I have a question for all the well-meaning people who praise President Obama for “banning” torture:
Would you also find it helpful for the president to ban kidnapping? Child abuse? Mail fraud?
Maybe you would. After all, no one likes kidnapping, child abuse, or mail fraud. Maybe it would be good if the president banned them.
But of course, it would be incoherent to talk of the president banning such practices—because these things are all illegal. And in a democracy—in a country under the rule of law—the president has no more power to prohibit what’s illegal than he does to permit it.
Fair enough, you might say, but isn’t banning what’s already illegal just kind of a suspenders-and-a-belt thing? A bit of emphasis, an arguably redundant exclamation point?
No, it’s not. Purporting to ban what is already illegal is in fact terribly insidious. And here’s why, in two axioms.
1. What fundamentally makes something a law is that if you violate it, you will face punishment.
2. What one president can prohibit, another can permit.
Put these two concepts together, and what do you get when a president reacts to governmental law-breaking by: (1) not prosecuting anyone involved; and (2) instead “banning” what they did?
What you get is not a proscription of law, but a policy of choice.
And this is why Obama’s notion that he has the power to “ban” torture, and his failure to prosecute anyone who ordered it, is so insidious, so caustic to the rule of law (and note that Obama hasn’t even “banned” all torture—only some!). Obama is cementing in the mind of the public the notion that torture is not a crime, but merely a policy choice.
It’s also important to note that too much focus on whether torture “works,” which is the language of policy, not of law, has the same insidious effect. In this regard I’m concerned about what we’ll see if the Senate torture report is ever, however propagandistically, declassified. First, the report is rumored to never even use the word torture (other countries torture; America merely employs Enhanced Interrogation Techniques). Second, it’s rumored to emphasize the appalling degree to which torture didn’t produce actionable intelligence. The second one sounds good… but is there any other crime that gets discussed in terms of whether it produced good results or otherwise “works”? As I’ve said before:
Imagine you're a cop. You come across a dead body with a bullet hole in the forehead, and there's a guy standing over the corpse holding a smoking gun. You want to arrest the guy with the gun, and your partner says, "Hang on a minute there, pard. Can you honestly say that killing is never, ever justified?" This is exactly what torture apologists are doing in the face of actual laws and actual facts demonstrating that those laws were violated.
If I were at all cynical, I might even believe the primary purpose of the Senate’s report is to further the notion that torture is a policy, to be implemented or discarded primarily on the sorts of cost/benefit grounds that inform any other policy, and not a crime the violation of which should result in investigation and punishment.
By the way, Article 12 of the UN Convention Against Torture and Other Cruel, Inhuman, or Degrading Punishment creates an affirmative obligation on signatories like the United States to investigate credible evidence of torture in their territories. In disregarding this treaty obligation (which according to Article VI of the Constitution is the Supreme Law of the Land), Obama is violating his constitutional obligation to “take care that the laws be faithfully executed.”
Oh, well. The UNCAT also provides that “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” But Obama says that post 9/11, people felt “pressured” and “afraid,” and that therefore it would be “sanctimonious” to enforce the law.
I’ve been writing about this for quite a few years now—first, when torture opponents praised Obama for noting in his surreal Nobel Peace Prize acceptance speech that he had “prohibited” torture (“It’s Good to Be the King”); second, when (as predicated) candidate Romney’s advisors were said to be urging their candidate to reverse Obama’s ban (“The Obama Effect”). And why not? Again, if something is merely banned by the fiat of one president, why can’t it be implemented by the fiat of another?
In this regard, it’s depressing that even an otherwise well-argued and well-intentioned recent letter to the president from a group of retired generals and admirals concludes, “Ultimately, an American public that understands the high costs of torture is the best guarantee against a future president rescinding your executive order and treating torture as a viable policy option.”
Well, maybe—but only if you’re willing to accept the false and noxious notion that torture is merely a policy choice that one president can prohibit by executive order and another can permit, and that torture is primarily a bad policy choice because of its “high costs.” But take a step back, and a slightly more effective way of preventing torture’s recrudescence becomes clear: how about acknowledging that torture is criminal… by prosecuting people who committed the crimes?
Does it even need to be said? What’s more of a deterrent to a future president: that torture is unpopular because the public understands it offers poor cost/benefit returns… or that your predecessor is currently doing time in federal prison after being convicted of violating America’s clear laws against torture?
Maybe those generals and admirals know better, and are just being realistic. Maybe they’ve accepted that we’re now at the point where torture is de facto no longer illegal (see axiom #1 above), and they’re trying to do what’s left to them to make torture unpopular so future presidents will be a bit less tempted.
If so, I wish they’d just come out and say it. Sure, it would be good for the public to “understand” the “high costs” of torture. But it might be good if the public could also understand that one of those costs is America’s ongoing slide from a nation protected by the rule of law to a fiefdom at the whim of presidential policy.
Barry Eisler is a best-selling thriller author who spent three years in a covert position at the CIA Directorate of Operations. You can read more about his work at his website.
