REMEMBER THE Rule of Law? In the late 1990s, it was all the rage in conservative circles. Having maneuvered Bill Clinton into a position where he could either lie under oath or suffer massive personal and political embarrassment, conservatives reasoned that Clinton must be held accountable for perjury or the basic underpinnings of democracy would be shattered. The Republican sensibility was best reflected by the Wall Street Journal editorial page, which not only crusaded for impeachment but demanded, in 2001, that Bill Clinton be indicted even after leaving office. The Journal rejected the logic of promoting healing and insisted that a post-presidency indictment would uphold “the principle that even Presidents and ex-Presidents are not above the law.”
Over the last decade, though, the right’s thinking on this question has evolved. Today, the administration malfeasance consists of illegal torture, a crime I’d argue is no less serious than lying under oath about fellatio. Yet Republicans now believe that the Rule of Law is not only consistent with letting administration crimes go unpunished but actually requires it. To prosecute the departed administration would make us (to use their new catchphrase) a “banana republic”—the premise being that banana republics are defined not by their use of torture but by their overly zealous enforcement of anti-torture laws.
The GOP line is once again reflected by the Journal editorial page, which now thunders against “a new Administration prosecuting its predecessor for policy disagreements.” The editorial notably fails to even address the question of whether the previous administration complied with the law, which is apparently no longer an important element of the Rule of Law.
The right’s newfound outrage is a more hysterical manifestation of the mainstream sentiment that it would be an unseemly form of vengeance or “looking backward” to hold the previous administration legally accountable for torture. It's a bizarre sentiment. The prosecution of any crime is inherently backward-looking. We prosecute law-breakers to keep them or others from breaking the law.
TNR senior editor Jonathan Chait discusses his latest “TRB from Washington” column with editor Franklin Foer:
Now, exceptions can be made, and the question of whom to prosecute is tricky. It seems unfair to prosecute CIA agents who tortured, as they had been specifically advised that techniques like waterboarding were legal. It’s likewise tricky to prosecute the Bush administration lawyers who wrote torture-authorizing memos. Administration defenders assert that those lawyers were “acting in good faith.” And, yes, they were making a good-faith effort to stop terrorism, but to suggest that they were making a good-faith effort to interpret the law insults their intelligence and ours. A recent Washington Post story leaves the impression that torture-memo author Jay Bybee, now a federal judge, realized the tendentiousness of his memos, which said waterboarding isn't torture (and therefore is legal) because it does not inflict “severe physical or mental pain or suffering.”
The best defense against holding Bush officials accountable for torture is that September 11 freaked out the entire country and that we can’t judge their actions by the standards of how they look “on a bright, sunny, safe day in April 2009,” as Obama’s intelligence director puts it. This argument would carry more weight if Republicans had changed their thinking on torture and could be expected to follow the law the next time they won the presidency. Alas, they show little sign of intellectual progress.
Even after the release of the torture memos, Republicans persist in denying that techniques like waterboarding or chaining a prisoner in a standing position for hours constitute torture. The most common defense of waterboarding is that we subjected our own soldiers to it. That's true—as a way of training them to withstand enemy torture. When you reverse engineer a torture-resistance program, you're almost by definition engaging in torture.
In reality, Bush's waterboarding methods did differ from the U.S. military’s torture-resistance training, in that our soldiers knew how far we’d go and could stop the exercise if they couldn’t bear it. Conservatives have inadvertently confirmed this point. Numerous Republicans object that the release of the torture memos will render waterboarding and other techniques useless—“terrorists are now aware of the absolute limit of what the U.S. government could do to extract information from them,” complain former Bush officials Michael Hayden and Michael Mukasey.
It's true. Nobody expects the Spanish Inquisition, or torture methods devised thereby. Our chief weapon is surprise. (Surprise and fear. ... Amongst our weaponry are such elements as surprise and fear, as Michael Palin might put it.) That’s exactly why training soldiers to withstand waterboarding is different than actually waterboarding.
The worst part is that conservatives continue to view torture through the stylized prism of the Fox drama “24.” They discuss the practice as if the subjects are always terrorists, the interrogators always know just what information to ask for, and the answer can prevent imminent destruction. All of these premises are shaky.
First, there's no such thing as a government policy of “torturing terrorists.” There’s only a policy of torturing people the government thinks are terrorists. Many of the suspected terrorists at Guantanamo Bay, subjected to agonizing stress positions, turned out not to be terrorists—not because the soldiers who captured them were venal, but because they were human.
Second, torture is designed to force prisoners to provide an answer the interrogator already knows. The torturer relents when his subject provides the “correct” answer. Intelligence gathering, by contrast, is designed to garner answers the interrogator does not already know.
Finally, yes, we can imagine ticking-time-bomb situations where regular interrogation methods work too slowly and extreme measures might prove helpful. But this premise bears the same relationship to the question of legalizing torture as the morality of stealing a loaf of bread to feed your starving family does to the question of legalizing theft.
It’s worth thinking about how likely the ticking-time-bomb scenario is to occur, and how our military and intelligence apparatus can be legally structured to account for it. But, first, Republicans are going to have to be disabused of their dramatic fantasies and reminded that a long war needs to be guided by the rule of law.
Jonathan Chait is a senior editor of The New Republic. This article appeared in the May 20, 2009 issue of the magazine.