The Commission Option
Fred Hiatt has a pretty reasonable column arguing that rather than ad hoc and limited investigations, we need to look into the torture question through a comprehensive independent commission. That said, I have doubts about this part:
Such a commission would investigate not just the Bush administration but the government, including Congress. It would give former vice president Dick Cheney a forum to make his case on the necessity of “enhanced interrogation techniques.” It would examine the efficacy of such techniques, if any, and the question of whether, even if they work, waterboarding and other methods long considered torture ever can be justified. [...] But a fair-minded commission — co-chaired by, say, former Supreme Court justices Sandra Day O’Connor and David Souter — could help the nation come to grips with its past and show the world that America is serious about doing so. It could help Americans understand how this country came to engage in what many regard as vile and un-American practices. It might help the country respond better the next time it is frightened.
It’s hard for me to understand how we can outsource a decision about whether or not “torture ever can be justified” to an independent commission. That’s a policy decision that needs to be made by policymakers. And, in fact, it has been made by policymakers. That’s how torture came to be illegal in the United States. The crux of the matter is that we came to have a bunch of policymakers who no longer believed in that principle and thus they broke the law. This leaves us with a legal issue about what to do with them. But it also leaves the policy issue hanging out there. The main position of the conservative movement at this point is that torture is excellent, and something we ought to engage in. It’s important to resolve that argument, but I don’t see any alternative to resolving it through the political process. A commission can’t do it.
36 Responses to “The Commission Option”
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August 29th, 2009 at 5:27 pm
The political process cannot deal with the issue, either. It would require moral courage, which is a quality this nation has abandoned.
August 29th, 2009 at 5:46 pm
Yes, and the ethical question should be addressed before anything else. I can understand Hiatt’s desire to see the issue depoliticised.
What is needed is an independent commission of jurists, ideally with a majority of conservatives, to make recommendations on the ethics. Congress then will have to enact the recommendations as laws; of course they can ignore the commission but it will surely be better to have the benefit of the commission.
August 29th, 2009 at 5:58 pm
Hiatt’s doing the reverse of “criminalizing policy differences;” he wants to turn a criminal-legal question into a policy debate.
If I robbed Hiatt on the street, he wouldn’t think it’s enough to dispose of the matter by asking if the robbery worked as a means to my financial ends. Likewise here.
August 29th, 2009 at 5:58 pm
Conservatives have turned the GOP into a giant criminal enterprise which has simply become more bold ever since Nixon. If we don’t stop them, next time they are in power we will see a domestic torture regime and disappearances. Remember, they love them some Pinochet.
August 29th, 2009 at 6:02 pm
Fred Hiatt, of course, makes his living by doing the functional equivalent of lying to the American People.
Under his stewardship, the Washington Post has studiously avoided the question of WHY the Sept 11 attack occurred.
Because that might raise the question in Americans’ mind of whether we should be exterminating some people besides Al Qaeda.
But maybe if we stuck a red hot iron up his butt, he would be more forthcoming.
August 29th, 2009 at 6:17 pm
Already made that prediction for the 2012 presidential race:
1. At least one GOP candidate will be explicitly pro-torture
2. If there is a terrorist attack in the meantime, all GOP candidates will compete to know who would torture the most
August 29th, 2009 at 6:43 pm
Re: At least one GOP candidate will be explicitly pro-torture
I’ve been reflecting on the topic of the imposition of physical pain recently, and studying some of the facts of the CIA interrogations in Guantanamo and other places. I’d like to go on record as saying that I’ve come to think that the use of pain for interrogative (as opposed to mild pain for punitive purposes) is wrong in general. And that more specifically, what the US government has been doing at Guantanamo and elsewhere is horrible and should be prosecuted.
This in particular struck me as despicable and contrary to the most basic principles of what punitive justice is for:
“The psychologists relied heavily on experiments done by American psychologist Martin Seligman in the 1970s known as “learned helplessness.”[46] In these experiments caged dogs were electrocuted in a random way in order to completely break their will to resist.[46] Mitchell strongly believed in his interrogation methods and applied them to Abu Zubaydah.[1][46] Mitchell believed that Abu Zubaydah must be treated “like a dog in a cage.”[1] He stated the interrogation “was like an experiment, when you apply electric shocks to a caged dog, after a while, he’s so diminished, he can’t resist.”[1]“
August 29th, 2009 at 7:04 pm
Awwww Hiatt wants a do-over on settled law.
Sorry Hiatt – pretending it’s not already illegal doesn’t make it so – that issue is *also* settled law.
August 29th, 2009 at 7:07 pm
So Hiatt thinks it’s a good idea to have retired judges hear the evidence in a toothless commission but not sitting judges in, erm, a binding court? How does that make sense? It’s like preferring the Senior PGA tour to the actual PGA tour. It’s OK to prefer the Senior tour but the golf isn’t better on the Senior tour, it’s nostalgia. I’ll take my justice from the judicial branch thank you very much, not from a glorified panel of Judge Wopners.
August 29th, 2009 at 7:22 pm
At the root of Hiatt’s “suggestion” is a basic contradiction: he claims to be seeking a process to resolve the question of the “rightness” of torture, which assumes a belief in the ability of process to establish answers to such fundamental questions, as well as the importance of definitively doing so. But by steadfastly ignoring the facts that (a) we already have such a process; (b) the process has in fact definitively answered this exact question; and (c) his soulmates have definitively rejected the legitimacy of both the answer and the process, he makes a mockery of the whole endeavor.
As with our new President’s process for assuring that detainees who cannot be convicted with 100% certainty are funneled to other processes with lower bars for indefinite detention, Hiatt’s proffer of a new process is a complete sham. He simply wants a do-over, or two, or three, until the desired result is reached.
Don’t give the keys to government to a party that doesn’t believe in government. Don’t hand the design of a process to people who have shown they don’t care about process.
August 29th, 2009 at 7:25 pm
the commission to investigate Iran/Contra did not provide any clear answers and no one was held accountable.
the commission to investigate 9/11 did not find any clear answers and no one was held accountable (if I recall, most of the top Bush administration figures testified behind closed doors, without being under oath, no notes were taken; other than Condi Rice, anyway)
So…if you do not want any clear answers or to hold anyone accountable, form an “independent commission”? Qui bono indeed…
August 29th, 2009 at 7:31 pm
Eventually Hector is going to figure out that ANY use of physical pain to try to coerce certain behavior out of humans is necessarily dehumanizing. That is true if you are interrogating them, trying to make them behave in less anti-social ways, trying to make them confess something, or whatever: the process is necessarily the same regardless of the intended purposes.
Anyway, I’m fine with a commission, but I don’t see why that has to replace criminal investigations and prosecutions as appropriate.
Also, Hiatt’s column isn’t “pretty reasonable”–it is the typical Washington-should-be-a-lawless-zone BS. Note the framing:
[quote]Regimes do not seek vengeance, through the courts or otherwise, as they succeed each other. Were Obama to criminally investigate his predecessor for what George W. Bush believed to be decisions made in the national interest, it could trigger a debilitating, unending cycle.[/quote]
Sorry, Freddy, but:
(A) Criminal investigations of members of another political party are not necessarily “vengeance”; and
(B) If there is going to be no consequence for executive officials violating criminal laws whenever they believe their crimes to be “in the national interest”, we might as well just scrap this whole rule of law thing.
I also love this piece of typical Washington-insider BS:
[quote]Or [Durham] might argue that fairness demanded following the chain of command up — who knows how high — to those who authorized equally abusive practices, in which case one relatively anonymous attorney will have taken on momentous decisions that Obama will seem to have shirked or settled by default.[/quote]
Yeah, because that is how the rule of law is supposed to work: Obama is supposed to be making all the decisions, not professional prosecutors.
Sheesh.
August 29th, 2009 at 7:32 pm
Eventually Hector is going to figure out that ANY use of physical pain to try to coerce certain behavior out of humans is necessarily dehumanizing. That is true if you are interrogating them, trying to make them behave in less anti-social ways, trying to make them confess something, or whatever: the process is necessarily the same regardless of the intended purposes.
Anyway, I’m fine with a commission, but I don’t see why that has to replace criminal investigations and prosecutions as appropriate.
Also, Hiatt’s column isn’t “pretty reasonable”–it is the typical Washington-should-be-a-lawless-zone BS. Note the framing:
[quote]Regimes do not seek vengeance, through the courts or otherwise, as they succeed each other. Were Obama to criminally investigate his predecessor for what George W. Bush believed to be decisions made in the national interest, it could trigger a debilitating, unending cycle.[/quote]
Sorry, Freddy, but:
(A) Criminal investigations of members of another political party are not necessarily “vengeance”; and
(B) If there is going to be no consequence for executive officials violating criminal laws whenever they believe their crimes to be “in the national interest”, we might as well just scrap this whole rule of law thing.
I also love this piece of typical Washington-insider BS:
[quote]Or [Durham] might argue that fairness demanded following the chain of command up — who knows how high — to those who authorized equally abusive practices, in which case one relatively anonymous attorney will have taken on momentous decisions that Obama will seem to have shirked or settled by default.[/quote]
Yeah, because that is how the rule of law is supposed to work: Obama is supposed to be making all the decisions, not professional prosecutors.
Sheesh.
August 29th, 2009 at 7:33 pm
OK, that couldn’t have gone worse: bad formatting and a double post. Sorry!
August 29th, 2009 at 7:37 pm
Re: Eventually Hector is going to figure out that ANY use of physical pain to try to coerce certain behavior out of humans is necessarily dehumanizing.
Uh, I disagree very strongly, but leave that aside, it’s not really relevant to the thread.
August 29th, 2009 at 7:38 pm
Fred Hiatt has a pretty reasonable column …
When has Fred Hiatt ever been reasonable? Besides, you are late to the party. Glennzilla already fisked Hiatt good.
August 29th, 2009 at 7:40 pm
Prosecute then execute.
August 29th, 2009 at 8:41 pm
Uh, I disagree very strongly . . . .
Hence the “eventually”. But I agree it is a tangent.
August 29th, 2009 at 8:51 pm
Re: Hence the “eventually”.
Well, I was a hardcore atheist once upon a time, so I suppose anything’s possible. I doubt it though.
August 29th, 2009 at 9:02 pm
Hector is much smarter than Fred Hiatt.
I say that as a babykiller/gay marriage supporter.
August 29th, 2009 at 9:07 pm
Torture is asault. Torture that results in death is murder. People who commit repeated premediated murder are serial killers. This is not a policy dispute. The people who did this belong in on a gurney with lethal chemicals running into their veins.
August 29th, 2009 at 9:55 pm
Bloix nails the legal equation.
A soldier in the field of battle is given leave to maim and or kill an opponent. If the opponent is subdued alive, there’s a bit of grey area, but a reasonable person would probably agree that once the POW is on a transport to the rear, legal norms apply.
Likewise, a law enforcement officer is given leave to main or kill a suspect if said suspect is about to kill or cause significant bodily harm. But, once subdued, there are legal norms.
The norms are there for a reason. If you don’t agree with the reasons, then get out there and sell your alternative, don’t skulk around like some punani who knows he’s doing wrong. We really need to make some examples of some miscreants to break the habit of “better to ask forgiveness than permission.”
August 29th, 2009 at 10:49 pm
Regimes do not seek vengeance, through the courts or otherwise, as they succeed each other. Were Obama to criminally investigate his predecessor for what George W. Bush believed to be decisions made in the national interest, it could trigger a debilitating, unending cycle.
One might argue that if every administration commits illegal acts that deserve to be criminally investigated, perhaps every such administration should be investigated. That may well be a cycle (perhaps even debilitating!), but it would, you know, follow the rule of law. I seem to recall that being important at some point in our past.
August 29th, 2009 at 11:10 pm
Does Hiatt want to unkill the Germans who tried to use the “following orders” defense? I’m sure there was a lot more room in Germany for Aryans after they killed all those Jews.
Effectiveness is a really creepy defense.
August 29th, 2009 at 11:50 pm
And, in fact, it has been made by policymakers. That’s how torture came to be illegal in the United States.
How many successful prosecutions for the crime of torture have there been in the United States? How many successful prosecutions for waterboarding have there been under the statute that criminalizes torture?
August 30th, 2009 at 12:37 am
The effectiveness argument is pretty stalinesque from my perspective.
August 30th, 2009 at 12:49 am
Re Hector at 7: “The psychologists relied heavily on experiments done by American psychologist Martin Seligman in the 1970s known as “learned helplessness.””
————
A recent New York Times article on the Torture program indicates that Dr Martin Seligman’s involvement was a LOT more recent and a lot closer.
“In December 2001, a small group of professors and law enforcement and intelligence officers gathered outside Philadelphia at the home of a prominent psychologist, Martin E. P. Seligman, to brainstorm about Muslim extremism. Among them was Dr. Mitchell, who attended with a C.I.A. psychologist, Kirk M. Hubbard.
During a break, Dr. Mitchell introduced himself to Dr. Seligman and said how much he admired the older man’s writing on “learned helplessness.” Dr. Seligman was so struck by Dr. Mitchell’s unreserved praise, he recalled in an interview, that he mentioned it to his wife that night. Later, he said, he was “grieved and horrified” to learn that his work had been cited to justify brutal interrogations.”
Ref: http://www.nytimes.com/2009/08/12/us/12psychs.html?pagewanted=2&_r=1&sq=Seligman%20Mitchell&st=cse&scp=1
———-
Yeah, right. He invites CIA psychologists, SERE psychologists and intel officers to his home right after 911 to discuss “Muslim extremism” and Dr Seligman is later shocked –shocked! to discover his concepts were applied to torture programs.
Dr Seligman is at Univ of Pennsylvania. After reading the
Times article I wondered if Dr Seligman is like that psychologist in The Bourne Supremacy. I.e, The kind of guy you would like to introduce to Hannibal Lecter to balance accounts.
August 30th, 2009 at 3:24 am
Can we stop pretending that torture has ever really been illegal in the United States?
It wasn’t that long ago a town had no qualms about lynching a black man for looking a a white woman sideways. We ran a fucking school of torture for dipshit dictators to send their thugs from Central and Southern America for lessons.
We are a nation of torturers and war criminals. Dick Cheney isn’t an anomaly, he’s as American as apple pie.
August 30th, 2009 at 3:52 am
GOP’ers would not accept such a commission unless it is co-chaired by Dick Cheney, John Yoo and Attila the Hun
August 30th, 2009 at 5:18 am
During halftime at the Superbowl, put the Cheney, Rove, Libby, Addington and Yoo in a vareity of devices and have Pat Fitzgerald ask them what they know about such topics as 9/11, Plame, and bogus intelligence and torture while Joe Wilson turns the screws. First one you breaks gets exiled while if you hold out until your balls/skull explodes you get a pardon. Then we all vote American Idol style if we want to continue to torture people.
August 30th, 2009 at 6:44 am
You know who the Republicans will choose for their side-Fred Fielding, James Baker, … They will take as their mission the protection of their clients (Bush, Cheney, Tenet) from any suggestion of legal culpability. Don’t even bother.
August 30th, 2009 at 11:03 am
We are a nation of torturers and war criminals. Dick Cheney isn’t an anomaly, he’s as American as apple pie.
Eh, no. There was a time when our enemies on the battlefield used to surrender to U.S. forces because they knew they’d be treated well in custody, better than they’d be treated by their own armies. My great-uncle was one of them.
Dick Cheney’s America is not one that would inspire enemy forces to surrender willingly.
August 30th, 2009 at 11:33 am
Jeffrey, no. In fact, he still thinks it was 100% moral and right to execute those people. You see, they weren’t Americans, and being American makes everything we do OK.
August 30th, 2009 at 12:25 pm
I agree about the independent commission even if I think the politicians don’t have the nerve to take further action and these things may have to be taken up by a more enlightened Supreme Coourt.
But as to the question of torture already being illegal the statutes to implement the CAT (which are the only federal laws covering torture) don’t include practices generally understood by libs like myself to be torture including sleep deprivation, hooding, shackling, and maybe even waterboarding.
August 30th, 2009 at 1:30 pm
Hector,
You’ll appreciate this. Andrew Sullivan (!) wrote a very insightful piece (!) in the New Republic (!) in which he argued that torture is wrong, because it is an exercise in turning the body against the soul.
August 30th, 2009 at 1:35 pm
Obama isn’t investigating the previous regime; career law enforcement personnel and attorneys in the Justice Department are. There is not the slightest evidence that Obama has anything whatsoever to do with this. He has come out against it rhetorically, and has done nothing to push it.
By describing even an independent investigation by an independent Justice Department – something the Washington Post used to insist upon, before George Bush turned it into an army of the White House political office – in terms of a President investigating people, Hiatt is acceding to the Republicans’ inaccurate, self-serving framing the question.