W. Bush’s White House but a carefully targeted legal investigation of the CIA’s invisible prisons: who gave the orders to use torture, who carried out the orders, what exactly was done, who objected. The guilty, however senior, should be named, forced to testify and called to account — because the rule of law, and nothing else, is what makes us exceptional.

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3 Responses to Anne Applebaum On What The Rule Of Law Requires

  1. laurabethnielsen says:

    Great article. Reminds me a bit of David Cole’s lecture. When the memos came out, I felt I had to apologize to my students (who were not old enough at the time to protest). Their general assessment is that the lack of protest means no one really cared. Yikes.

  2. koolaid says:

    Yes, great article, Jeff. This is Koolaid, by the way. How great it is to be on leave in Scotland and what am I doing?…sitting in a hotel room catching up on the blogs. I must not have been too terribly affected by the last 10 months. I am still just as nerdy as ever.

    You must know by now that I have a great deal of first-hand knowlede of how detainees are treated in Afghanistan. You are also aware that I am still unable to talk about the specifics or many of the general aspects of what I have seen. But know this – I believe you would all be very proud of the efforts of young American service members in the face of the most difficult of circumstances. The welfare of our guests is ALWAYS the foremost concern – very often at the expense of our own welfare. Whether this is an overblown response to past indiscretions or just a realization that more flies are caught with honey really doesn’t matter to me. The rule of law (at least as far as I know it) is being followed. ICRC spends at least one week of every month interviewing and having full access to every part of the facility. Their reports are not always as glowing as I feel they should be. But, believe it or not, the people they are interviewing do not always tell the truth. ICRC spends enough time inside to know the true circumstances, but some in their ranks have a poliical agenda which is not supported by reporting that Americans are playing nice. They therefore take some liberty in how the facts are reported. I have not seen outright lies, but certainly they are adept at misrepresenting the full truth when it so suits them.

    Afghanistan has so far to go. Many would love to see what little progress it has made be reversed. Life is cheap and paying a poor farmer to set off IEDs is even cheaper. I look forward to leaving for good in a couple of months – I can’t tell you how much I look forward to that day. But I will leave knowing that we made a positive difference and I am confident that our replacements will do the same. Too often the focus is on what we do wrong as Americans. Having been there, I have absolutely no doubt that the good far outweighs the bad. How can any operation of such size be carrid out without mistakes? To make no mistakes usually corresponds with having done nothing in the first place. We are far from perfect. Nevertheless, I am filled with national pride that we and a number of our friends, including France, are trying to bring a better life to these people instead of just turning our heads and writing off the autrocities to reasons of culture.

    The rule of law should and does dominate in the area insofar as it appears to be the goal. Is that not simalar to every city in the U.S.? Do we say that because a crooked cop in South Chicago tortures a suspect into confessing to a crime he did not commit that the rule of law does not exist? Of course not. We should remain vigilant in holding our military and civilian leaders accountable, but do not assume that all you here from so-called neutral organizations is all you need of the truth.

    Great to be back (at least for now). I have missed you guys tremendously. God Bless and I can’t wait to see as many of you as possible at Nevin’s for a couple of pints sometime in late June.

  3. jeffaregularworkinglawyer says:

    Koolaid — Nice to hear from you. Glad you liked the article. Wonder how you ended up in Scotland, of all places, on leave.

    With regard to the reports issued by NGOs, it’s good to remember what I call the Tribune Principle. Every time I read about something in the Trib that I have first-hand knowledge about, I find inaccuracies, lack of subtlety, even occasional bias. But when I read about something I don’t know about, I usually assume the report is accurate, complete and fair. Bad idea. Still, some information is better than none, but multiple sources are better than one.

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