Re: A Times Editorial Musters The Courage To Assail Torture

February 23, 2005

Re: A Times Editorial Musters The Courage To Assail Torture.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.blogspot.com

Dear Colleagues:

Glory be, it appears that the editorial page of at least one newspaper -- The New York Times, no less -- has mustered the courage to assail the torture which the Executive has illegally been perpetrating. Perhaps Bob Herbert will no longer have to be alone on The Times (except for Maureen Dowd) in blasting the torture and its progenitors (which he does with some frequency, thank goodness).

In its lead editorial on February 19th, The Times began by blasting the immoral John Yoo -- one of the two major authors of the leading torture memos, along with now-federal judge (can you believe it?) Jay Bybee. Yoo, of course, is a guy whom the University of California Law School happily took back and has kept on its faculty even after his complete lack of morality and decency came to light. Yoo recently said the debate on torture is over because the public held a referendum on it in the November election. The Times called his view "bizarre," and said "It’s hard to know what is most outrageous about those comments -- that Mr. Yoo actually believes Americans voted for torturing prisoners or that an official who was at the heart of this appalling mess feels secure enough to say that."

Notwithstanding Yoo’s obvious immorality and indecency (and the apparent objections to him of some students), Berkeley will doubtlessly keep Yoo instead of firing him as it should. After all, he was a clerk for Rehnquist -- wouldn’t you know it -- and has held a prestigious position in the Department of Justice. To law schools that think of themselves as "elite," as Berkeley does bigtime, these kinds of credentials are far more important than human decency. Moreover, they will surely tell you, he is a great scholar -- meaning that he is adroit at thinking up arguments and engaging in so-called legal analysis, in this case arguments and analysis in favor of immorality. And, they will say, he was merely fulfilling his putative "responsibility" to represent his client. Notwithstanding all this, perhaps God will forgive me for thinking that elitism is often evil, and will again forgive me for feeling that, since any decent lawyer can always think up arguments and "legal analysis" on either side of any issue, or on three or four sides of it, my respect goes not to the lawyer who will represent his client by thinking up legal reasons to purportedly justify evil, but who will tell her client, "Yes, I can think up legal reasons to justify the evil you wish to commit, but on moral grounds I refuse to do so. If you want a lawyer who will justify evil for you, get another lawyer." If memory serves, it was Henry Stimson, a man of enormous prominence in his day, who once said that half his practice consisted of telling clients that they should not do one damn fool thing or another. (Or maybe it was his equally prominent predecessor Elihu Root.)

After leveling Yoo, The Times’ editorial said that "The White House has done everything it can to bury" the issue of torture, and "still drags its feet on public disclosure, stonewalls Congressional requests for documents and suppresses the results of internal investigations." It also said that the issue remains "urgent," that we have engaged in rendition (as we indeed have, extensively), and that the whole business should be the subject of "an investigation by an independent, bipartisan commission with subpoena power."

But to my mind the two most striking things it said, two things which bear the deepest on this nation, are these: First, The Times’ editorial said that the administration is claiming "that the president has an imperial right to sweep aside the law and authorize whatever he wants," and that some proposed statutes risk endorsing the idea that he can "declare himself above the law." It just cannot be overemphasized that the Yoo/Bybee/administration theory that the President, as commander in chief, can override the law is a nearly sure fire recipe for tyranny. It was one of the reasons for the Declaration of Independence, is as dangerous now as it was then, is put forth almost whenever there is a national crisis, and if not smacked down hard now, as before, and if instead allowed to become the prevailing view, can prove one day to be a one way road to tyranny in the United States. It can easily lead one day to the end of democracy as we know it, especially since it was the theory of tyrants like George III and Adolf Hitler, and it truly is not too much to say that it puts our democracy at serious risk. It is the single worst part of the whole torture business, even worse than the torture itself, as horrible as that was.

The other critical point in the editorial was its reason for saying there must be an independent commission. Let me quote again: "But that task [of fully learning what happened] is now way beyond the purview of the Senate Armed Services Committee, which held important hearings on prisoner abuse. Republican Congressional leaders have made it painfully clear that they will not hold a real investigation. And no probe by the executive branch can be credible because the stain of prisoner abuse spreads so far. The Justice Department can’t do it; Attorney General Alberto Gonzales was part of the problem." The Times’ lack of confidence in the Republican Congress and administration is all too well taken. The Republicans will not do the job because, due to the torture, leading members of the administration right up to and including George Bush are involved in serious crimes, crimes far worse than those Nixon ever committed. If the truth were to come out they probably would (and should) all be impeached -- or would have to resign -- they might (and should) go to jail, and the vast victories of the Republican Party in 2000 and 2004 would almost surely be erased in the next election. There simply can be no legitimate question about the complicity in serious crimes of the top echelons of the present administration (and one can be reasonably confident that history is unlikely to find any legitimate question about the matter since history will be written, after investigation, by people with no current political axe to grind).

So there is no way that investigations controlled by Republicans will yield anything even approximating the real truth. This blogger, moreover would go further than The Times. The Times says there should be an "independent, bipartisan commission." (Emphasis added.) This writer would say that all politicians from either party should be kept off a commission, and so should every one of their lawyer cronies and political hangers-on. Politicians and their hangers-on of all stripes have too much to lose from the truth, regardless of their party, because the truth is likely to indict the political class regardless of party. (There are, for example, Democrats at the top of Congressional committees on security and intelligence, you know. The torture occurred on their watch too, nor did Congressional Democrats in general inquire about what was going on.) What we need is an independent commission of capable and honest non political men and women to investigate this horrid mess and to develop the truth on behalf of the people of this country, without regard to any concern for the selfish interests of its largely dishonest political class.*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.