Teach the Controversy

On Wednesday, Glenn Greenwald discussed the media’s tendency to call anyone who supports torture prosecutions the ‘hard left’. He makes the good, and self-evident, argument that those who are calling for prosecutions represent a bipartisan range of Americans; that pro-prosecution arguments are based on principle, not politics.

However, I was struck by this passage quoted from the comments of an earlier post:

I want to point out that the main reason, if not the only reason, for this overwhelming media view is because the only lens through which they can see this issue – like every issue – is the Republican/Democrat or conservative/liberal lens. When one’s entire point of reference for even issues of egregious lawbreaking goes no further than fixating obsessively over the identity of the people and parties to the “controversy” and the issue’s putative effect on partisan politics, whether a leader of one party was informed of the crimes of the other takes on a meaning perversely greater than the evil of the underlying conduct itself.

Our establishment media simply cannot get beyond this stultifyingly narrow framework. It is pathological.

In the face of repeated court-rulings, creationists have been unable to formally inject their beliefs into high school science classrooms, whether as creationism or ‘intelligent design’. Instead, they argue that we should ‘teach the controversy’ – if they cannot teach that God created the earth 6000 years ago, they want to teach the debate over whether God created the earth 6000 years ago. It is a crafty argument and finds some measure of support.

It is easy to see why – ‘teach the controversy’ speaks directly to the core beliefs of a liberal democracy. Through vigorous and unfettered public debate the truth, or the best course for the nation, can be charted. It is the premise behind both the 1st amendment and the principle of academic freedom. So, while the application of this kind of  modern disputatio to high school education is dubious, it is not surprising that a similar principle has wormed its way into the media.

In the interests of ‘balance’, we are told, it is necessary for the media to impartially present both sides of any argument. But this is not an arbitration – the adjudication of the truth is left as an exercise to the reader. This, in an open and intellectually honest debate, would be less objectionable. However, like calls to ‘teach the controversy’, the media now seeks out two-sides to all arguments – even those were no real argument exists. They actively present those among the fringe so as to create balance, giving an open microphone to anyone who disagrees with any position – frequently without providing any context whatsoever. Teaching the controversy is the traditional media’s default position. The effect of this behavior can be seen everywhere: evolution, climate change, ‘enhanced interrogation techniques’, even vaccine safety. It is the hallmark of the local news promo: Tonight at 11, why some people are questioning whether your children should eat carrots.

There are innumerable legitimate debates in this country and it is the media’s role to cover them. But, it is also the media’s role to help us learn about the important ones. By teaching the controversy, the media opens itself up to manipulation by any unscrupulous or fringe group that wants to bury a story  – by stirring up a fake debate, they turn real news into a petty his-says-she-says distraction. That the controversies come packaged in an easy partisan format is all the better.

And people wonder why newspapers are dying.

What Did Pelosi Know, and When Did She Know It?

This seems to be a matter of debate even among the pro-prosecution crowd, with Marcy Wheeler on one side with her fabulous timeline and Jonathan Turley and Glenn Greenwald on the other.

Frankly, I don’t care that much. There are, I think, three kinds of culpability Pelosi could have for the Bush torture regime: criminal, political, and moral.

On the moral front, Speaker Pelosi has already admitted to knowing that the administration might torture. Whether or not she knew they were going to or already had tortured, she already carries a great deal of moral responsibility for not speaking out, publicly. My moral calculus suggests she should have publicly opposed the program even if it resulted in a prison sentence. I know it’s existentialist, but she had a choice to make and made the wrong one.

On the criminal front, I doubt she’d have any even if she knew they were torturing. Intelligence briefings inform, but do not ask for consent. And Pelosi is not so oblivious so as to even cautiously support investigations if they were going to turn up her own criminal wrong doing.

So, I suspect that this tu quoque attack on Pelosi from the torture apologists rests largely on the political culpability issue. They believe that by revealing her knowledge they stand to cool the ardor for investigations among Democrats. They’re wrong.

The Democrats who don’t want to prosecute need no convincing. “Look forward, not back” is a Democratic motto. However, the Democrats who do want to prosecute are not doing it for political reasons. I do believe that torture prosecutions will be distracting and possibly politically damaging. However, we don’t have a choice. Even ignoring our legal obligations, for the good of the Republic we must confront this massive betrayal of our ideals. Evidence of Democratic complicity or complacency only increases this need. Only slightly less than seeing the torturers behind bars, I’d like to see the Democrats who enabled them shamed out of office.

The netroots gained so many members so quickly precisely because of Beltway Democrats’ refusal to stand-up to the Bush administration on anything. As many have said, now that we have more Democrats, we can focus on better Democrats. Any Democrat who allowed the torture program to proceed unimpeded is not a better Democrat. The Democratic party has a big tent with room for lots of policy differences; but when it comes to torture, I’m an ideological purist.

Sunday Torture News

From Calitics, the California Democratic Party has resolved to support an impeachment inquiry into Jay Bybee, author of torture memos and federal judge on the 9th Circuit Court of Appeal. Congratulations to DDay (David Dayen) who launched petition to have the resolution adopted at this weekend’s state party convention. The text of the resolution is below the fold.

Meanwhile, at Firedoglake, George Lakoff, a professor of cognitive science at UC Berkeley, makes a novel argument for torture investigations:

President Obama has argued that empathy is the basis of our democracy. It is because we care about others, he has argued, that we have principles like freedom and fairness, not just for ourselves but for everyone.  I have found, in studies of largely unconscious political conceptual systems, that empathy is the basis of progressive political thought, and the basis for the very idea of social, not just individual, responsibility. Conservative political thought is otherwise structured, based on authority, discipline, and responsibility for oneself but not others. The major moral, social, and political divide in America centers around empathy.

[Snip]

Torture violates empathy in the most direct way. The very neural system we use in creating inhuman, unbearable pain in someone you are looking at, hearing, and touching is the same neural system that equips us to feel the pain we are creating. It is the same neural system that creates human connections with others. And the same neural system that lies at the heart of political democracy. Turning it off is turning off humanity, and with it democracy.

It’s interesting. Go read the whole thing.

Tu Quoque (Updated)

The lastest pushback from the Republican party on the released torture memos is the claim that Democrats knew about the techniques – waterboarding in particular – and raised no objections.

[A] full-blown battle has opened between House Speaker Nancy Pelosi, D-San Francisco, and her GOP counterpart, Ohio’s John Boehner about how much top Congressional leaders knew about water boarding in 2002. It is being fueled in part by a timeline released by the Senate Intelligence Committee, chaired by another California Democrat, Dianne Feinstein.

Boehner released news reports from 2007 that seemed to contradict Pelosi, and Pelosi’s office fired back with their own. Boehner said Congressional leaders “received an awful lot of information” about interrogations, and that “not a word was raised at the time, not one word. And I think you’re going to hear more and more about the bigger picture here, that … the war on terror after 9/11 was done in a bipartisan basis on lots of fronts.”

I agree entirely. In fact, this has been a long-running complaint among most progressives that the cotton candy ass Democrats in Congress did nothing to stop the erosion of civil liberties and the rule of law over the past eight years. But this misses the point. Whether and when Congressional leaders knew about waterboarding is of no import on the question of whether Bush officials violated the law. It is of political import, of course, and of moral import. It may even be of legal import for those Congressional leaders (see: the Ministry Cases from Nuremberg). But on the sole question of whether war crimes were committed, it doesn’t matter.

I also think that this argument from Boehner evinces a basic misapprehension about what is going on here. Republicans are making a political defense because they believe all of this ‘torture stuff’ to be a political attack. Likely because if roles were reversed it would be a political attack. But it isn’t now. The D.C. political class is frankly doing everything in its power to avoid dealing with this, largely, I suspect, because they do know they face a serious political downside both for being seen as partisan and for having ignored the issue for so long. If not complicit they were at least complacent.

For most, if not all, prosecution advocates, it doesn’t matter who committed the crimes. I would want prosecutions just as strongly if a Democratic administration had been the bad actor. War crimes should never be swept under the rug. And, just to head you off at the pass, the Clinton impeachment was different. I would have been perfectly happy to have had Bill Clinton arrested and tried for perjury the minute he left office, but impeachment is a political process in a way that a criminal investigation and prosecution is definitively not. And, of course, perjury cannot really be compared to war crimes in any meaningful way.

Finally, Speaker Pelosi, this response you’ve developed isn’t going to work.

At that or any other briefing, and that was the only briefing that I was briefed on in that regard, we were not — I repeat, we were not — told that water boarding or any of these other enhanced interrogation methods were used.

What they did tell us is that they had some legislative counsel — the Office of Legislative Counsel [sic] opinions that they could be used, but not that they would. And they further — further, the point was that if and when they would be used, they would brief Congress at that time, A.

B, I know that there are some different interpretations coming out of that meeting. My colleague, the Chairman of the committee, has said, ‘Well, if they say that it’s legal, you have to know that they’re going to use them.’ Well, his experience is that he was a member of the CIA and later went on to head the CIA. And maybe his experience is that if they tell you one thing, they may mean something else. My experience was they did not tell us they were using that. Flat out. And any — any contention to the contrary is simply not true.

Speaker Pelosi, you had at the very least a moral obligation to prevent the administration from violating the law and committing a war crime. The mere fact that they believed they could torture people should have prompted all kinds of outrage. When the first reports about Abu Ghraib came out in January 2004, it should have been easy to connect the dots. By the time the Bybee memo leaked in the summer of 2004, you had no excuse whatsoever for not addressing this. Do not play coy. You hold a great deal of moral responsibility for what happened here, even if it is nowhere near the amount that accrues to the Bush administration. You can begin to redeem yourself by admitting your failures – the public loves a mea culpa. But more than being the correct political move, confession is good for the soul.

Update: Glenn Greenwald makes this same point quite a bit better than I do.

Update 2: It is worthwhile to remember that whatever Congresswoman Harman’s other flaws, she did protest the torture program.

Impeach Jay Bybee

I wrote yesterday about David Dayen’s petition to have the CDP adopt a resolution calling for Judge Bybee’s impeachment. Today, the Courage Campaign has joined the call. Sign their petition here. The deadline is Friday 9am – so sign now.

When President Barack Obama released the contents of President Bush’s torture memos, America learned the full extent of the horror that was unleashed at Guanatanamo Bay on detainees. One of the memos was written by Jay Bybee in August 2002. It authorized the use of waterboarding, “cramped confinement”, “walling” — where a detainee’s head is repeatedly pushed against a wall — and even putting insects into a confined space with a detainee.

Jay Bybee is now a federal judge here in California, serving on the important Ninth Circuit Federal Court of Appeals, based in San Francisco. He has not been held accountable for the lawbreaking he committed and enabled.

The California grassroots are determined to change that. Los Angeles Democratic activists John Heaner, Agi Kessler and Richard Mathews have sponsored a resolution calling on the House of Representatives to begin impeachment proceedings against Jay Bybee.

Update: And here is a petition to John Conyers, Chairman of the House Judiciary Committee from the People For the American Way.

Statistics

Khalid Sheikh Mohammed was waterboarded 183 times in one month. What, exactly, did they expect to get out of him the 183rd time that they hadn’t already gotten the 182nd?

Impeach Jay Bybee

One of the more disturbing issues arising from the torture memos that have been slowly released by the Obama administration is the presence of one of their authors, Jay Bybee, on the 9th Circuit Court of Appeals. The case for his impeachment by Congress has been made elsewhere, citing both the poor quality of the legal reasoning the memos and their criminality.

For California Democrats, David Dayen has prepared an online petition urging the state party to adopt a resolution calling for Judge Bybee’s impeachment at this week’s convention. Go sign it online or contact the party leadership directly.

Sacramento Office
(916) 442-5707 phone
(916) 442-5715 fax

Los Angeles Office
(310) 407-0980 phone
(310) 407-0981 fax

email contact form

Should John Yoo Teach?

Berkeley Professor Brad DeLong has called for John Yoo to be fired from the university’s law school. He makes a strong argument and I agree that Yoo shouldn’t be teaching law when he seems to have such a flawed understanding of it. I also have a great deal of respect for Professor DeLong in making such a public statement.

However, I have been uncertain whether it is actually worthwhile to fire him. At first, I thought my concerns were over academic freedom and the ethics of firing a professor for legal advice given as a lawyer to a client. However, in the wake of the news surrounding the DOJ’s Office of Professional Responsibility’s unpublished report, those misgivings have more-or-less faded away. Fortunately, that allowed me to uncover the source of my concern – it isn’t big enough.

It isn’t enough to fire Yoo from Berkeley. (He will undoubtedly get another job, either at a law school desperate for attention, like Chapman, or at a conservative think tank). It isn’t enough to disbar him. For the role he has played in undermining the Constitution, the rule of law, and the dignity of man, those actions are insufficient. If he cannot or will not be prosecuted, then the public opprobrium must be so great that his opinions, like Carthage’s fields, are sown with salt so that nothing no policy there may grow. Yoo delenda est.

Despite our pretensions to academic freedom, professors get fired, or denied tenure, for any manner of comments found to be controversial. A 30-second google search found these two on the first results page. With his conservative credentials burnished by being fired by ‘liberal academics’, Yoo will move on to new heights from which he can launch attacks in op-ed pages around the country. This is not sufficient.

But for all that, I’m fairly certain it is necessary.

Update: I got unnecessarily rabid here, and conflated several issues. Yoo should be prosecuted for any crimes, especially war crimes, he committed. His opinions should be forcefully rejected by the public so they don’t form the basis for future policy. Firing him is insufficient for his potential crimes, inappropriate for his opinions, and necessary for his deficient professional ethics and practices. I conveyed this opinion exceedingly poorly.

Bush Administration Legal Memos

ProPublica has published an interactive list of Bush Administration ‘secret’ memos on torture, wiretapping, and the scope of executive authority. It is an important reference on the subject.

Ultimately, President Obama and the Attorney General will have to decide whether to release these memos to the public. Regardless of whether investigations or prosecutions of Bush officials occur, these memos should be released so the nation can appropriately discuss and repudiate the actions and legal positions of the last eight years.

Republicans – No Respect for the Rule of Law

Consider this. According to Senator Whitehouse (D-RI), Republicans are pressuring Eric Holder to commit not to prosecute Bush administration officials for the use of torture.

Republicans on the Judiciary Committee have asked Eric Holder to make a commitment, before he is even confirmed, that he will not prosecute any Bush Administration officials for their involvement in acts of torture during the last administration.

I suppose that after the past eight years, I shouldn’t be surprised that Republicans don’t want political appointees to do their jobs. But this is especially appalling. It would be unbelievably improper for Holder to make that commitment. The decision on whether to prosecute must be made only after investigation. They are asking him not to do his job, as a condition for taking the job. We may as well abolish the position.

Furthermore, I’m not sure that this makes political sense. The Obama administration has been fairly clear in their reluctance to prosecute on torture issues. What possible reason could there be to publicize this in this way? Now, if Holder doesn’t prosecute, he caved to the Republicans. If he does, then he was just upholding the integrity of the law. It seems to me that this would make it easier to make a public argument in favor of prosecution.

Additionally, the traditional media has been almost universally united in their consensus that prosecutions would be divisive and distracting. This move just reopens the debate, and does so in a way that more clearly places Republicans in the wrong.