In the wake of the latest blow to those who favor America’s torture policy, their rhetorical ground for approving it has shrunk to a downright claustrophobic space. As it turns out, this development is not confining but downright liberating.
For more on pruning back executive power see Pruning Shears.
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The reaction to the CIA inspector general report on torture is surprising in a way. Alex Koppelman noted that the threats against the family of Khalid Sheikh Mohammed were reported by Ron Suskind in 2006. Jane Mayer’s book was received with radio silence but some of the details in the report are directly foreshadowed by it. For instance, on page 203 she writes about Major General Geoffrey Miller when he was in charge of Guantánamo Bay. An officer under him quotes him, “If the Torture Statute says 80 degrees is bad, we will set the thermometer at 79.9 degrees.” Compare to the precision used in deciding just how much light, noise and cold a detainee could be subjected to. For anyone who has been following this closely it is tempting to say, “what exactly is new here?”
What is new is the climate. Marcy Wheeler and Glenn Greenwald both expressed deep concerns about Eric Holder setting up a whitewash. Unlike Abu Ghraib, though, this comes at a time of sustained pushback against torture. Books like Mayer’s and Suskind’s have been out for a while, their reporting percolating through the media. There have been two election cycles where the party that championed torture has suffered substantial losses. The absence of another major attack has changed the public mood (perhaps not to complacency as much as a sense that our leaders at the time were unforgivably distracted). I won’t attempt to persuade anyone to trust my intuition over our history of letting high officials off the hook or the analysis of those with a good track record on these topics, but this time it feels different.
What has been most fascinating, though, has been the reaction on the right. Torture defenders can no longer stop the debate by fearmongering or questioning anyone’s patriotism. For a while they gamely insisted we do not torture, then that became untenable. It morphed into the ticking time bomb scenario, where we stopped talking about what we actually did and started talking about what we might do in the most fevered, paranoid dreams of the neoconservatives. Now they unselfconsciously quote a report that flatly states, “This Review did not uncover any evidence that these plots were imminent.” With that, Stephen Hayes brought them home to their new strategy: continued use of fabulous hypotheticals along with the dubious claim that torture worked. Hayes writes, “Reasonable people can – and do – disagree about the morality of using EITs. But only the most accomplished resister could continue to claim that they were not effective.” Note the construction: Grab a phrase from the Nazis and euphemistically make an acronym out of it. Then claim there are people of good will on both sides of the issue. Morality is thus disposed of, so it becomes a strictly utilitarian issue. It is an astonishingly elegant formulation, and versatile too.
For instance, slavery is illegal in America and of course we do not practice it. But we are looking at near-double digit unemployment through the end of next year, and the economic picture is generally pretty bad. Without passing judgment on those who do not have a job, we can probably safely say they would like one. Providing one would liberate them from the stress they surely feel, so this would be an unalloyed good. We should therefore create a program with a catchy name like Work Makes Freedom to address it. The WMF’s could be involuntarily matched up with employers, who for a nominal fee would provide permanent food and shelter in exchange for labor. A classic win-win situation. Unemployment would plummet, GDP would go up, and the economy would soar. Illegal immigration would all but end by virtue of eliminating the economic incentive to come here, business costs would go down and that would presumably redound to consumers in the form of lower prices. It would, in a word, work. While reasonable people might disagree on the morality of the WMF program, its effectiveness would be beyond dispute.
This outcome-focused approach to policy is perfectly in line with Antonin Scalia’s recent observation that the legal system is not ultimately concerned with actual guilt or innocence. All that matters is that we have a well-defined, efficient process that comes to a final, immutable conclusion. Fact is, you can get mighty bogged down forever trying to establish a nebulous concept like justice, or figuring out when exactly interrogation becomes enhanced enough to be torture, or compulsory service becomes slavery. Who can say, who can say? These things are as unknowable as the mind of God, and chasing after them madness. While pondering them may make for an enjoyable academic exercise they have no place in the real world. I for one look forward to the coming era of clarity.