|The Washington Post|
Read other reviews for "Torture and Truth"
|By Neal Katyal||February 17, 2005|
TORTURE AND TRUTH
THE ABU GHRAIB INVESTIGATIONS
THE TORTURE PAPERS
Despite the funereal events of Sept. 11 and their aftermath, there has been little serious thinking about how U.S. legal institutions should respond to the war on terror. Academics and think tanks have let us down, content to engage in sloganeering and caricatures of the other side's arguments. The sad result has been a politicized debate often devoid of fresh, sober thinking.
Into this climate come a book by George Washington University's Amitai Etzioni and three volumes of compiled documents -- one slim, one hefty, one massive. None of them purports to transform the parameters of the current debate, but all of them contain kernels that, if explored, can elevate the insipid discourse.
Etzioni's central premise, given on the first page of his book, is that "the starting point of any reasonable deliberation about our national security is the recognition that we face two profound commitments: protecting our homeland and safeguarding our rights." If you put the book down and went to listen to either ACLU lawyers or federal prosecutors, you'd hear this trope with equal frequency. Few serious individuals disagree with it; the interesting question is how to structure a system that accommodates those commitments.
Etzioni surveys a wide variety of practices, from electronic searches to national ID cards, in an often well-developed exegesis of the panoply of post-Sept. 11 issues. But virtually no one can master the variety of subjects in Etzioni's book -- including, I fear, the author himself.
Consider just one example. Etzioni writes that in June 2004 the Supreme Court limited "the powers wielded by President Bush by ruling that all enemy combatants -- not just American citizens -- detained by the U.S. government have a right to contest their detention in a court of law." The issue before the court was the status of detainees being held at the now-famous Guantanamo Bay naval base in Cuba. Etzioni then cites Justice Sandra Day O'Connor as having written that "a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens," and reports that Justice Antonin Scalia concurred: "The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the executive." Etzioni concludes that the "notion that a person, any person -- not just an American -- can be held by the U.S. government indefinitely without charge and without access to a lawyer or a day in court has been ruled unacceptable. Thus one of the most troubling elements of the PATRIOT Act and its related security measures has been greatly scaled back."
But the Supreme Court nowhere said that "all enemy combatants"
have the right to walk into court; it spoke narrowly about those being
held at Guantanamo. O'Connor, moreover, did not pen these words in the
Guantanamo case; her "blank check" line came from another case
involving an American citizen. And Scalia's words also come from that
other decision, from his dissent. To these technical obfuscations must
be added a big mistake: The Patriot Act nowhere authorized the detention
of enemy combatants. You hear it on TV, but it is simply wrong. It is
striking that, in a book dedicated to that controversial law, Etzioni
accepts one of the most fundamental errors about it.
For this reason, the sunset clause in the Patriot Act -- whereby various controversial portions expire later this year and require an affirmative vote in Congress for renewal -- was a brilliant piece of engineering. We should be thinking about ways to expand the sunset principle into other areas and, indeed, even into other branches of government, such as the courts. Many of the most pressing legal issues today revolve around metaphysical questions about what the Supreme Court meant in 1942 or 1866. This is hardly an effective way to run a government. Our justices should signal that their reasoning may change over time and invite testing of their logic, just as Congress did in "sunsetting" the Patriot Act.
If the excesses at Abu Ghraib prison in Iraq taught us anything, it was that vast damage can be wrought when the U.S. government lurches too far in one direction. This point is taken up by Mark Danner in his new Torture and Truth, which contains a short batch of previously written essays from the New York Review of Books, followed by hundreds of pages of declassified government memoranda. The Abu Ghraib Investigations is even less original: It consists of a short introduction, followed by reprints of the reports produced by the Pentagon investigation led by Maj. Gen. Antonio M. Taguba and the independent panel led by former defense secretary James R. Schlesinger. The Torture Papers, which weighs about as much as a small infant, contains by far the most exhaustive collection of documents, encompassing both government reports and outside criticism.
Specialists may clear room on their shelves for The Torture Papers, but generalists will probably be looking for no more than a good but not overly unwieldy collection of the relevant sources. Danner's book does a fine job assembling them, from the Taguba report to the Justice Department's memoranda and opinions -- one of which became so notorious for giving the president the power to use coercive force that it is now often simply known as the "Torture Memo." But no one should spend money on these three books to get commentary or criticism. (The only place where that comes in is with Danner's repackaged essays, which reveal a keen mind at work and warn us to expect little serious congressional investigation into one of the great foreign policy disasters in our lives.)
Rather, the stunning parts of these books lie in their collected government
memoranda. They reveal government lawyering at its worst: It's hard to
believe that the shabby reasoning behind the "Torture Memo"
was taken seriously -- until we learn from other documents that it was.
(The memo itself, but not all of its reasoning, was disavowed in time
for the confirmation hearings for Attorney General Alberto Gonzales.)
White House overreaching here threatens the lives of U.S. troops, who depend on treaties such as the Geneva Conventions to protect them. Just as judicial activism can sap Congress's will to legislate on major issues of the day, presidential activism can cow the legislature into meekness. Minds like Danner's should be thinking about ways to restrain both.
That's not to say that a weak presidency would be good for the country,
the Constitution or the war on terror. Many scholars, including myself,
favor robust presidential power because of the president's unique degree
of popular accountability. If we don't like what a president is doing,
we can vote him out. But when decisions are made in secret, hidden from
the light of day, this structural pillar of stable, sturdy presidential
Neal Katyal is a law professor at Georgetown University. He served from 1998-99 as national security adviser at the Department of Justice and represents, pro bono, a detainee held at Guantanamo Bay.