Sometimes it seems that every day brings new proof that America is no longer a nation of ideals, no longer deserving of the historically heroic stature we've always awarded ourselves. It's always easy simply to blame the Bush administration, and liberals (and not just liberals) have availed themselves of that expedient. But really, it's not them; it's us. It's Democratic officials who have allowed the administration to run roughshod over our laws and traditions, and Democratic voters who have enabled them to do so.
We are about to have a second consecutive Attorney General, in theory the nation's foremost upholder and enforcer of the rule of law, who condones torture. Once is an accident--in the case of Alberto Gonzalez a historical abortion, in fact--but twice is a trend. Michael Mukasey's nomination will be successful because two prominent Democratic Senators from the two most influential liberal states, Chuck Schumer of New York and Dianne Feinstein of California, will vote to confirm him. Feinstein has long been a sort of pre-2006 Joe Lieberman with pearls, a pro-corporate, pro-war pseudo-Democrat at the front of the line when there's a principle to be tossed aside. Schumer's decision wounds me more, in part because he's my Senator (the one I've voted for, in fact), in part because he's a political genius, and in part because on other issues--includes ones I've worked on personally--he's terrific. But on this one, he rolled. He put his own credibility--it was Schumer who supported Mukasey in the first place--ahead of a foundational moral principle. If that doesn't indicate a lack of integrity, I can't imagine what does.
It is all but official that torture is now the legally sanctioned policy of the United States. I quote Andrew Sullivan (whose blog I've added to the links on this page):
Even though waterboarding has always been regarded as torture and is illegal under any meaningful understanding of English; even though the United States prosecuted Nazis as war criminals for performing exactly the same torture techniques now authorized by the United States under the rubric of "enhanced interrogation"; even though the United States has court-martialed soldiers for doing what the president has authorized; unless the specific techniques are entered explicitly into the law, according to Lowry, the Geneva Conventions and settled law don't apply. And so any vote for Mukasey will now be interpreted by torture advocates like Lowry and Bush administration officials as legal support for torture. Here's [National Review editor Rich] Lowry's proof:If waterboarding is torture, whoever has authorized and conducted this training should -- as a strict matter of the law -- be vulnerable to war-crimes prosecutions... If the Senate disagrees [with allowing the president to waterboard prisoners], it should put itself clearly on record forbidding waterboarding. Otherwise, it should confirm Mukasey as the careful legal mind he has shown himself to be throughout his career and during this controversy.
See? This is how they keep pumping the poison of torture into the American constitution. And so a new precedent will be set; and the torture program, already well-established, will further entrench itself into US law and practices. The current law is not in any way mysterious. Schumer's promise that the Congress will now pass a law specifically banning verschaerfte Vernehmung, to use the Gestapo's name for the Bush-Cheney techniques, is insufficient. It presupposes that the torture techniques described are not already illegal, thus retroactively exonerating all those who authorized them.
Many seem to think that because these techniques are only used on terrorists, they are no threat to American liberty. What this complacent view doesn't grapple with is that these torture techniques can be used against any terror suspect; that such suspects are not subject to due process under president Bush's understanding of his powers; that such suspects can be captured within the United States; that they can be citizens; and that the war that justifies this extraordinary power is defined as permanent. That is why combining the power to detain without charge with the power to torture is an effective suspension of the rule of law and the Constitution. And such a suspension is astonishingly broad and open-ended.
That is why this has become a fight for the West's values against the moral relativists, legalistic parsers, and advocates of total executive power. The point is not a subjective judgment about the intentions of the torturers. It is not about whether Cheney and Bush can be trusted. It is about whether any individual can be trusted with such power. In a republic based on the rule of law, the intentions of the torturers - whether good or bad - are utterly irrelevant. In the West, we assume that the intentions of our rulers are likely to be evil. That's what distinguishes the Anglo-American tradition from those who trust individuals to govern them, rather than those who trust the law to allow us to govern ourselves. The point is that no person in the United States should ever have the power to detain and torture another person without due process. Once you make an exception for one man, the rule of law is over. The Decider may decide out of his own benevolence not to torture again. But he can still torture. And the knowledge that he can, and the knowledge that he was never stopped, and the knowledge that he was able to distort the plain meaning of the law to mean whatever he wants it to mean is a precedent that is staggeringly dangerous.
Emphases mine. With these standards in place, the entire frame of our politics changes. We are no longer a nation of laws; we are no longer a people of principle. Our political structure is teetering between a devalued but still somewhat functional democracy, still ruled in part by the legacy of the rule of law, and what I would call laissez-faire or just-in-time authoritarianism: it's all but certain that I (or Sullivan, or Markos Moulitsas, or Greg, or anyone) won't be detained and tortured for writing this post or anything else on my absolutely insignificant little blog, but I could be, and if the cost/benefit calculus were sufficiently different, I probably would be. All we're fighting for now is the preservation of the remaining Constitutional tools and governance traditions, and the chance to one day reassert them as the legal and moral basis of our society.