All Life Is Problem Solving

The Obama Administration evidently wants desperately to put the war crimes of the past behind America, and to address the economic, educational, environmental, energy, health care, and hopefully, equality issues that it views as the issues of our time. The trouble is that the people who really care about the Constitution won’t cooperate. There are two categories of such people. There are some like the Cheneys, Karl Rove, various Republican flacks, certain entertainers like Rush Limbaugh, and rising Republican stars like Sarah Palin (who doesn’t even know what it says), who view the Constitution and the laws as an inconvenience, as posing problems to solve in their continuing quest for power. They care about the Constitution as an obstacle to be overcome. There are others like Patrick Leahy, John Conyers, Russ Feingold, and yes, even Nancy Pelosi, who care about the Constitution and Laws because there is no America without them, and they know that the only way to protect them is to enforce the laws and to deter future attempts to make them dead letters, manipulable at the will of an overweaning executive.

For some time now, the Cheneys, unsatisfied with the President’s evident intention to move on and hope that torture issues will go away, have been conducting a promotional campaign to persuade Americans that the illegality and immorality of torture can be overlooked, since it worked to provide valuable information to counter-terrorism efforts. And the Cheneys have asked that all CIA memoranda on torture be released so that the public can see the full record of results produced by different interrogation methods. This campaign has resulted in much push back from constitutionalists who argue that regardless of what they’ve produced, using “enhanced interrogation techniques” constitutes a war crime, and, in any case, these techniques were far less productive, and far more time-consuming, in producing useful information than the traditional interrogation techniques have been.

Republicans have responded to this debate by trying to focus attention on Nancy Pelosi, and to suggest that she new about the use of torture at a fairly early point in time , failed to protest their use, and was therefore complicit in the Bush Administration’s program. Republican attempts to distract attention from the issue have been supported by the CIA, which released information seeming to suggest that she was informed about waterboarding as early as 2002. Unfortunately for the Republicans, the CIA records are evidently not specific about what Speaker Pelosi was told in her 2002 briefing.

In reply, the Speaker has today stated emphatically that she was not told that waterboarding was used on anyone during the briefing in question, but was merely informed that there were legal opinions in the Department of Justice indicating that the use of enhanced interrogation techniques, including waterboarding, was legal. Further, she accused the CIA of misleading her and the Congress of the United States. And she also stated that the CIA had been misleading the Congress “all along.” She also suggested that all the Congressional briefings given by the CIA to the Congress ought to be de-classified and released, so everyone could decide for themselves about what the truth is, and that the whole issue of how interrogations were conducted ought to be placed in the hands of a truth commission.

So where are we now? Both the Cheneys and others in the torture community are, in search of vindication, now in favor of further disclosures by the CIA. And the Speaker, who previously gave only lip service to the truth commission idea, now seems just as interested as the Cheneys in further (though I’m sure not the same) disclosures, and with others in Congress now has increased the pressure on the Administration to investigate and prosecute, if warranted, rather than to do the pragmatic thing and move on to greener pastures.

So what will the Administration do? In the last couple of days it has decided to rescind, on national security grounds, a previous court settlement promising to disclose graphic photos showing mistreatment of prisoners. This decision has further incensed those who believe in the Constitution and the Laws, many of whom see the Administration’s reasoning as once again prioritizing the needs of security over the needs of Democracy; leaving us to wonder whether the national security justification used by the Administration, if not overturned by the Courts, could not be used to suspend the essence of Democracy for the duration of what promises to be a long twilight conflict with terrorists. Did any of us bargain for this when we first approved the Bush Administration’s invasion of Afghanistan? I don’t think so. And, for my part, that is not a price that I’m willing to pay. It’s not change that I can believe in. It’s not why I voted for a Constitutional Law Professor by the name of Barack Obama for President of the United States of America.

The issue of torture is a fundamental one for Democracy in the United States, and it is not an issue that can be resolved by pragmatic considerations alone. So, today, I’ll leave you with a short message from Peter Daou. “anything less than absolute moral clarity from Democrats, who now control the levers of power, will enshrine Bush’s abuses and undermine the rule of law for generations to come.”