Language, Law, and Truth

21 Nov

 

“The language marches in step with the executioners.

  Therefore we must get a new language.” 

                       Tomas Tranströmer, Night Duty

 

            Marjorie Cohn, a respected progressive commentator on the use and abuse of international law during the past decade, notes with justifiable horror the willingness of Republican candidates for president to endorse torture as an acceptable instrument of counterterrorism. [Cohn, “US Presidential Elections: GOP Candidates Advocate Torture,” Nov. 19, 2011] Rick Perry, one leading Republican presidential contender who is now governor of Texas, put his support for torture in typically crude language: “This is war. That’s what happens in war.” The most direct endorsement was made by Herb Cain, a businessman who repeatedly demonstrates his scant knowledge of foreign policy issues, said with sprightly ignorance of waterboarding during a recent TV debate among the Republican candidates, “I don’t see it as torture. I see it as enhanced interrogation technique.” Not to be left behind in this rather alarming Republican horserace for the presidential nomination, Michelle Bachmann, attempted to give a pragmatic twist to the discussion by claiming (contrary to the evidence that torture often turns up information that is misleading and generally less useful than permissible forms of interrogation) that waterboarding is an effective means to gain information, and that as a patriot she would not hesitate to use such a technique to protect the country against its enemies. The lead candidate in opposition to Barrack Obama at this time in the November 2012 presidential election, Mitt Romney, also let it be slyly known that he shares the view that waterboarding is not torture: “Enhanced interrogation techniques have to be used. Not torture, but enhanced interrogation, yes.”

            Here we have direct examples of the dirty language games being played at great costs to the moral standing of the nation, its people, and its government. Torture is not torture if it is not called torture! Of course, in the background standing tall are George W. Bush, Dick Cheney, Donald Rumsfeld, John Yoo, and others who during the Bush presidency invented this trick designed to make torturers and their minders sleep well at night. For these unindicted war criminals, it was enough to give an unacceptably narrow definition of the legal crime of ‘torture,’ which allowed them to retain their innocence and at the same time brag about using waterboarding to save American lives, sometimes done over 100 times to a particular detainee. This Republican revival of a pro-torture argument is particularly discouraging because it seems to rest on an extremely distressing assessment of American public opinion as favorably impressed by the brutality and lawlessness of a continuing reliance on waterboarding and other forms of ‘enhance interrogation.’ If this assessment is correct it confirms the impression widespread in the world that not only has America lost its way, but has also mortgaged its soul!

            As Professor Cohn tells us, President Obama reaffirmed that waterboarding is torture, an opinion proclaimed ever since his presidential campaign in 2008, and bolstered by an insistence that since in office he has  unconditionally repudiated torture as conventionally understood. His language is instructive, but in its own way misleading: “Waterboarding is torture. Anybody that has actually read about it and understands the practice of waterboarding would say that it is torture—and that’s not something we do, period.” This renewed repudiation of waterboarding is welcome, as is the insistence on not distorting the language so as to allow those acting on behalf of the government to abuse physically and mentally persons held in detention, and even to do so with a relatively good conscience.

            But if waterboarding is torture, and Mr. Obama is true to his wider pledge to implement the rule of law during his presidency, why does he not allow investigations of the criminality on the part of his predecessors in office who acknowledged (‘confessed’) to the crime? In effect, a serious crime was repeatedly committed by the highest elected officials, damaging badly the reputation of the United States, and yet the political will to uphold the law is evidently not a feature of the Obama presidency, which early on asserted that it wanted to look forward not backward when it came to implementing law. To put it mildly, this is a peculiar ‘enforcement’ strategy that seems indistinguishable from non-enforcement! Imagine if a similar impunity was granted to common criminals for past murders and rapes! Imagine the Republican outrage! What is worse, as the comments of Republican candidates vividly reveals, this spirit of non-implementation keeps the virus of torture alive in the American body politic.

            In the good old days of the Cold War there also occurred a distressing reliance on torture and assassination, often entrusted to the CIA section on covert operations carried out overseas, well-documented and analyzed by Alfred McCoy in his book Question of Torture: CIA Interrogations, from the Cold War to the War on Terror (2006), but this behavior was kept secret, partly because it was known to be indecent and unlawful. Such a use of secrecy does not immunize the practice of torture from legal accountability had the political will and capability existed, which it did not, but it at least manifests a concern that such behavior if revealed would generate opposition and moral disgust. In the post-9/11 world, at least here in the United States, that concern and disgust while still present among urban liberals are much attenuated, which means the barriers to secret wrongdoing are likely to be virtually non-existent. And if one of these Republican torture advocates should be elected next November then it would seem likely to initiate an open season for a new round of torture undertaken beneath the feel good banner of ‘enhanced interrogation.’ At least, we can take some tiny comfort from the fact that even torture advocates still rely on this canopy of language to disguise the nature of their behavior. 

            Of course, it is easy for me to pontificate self-righteously when not faced with the dilemmas of governance. It was undoubtedly true that any attempt to impose standards of accountability on the Bush presidency would have led to an acrimonious national debate, or worse, and produced a deepening of the polarities already hamstringing the formation of public policy in the country. Yet for those who seek justice and truth in politics, such a law-oriented course of action would have been exhibited a genuine commitment to American values, and have gone a long way to demonstrate that the discontinuities between the Bush and Obama presidencies were more than halfway gestures.If a law-based democracy is ever to approximate reality, we the citizens must insist that the political risks of truth-telling be taken, that torture in our name, whether present, past, or future is totally unacceptable and will be punished no matter who turns out to be the culprit.                        

            In his speech accepting the Nobel Peace Prize in 2009 President Obama said strikingly: “Those who claim to respect international law cannot avert their eyes when those laws are flouted..The same principle applies to those who violate international law by brutalizing their own people.” But is not this precisely what Obama has been doing by averting his eyes from the crime of torture committed by his predecessors in office? This evasion of the solemn responsibility to implement international criminal law as it pertains to torture, even to investigate allegations of criminality, is accentuated by taking other backward steps suggesting ambivalence at best. Obama refused to authorize the formation a truth and reconciliation commission with a mandate to investigate past reliance on torture, which might have produced clarity, if not closure, on the issue.  As well, the Justice Department has shockingly intervened in judicial settings to prevent civil law suits by former Guantanamo detainees seeking damages from the abuse they endured on the flimsy, and morally unacceptable, grounds that as aliens they lacked clear constitutional rights, as aliens, not to be tortured. [For detailed indictment of the Obama approach to torture see Eric Lewis, “Torture’s Future,” NY Times, Nov. 21, 2011]

            In the same Nobel speech Obama explained his outlook on the relevance of law to warfare: “Where force is necessary, we have a moral and strategic interest in binding ourselves to certain rules of conduct. And even as we confront a vicious adversary that abides by no rules, I believe that the United States of America must remain a standard bearer in the conduct of war. That is what makes us different from those whom we fight. That is a source of our strength. That is why I prohibited torture. That is why I ordered the prison at Guantanamo Bay closed. And that is why I have reaffirmed America’s commitment to abide by the Geneva Conventions. We lose ourselves when we compromise the very ideals that we fight to defend. And we honor those ideals by upholding them not just when it is easy, but when it is hard.” Again, performance trumps rhetoric, and from this perspective Obama seems both hypocritical and cynical, not just in relation to torture, but more generally with respect to international law. 

            For the Obama presidency, the debate about the escalated use of attack drones to target suspected terrorists wherever they might be located in the world occupies a comparable space to that of torture during the Bush presidency. And what is revealing, is the similarity of manner by which the Obama people bring law to bear on this controversial use of force that has such broad implications for the future of warfare. More than their Bush counterparts, such luminaries as Harold Koh, Legal Advisor to the Secretary of State, and John Brennan, the top counterterrorist advisor to the president, emphasize the degree to which adherence to the rule of law in the conduct of American security policy is a priority that guides behavior because it reflects American values, and also works out better in the combat zones because it builds unity at home, strengthens cooperation abroad, and conveys the differences between ‘us’ (law-abiding on principled grounds) and ‘them’ (engaging in deliberate violence against civilians).

 

            But then this major premise of adherence to law is immediately contradicted by the minor premise: doing what is militarily desirable and possible to counter alleged terrorist threats associated with al Qaeda and the 9/11 experience, and this means targeted assassinations in foreign countries far from the hot battlefield, understating of civilian casualties, ignoring the frightening wider effects of drone attacks on the overall sense of societal security in a target zone, broadly defining who constitutes a threat, and a refusal to lift the veil of secrecy from drone operations to determine whether intelligence was reliable as to target and supposed threat. It is lethal behavior by the United States carried on in foreign countries, with ‘consent’ publicly denied or absent, generally undertaken by a CIA civilian operative sitting in an air conditioned office, converting ‘war’ into a risk-free process that for the drone-minder resembles a video game, and since there is no public accountability, there is also no burden of responsibility for negligence or even malice. Does not this represent an extreme stretching of the international law with respect to the right of self-defense? It also is a blatant denial of  ‘the right to life,’ an imposition of extra-judicial capital punishment, and as such, an affront to legal standards associated with international human rights.  As well it entails an utter lack of respect for the sovereign rights of other states, and in its totality, a contorted ‘legality’ put forth by government legal experts on behalf of drone warfare in a manner unnervingly similar to what the Bush legal operatives sought to do with regard to torture.

            It may be time to acknowledge that governmental lawlessness in foreign policy has become a bipartisan reality for the United States Government, and that the face in the White House or the political party in control, while not yet irrelevant, is a matter of secondary interest, at least to those who are drone targets or torture victims. 

            It may be past time to say that such a stretching of the language of law is an insult to our intelligence and a subversion of our morality as a people and nation. When ‘law’ becomes a synonym for ‘crime’ we know that power corrupts all the way to the top of the governmental pyramid!

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11 Responses to “Language, Law, and Truth”

  1. Loren Franklin November 21, 2011 at 8:50 am #

    “If this assessment is correct it confirms the impression widespread in the world that not only has America lost its way, but has also mortgaged its soul!”

    The good old days? As a student of history, I struggle to find a time when America actually found its way, or had a soul that could be considered worthy collateral for a mortgage. The good old days never were; it’s a myth.

    • Richard Falk November 21, 2011 at 3:25 pm #

      Historical consciousness is subjective, and perhaps I gave too strong a sense of a mythic past, but I do feel that during my lifetime there was always until recently a basis to hope for a better future, and that there were strong positive tendencies seeking to overcome the deficiencies.

  2. Eleni Panagiotarakou November 22, 2011 at 11:02 am #

    Dear Dr. Falk,

    Your commentary brought to mind (once again) Thucydides and his description of the civil war between democrats and oligarchs in Corcyra. He writes, and I quote “…they [both parties] reversed the usual way of using words to evaluate activities. Ill-considered boldness was counted as loyal manliness; prudent hesitation was held to be cowardice in disguise, and moderation merely the cloak of an unmanly nature. A mind that could grasp the good of the whole was considered wholly lazy (History of the Peloponnesian War 3.82) According to Thucydides much of that re-evaluation stemmed from the “…desire to rule out of avarice and ambition and the zeal for winning that proceeds from those two” (3.82). Even more troubling is Thucydides’ observation that this was only the beginning; as the conflict dragged on things only got worse.
    It would seem to me that much of what you describe here has deep Thucydidean overtones.

    Best regards,

    Eleni

    PS. The overwhelming majority of my students loved your lecture at McGill University; some even begged me to invite you for a guest lecture

    • Richard Falk November 22, 2011 at 1:54 pm #

      Thanks, Eleni. You are motivating me to reread Thucydides. Which translation would you recommend? And I am glad my lecture was not a
      disappointment for your students. I would be glad to come to your class sometime.

      with greetings,

      Richard

      • Eleni Panagiotarakou November 22, 2011 at 5:13 pm #

        Richard,

        I personally like Paul Woodruff’s “On Justice Power and Human Nature: The Essence of Thucydides’ History of the Peloponnesian War ” (1993).

        As for the students, after reading some of their commentaries I can vouch that they found your lecture anything but disappointing (I might ask them for permission to give you their papers after I am done grading and you could judge for yourself). Last but not least, it would be pleasure and honour to have over for a guest lecture.

        Cheers,

        Eleni

      • Richard Falk November 24, 2011 at 5:20 am #

        Thanks, Eleni, I will look for the Woodruff translation as soon as return to California.
        Today is the American holiday Thanksgiving, and I send you these wishes despite being here
        in Canada. warm greetings, Ricahrd

  3. qualandar January 10, 2013 at 10:15 pm #

    Reblogged this on Indian Lawyers Express.

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