Originalism is not merely a theory of how the Constitution should be preserved but also of how, precisely, it should change.
The knock on the CIA is that its interrogation program, exposed as ineffective and abusive in the Senate Select Committee on Intelligence’s recent report, was lawless. But the agency’s worst excesses may have resulted from the attempt to be excessively lawful.
Such a paradox can only come about when what Edmund Burke called “the first of all virtues, prudence,” has fled the scene. The Intelligence Committee’s voluminous report (even its summary is 525 pages long) is an in-depth account of that decline.
Prudence requires the faculty of judgment in a world whose complexity cannot be captured by hard and fast rules. “Never torture” is one. By the same token, a rule to always permit torture—that is, keeping it legal in all scenarios so it will be available in unusual cases—is likewise to be avoided. (Let us dispense with the vulgar political voluntarism according to which America does not torture and therefore any tactic America used was not torture. Rectal feeding for no reason, confinement in coffin-sized boxes with insects, sleep deprivation unto hallucination with one’s arms intermittently chained to an overhead bar, waterboarding—this is torture.)
The question is not whether torture is ever to occur. It is whether it is to occur under law. For if it is to occur under law, we had better get used to it occurring routinely and abusively. The reason: routinizing what ought to be an exceptional circumstance creates power, and power is liable to abuse.
Where extraordinary measures are involved, the statesman’s choice is between, on the one hand, legislating for the ordinary case and deviating for the exception, or, on the other, legislating for the extreme case and trusting those with power not to use that authority routinely. Burke, in his Reflections, tells us which of the two is choiceworthy:
It is far from impossible to reconcile, if we do not suffer ourselves to be entangled in the mazes of metaphysic sophistry, the use both of a fixed rule and an occasional deviation.
Instead, the CIA, enabled by the Justice Department, sought to make an exception into a rule and a matter of prudence into one of law. The results include the now famous ice-cold memos from the Justice Department defining torture down—documents written, not insignificantly, based on misleading information.
The essential problem with codifying exceptions is that doing so necessarily licenses extreme measures in ordinary cases. Those suspicious of power’s “encroaching nature” will not be easily reassured by promises not to use the authority thereby created. Prudence, by contrast, exercises judgment and accepts responsibility for it.
The person who steers into oncoming traffic to avoid an accident breaks the law. Everyone understands that this is better than attempting to anticipate every extraordinary circumstance by giving all drivers the legal discretion to drive as they wish at will. This is prudence, and it is what was abandoned when an interrogation policy of, again, excessive lawfulness is adopted.
Grant the CIA and its defenders some valid points. True, the report is partisan (although that does not respond to its content). Also true, it almost surely lacks edifying contexts for some of its evidence (although it also contains much for which an exculpatory context is difficult to conjure). Yes, the Senators and their staff failed to interview the CIA principals and operatives involved. (The latter were unavailable due to an ongoing Justice Department inquiry. Then again, the Intelligence Committee could have waited out the restrictions on their availability; the fact that it chose not to is unfortunate.)
And, finally, absolutely, the CIA was operating under extraordinary duress and an absolute mandate: prevent another attack at all costs. The absolutism of the order was a mistake for which political leaders, including some assailing the CIA all these years later, ought to be accountable. But the sobriety of retrospection is also the entire point of this report. There is no inconsistency in saying both that the agency’s conduct was understandable and that it was inexcusable. If a fraction of what the report alleges is true, something is deeply rotten at the CIA.
Any consideration of the report ought to begin with this supposition: There is no exemption for the national security establishment from the conservative suspicion of concentrated power. There is no reason that a government agency’s abuse, dissembling, or bungling should make conservatives defensive or surprised.
The CIA clearly did all these things. It has—despite its and its apologists’ retrospective posture of defiance—copped to most of them. The only outstanding questions are ones of degree. A reading of the report’s summary reveals a disturbing pattern of abusing not merely detainees but also trust. For a republic to tolerate the degree of secrecy needed by a national security agency, trust must be its currency. That currency has been debased.
Consider, for example, that Jose Padilla’s dirty-bomb plot against Washington, D.C.—whose disruption was a much-ballyhooed case of the interrogation program’s success—turns out to have consisted of a scheme to enrich liquid uranium by swinging it in a bucket over his head. Indeed, the disrupted-plots category seems to count everything that anyone who fell into the CIA’s clutches had ever imagined, regardless of its feasibility or stage of planning.
The justifications for torture often pitted headquarters against operators on the ground, with the latter saying they felt the tactics were no longer warranted because they had wrung all the intelligence from a detainee they could. Headquarters responded that surely the detainee was withholding something unknown, the evidence for which was that he had not yet said it. This is the heads-I-win-tails-you-lose logic of the Salem witch trials’ ordeal by water: Drown the woman to vindicate her; burn her if she floats.
For their part, the interrogators—and the CIA admits serious management oversights—included
individuals who, among other issues, had engaged in inappropriate detainee interrogations, had workplace anger management issues, and had reportedly admitted to sexual assault.
The two psychologists who devised the program on the basis of 1960s-era experiments on dogs were allowed both to conduct and to assess the efficacy of interrogations. The CIA admits this, too. (See page 66 of the report, and pages 10 and 11 of the CIA Response.) Their contract was ultimately worth tens of millions of dollars.
President Bush, specifying that he had not read the Senate report, nonetheless proceeded to denounce it on the decidedly un-Ciceronian basis of his friendships with the people it criticized. “And whatever the report says, if it diminishes their contributions to our country it is way off base. I knew the directors, the deputy directors, I knew a lot of the operators. These are good people. Really good people. And we’re lucky as a nation to have them.” So the fact that these are good people protects them from inquiries into whether they behaved like good people.
For his part, Vice President Cheney persisted in the certitude for which he is well known, condemning the report, which he also had not read in full, as “full of crap.” Cheney’s point is that the tactics-that-were-not-torture were necessary to prevent future attacks. This is the equivalent of what Burke, alluding to Dryden, called the “‘all-atoning’ name of liberty.” Today it is the all-atoning name of security. On Meet the Press, Vice President Cheney was asked whether he was troubled by the 26 innocent people detained by the CIA. “I have no problem,” he replied, “as long as we achieve our objective.”
On the conservative belief that immense power is immensely corrupting, this mentality, according to which security trumps liberty rather than existing in tension with it, is a guarantor of abuse. It confers all but unqualified power on the security establishment. It is also a rejection of prudential judgment, the use of which would recognize that there are limits to what a republic like ours does, or would ever do, to enhance our safety.
Had Bush or Cheney read the report, it might—should—have angered them. Both misrepresented the interrogation program publicly because it was misrepresented to them. The credit-claiming in the President’s September 6, 2006, speech defending the program is especially troubling. It attributes to harsh tactics information actually obtained under normal questioning.
The CIA similarly misled its congressional overseers, the Justice Department (page 430: the agency continued to describe Abu Zubaydah to the Office of Legal Counsel as a senior member of Al Qaeda after concluding the terrorist group had in fact rejected him), and the media.
The CIA’s contention that the program produced some actionable intelligence is, to be sure, entirely likely. The report’s categorical conclusion—that no enhanced interrogation ever produced any actionable intelligence—raises suspicions. But the plausibility of program successes does not answer the all-important question, which is whether less coercive techniques might have produced the same or better information. The agency now shrugs this off with the only answer available to it, which is that—having obliterated the fly with a waterboard—it is “unknowable” whether a flyswatter would have sufficed.
True enough, but the question remains unavoidable even if the answer is unknowable. That Abu Zubaydah was talking in FBI hands suggests rapport-building might have been worth a shot. (Cheney, lurching predictably to extremes, asks whether critics of the program wanted terrorists greeted with kisses on both cheeks. There is a middle ground.) The report’s conclusion that the CIA frequently cut straight to enhanced methods without giving less harsh ones a chance is troubling for similar reasons.
The CIA’s response, meanwhile, is a hodge-podge of admissions, non-denial denials, and occasionally persuasive ripostes. The most compelling of these is that the report assumes too stark a posture of cause and effect in evaluating evidence, failing to appreciate the nuance and fog in which analysts operate. The fact that information was available to the agency at certain dates before detainees subject to enhanced interrogation amplified it does not mean that that information was clear or that its importance was understood in real time.
But the report’s more troubling conclusion was that the CIA at one point or another misled virtually everyone with whom it dealt on the value of its information—something that, for instance, the CIA response conspicuously declines to deny even as it purports to parry:
CIA did not consistently or intentionally provide inaccurate information to DOJ. While stronger communication and coordination between CIA and DOJ’s Office of Legal Counsel (OLC) would have enabled OLC’s legal guidance to reflect more up-to-date factual information, we found no evidence that any information was known to be false when it was provided or that additional or more frequent updates would have altered OLC’s key judgments. (Emphasis added.)
When the CIA response does deny charges, it sometimes does so preposterously. Example: the claim that rectal rehydration—in one case a detainee’s lunch was pureed and rectally infused—“was deemed safer than using IV needles with noncompliant detainees” and was only used to “address pressing health issues.” That last part might have been more persuasive had the Senate report not uncovered CIA records indicating the technique was effective in “clear[ing] a person’s head” and “getting KSM to talk.”
Then there is the matter of innocence that did not disturb Cheney but probably disturbs the 26 people wrongly held. The CIA hides behind adverbs to exonerate itself of wrongly imprisoning, and sometimes torturing, innocent people. The agency claims these individuals may have been wrongly, but were not “wrongfully,” detained, and anyway their detentions seemed reasonable at the time. But as the CIA acknowledges, it sometimes took months to release them.
What all this amounts to is a partial defense on a multi-count indictment, conviction on any of which would be gravely serious. None of it is surprising. Power was abused and government, protected by secrecy, screwed up.
Should this be surprising or threatening to conservatives? If the IRS can abuse its power, why not the CIA? If government cannot be trusted to deliver health care, why the reflexive defense of its competence to administer waterboarding? If the separation of powers prevents President Obama from stopping deportations without Congress’s consent, why did it not similarly inhibit President Bush’s power to detain suspects without outside review?
Once again, the context should not be forgotten. The chaotic days after 9/11, when the pressure to prevent another attack was overwhelming and the possibility of a spectacular one loomed over all the national security agencies—these constitute mitigating circumstances for those on the front lines. Those in the executive suite who continued to mislead for years afterward are less sympathetic. Prosecutions of either would likely be difficult, precisely because the interrogation program was not lawless but so utterly attentive—misleadingly so, to be sure, but also excessively so—to rule-making under pressure rather than to prudence.
The assumption was that for the President to have the authority to torture in the proverbial ticking-bomb scenario—the fantasy of philosophers and fans of the cable television drama 24 —he must have it for all scenarios. But this is absurd. The President in such a scenario must assume the weight of responsibility. Thus Thomas Jefferson:
It is incumbent on those only who accept of great charges, to risk themselves on great occasions, when the safety of the nation, or some of its very high interests are at stake. An officer is bound to obey orders; yet he would be a bad one who should do it in cases for which they were not intended, and which involved the most important consequences. The line of discrimination between cases may be difficult; but the good officer is bound to draw it at his own peril, and throw himself on the justice of his country and the rectitude of his motives.
The accountability is to be judged not legally but politically. Note Jefferson’s words, that the officer must “risk” himself “at his own peril.” The lawfulness, even punctiliousness, of this program sought to eliminate that risk and that peril. They cannot be avoided, though—not without making every exception into a rule and entrusting those with power not to abuse the authority that ensues.
The route the administration took, and again it was wholly understandable, represented a flight from judgment. It was also evidence of the last agonies of prudence as a political virtue—which loss, in turn, both reflects and feeds the public’s appetite for retrospective blame for adverse events. The fact that the public insists on claiming scalps when anything bad happens any time leads public officials to want total leeway, total power, to keep anything bad from happening any time.
Everyone, it would seem, has some growing up to do, including those who want to impose the retrospection of crystalline moral clarity on the aftermath of 9/11. Growing up, too, is something for which conservatism is supposed to stand. Confronting the Senate Intelligence Committee’s report squarely—which includes responding to its evidence rather than assailing its authors—would be an excellent start.