Sherry Chandler

As I was going up the stair –

Somewhere, somehow, in my wanderings around the web, I followed a link to this New Yorker News Desk post from Jane Mayer.

There is also a less famous observation by [Hannah] Arendt, made in The New York Review of Books in the wake of the protests of 1968 and shared with me by Georgetown Law professor David Luban, that captures the problem faced by the Obama Administration in its attempt to hold the right officials accountable. She calls it the “rule by Nobody.” Attorney General Eric Holder is stuck trying to investigate an entire bureaucracy. Those on the top can claim to have clean hands, while those on the bottom can claim they were following ostensibly legal orders. What’s left, Arendt suggests, is an all-powerful government that is beyond accountability.

The Arendt article in question, Reflections on Violence, was published in the New York Review of Books in 1968, and the quotation Mayer had in mind was this:

These definitions coincide with the terms which, since Greek antiquity, have been used to define the forms of government as the rule of man over man—of one or the few in monarchy and oligarchy, of the best or the many in aristocracy and democracy, to which today we ought to add the latest and perhaps most formidable form of such dominion, bureaucracy, or the rule by an intricate system of bureaux in which no men, neither one nor the best, neither the few nor the many, can be held responsible, and which could be properly called the rule by Nobody. Indeed, if we identify tyranny as the government that is not held to give account of itself, rule by Nobody is clearly the most tyrannical of all, since there is no one left who could even be asked to answer for what is being done. It is this state of affairs which is among the most potent causes for the current world-wide rebellious unrest.

Intrigued, I went to read the whole article and discovered further disturbing thoughts on bureaucracy:

Finally, the greater the bureaucratization of public life, the greater will be the attraction of violence. In a fully developed bureaucracy there is nobody left with whom one could argue, to whom one could present grievances, on whom the pressures of power could be exerted. Bureaucracy is the form of government in which everybody is deprived of political freedom, of the power to act; for the rule by Nobody is not no-rule, and where all are equally powerless we have a tyranny without a tyrant. . . . Huge party machines have succeeded everywhere to overrule the voice of the citizens, even in countries where freedom of speech and association is still intact.

What it seems to me we have in this country this summer, with our town “hell” meetings and our tea party demonstrations, is a great frustration at government where nobody is, finally, responsible. What we have is institutions too big to fail, but faceless, so that no one can be held accountable to the ordinary citizen who loses his/her job or home. We have a healthcare system so complicated nobody understands it and plans to fix it that are so amorphous and ill-defined that tales of death-panels can thrive. We have a shadowy external enemy nobody can find, let alone fight, and a national security apparatus that, when it is not looking like a pack of Keystone Cops, has committed atrocities for which they claim there are no perpetrators. The buck stops nowhere.

For more on the out-of-control security apparatus, see Garry Wills “Entangled Giant.”

To continue Arendt:

What makes man a political being is his faculty to act. It enables him to get together with his peers, to act in concert, and to reach out for goals and enterprises which would never enter his mind, let alone the desires of his heart, had he not been given this gift—to embark upon something new. All the properties of creativity ascribed to life in manifestations of violence and power actually belong to the faculty of action. And I think it can be shown that no other human ability has suffered to such an extent by the Progress of the modern age.

For progress, as we have come to understand it, means growth, the relentless process of more and more, of bigger and bigger. The bigger a country becomes in population, in objects, and in possessions, the greater will be the need for administration and with it, the anonymous power of the administrators.

Sounds a lot like where we are now.

The Dark Side

Jane Mayer’s The Dark Side tells the story of how Dick Cheney and his counsel, David Addington, usurped George W. Bush and ran the “War on Terror” from the Office of the Vice President. It is the story of how Cheney and Addington were able to claim absolute extraleagal power for the Executive during a time of war and use that power to override the Geneva Conventions and habeas corpus, and to authorize torture, domestic spying, and “preventive” war.

It is also the story of a few brave souls within the administration who had scruples and were willilng to stand against these policies. All of these people were conservative. Nearly all of them supported the war in Iraq. Most of them had short careers.

They included, among others, Deputy Attorney General James Comey, the man who had the hospital room standoff with Alberto Gonzales and Andy Card. To a lesser degree, perhaps, Jack Goldmith, who took over the Office of Legal Counsel when Gonzales left to become Attorney General and who revoked John Yoo’s opinions that torture was legal. Air Force Reserve Colonel Steve Kleinman, an interrogator who resisted the “enhanced techniques” and was ostracized for his efforts. Alberto Mora, General Counsel of the United States Navy, and David Brant, head of the Navy’s criminal investigations, who fought the policies within the Pentagon.

There’s an interesting contrast here in the way personal history can influence actions. Both Mora’s parents had fled Coummunist regimes to come to the U.S., his mother from Hungary and his father from Cuba. His grandfather, also an exile, had been a lawyer in Hungary. It was he who taught his grandsom that “the law is sacred.”

For the Moras, injustice and abuse were not merely theoretical concepts. One of Mora’s great-uncles had been interned in a Nazi concentration camp, and another was hanged after having been tortured. Mora’s first memory, as a young child, was of playing on the floor in his mother’s bedroom and watching her crying as she listened to a report on the radio declaring that the 1956 anti-Communist uprising in Hungary had been crushed. “People who went through things like this tend to have very strong views about the rule of law, totalitarianism, and America,” Mora said. [p. 217]

John Yoo’s family had also fled a Communist regime but his experiences led him to draw conclusions that were in stark contrast to Mora’s:

Born in South Korea in 1967, Yoo had been brought to America as an infant by his immigrant parents, both of whom were psychiatrists who had survived the Korean war and become staunch anti-Communists. Quite directly, Yoo’s family owed its freedom and prosperity to Harry Truman’s controversial decision to wage the Korean War without obtaining congressional authorization. Had Truman not used military force, without Congress’s permission, Yoo reflected on occasion, he would not have attended Harvard College and Yale Law School, nor, escaped Communism. Yoo left early mentors feeling deceived about the depth and extremism of his views—he had learned apparently to mask them behind moderate-sounding language—but in time it became clear that he acted less as a lawyer judiciously guiding the government than as a single-minded advocate for a cause. [p.65]

(Yoo clerked for Clarence Thomas, by the way, which is a propos of nothing except that I think they are both the dregs of the U.S. legal system.)

Another conservative who stood up to the Bush adminstration on the issue of torture was John McCain. He did it by pushing through an amendment to the Defense Department budget in July 2005 that made it illegal for the Armed Forces to use any interrogation techniques outside of the limits set by the Army Field Manual. Whatever you may think of his subsequent actions (as in voting for the Military Commissions Act) or his campaign for the Presidency, he deserves credit for that legislation. Nobody else, Democrat or Republican, was giving Bush any significant resistance in those days.

The Dark Side is subtitled The Inside Story of How the War on Terror Turned into a War on American Ideals. All of the men I’ve mentioned here lost their battle in the War on American Ideals and it is a war that we, as a people continue to lose and will continue to lose unless we put pressure on whoever wins this election.

The New York Times today, under this headline—Bush Decides to Keep Guant�namo Open—indicates that Bush expects any new administration to continue to use the prison:

Mr. Bush�s top advisers held a series of meetings at the White House this summer after a Supreme Court ruling in June cast doubt on the future of the American detention center. But Mr. Bush adopted the view of his most hawkish advisers that closing Guant�namo would involve too many legal and political risks to be acceptable, now or any time soon, the officials said.

The administration is proceeding on the assumption that Guant�namo will remain open not only for the rest of Mr. Bush�s presidency but also well beyond, the officials said, as the site for military tribunals of those facing terrorism-related charges and for the long prison sentences that could follow convictions.

The effect of Mr. Bush�s stance is to leave in place a prison that has become a reviled symbol of the administration�s fight against terrorism, and to leave another contentious foreign policy decision for the next president.

. . .

Mr. Cheney and his chief of staff, David S. Addington, have made it clear in the internal discussions this year that keeping Guant�namo open under a new president would validate the administration�s decisions dealing with terrorists, the officials said.

Guantanamo has always created more problems than it solved, and that in itself is as eloquent an argument as I can think of against Cheney’s strategy.

__________
Update: Hear Jane Mayer discuss her book, nominated for the National Book Award in Nonfiction, on Fresh Air.

Torture, Human Rights, and Bush’s State of Exception

At YouTube

The 59-minute video features journalist and UC Berkeley professor Mark Danner, who chides the Bush Administration for what he sees as its poor record on torture and human rights. The lecture is part of the 2006 DeWitt Higgs Memorial Lecture event, sponsored by Earl Warren College at UC San Diego.

Although the lecture took place two years ago, the information it contains remains relevant.

In The Dark Side (Doubleday, 2008), Jane Mayer describes how Mamdouh Habib, an Australian citizen, was detained as a suspicious foreigner in Pakistan in October 2001 and subjected to “extraordinary rendition” by unidentified Americans. Habib was taken to Egypt and tortured. When his blindfold slipped, he got a glimpse of his captors as:

muscular men wearing black short-sleeved shirts, several of whom had distinctive tattoos: One depicted an American flag attached to a flagpole shaped like a middle finger, the other a large cross.

These tattoos, this combination of tattoos, are emblematic of the way the Bush administration has cheapened everything the United States stands for.

Amnesty

Right after the attacks of September 11, 2001, Dick Cheney went on Meet the Press and made this rather famous statement: “We’ll have to work on the dark side, if you will.”

Jane Mayer’s The Dark Side (Doubleday, 2008), takes its title from that statement. I have just begun reading the book, subtitled The Inside Story of How the War on Terror Turned into a War on American Ideals. Though I’ve only read the first 20 pages or so, already I’ve come across some information I should have known (my emphasis):

While there was nothing new about torture, its authorization by Bush Administration lawyers represented a dramatic break with the past. As early as the Revolutionary War, General George Washington vowed that, unlike the British, who tortured enemy captives, this new country in the New World would distinguish itself by its humanity. In fighting to liberate the world from Communish, Fascism, and Nazism, and working to ameliorate global ignorance and poverty, America had done more than any nation on earth to abolish torture and other violations of human rights.

Yet, almost precisely on the sixtieth anniversary of the famous war crimes tribunal’s judgment at Nuremberg, which established what seemed like an immutable principle, that legalisms and technicalities could not substitute for individual moral choice and conscience, America became the first nation ever to authorize violations of the Geneva Conventions. These international treaties, many of which were hammered out by American lawyers in the wake of the harrowing Nazi atrocities of World War II, set an absolute, minimum baseline for the humane treatment of all categories of prisoners taken in almost all manner of international conflicts. …America had long played a special role as the world’s most ardent champion of these fundamental rights; it was not just a signatory but also the custodian of the Geneva Conventions, the original signed copies of which resided in a vault at the State Department. [pp. 8-9]

When asked about the Bush Administration’s position on torture, Arthur Schlesinger is quoted as saying, “No position taken has done more damage to the American reputation in the world—ever.”

But though the torture memos may be the most egregious, they are not the only example of ways in which the U.S. has fallen off its pedestal as world leader in human rights. As Adam Liptik pointed out in the New York Times a few weeks ago, the world’s nations are no longer looking to the U.S. Supreme Court for guidance in matters of legal precedent:

…American legal influence is waning. Even as a debate continues in the court over whether its decisions should ever cite foreign law, a diminishing number of foreign courts seem to pay attention to the writings of American justices.

�One of our great exports used to be constitutional law,� said Anne-Marie Slaughter, the dean of the Woodrow Wilson School of Public and International Affairs at Princeton. �We are losing one of the greatest bully pulpits we have ever had.�

From 1990 through 2002, for instance, the Canadian Supreme Court cited decisions of the United States Supreme Court about a dozen times a year, an analysis by The New York Times found. In the six years since, the annual citation rate has fallen by half, to about six.

Australian state supreme courts cited American decisions 208 times in 1995, according to a recent study by Russell Smyth, an Australian economist. By 2005, the number had fallen to 72.

The story is similar around the globe, legal experts say, particularly in cases involving human rights. These days, foreign courts in developed democracies often cite the rulings of the European Court of Human Rights in cases concerning equality, liberty and prohibitions against cruel treatment, said Harold Hongju Koh, the dean of the Yale Law School. In those areas, Dean Koh said, �they tend not to look to the rulings of the U.S. Supreme Court.�

Amnesty International promises to keep up the fight for human rights no matter which of our two candidates is elected president. Here is an e-mail statement I received from them yesterday:

Though Americans are engrossed in the final weeks of a tight presidential contest of historic importance, we cannot lose sight of the epic human rights challenges before us�life and death issues that transcend politics.

No matter who moves into the White House in January, one thing is crystal clear. We cannot depend on a new administration in Washington to swiftly reverse the human rights abuses being carried out in our name. We are the agents of change that will make it happen.

Amnesty is holding their fall membership drive. If you join by September 30, your membership donation will be doubled by an anonymous donor. You can join here.