Torture has re-entered the public domain. From Attorney General Robert Mukasey's equivocation about waterboarding at his confirmation hearings to the current controversy over the CIA's destruction of interrogation videotapes, adverse publicity may finally force Americans to face the torture issue.
What has taken us so long? And what might still subvert the much-needed confrontation with this nation's torture policies?
The administration has never admitted to a policy of torture, instead hiding behind secretly authorized "alternative" or "enhanced" interrogation practices. Thus, when Mukasey refused to call waterboarding torture, he was not only protecting his administration sponsors from future prosecution; he was also rejecting the legitimate right of Congress to know whether the administration will obey the law.
"What goes outside the statute," Mukasey asserted, "nonetheless lies within the president's authority to defend the country."
For several days after 9/11, it was reasonable to suppose that a real "state of emergency" existed in the United States that may have given substance to Mukasey's comment. Six years later, however, we have a government that, when denials of torture are no longer credible, claims a right to violate national and international laws in the name of the "war on terrorism."
Do we want to endorse the claim that this war, which may "last generations" and has "battlefields everywhere," authorizes the president to do whatever he likes in the name of national security, irrespective of law?
The excesses of a national-security state are not new. During the Cold War, civil-rights and Vietnam War eras, the principles that make for a republic were undermined. In each era, courageous people stood up against unlawful excesses.
What is new, however, is that the administration, seizing on radical arguments for the president's wartime powers, has adopted what is in effect an ongoing state of emergency that claims a right to go outside the law.
Such an assertion is no small thing. The rule of law is the sine qua non of the revolutionary idea that ushered in the democratic era and has since become the ideal of a democratic republic: The state cannot rule arbitrarily. The people have rights that cannot be violated. A democratic government's credibility rests upon the extent that it obeys its own laws. In a democracy, the rule of law both limits and legitimizes the government.
An emergency government, however, is not confined by the rule of law. Instead, it seeks a "whatever-it-takes" authorization to protect America from "imminent" terrorist attacks. This rhetorical move is a dangerous escalation toward an authoritarian politics that treats the law as a nuisance or, with the assistance of legal advisers, as a radically reinterpreted set of permissions.
The claim of emergency powers may not be apparent because the government has not suspended the Constitution; and on occasion the courts have ruled against it. Yet, the government has taken a number of steps, mostly in secret, to subvert national and international law concerning torture and cruel, inhuman and degrading treatment. It has done the same with detainee policy and warrantless surveillance. These policies and the claims made in their behalf leave most constitutional lawyers astounded.
The practice of torture by the U.S. government, resulting in numerous deaths and the anguish and suffering of many more, has been extensively documented. Several civic organizations, including the National Religious Campaign Against Torture, in which I participate, are crying out, "This is not America! Torture goes against our fundamental moral beliefs." There have been modest attempts in Congress and the courts to limit the practice of torture.
When it comes to the American public, however, the jury is still out. Are Americans so far down the road of mass-manipulated opinion formation that we are no longer able to see through the tricks of language employed by the administration and its lawyers? Will mere repetition of the mantra of necessity continue to seduce us into silence?
Or, will we the citizens finally bring together our American abhorrence of arbitrary and unlimited governmental power with our equally American abhorrence of the dehumanization of human beings that torture presupposes and then inflicts? In 2008, let us hope for a resounding "No" to torture, for democracy and torture cannot coexist.