Friday, June 10, 2005

Please Fix America

Hilzoy has an absolute "must-read" post over at Obsidian Wings. She writes powerfully and patriotically about the most serious problems facing America today:
We have tortured people and killed them. We have sent them to countries like Uzbekistan, where they boil people alive, and where we surely knew they would be tortured. In so doing, we also violated treaties we have signed, and thus violated our word, which should be sacred. We have said all the right words about holding people accountable, and about how our willingness to do so will show the people we have abused how a free country operates, and we have then proceeded to do nothing to anyone except the "few bad apples" on whom we blame the torture that our administration plainly condoned.

These are assaults on the most basic principles of this country: the rule of law and respect for human rights and human dignity. And as someone who loves her country in part because of the ideals it stands for, the thought that my country is doing these things, and worse, that our government responds not with outrage but with apparent indifference, is horrifying beyond belief.

Some conservatives may imagine that those of us who criticize our government on this score just hate America and are looking for any excuse to criticize it. I am sure (the law of large numbers again) that there are both liberals and conservatives of whom this is true. But it would be a complete mistake to think that liberals in general, and I in particular, are moved by such motives, or that we need to be reminded that America has more often stood on the side of the angels. If we did not know that, our hearts would not be breaking.

It is not because we hate our country but because we love it and all it stands for that this cuts us to the bone. And it is because we value our inheritance, and appreciate the wisdom and the hard choices that created it that we feel: we must not sit by while it is squandered without trying our best to preserve it: to live up to those who went before us, and to do whatever we can to ensure that we, in turn, pass it on to the next generation stronger and better than before.

Do read the whole thing. One commenter complained about the negative focus, asking what "constructive strategy" liberals were proposing to meet these problems. Katherine provided a detailed response, which unfortunately is hidden away deep in the comments thread. There doesn't seem to be any way to link directly to the appropriate comment, so I'll reproduce the entire thing here (I hope she doesn't mind):
There have, in fact, been a number of solutions or steps towards a solution proposed, many of them proposed by me or hilzoy on this blog. There is Senator Jay Rockefeller's proposal that the Senate Intelligence Committee investigate extraordinary rendition, which committee chairman Pat Roberts refuses to allow a vote on. There are the calls by Amnesty and numerous other human rights groups for an independent commission with strong powers to gather evidence, akin to the 9/11 Comission, and a special prosecutor, to investigate all the various allegations of abuse and torture. There is the ACLU FOIA request on torture, which has produced many useful documents already and which will probably produce more before the litigation finishes. There are the attempts to subpoena relevant government documents and hold further hearings on the subject; these have been proposed numerous times by Democrats in Congress, but all subpoenas and most requests for hearings have been voted down on a party line vote. There were calls for the resignation of, and attempts to avoid promoting officials responsible for the interrogation policies; the calls for resignation have fallen on deaf ears and most of the relevant nominees have been confirmed in largely party line votes. (The exception to this is William Haynes' Circuit court nomination.) There have been proposals to simply de-fund Guantanamo, like Senator Robert Byrd's amendment to the appropriations bill; I am wary of that because I think the administration would simply send the detainees to a worse prison further beyond the reach of the law (Amnesty chose the wrong word from Solzhenytsin--our detention system is not a gulag, but it is an archipelago; Amnesty's biggest mistake was probably focusing on only one island, and not the worst one at that.) There is Durbin's anti-torture amendment forbidding the use of funds for cruel, inhuman and degrading treatment by the U.S. military, which was finally passed; but unfortunately that only restates existing law that is going unenforced. The part of the proposal that might have had a legal effect, a prohibition on cruel, inhuman and degrading treatment by members of the CIA, Durbin has not been able to pass. There is H.R. 952, Congressman Edward Markey's bill closing two of the loopholes that allow for extraordinary rendition: the reliance on assurances not to torture from Syria and Uzbekistan, and the argument that its fine to send people to be tortured as long as they are captured overseas. There is S. 654, Senator Leahy's very similar anti-rendition legislation. Two legal changes I would support would be to create a private right of action and waive sovereign immunity in cases like Maher Arar's, where a detainee wants to sue the U.S. government for violations of its legal obligations that led to his torture; and to amend the anti-torture statute to change the mens rea requirement from "specific intent" to cause severe pain or suffering to "intent, knowledge, or severe recklessness manifesting an extreme indifference towards human life" for the crimes of torture, complicity in torture, and conspiracy torture.

There have also been attempts to formulate more comprehensive interrogation policies. That link is a report by a commissions led by two of my former professors, which formed the basis for legislation on interrogations proposed by Representative Jane Harman of California. I don't agree with all of its recommendations but I agree with most of them.

Here's the thing about virtually all of these proposals: they don't stand a chance in hell of passing Congress (the only place where Democrats in Washington can really try--the administration has simply ignored all this). Not while the Republicans are voting against every single one of them along strict party lines. Most of them cannot even get a committee debate or vote. To my knowledge all of the subpoenas have been rejected, and the nominees confirmed, without a single dissenting vote from a Republican in Congress. Most of the bills lack a single Republican co-sponsor.

If we're talking about a subpoena, you just need a majority on a comittee--but again, that has not yet happened, not one single Republican has broken ranks even in the immediate aftermath of Abu Ghraib, when this was not all "old news". If we're talking about legislation, it's even harder. Most of these bills have not even received a committee hearing. If they get a hearing, they still have to win a committee vote to get to the Senate floor. If they get to the floor they will need the support of at least six Republicans to pass; so far they have zero. In the House they will not get to the floor without Hastert and DeLay's consent, which will simply not happen in the current political climate.

Some of the bills can be passed as amendments in the Senate, but if they are not in the House version in the bill, and sometimes even if they are, they will be simply stripped out in conference committees controlled by DeLay, Hastert, the administration and to a lesser extent by Frist.

If a bill has little chance of passing both houses, you can imagine the chances of legislation authorizing a special independent investigation.

Further, it is not clear that a law by Congress would settle this issue anymore than the Supreme Court decisions in Hamdi and Rasul have. The administration has taken the legal position that in his capacity as Commander in Chief, the President may violate the laws against torture if he deems it necessary for national security. They have never repudiated this position. The memo retracting much of the Bybee "Torture Memo" was silent on this issue. The attorney general refused to repudiate this position and was extremely evasive in answering questions about it during his confirmation hearings. If that is still the administration's view, none of these Congressional statutes are going to guarantee the end of abuses anymore than the Anti-Torture Statute, the Uniform Code of Military Justice, the non-detention act, the Foreign Affairs Reform and Reconstruction Act, etc. etc. prevented the abuses up to this point. The Executive has a sweeping power of classification which it can use to prevent violations of these laws from coming to light. All administrations have used the classification power to their political advantage, and this one has been especially likely to do so. Violations of these laws are prosecuted by the executive branch--either the Department of Justice or the military. If the military refuses to prosecute anyone above a certain rank, or the DOJ refuses to prosecute anyone at all--Congress' next remedy is impeachment. That simply will not happen, as you surely know.

(In contrast to all this, by the way, most of these policies could be ended in a matter of hours, days, weeks, or at most months by the orders of the President of the United States.)

Not long ago I got the chance to hear Edward Markey, the Democratic Congressman from Massachusetts who has been most vocal in opposing rendition, speak on this issue. What he said was this: my bills isn't going to pass, not without a major change in public opinion on these issue. News stories would help, if there were a series of stories above the fold--but there have been news stories. New information about the abuses would help, and the human rights groups were working to collect it--but we know an awful lot of information about this already. Perhaps there would be some new revelation that would finally shock the Republican majority of Congress into action, but he would be quite surprised. "This Republican majority is very hard to shock", he stated.

The only way out he could see, he said, was for the American people at large to know about these things, and care, and demand that they end.

As far as I can tell, hilzoy's posts is an unusually eloquent and effective attempt to make people know about these things, and care, and demand that these things end--or at least to make them understand why she feels the way she does about them. She is doing, unusually well and unusually eloquently, exactly what Markey, and the members of Amnesty and ACLU present at the same event, suggested that we do.


  1. Here, Here! (pounds table in affermation)

  2. I don't see how stopping the torching of people who are responsible for cutting school girl's, and their teacher's throats for teaching them how to read will ever "fix" America. These terrorist prisoners are degenerates, and simply have a problem with letting let live.

    I feel the biggest mistake in our country right now is our worthless government, and us being mislead by BS media. They're simply worthless, and are getting their back's scratched by big business who actually do control everything (like the media). That's why laws that are suppose to protect us the people are being ignored, and ones to control us are being enforced.


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