15 Minutes Past Sagittarius

President Obama believes that ‘enhanced interrogation techniques’ (EIT) are immoral, and that they are and have been illegal. Thus, in his view, someone within the previous administration is criminally liable. Morality and legality are distinct issues, which the president’s current approach doesn’t adequately separate. In particular, morality has the quality of the ideal, while legality has that of the practical. Morality is absolute, while legality is the result of the compromises of differing opinions which our founding fathers knew occur among men of good conscience.

Evidently by coincidence, President Obama and former Vice President Cheney recently gave back-to-back speeches on the subject of EIT’s. Cheney argued that the CIA was authorized to use these methods to gather information in a timely manner when a particular prisoner likely had information that, if extracted, could be used to prevent harm to American citizens. He argued further that Obama would set a dangerous precedent by criminalizing practices authorized by a previous administration.

Cheney’s last point is strong. Assuming that Obama is a man of unquestionable moral fiber, this is the exception among politicians. After all, the democratic necessity of willingness to compromise one’s position is at best amoral. But there is an accelerating trend among politicians to exploit law as a political weapon – if it’s doubtful whether one can defeat an opponent’s platform, then impeach the man himself. However sincere his motives, for the president to himself aggressively pursue such matters is to invite purges based on partisan politics into our future. The separation of powers was made integral to our constitution to avoid just this sort of thing.

Whether or not the prior use of EIT’s was marginally legal, because Obama believes they should not have been, his focus should be to work as hard as his conviction is strong to change the law.

The question he faces is “Who’s law – U.S. or international?” International law is a matter of treaty, mostly among Western governments, but the United States Congress has not ratified these treaties. The arguments against doing so are that our own judicial system is competent to investigate and try cases of war crimes and crimes against humanity, and that it would violate our constitution to allow a foreign party to conduct police activities on American soil, even if the agency is an international group with whom we’ve established treaties. Ireland faced a similar problem, and amended their constitution in order to participate in the international court at The Hague.

At present we do not submit to international law. We assert ourselves as a nation governed by law, but only by our own law. Right is what we say it is. But this is simply asserting that we are powerful enough to defy any challenge to our behavior – and we are the most powerful nation in history. Power, however, is a practical matter, while morality is ideal – what’s right is right absolutely, even for those who are completely unable to defend themselves.

And right is not one thing within our borders and another beyond our shores. Not moral right, but because of our position this is the case with legal right. The CIA expresses an intuition of the questionability of certain methods by naming them ‘enhanced techniques,’ combining the positive-sounding word ‘enhanced’ with the sophisticated word, ‘techniques’ (the implication that a science is used depersonalizes the practice.) These same EIT’s are what other nations call torture – and if we agreed with that label we’d almost certainly also agree that EIT’s are immoral.

But the CIA is concerned with expediency, and it’s hardly controversial that this agency has no concept of morality. The CIA is a police agency. Police bureaus operate on the basis of power, and this power is normally restrained by competing local, state, and federal agencies. That’s why at the federal level we have separate agencies such the Bureau of Alcohol, Tobacco, and Firearms, The Drug Enforcement Agency, Customs and Immigration, and even the Secret Service (with their responsibility to the Treasury Dept) when their investigations surely overlap and could all be combined more efficiently within the FBI. The CIA is unique in that it operates beyond our borders and so is profoundly less subject to such restraint. The agency is subject to United States and not international law, yet its sphere of activity is outside the U.S. and not among the citizens on whose behalf it acts.

As an aside, this points to the danger of having a unified Department of Homeland Security. Police authorities must be indulged a certain level of secrecy in order to conduct investigations. This privilege can be abused, but it is also a restraint when one agency has authority to investigate another. Giving a single agency authority over all others certainly has the advantage of sharing information about enemies of our country, but it also carries the inherent danger of centralizing police authority. Repeating, police activity is implicitly power oriented – expediency is their nature, not morality. And the more urban experience an officer has, the more character it requires to avoid regarding all citizens as suspects, more to be defended against than defended.

The previous administration proclaimed 9/11 as an act of war, and as a practical matter civil liberties are compromised in times of war – civil liberties within our own nation as well as in our actions abroad. But terrorist groups are an unusual enemy in that they do not represent a country but rather an ideology. Because of this, it was recognized at the outset that this ‘war’ would last decades. Decades – time enough for an entire generation to grow to adulthood in the atmosphere of compromised liberties, and acceptance of the wartime expediency of a Department of Homeland Security, whose umbrella includes even FEMA (thus, by association, civilian FEMA agents acquire more police authority.)

The previous administration did also acknowledge that the citizens of a free nation are more at risk than those of a totalitarian regime. If recognizing that EIT’s are immoral, the price of making their use illegal is to leave us more at risk. We must face the question of whether security is worth compromising our values. And our liberties.

Cheney contends that the ends justify the means – that’s implicit in his argument that the use of EIT’s did provide information that prevented planned attacks, and that there was no further loss of life within the United States. He cites the climate which existed after 9/11 as part of his justification. The question, however, is not whether EIT’s were effective, but whether they were legal and moral. His first argument asserts that they were right because they worked, and his second is the far more dangerous position that fear and outrage justifies extreme behavior.

Despite their declaration that 9/11 was an act of war, the previous administration classified captured terrorists as ‘enemy combatants,’ as though this label distinguished them from persons entitled to the protections afforded prisoners of war. Thus, EIT’s were legal. The label seems reasonable, since the prisoners were acting on political rather than criminal motives, but were agents of an ideology and not a country – thus, not exactly criminal or soldier. By the same reasoning, water-boarding could have been used in interrogating Terry Nichols to identify and track down Timothy McVeigh, as theirs was surely an act of political terrorism. And eager investigators may have used the same methods on Richard Jewell when he was the primary suspect in the Olympic Park bombing actually perpetrated by Eric Rudolph.

Unless domestic terrorism is not an act of war if conducted by American citizens. No doubt many individuals extend the belief that America should not be subject to international law to the position that our citizens have moral primacy over all others. Or that we are justified in using EIT’s with those who have used the same or worse methods on our soldiers and citizens. While it would be hoped that none of our political representatives make the same sort of claim publicly, there’s an uneasy sense that the previous administration incorporated such attitudes in their policies.

Significantly different world-views exist between the traditionally Christian West, the largely Moslem Mideast, and Asia, and include different measures of the worth of an individual versus social or national interests.  While most people sense  intuitively that moral right is absolute, in practice we differ on what these absolutes are – even when we interpret the teachings of the founders of our various religions. No one is justified in claiming his concept of moral right is supreme. But we can agree to minimum standards of what is unacceptable behavior in any circumstance in war (war crimes) and within nations (crimes against humanity.) This is the reason for international treaty – not to declare what is moral, but to establish what is legal.

Our present position leaves us with no moral authority, especially if we distinguish domestic from international terrorists – we are asserting that American citizens are of greater moral worth than everyone else. And there is no international law if it does not exist within the borders of the leader of the free world. Even should it happen that our own parallels international law in every way, we have no right to appear at any international court except perhaps as a defendant. Our presence at the Nuremberg trials is exposed to the argument – which some Nazi’s voiced – that our judgements were not justice, but only the revenge of the victors.

The declaration that we are a nation of laws, and that our courts are just and competent will be seen as self-righteousness by others. Any nation can make the same claim – not only vast and ancient China, but also those rogue nations which recent presidents have referred to as the ‘axis of evil.’ These nations – and the terrorist groups with political agendas – who know they lack the military capability of resisting us can also use Cheney’s argument that fear of a dangerous enemy justifies extreme behavior.

Iran can, for example, accuse American citizens within its borders of spying, arrest them, and submit them to the same techniques we use – or any other interrogation method they choose. And claim the same justifications as does Cheney – that these prisoners pose a great danger to the way of life of Iranian citizens, and that EIT’s are the most expedient way to prevent further harm to its people by the United States.

We cannot impose any international standard of behavior which we do not submit to ourselves and claim right. We can claim the power to do so, but not the right.  If the legality of EIT’s is based on morality, then the law has to be international. Thus, Obama and former presidents are correct in wanting to be signatory to an international court. But Cheney is right in protesting against a sitting president wanting to criminalize the former administration.