This is my second trip to Santa Barbara to speak at your university and the journey itself provides inspiration. I made the drive up this morning from Los Angeles, and coming on the highway to one breath-taking vista of the Channel Islands, I thought about Jonathan Swift’s book Gulliver’s Travels. It’s a book that I loved as a child, and then in my college years, I read it again and discovered something entirely different and more subtle. If you strain back to remember it, you’ll recall that Swift’s hero follows a curious geography—a combination of the real world and the fantastic. But one of the most amazing passages of the book must, I think, involve the hills, fields and coastline right around us. Lemuel Gulliver travels in part II to the kingdom of Brobdingnag, which Swift tells us with some precision is an island off the coast of California and its adjacent mainland: I make it out to be Santa Barbara and Ventura Counties. The voyage provides Gulliver with a number of adventures, but the high point comes when he is introduced to the king and strikes up a conversation with him about Brobdingnag’s society and culture. At one point the king of Brobdingnag and his visitor discuss lawyers and their usefulness. The best lawyers are those who can show that black is white as, he says, “laws are best explained, interpreted, and applied, by those whose interest and abilities lie in perverting, confounding, and eluding them.” Such a ruler places stock in such lawyers because they allow him to rule above the law; he can use it as a tool to achieve his will. But this kingdom is ruled by man not by law. Swift’s book isn’t just for children of course; it is a bitter political satire, and in it he’s pointing to just the problem we face today. What do we do when a government twists the words and purposes of the law beyond recognition, establishing the principle that it is a government of men, not of laws? For Swift this wasn’t a laughing matter. From his whiggish perspective, all of history has been a struggle for the rule of law and for government of principle. It has been a struggle to hold the high and mighty to account before the law.
And Swift is right about another thing. The past dictates our present, he tells us; we are its captives. And the attitude we adopt towards our immediate past will dictate our future. Some will want to turn the page and move on, leave the matter for historians and journalists. Indeed, politicians close to Bush and individuals deeply enmeshed in programs like the “highly coercive interrogation program” and the “terrorist surveillance program” fervently hope that’s what we’ll do. But two major public opinion surveys show that Americans by a sweeping margin reject this approach. They are demanding accounting for eight years of misadministration, and particularly accounting for violations of law that certainly occurred. In this regard, the American public is far wiser and more serious about our country and its institutions than the vacuous Washington punditry, which steadily beats the “move on” drum and is more concerned about what happens to their lunch buddies from the prior administration than what happens to the constitution.
The real issue is what kind of country we will have going forward—whether the Bush team’s transgressions will be accepted as just another policy option that a future president can turn to, utilizing the same tools. If we turn the page without acting, we are saying that the presidents who follow Obama—and indeed Obama himself—are free to torture prisoners with impunity, to spy on American citizens without obtaining warrants or going to Congress for authority to do so, to pick and chose between the laws as to which they will enforce and which they will ignore by issuing secret partial vetoes through appended Signing Statements and placing political hacks in the Justice Department’s Office of Legal Counsel to render secret opinions that turn to dust as soon as they are exposed to the sanitizing sunlight. We would also be saying that it’s just fine for an administration to corrupt the Department of Justice for political purposes—directing prosecutions of opposition political figures and suppressing investigations of the “home team” for purposes of helping some electoral schemes. What the Bush administration launched as a war on terror quickly turned into a war on the law itself.
Our country, our law, our political system operates on the basis of precedent. Failing to act on the Bush legacy means that his acts, no matter how outrageous or illegal, are accepted as precedent and may direct our future. I don’t think, however, that it would be appropriate or even possible to investigate all the abuses of the last eight years. Still, one area cries out for study and action: the policies developed to deal with detainees in the war on terror.
There are three areas of particular concern:
First, the interrogations program, which University of California law professor John Yoo, the author of the infamous torture memoranda, properly calls the “Bush program.” A system of torture techniques was introduced by the Bush administration over sustained opposition from career lawyers, particularly military lawyers. One for instance, now a senior general in the Pentagon, recounted to me how he confronted John Yoo directly telling him that the techniques under contemplation and approved by Yoo were violations of U.S. criminal law and would lead to prosecutions. Yoo responded by saying that he had considered that possibility and had therefore involved the chief of the criminal division in the opinion writing process. The Bush administration would not prosecute the Bush administration’s decisions, he implicitly offered. But the administration that follows will, the general responded.
Second, the system of extraordinary renditions under which persons were seized and transported to secret prisons outside of any accountability under law and then regularly tortured either by U.S. agents or by foreign states acting as proxies.
Third, the system of military commissions created in Guantanamo, an unprecedented judicial travesty. Six prosecutors resigned or requested transfer after disclosing that they were aware of efforts by political figures to rig the proceedings assuring outcomes acceptable to the administration. This has placed an unprecedented taint on the American military justice system, which previously was a point of pride for our country.
These three programs violated criminal law in a systematic way, the violations occurring as a matter of policy formed by government and pushed through over objections of career employees.
President Obama swept all these violations away in a series of executive orders he issued in his first two days in office. Attorney General Eric Holder testified that he considered specific authorized techniques unlawful, and specifically that he considered waterboarding—which President Bush confessed was applied with his authority to three prisoners—to be torture, a violation of U.S. criminal law.
Moreover, Susan J. Crawford, a protégée of Dick Cheney’s who was appointed through the connivance of David Addington and his sidekick Jim Haynes to be the senior administration official operating the Gitmo commissions, told Bob Woodward in an interview that she examined the case of one detainee who was not waterboarded but was subjected to a complex regimen of sensory deprivation and overload, sleep deprivation, sexual humiliation and other mistreatment and concluded that he was tortured.
Under U.S. and international law, a criminal investigation must be opened into all of these matters. Under the Anti-Torture Act, 18 U.S.C sec. 2340, torture is a felony. Under articles 4, 5 and 7 of the Convention Against Torture, the U.S. undertook to make torture a federal crime and to open and conduct a criminal investigation of any credible report of torture. With the Crawford statement, we actually have a judicial determination that practices carried out on a prisoner with high-level approval constituted torture. Lieutenant General Mark Schmidt testified that the prisoner in question had been handled according to a program specifically reviewed and approved by Secretary Rumsfeld, and that Rumsfeld had been directly concerned with his interrogation. High officials of the United Nations and of at least one of our NATO allies have called the Obama administration’s attention to its unfulfilled obligations under law to open a criminal investigation of the use of torture.
We know why the Bush administration failed to investigate. When investigations were requested by Congress, Mukasey stated that these matters were all covered by opinions issued by the Office of Legal Counsel, that Administration officials were entitled to rely on these opinions and that therefore no crime could have occurred. But Mukasey’s view is untenable. In fact, no “reliance on advice of counsel” defense to a criminal charge of torture, either under U.S. or international law, is available to those who made and implemented the torture policies. At best, this would be a sort of promissory estoppel argument focusing on good-faith reliance. But that would in turn require the close examination of all the facts and circumstances surrounding the issuance of the memos.
And shortly we will hear much more. The Justice Department’s legal ethics office has been conducting a study of the torture memoranda and their authors—Yoo, Jay Bybee, now a federal appeals judge and Stephen Bradbury, who succeeded Yoo and whose dark handiwork has long been kept secret. Newsweek reports that the report comes to blistering conclusions surrounding the ethics and professionalism of the opinion writers, and has recommended further disciplinary action. These conclusions were presented to Mukasey in October 2008. He reacted by attempting to suppress the report and blocking its provision to Congress. Harvard law professor and former OLC head Jack Goldsmith says in his book The Terror Presidency that the White House sought these opinions as a sort of “golden shield” against criminal liability. But as things now stand, the opinions appear to be made of fool’s gold, not the genuine article. Mukasey’s proffered excuse doesn’t work, and there is therefore no reason standing in the way now of a criminal investigation—in fact the U.S. is now in breach of its commitments by not conducting an investigation.
We are a democratic society and the people have a right to be informed about what was done in their name. Launching a criminal prosecution, while an unavoidable step, will not result in the truth coming out. The circumstances warrant appointment of a blue-ribbon commission to study the formation and implementation of the Bush administration’s detainee treatment policy. The commission should either be a presidential commission or it should broadly follow the model of the 9/11 commission. Care should be taken to avoid politicizing the commission and we need to get away from a process of picking cashiered Democratic and Republican political figures. Those who are appointed should be above the political fray in Washington and should be singled out because of their experience and reputation as professionals: a career diplomat, retired generals and admirals, intelligence community experts, a prosecutor, ethicists and religious figures, a human rights advocate should be included. The commission should have subpoena power, and the president should issue an order to U.S. government agencies like the one that President Ford issued to support the Rockefeller Commission’s work—noting that security classifications and privilege claims could not be invoked to deny information to the commission.
Let’s consider what’s at stake. Our democracy and our understanding of the relationship between its vital institutions, especially the executive and the Congress; avoiding a presidency with dictatorial powers. Upholding our traditions and values. Being a leader in the international community. Attending effectively to our security. One thing flows through the Bush years—it’s a conviction that our laws, our Constitution and our democratic values were a weakness best supplanted with an all-powerful executive. Gone is the careful system of checks-and-balances that the Founders crafted. In Jane Mayer’s book The Dark Side, I found one very revealing passage. A senior CIA figure describes his meeting with David Addington and Dick Cheney at which the legality of the black sites came up. “Laws!? Like who the fuck cares!” That could stand as a motto for the last eight years. And it presents us with a dilemma. We can agree with Nixon that “if the president does it, that means it’s legal.” That’s one dark vision of our Constitutional order. Or we can hold to the view of our Founding Fathers, which Thomas Paine summed up this way “in America, the law ought to be King; and there ought to be no other.”
We can view this as a lesson in geography. Do we live in the America our Founding Fathers envisioned or do we live in the realm described in the voyage to Brobdingnag? Swift suggests that this geography will ultimately be of our own making. He’s right.
