A truly poignant moment

If you've got 6 minutes to spare, you might want to take a look at this old Colbert Report interview with one Neal Katyal, who is a lawyer who defended some Gitmo detainees in court. I only post it here because of this little moment at the end, where--since apparently Katyal helped Al Gore's side in the fateful Gore v. Bush case--Colbert asked him "how that went".

Katyal responds that he kicks himself, thinking that if only he had tried to help Bush, Gore might have become President. To me that was just so heart-rending. This is a guy who obviously loves his country and the fundamental principles its based on (what is this country based on?), and who feels like he failed his country as a defender of those principles.

The crux

Obama says:

We must not protect information merely because it reveals the violation of a law or embarrasses the government.

And he also says this:

In short, there is a clear and compelling reason to not release these particular photos. There are nearly 200,000 Americans who are serving in harm's way, and I have a solemn responsibility for their safety as Commander-in-Chief. Nothing would be gained by the release of these photos that matters more than the lives of our young men and women serving in harm's way.

So the basic principle that Obama outlines is: if releasing information will endanger "the lives of our young men and women serving in harm's way", then it should not be released--even if the information reveals government law breaking.

But this seems perverse to me. If you allow the executive branch to evade accountability by claiming that evidence released will endanger the troops, then the executive branch will simply cook up various rationales to justify the protection of damning evidence. What you need is an outside authority determining if the threat described by the executive branch is 1) legit and 2) of sufficient severity to offset the public interest in holding the executive branch accountable for its actions. It's not clear to me that Obama lays out such a mechanism.

Moreover: what if the release of information really will endanger the troops, and also reveals serious law breaking? Do these laws simply go unpunished? Is there some mechanism for seeking justice "behind closed doors"? Or does law breaking that falls into this category receive a free pass?

That rule of law thingy

Ted Sorenson--a John Kennedy advisor--addresses law students:

“In a country based on the rule of law, in which no man is above the law, whatever his rank or title, no man can undertake, authorize or immunize unlawful conduct,” Sorensen said.

“Our current wonderful president cannot promise the CIA practitioners of torture that they will not be prosecuted,” he said.

Right. And yet you never heard so much as an "Um, he can't do that" from the establishment punditry when Obama made his royal proclamation.

I woke up, naked, strapped to a bed, in a very white room

In case you haven't seen it, I highly recommend taking a look at the International Committee of the Red Cross confidential report that details the torture of prisoners held in US captivity. The ICRC is tasked by the Geneva Conventions to provide an objective analysis of the treatment of prisoners, and if violations of the Conventions are discovered, the country in question must proceed with an investigation or else violate the terms of the treaty. Typically these reports are confidential to encourage government cooperation, but this report was leaked to the New York Times.

The report details the abusive treatment of 14 different detainees. All the claims are "alleged" because they are based on interviews with the detainees themselves (and I think some US officials as well), but there is not much doubt as to the authenticity of their accounts because of their high level of detail and consistency with one another.

Especially gripping are the excerpts from interviews (Annex 1 and 2 in the report), which give you a true idea of how far off the deep end the United States went in prosecuting the "war on terror". An excerpt of the excerpt:

“I woke up, naked, strapped to a bed, in a very white room.... After some time...I was transferred to a chair where I was kept, shackled by hands and feet for what I think was the next 2 to 3 weeks.... I was only allowed to get up from the chair to go the toilet, which consisted of a bucket....I was given no solid food...while sitting on the chair. I was only given Ensure and water to drink. At first the Ensure made me vomit...Very loud, shouting type music was constantly playing. It kept repeating about every fifteen minutes twenty-four hours a day....

I could not sleep at all for the first two to three weeks. If I started to fall asleep one of the guards would come and spray water in my face....

Later, the "real torturing" starts:

I was taken out of my cell and one of the interrogators wrapped a towel around my neck, they then used it to swing me around and smash me repeatedly against the hard walls of the room. I was also repeatedly slapped in the face. As I was still shackled, the pushing and pulling around meant that the shackles pulled painfully on my ankles....

After the beating I was then placed in the small box. They placed a cloth or cover over the box to cut out all light and restrict my air supply....The wound on my leg began to open and started to bleed. I don’t know how long I remained in the small box, I think I may have slept or maybe fainted.

He then goes on to explain that he was routinely waterboarded after that, as well as beaten by being slammed into the wall with the towel as described above. The account of the worst of the treatment ends with this chilling, Nazi-esque image:

I collapsed and lost consciousness on several occasions. Eventually the torture was stopped by the intervention of the doctor.

The United States tortured, and these actions were authorized at the highest levels within the Bush administration. They were done in accordance with secret memos of dubious legal merit that were drafted by the President's lawyers--memos that were kept secret not just from the public, but from the other co-equal branches of the government. We now know that for seven years since the attacks of September 11, the executive branch continuously and systematically flatly breached the Constitution of the United States--by violating the Fourth Amendment, by internally declaring for itself the power to violate any other number of provisions in the Bill of Rights (including those contained in the First Amendment), by assuming for itself the power to unilaterally strip citizens of their habeas corpus rights, by violating the United States' obligations under the Geneva Conventions...

If these deeds go unacknowledged, let alone unpunished, it means that the Constitution is de facto non-binding. It means that everything that America proclaims itself to be, at it's core--a free nation, a nation of laws--is a simple factual untruth, because it will be the case that any President who has the will can violate those freedoms and ignore those laws without consequence.

So I am now watching the Obama administration with extreme interest, and hoping that he understands the following: that after this serious a bout of lawlessness and quasi-despotism, reinstituting a proper liberal democratic regime is not enough--that he must pro-actively take steps to address what happened in the previous administration, and establish a precedent that such lawbreaking at the highest levels of government will have consequences. If he does not, then he reveals himself to be not a President but a Napoleon--a benevolent dictator who chooses to allow us our freedoms and who chooses to circumscribe his own power in accordance with the Constitution, but is by no means actually required to do any of these things.

Of course, in a way, this is already a lost cause, because I am reduced to pleading to the executive branch to enforce the Constitutional limits of executive power. Just as a legitimate democracy can't be founded by executive decree, a broken democracy can't be relegitimized by executive decree--because the ultimate source of democratic legitimacy is not the decree of a single will, but the consensus of many wills. Sadly, there does not seem to be a sufficient consensus in 21st century America--neither amongst the public, the press, nor the members of Congress--that basic tennants of democracy such as the rule of law and due process are not mere suggestions, but real and rigourously enforced contraints on power.