The torture bill is pernicious. That much is true; that much is undeniable. But we should not make the mistake of presuming it more than it is. It is not a Reichstag Fire. It is not. It is pernicious not for its scope, but for its hollowness, its complete legislative emptiness, dressed up in bloody bow. It is pernicious because it is simply a slapdash fiasco of commonplace Republican incompetence paired with commonplace Republican dismissal of law -- it is not going to create more torture than we have now, it simply attempts to legalize it (which it cannot do), give amnesty for it (which will last only as long as the first lawsuit), justify it (which will matter not a bit, in international law) and use it as a "toughness" stick (for election pandering to those sick and hollow voices among us that defend, support, and enjoy the thought that the United States does indeed torture people.) But it does not even solve the problem that the CIA allegedly needed solved -- clear enough rules on torture that their own people do not face war crimes for following Bush orders. They didn't get it. They're still on the hook, because this law cannot grant them closure, there. No law can.First, this is true. The proposed law is a sham. Nothing illegal is made legal by it. Nothing wrong is made right. Nothing bad is made good. It will fall the first time the Government relies on it in a Motion to Dismiss. The trial court will be bound by Hamdan, the appellate court will be bound by Hamdan, and the Supreme Court will reaffirm Hamdan. And this mockery of the law will pass away. And after all, this is what the law provides for:
Enemy Combatants: A dangerously broad definition of “illegal enemy combatant” in the bill could subject legal residents of the United States, as well as foreign citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted.It's actually worse than that. It applies to US citizens, too. No reason it couldn't. Which means, of course, it's so unconstitutional it's ridiculous. It means it's a horror, plain and simple. But is this the first time America has ever mocked the law, or the concept of justice?
The Geneva Conventions: The bill would repudiate a half-century of international precedent by allowing Mr. Bush to decide on his own what abusive interrogation methods he considered permissible. And his decision could stay secret — there’s no requirement that this list be published.
Habeas Corpus: Detainees in U.S. military prisons would lose the basic right to challenge their imprisonment. These cases do not clog the courts, nor coddle terrorists. They simply give wrongly imprisoned people a chance to prove their innocence.
Judicial Review: The courts would have no power to review any aspect of this new system, except verdicts by military tribunals. The bill would limit appeals and bar legal actions based on the Geneva Conventions, directly or indirectly. All Mr. Bush would have to do to lock anyone up forever is to declare him an illegal combatant and not have a trial.
Coerced Evidence: Coerced evidence would be permissible if a judge considered it reliable — already a contradiction in terms — and relevant. Coercion is defined in a way that exempts anything done before the passage of the 2005 Detainee Treatment Act, and anything else Mr. Bush chooses.
Secret Evidence: American standards of justice prohibit evidence and testimony that is kept secret from the defendant, whether the accused is a corporate executive or a mass murderer. But the bill as redrafted by Mr. Cheney seems to weaken protections against such evidence.
Offenses: The definition of torture is unacceptably narrow, a virtual reprise of the deeply cynical memos the administration produced after 9/11. Rape and sexual assault are defined in a retrograde way that covers only forced or coerced activity, and not other forms of nonconsensual sex. The bill would effectively eliminate the idea of rape as torture.
Well, there was the Trail of Tears in 1830. The US Senate voted to remove the Indians from their reservations in Georgia, and send them to what is now Oklahoma. Sen. Theodore Freylinghuysen from New Jersey, spoke against Andrew Jackson's bill:
Our ancestors found these people, far removed from the commotions of Europe, exercising all the rights, and enjoying the privileges, of free and independent soverigns of this new world. They were not a wild and lawless horde of banditti, but lived under the restraints of government, patriarchal in its character, and energetic in its influence. They had chiefs, head men, and councils....We successfully and triumphantly contended for the very rights and privileges that our Indian neighbors now implore us to protect and preserve to them. Sir, this though invests the subject under debate with the most singular and momentous interest. We, whom God has exalted to the very summit of prosperity--whose brief career forms the brightest page in history; the wonder and praise of the world; freedom's hope, and her consolation; we, about to turn traitors to our principles and our fame--about to become the oppressors of the feeble, and to cast away our birthright! Sir, I hope for better things....
The Supreme Court in Cherokee Nation v. Georgia and Worcester v. Georgia ruled against the removal, but a contingent of Cherokee signed a treaty which gave Jackson the authority he needed to force their removal to Indian Territory. Chief John Ross of the Cherokee Nation:
The instrument in question is not the act of our Nation; we are not parties to its covenants; it has not received the sanction of our people. The makers of it sustain no office nor appointments in our Nation, under the designation of Chiefs, Head men, or any other title, by which they hold, or could acquire, authority to assume the reins of Government, and to make bargains and sale of our rights, our possessions, and our common country. And we are constrained solemnly to declare, that we cannot but contemplate the enforcement of the stipulations of this instrument on us, against our consent, as an act of injustice and oppression, which, we are well persuaded, can never knowingly be countenanced by the Government and people of the United States; nor can we believe it to be the design of thse honorable and highminded individuals, who stand at the head of the Govt., to bind a whole Nation, by the acts of a few unauthorized individuals.That was the 19th century, and people who were not "European." What of the 20th century, and how we treated "our own"?
In the spring of 1903 I went to Kensington, Pennsyvlania, wehre seventy-five thousand textile workers were on strike. Of this number at least ten thousand were little children. The workers were striking for more pay and shorter hours. Every day little children came into Union Headquarters, some with their hands off, some with the thumb missing, some with their fingers off at the knuckle. They were stooped things, round shouldered and skinny. Many of them were not over ten years of age, the state law prohibited their working before they were twelve years of age.Mother Jones
The law was poorly enforced adn the mothers of these children often swore falsely as to their children's age. In a single block in Kensington, fourteen women, moters of twenty-two children all under twelve, explained it was a question of starvation or perjury. That the fathers had been killed or maimed at the mines.
I asked the newspaper men why they didn't publish the facts about child labor in Pennsylvania. They said they couldn't because the mill owners had stock in the papers.
Mother Jones marched a group of children to Oyster Bay, New York, to see President Teddy Roosevelt.
I asked a man in prison once how he happened to be there and he said he had stolen a pair of shoes. I told him if he had stolen a railroad he would be a United States Sentor....At times like this I remember Martin Luther King, Jr., within my lifetime, writing from a jail in Birmingham, Alabama; smuggling out scraps of paper to respond to a newspaper ad by white pastors afraid he was going to upset people. That was a hollow mixture of politics and religion that even Karl Rove has never managed to re-create. And yet King managed to quote Ghandi and Niebuhr and whole sections of the Bible, and compose an argument so clear and coherent it is studied in colleges today. From a jail in Birmingham, Alabama; where he was jailed for having the temerity to ask that he be treated like other people, white people, in America were being treated.
We marched down to Oyster Bay but the president refused to see us and he would not answer my letters. But our march had done its work. We had drawn the attention of the nation to the crime of child labour. And while the strike of the textile workers in Kensington was lost and the children driven back to work, not long afterwards the Pennsylvania legislature passed a child labor law that sent thousands of children home from the mills, and kept thousands of others from entering the factory until they were fourteen years of age.
He died for that. And we think Bush is evil because he wants to authorize torture and illegal detentions. What words, then, do we reserve for the people who spit on Dr. King and his followers? Turned fire-hoses on them, set dogs on them, beat them senseless? And not because they were terrorists who had blown up a building, but just because they were in the streets, and asking for justice? His actions, and the actions of so many other brave people, known and unknown, did change the way this country operates, the way our culture treats people. The Democrats in the Senate should do everything in their power to stop this law, but even then, it will only be a symbolic gesture; just as this law is a symbolic gesture.
But these words; well, these could have come from Niebuhr:
We have already devolved into barbarism, by attempting to define boundaries within barbarism that are good and bad, that are moderately barbaric vs. too barbaric, and calling all of it moderation, and praising it in our press, and praising it in our politicians. We are already a broken country, made more broken by men looking for any distraction, any shred of bloody color to help hide the deeper truths of their incompetence and failure.WE have done worse. But the Democrats, as the NYT editorial points out, have done worse by fearing the campaign ads of the GOP. Except it isn't entirely that, either. It isn't entirely moral cowardice; it's political calculus. This is what politics is: weighing the options, choosing the path of least resistance. It is that path everyone follow, even though Christians believe the broad and easy path is the path to death. Christians are called to oppose evil, and to take the narrow path. But the narrow path means we are not responsible for the world, and are not in charge of the world. we are also called to make a difference, to be where it matters. We can see the splinter in their eye; but what of the log in our own? On what do we depend? Our politicians? Or our God?
But this fight will not be the end, just as it was not the beginning. There will be plenty of other politicians willing to give the Devil his due. There will still be uncountably many among the press for whom matters of God and law come secondary to the tally of who may benefit politically from a rousing defense of the indefensible. There will still be those among us for whom torture is considered good form, when done against an enemy, and for whom the laws of the country that have survived this long cannot possibly survive another day, not now, at long last, when faced with the one and only one thing law cannot survive -- the petty scorn of those charged to defend it.
In our incompetence, we have done worse things, and we have killed more than a mere handful of people, and we have carved up lives with viciousness in a vain attempt to find a policy the Bush administration could find themselves even the slightest bit capable of implementing without catastrophe. Compared to the failures of this hollow group of foolish men, even torture is not the worst that we have done. This bill will not make a thin reed of difference.
"Nothing that is worth doing can be achieved in our lifetime; therefore we must be saved by hope. Nothing which is true or beautiful or good makes complete sense in any immediate context of history; therefore we must be saved by faith. Nothing we do, however virtuous, can be accomplished alone; therefore we must be saved by love. No virtuous act is quite as virtuous from the standpoint of our friend or foe as it is from our standpoint. Therefore we must be saved by the final form of love which is forgiveness."--Reinhold Niebuhr
Niebuhr spent his life engaged in the struggle against institutional evil, even as he recognized such evil was inevitable. And yet, according to his daughter, he ended his days in sorrow at the thought of living under a Republican Administration. The same Republican Administration we look back to with some nostalgia: the Eisenhower presidency. Everything looks like the end and a defeat from someone's perspective. What we have to do, is ask what it looks like from God's perspective. Niebuhr was a fine theologian; but perhaps not quite enough of a mystic to ask that perspective of himself. There is a certain amount of mysticism necessary in human existence, especially in religious life. A certain ability to believe beyond what you see and know with your five senses; to believe there are other sense, just as real and "sensible" as the five we empircally rely on, and just as accurate a guide to what is true. The Greeks codified reality as chaos and logos, reason and unreason, order and disorder. The Hebrews went a different way. For the Greeks, creation arose from the roiling sea of chaos by the imposition of order through logos; and only by constant effort could order be maintained, but eventually even reason would be exhausted, and chaos would return unquenched and ultimately undefeatable.
Judaism and Christianity teach a different truth, and this is ultimately the strength of the dissident: of the lone US Senator speaking for people of another nation; of the woman speaking for other mother's children; of the man in jail convinced he cannot waver in his effort to bring about justice for others, if not for himself. That strength is the belief in the good, the just, the true. Mick Jaggers' song is so eloquent not because it is about the romantic character of Milton's Satan, but because it is so true: evil does not come from outside us. We need little urging to make it real. But we can just as easily be urged to good. Jaggers' Satan is a mirror; but it is not the only mirror we have. And this is not the only chance we have to make things right, to oppose chaos, to repel evil.
All of the quotes above could, with the slightest of changes, apply to the debate today. And none of them mention "evil." Neither do we have to. The world is already as broken as it gets. We don't need to point out the degrees of brokenness, to set aside one sinner as worse than the others. The world is also the kingdom of God, if we will see it; if we will live in it.
That is also the nature of the game.