Torture, civil liberty, and the post-modern police state

“What happened here was the gradual habituation of the people, little by little, to being governed by surprise; to receiving decisions deliberated in secret; to believing that the situation was so complicated that the government had to act on information which the people could not understand, or so dangerous that, even if the people could understand it, it could not be released because of national security. And their sense of identification with Hitler, their trust in him, made it easier to widen this gap and reassured those who would otherwise have worried about it.

This separation of government from people, this widening of the gap, took place so gradually and so insensibly, each step disguised (perhaps not even intentionally) as a temporary emergency measure or associated with true patriotic allegiance or with real social purposes. And all the crises and reforms (real reforms, too) so occupied the people that they did not see the slow motion underneath, of the whole process of government growing remoter and remoter.”

-- The words of an anonymous German academic interviewed after the fall of Nazi Germany, from “They Thought They Were Free” by Milton Mayer.

Comparisons between Nazi Germany and whatever authority one disagrees with have unfortunately long since become cliché. For that reason, I hesitate to even make such a comparison. However, if history is to do us any real good, beyond giving us a sense of identity and providing some context for our war memorials, we need to be willing to take it seriously, to detect trends, and to accept that we ourselves are not immune to the errors that others have committed.

Mark Twain once said: “History doesn't repeat itself, but it does rhyme.” That is a truth. It rhymes because it is made by human beings, and there are certain constants in the nature of human beings, both as individuals and as whole societies. To be sure, 1930’s Germany and contemporary America are different in innumerable respects. Cultures vary. American culture, in all its many forms, is more individualistic than Germany’s was – though it is probably far less individualistic than it was fifty years ago. We have spent several generations confusing petty forms of self expression with meaningful individual liberty. We are not really free because we can have different cell phones in different colors, but because we can live independently by our own means, make our own decisions, and dispose of the fruits of our labor largely as we see fit. Unlike the Germans, the idea of democracy isn’t innately suspect to us. When I went to school, at least, we were still indoctrinated with the rather optimistic notion that, in America, it is the people themselves who ultimately rule. The Germans mistrusted this idea. They were used to being ruled by one authoritarian figure or another. I am not sure what American public school students, let alone the home schooled, are taught now. I shudder to imagine.

The quote that begins this essay caught my attention because, if you omit the word “Hitler,” it applies to current conditions in America in every detail. Since 9/11, the relationship between the people and the government has substantially changed. The beginnings of this change occurred much earlier, but 9/11 was a watershed moment in US history – a point at which we began to consider many of our cultural values, and even our laws, irrelevant and old fashioned.

There are many aspects to this transformation, but I am not up to the task of discussing them all. In general, I will say that there are few clean hands in this murder of our rights and our ideals. It is not a partisan matter – a problem of just getting the right party into office. Both parties have been complicit in the process. To understand, we need to open our eyes and take an honest look back. If one must single out a particular issue, US policy (and attitudes) regarding torture is a good point of reference. More generally, one should consider what rights one really has in light of what two administrations since 9/11 have shown themselves prepared to do.

In discussing the question of torture, I cannot just lay out some simple litany of facts. It is not that kind of subject. I was raised during the Cold War. In that era, the Soviet Union, unlike Al Qaeda, really did pose an existential threat to the United States. They had thousands of nuclear weapons and might have used them against us at any time. Occasionally, we would catch one of their spies. I do not know whether we tortured them or not. It is possible that we did. The stakes were high, and in the real world these things do occur. I do know, however, that during the Cold War we did not have a public policy of torture. It was the Soviets, we were told – not we Americans, who engaged in torture as a matter of course.

In school, I was taught that this was one of the distinctions between the Soviets and ourselves – that they used torture, ran secret gulags, conducted arrests without warrants and imprisonment without trials – and America did not. Even as a teenager, I did not believe the story was quite that simple. I knew that plenty of brutal things had been done by Americans. We are not a nation of angels. There were awful atrocities during the Indian wars, certainly. Awful things also happened in World War II. I have a distant relative who saw a group of Japanese POW’s crushed to death by an American bulldozer, not for any better reason than pure sadism. Still, while atrocities do happen, especially in war since violence is the nature of war, at least we never tortured prisoners as a matter of official policy. Our laws, at least, were better than that – even if we as individuals might not be.

When I saw the pictures from Abu Ghraib prison (by open acknowledgement, not the worst of the pictures taken) I was not as shocked as perhaps I should have been. A knowledge of history tends to make brutality unsurprising. In time, however, one can and should reflect. Even the most ardent supporter of what is now euphemistically called “enhanced interrogation” has to admit that a nation either uses torture as an instrument of policy or it doesn’t. They must admit that Canada, for example, or Denmark, surely have not employed torture in a very long time – and that America, China, North Korea, and Soviet Russia have. Nazi Germany tortured people. Human beings. You cannot change the nature of something just by giving it a different name. Dick Cheney promised we would do things “on the dark side”. He kept his promise. Events at Abu Ghraib were blamed on a handful of underlings, of course. The contractors who ran things scurried away. The men at the top expressed appropriate shock. And, worst of all, we all got quickly used to it. Somehow, while we went about our mundane lives, our nation of enlightened ideals had become something else. Something less admirable. This cannot be rationally denied.

It can, of course, be irrationally denied. George Bush told us that Americans don’t torture. Period. We’re the good guys, after all. New definitions had been written which made torture practically non-existent. Under such definitions (that only “organ failure, impairment of bodily function, or even death” constituted torture) quite a few Nazi war criminals would have been acquitted. The Spanish Inquisition believed “water-boarding” was torture and its inquisitors would probably have laughed at any assertion that it wasn’t.

We were also told that the number of people tortured was really very small, and that, really, they were “the worst of the worst.” I doubt the practice was so carefully confined, but even if it was it still rhymes uncomfortably with the past. It should be remembered that the Nazis, in their own view, where only killing vermin. The Soviets, for their part, were only punishing “the enemies of the people.” “The worst of the worst,” in other words.

Then there was the argument that torture gets results. Well, perhaps it sometimes does. We do not, however, authorize our police to torture ordinary criminal suspects or, perhaps, reluctant witnesses – though it might significantly reduce the rate of crime. In any American city you can find “the worst of the worst,” – US citizens that murder and abuse the weak and innocent – and yet we do not water-board them, even if they might have information that would implicate others. Among other reasons, we do not care to entrust the police with a power they might, under unforeseen circumstances, be authorized to use against us. We do not care to have domestic tranquility at the price of a police state. This is America, not the Soviet Union – right?

The rights of a citizen, unfortunately, are only as inviolable as authority’s respect for those rights. It has been said that what the law allows, it encourages. When the government legalizes the torture of one group, no matter how heinous, it makes torture itself a righteous activity rather than an abhorrent one. It becomes a part of government’s repertoire of possibilities. I can think of no government that has legalized the use of torture against foreigners that did not eventually employ it against its own citizens. That so many Americans just accept that these are special times and that such things are not only necessary but commendable shows a lamentable ignorance of history – to say the very least.

The Bush administration may have ended but its legacy has not. Many people, both in the US and elsewhere, heaved a great sign of relief as Barack Obama took his oath of office. Those who were paying attention were soon disappointed.

Obama’s response to the abuses of the Bush administration was to sweep them under the rug. Those who ran the secret prisons, and who engaged in torture, were given a pass. “A time for reconciliation, not for retribution.” No one was punished. The deeds of the past went unrepudiated. Few laws were changed, although most (but not all) of the objectionable parts of the Patriot act were allowed to quietly expire. Gitmo remained in operation. The Imperial Presidency remained in force, the current emperor deigning not to endorse the crudity of officially sanctioned torture – for now. Officials changed, and the destruction of the rule of law proceeded in new directions more palatable to the American left.

In general, the tendency of the Bush administration had been to bypass Congress and use the Justice Department to create new laws. In general, the tendency of the Obama administration is to ignore the law whenever its limitations are inconvenient. Neither administration, though, has felt itself entirely bound by the existing law. Each new administration enforces the laws it likes and ignores the ones it doesn’t. Presidents are less constrained by the Constitution now than they are by fleeting political considerations. We have been reduced from a nation of laws to a nation of street politics. This, too, is a continuation of the old historical rhyme.

Obama is no Hitler. Hitler, for all his many faults, at least knew how to deal with unemployment. However, it is true that both men were essentially street agitators – men of oratorical gifts rather than men of any particular foresight. It is inescapable, too, that both are (or were) cult figures. I used to think that the adoration showered on Ronald Reagan was distasteful and excessive. Obama has not been merely adored, but practically deified. In his first year of office he was awarded a Nobel Prize, not for any recognizable accomplishment, but out of sheer emotional fervor on the part of the prize committee. Almost immediately after the election, bookstores sprouted children’s books about, and sometimes by, Barack Obama. Recently, a filmmaker who produced a documentary about the president stated that the man’s only fault was that he was too perfect – one could not begin to enumerate all of his virtues. George W. Bush looked entirely foolish when he couldn’t think of a single thing that he himself had done wrong while in office, but even his supporters had to wince when he said this. Obama’s supporters never seem to wince. To doubt would be a sort of secular blasphemy. The American left now lies somewhere on the continuum between infatuated teenagers and the slavish subjects of the late Kim Jong Il. These are not healthy attitudes for the people of a republic. In America, isn’t it supposed to be the people who ultimately rule? To love any leader uncritically and unquestioningly is to be unfit to cast a vote as a responsible citizen.

Entrenchment and expansion of the police powers of the state have not been neglected by the Obama administration either. The National Defense Authorization Act for Fiscal Year 2012 affirms and expands the powers granted previously under the Authorization for Use of Military Force (2002). This allows the president to use the armed forces to detain, indefinitely and without trial, anyone who commits a “belligerent act” against the United States or its allies in aid of enemy forces. Since any action that creates disorder in wartime can be construed as aiding Al Qaeda, the possibilities here are sobering. Is criticizing the commander-in-chief a “belligerent act”? Or blocking a street by protesting? Certainly, it could be.

Obama signed this bill into law, with feigned reluctance after an obligatory apache dance with the senate. He will never use it against the public, he says – not that his promise is in any way legally binding. What will happen after his reign? Well… who knows? C’est la guerre. An emergency measure. Don’t worry.

Then we have the interesting case of Anwar al-Awlaki. Awlaki was a Yemeni imam who was undoubtedly and openly supporting terrorist activities against the US. He was also a US citizen. The Constitution and subsequent interpretations thereof create a problem here. US citizens can be tried for treason, and convicting Awlaki would probably not have been a particular legal challenge, but he was in hiding in Yemen and could not be easily arrested and brought to trial. US citizens cannot be tried and convicted in absentia. There is little question that Awlaki’s actions were treasonous (he was both advocating terrorism against the US and recruiting terrorists), but, legally, he was entitled to due process of law. What was needed, clearly, was a very narrowly-defined Constitutional amendment to cope with the realities of just this sort of circumstance. Perhaps an exception to the ruling against trials in absentia, just in cases in which the accused is living in a hostile county overseas to elude capture. It is difficult to believe that many of the state legislatures of the US would have opposed such a narrow amendment, and we have had a decade since 9/11 in which to debate the matter. And, if the state legislatures would have opposed such an amendment – sobeit. If the Constitutional process produces a “no,” we have some semblance of the public’s will and we should live with the consequences. The Obama administration got around this tricky legal question with a drone attack. They openly had Awlaki killed. If the US Constitution provides for the contingency of a trial for treason, it is safe to say that it disallows the summary execution of a citizen. If citizens lack the right to some form of due process before being deprived of their right of life, then they really have no rights whatsoever. The Obama administration knew full well that the conservative media would applaud the death of an enemy and the liberal media would not be long distracted from their expressions of devoted and undying love. A few would quibble, as I am doing now, but not enough to matter. No one important. Josef Goebbels, the Nazi propaganda minister, called this “Realpolitik” – practical politics. “Political power,” said Mao Tse Tung, “grows out of the barrel of a gun.”

We also have the case of Bradley Manning, the US Army intelligence analyst who gave classified material to WikiLeaks. Whether one approves of WikiLeaks or not, if Manning passed them the information he is being accused of, it was almost unquestionably an act of treason. It is also true that the military is not bound by every aspect of civil law, nor can it or should it be. That being said, Manning’s treatment while in custody at the Marine Corps base at Quantico was gratuitously harsh. While not physically tortured, he was deprived of sleep and clothing, and put in solitary confinement for a considerable period without any credible justification for this treatment being given. This is cruelty neither in the service of interrogation, nor even in the service of deterring others, but simply as a form of retribution in advance of any trial. The president and his administration knew full well that this was going on. But this is realpolitik again. Maybe a handful of civil libertarians cared – people who understand the danger of pushing the limits to which the state may inflict suffering upon the individual – but no one else minded much. What’s a little discomfort for a traitor, compared to an illusion of security or the right of gays to join the military – depending on where you happen to be on the political spectrum? One man, out of sight and out of mind, for whom it would have been politically inconvenient for the president to lift his godlike finger. Manning was moved to better quarters only when enough civil libertarians made enough noise to change the political calculation of the moment in his favor.

Finally, we come to the seemingly innocuous H.R. 347. This new law, another subtle alteration of an old one, curtails our first amendment rights at the convenience of the Secret Service and the Department of Homeland Security. Under this law, in principle, if you heckle the president or anyone else the Secret Service is protecting you could be liable for a year in Federal prison. If you trespass, even unknowingly, into an area temporarily restricted by these agencies you could suffer the same fate. The elected officials, it would seem, are prepared to protect their own security at the expense of our freedom. This law could criminalize OWS and the Tea Party alike. It depends on who wants to use it – and for what.

All of us march together toward this abyss. Together, we go angrily – screaming at one another – but we go blindly nevertheless, complacent in our convictions that our side is right and will protect us from the other side, which is wholly and completely evil. This, too, rhymes. Germany had the Nazis on the one side and the Communists on the other.

While mulling over a final paragraph for this post, I happen to catch a news story on the television. Congress has approved the use of surveillance drones by police agencies inside the US, and the Pentagon granted itself the right to use them to spy on US citizens. This is a violation of the Posse Comitatus Act of 1878, which forbids the US from using the military to police the public without a specific act of Congress. Several law enforcement agencies, who already use drones, have discussed the possibility of putting weapons on them.

“This separation of government from people, this widening of the gap, took place so gradually and so insensibly, each step disguised (perhaps not even intentionally) as a temporary emergency measure or associated with true patriotic allegiance or with real social purposes.”

I rest my case.

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National Defense Authorization Act for Fiscal Year 2012 - http://en.wikipedia.org/wiki/National_Defense_Authorization_Act_for_Fiscal_Year_2012

Bradley Manning detention
http://en.wikipedia.org/wiki/Bradley_Manning

H.R. 347
http://www.gpo.gov/fdsys/pkg/BILLS-112hr347enr/pdf/BILLS-112hr347enr.pdf
https://www.aclu.org/blog/free-speech/how-big-deal-hr-347-criminalizing-protest-bill

Drones
http://articles.latimes.com/2012/feb/13/business/la-fi-military-drones-20120214