In the Wake of War
Judging the U.S. Government's actions after 9/11
Father and son. Lawyer and philosopher. Conservative and liberal. Charles Fried, Beneficial professor of law, and Gregory Fried '83, professor of philosophy at Suffolk University, found themselves debating the deepest issues raised by the U.S. government's response to the 9/11 terrorist attacks. Their conversation has become a book, Because It Is Wrong: Torture, Privacy, and Presidential Power in the Age of Terror. "Torture," they conclude, "is illegal because it is wrong"—always and absolutely. "Eavesdropping is wrong because it is illegal" and therefore (unlike torture) subject to controlled use along a spectrum of degrees, conditions, and restraints. Presidential power runs up against emergencies and events for which the language of prior laws, or legislative processes, may seem imperfect or inadequate for a time. Historical precedents—Thomas Jefferson's 1807 decision to provision the navy in the wake of the Chesapeake affair, and Abraham Lincoln's 1861 steps to raise an army and intern rebel sympathizers, each without prior congressional authorization—illuminate the challenge from long before the age of al Qaeda. The Frieds use these incidents to explore how government leaders should act, and how they must subject themselves to review, and even censure, when they feel compelled to go beyond their oath to uphold the law.
In these excerpts from their final chapter, "Learning Not to Be Good," they apply law, philosophy, and history to make their argument—and to explain their unresolved differences—about what the nation should do in judging the government's actions and claims during the "war on terror."
We admit, along with Lincoln and Jefferson, that the restraints of the rule of law must be loosened when law is unable to preserve us against an unexpected crisis. The real difficulty here is not the sadist in the case of torture nor the pathological snoop in the case of violations of privacy, but the duly authorized agents of the state who might legitimately seek otherwise hidden information in order to act for the safety of the community. At the heart of the matter is the distinction between private morality and political responsibility.
At stake is the very survival of the political community and the good that the political community can secure for its members. It is an ancient insight that, as Aristotle put it, the human being is a zoôn politikon, one whose very life is defined by the necessity of existing together with others in a political community in order for both individuals and the community as a whole to survive, and beyond that, to thrive, to achieve a life that is the best and most noble.[] It is within the community that the absolute prohibition of torture and the looser prohibition on snooping define the kind of political community we are: we are who we are because we do not torture murder suspects—even a suspected serial killer—and do not routinely and pervasively (like Big Brother in Orwell's 1984) observe all of our citizens' doings or listen in on all of their conversations. And though we expect the police to ask tough questions in an investigation, to arrest and imprison criminals, and to employ force when unavoidable in fulfilling these tasks, we expect that this toughness has limits. Police can use deadly force to stop a violent crime but not to stop a thief; the military can bomb and shoot at opposing armies in the field but not use poison gas.
Dick Cheney, Hero?
But if the existence of the whole community is threatened, do these constraints apply? In the words of the director of the CIA's Counterterrorist Center, Cofer Black, do "the gloves come off?" In the words of Vice President Dick Cheney, do we move "to the dark side"? Do the dictates of conventional morality or even the constraints imposed on the officers of the law and the commanders of the military apply when it comes to safeguarding the welfare of an entire community?
This is the problem of "dirty hands." It was Machiavelli's advice to the aspiring ruler that "a man who wishes to profess goodness at all times must fall to ruin among so many who are not good. Whereby it is necessary for a prince who wishes to maintain his position to learn how not to be good, and to use it [goodness] or not according to necessity." By "goodness," Machiavelli means all the requirements of conventional morality: telling the truth, being generous, keeping promises, being merciful rather than cruel. But if we live in a world where "so many" do not play by these rules, then to live by them would seem to lead to ruin. Machiavelli admonishes here not the private individual in everyday life but rather "the prince"—anyone with the power and responsibility to rule over a political community. Necessity confronts the prince in a form that private morality rarely encounters, because the prince must act for the community as a whole.
And so the prince must "learn how not to be good." Machiavelli does not say that the prince must learn how to become unabashedly evil or to despise goodness. No sensible person would claim that torture and violation of privacy were things Bush and Cheney had longed to do all along as part of some monstrous craving for power. That the prince must learn "how not to be good" does not mean ceasing to be good at all, but rather learning when and how not to do what is ordinarily thought morally upright—the willingness to go to the "dark side" when forced. The ruler should know how and when to do what is not ordinarily good, but then only to the extent required by necessity—by the inescapable difference between safety and ruin. Can any political leader or indeed any public servant with substantial responsibility for the community rightly ignore the kind of prudence Machiavelli advises, if success means protecting multitudes of people and failure means their death, enslavement, or similar catastrophe?
We come to the rare but possible combination of events in which torture truly is the only way to prevent a catastrophe. What then? Given our argument, we must say that the prohibition on torture is an absolute. If the president decides not to torture in the most extreme case, many of those he has assumed responsibility to protect might die. He will have to live with this on his conscience, just as the president who authorizes torture will have that on his conscience. What if the most effective way to get a suspect to talk were to torture his innocent child in front of him? Would we ask our public servants to do that for us? John Yoo, the Justice Department official who together with David Addington, Dick Cheney's chief aide, formulated the legal justification for the president's extraordinary claims, thought yes. In a debate after he left office he was asked, "If the President deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?" And Yoo replied, "I think it depends on why he thinks he needs to do that."
If it is the leader's ultimate responsibility to be prepared to lose even his soul in a cause that all can understand, then his may be the most extreme, the most costly kind of moral heroism. But at some point, the world will perish and the heavens will fall. Must they take our souls with them? This is what Machiavelli forced us to confront as the dilemma of dirty hands.
Learning how not to be good while at the same time retaining goodness as the ultimate guide for decent action is an almost unimaginably difficult balancing act. And yet that act is precisely what the tragedy of the human condition demands. This is the grim metric we must apply when judging the actions of the Bush administration, to discern whether they kept to the right side of tragedy or lurched into hubris.
Squaring the Circle: Executive Disobedience
Squaring the circle is an operation that cannot be performed—at least not with mathematical (geometric) precision, but only by successive approximations. Can it be performed at all—must we choose between guilt and ruin? What follows is as close as we can get.
First, there are actions that though illegal are not indecent. They are wrong because they are illegal; they are not illegal because they are wrong. Some of the illegal actions taken after 9/11 (aspects of the surveillance program, the temporary detentions of aliens) are quite analogous to Jefferson's and Lincoln's illegal actions taken in response to the crises they faced, and the actions of these two great presidents are a model for squaring this particular circle. It is a model that analogizes executive lawbreaking to civil disobedience. Civil disobedience comes in two strands. One professes a fundamental allegiance to the political community and its system of laws and government, but holds that if some laws are such an affront to the conscience of its citizens, it is the citizens' right and duty to disobey these laws in an attempt to change them. This was Martin Luther King Jr.'s strategy. The other strand instead uses the techniques of nonviolent action and lawbreaking to overthrow the existing government. The first focuses on reform, the second on revolution. The former is civil disobedience proper; the latter is nonviolent political action. As Locke and the American Founders recognized, tyranny may well justify revolution. Given our focus on lawbreaking by those who enjoy constitutional authority, the second strand would be not revolution but a coup d'état. Executive disobedience is analogous to the first, which professes (as did Jefferson and Lincoln) a fundamental loyalty to the state and its laws.
It is crucial to civil disobedience that its practitioners, in disobeying the law, do so in a civil manner. Civil refers to the bond that the lawbreakers maintain with a political community united by a sense that it is one people. As a people, it shares a common good, recognizes the basic justice of its constitution and civil institutions, and accepts the rule of law as well as the existing system of laws as binding on the citizen body as a whole.
Civil disobedience relies on the Lockean idea that no sovereign can be so wise as never to commit a serious error in making law. Some laws will be not merely imprudent or silly, but deeply wrong, contrary to the fundamental principles and interests that united the people in the first place and that transcend any specific law. Civil disobedience breaks those specific laws to focus the attention of the people as a whole on the injustice of those laws; for example, the civil rights movement in the United States used sit-ins to call attention to the injustice of Jim Crow laws. Because civil disobedience seeks the rectification of the law and the redemption of the principles that unite society, its practitioners take pains not to offend or insult their fellow citizens because they are seeking to reconcile and heal a wound in the body politic embodied by the unjust law.
They are civil in a more specific sense: they break the law in a way that emphasizes their allegiance to the rule of law and the existing system of laws and institutions in general, with the exception of the law or set of laws in question. They break the law openly. They break the law reluctantly only for reasons of deep principle and in situations of great urgency, after making a good faith effort to change the law by legal means. They do not resist or avoid the representatives of the state when they arrest them. The practitioners resist by pleading their case in court, and they accept their punishment if the court goes against them, trusting that their fellow citizens will see the light eventually.
All this requires a civic courage and a civic sense of honor: to take a risk for the greater good of the community and its fundamental, unifying principles. Those practicing civil disobedience willingly take on risks for the same reason that a soldier does: to protect the fundamental principles of the society and to preserve the unity of the body politic. There is honor, even nobility, to both forms of risk-taking.
Now, consider the examples of executives acting unconstitutionally in times of crisis: Jefferson assuming powers of the Congress after the Chesapeake affair; Lincoln doing the same at the outbreak of civil war. Is lawbreaking by officers of the government analogous with civil disobedience? We might call this executive disobedience. At first blush, the analogy does not seem to hold, because the disobedient official is someone who has taken an oath to uphold the law. This is the oath that the Constitution prescribes for the president: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." Note that the oath does not mention defending national security; the president's duty is explicitly to the law. Indeed, Article VI of the Constitution requires that "all executive and judicial Officers both of the United States and the several states shall be bound by Oath or Affirmation to support the Constitution." Presidents are public servants precisely because they serve the public interest as embodied by law; for the law is the expression of the people's will that such officers "execute." If a public servant is unhappy with this, if performing his legal duties deeply violates his conscience, he should resign. But this ignores the point made by Aristotle and Locke: that the law cannot always foresee what is in the public interest. The official might break the law, not because it would be gravely unjust to uphold it under any circumstances (she should resign if that is what she thinks), but because it would be prudent and reasonable to prevent the letter of the law from causing a grave injustice in a particular, unanticipated case.
Imagine the police officer who broke some laws in order to get your loved one to the hospital in an emergency: she reports to her chief the next day, explains what she has done, puts her badge and gun on the chief's desk, and waits for a response. Both Jefferson after provisioning the military and Lincoln after suspending habeas corpus asked Congress to cure the defect retroactively by passing the laws there was no time to pass originally. After all, congressional action at the outset would have removed any illegality. All that is left is the fact that the actions were illegal in the interim, but to insist on that is not fidelity to law but rule-fetishism. Similarly, we can also say that parts of the President's Surveillance Program were wrong only because they were illegal—they violated the Foreign Intelligence Surveillance Act—and that Congress's action in 2008 in passing the FISA Amendments Act cured that defect. Indeed, Congress immunized those whose actions were illegal when they did them, but were illegal no longer.
But what if Congress declines to ratify what the president has done? He can then up the ante: he presents his own articles of impeachment, detailing the laws broken as well as presenting his reasons for breaking them. Impeachment of the president is a rare and serious event, and this voluntary first step by the president would repeat on a grand scale the police officer's gesture in handing in her badge and gun.
A president who has acted against established law, for what he believes to be a proper purpose and in defiance of Congress, should invoke the Constitution's ultimate judgment by inviting Congress to treat his lawbreaking as a "high crime or misdemeanor," just as those engaging in civil disobedience in effect dare the authorities to arrest them. The president runs a risk in doing this, of course, but as the signers of the Declaration of Independence insisted, leadership requires that pledge of "sacred Honor" in exercising one's highest responsibilities. The civic daring required here is simply the proper move in a constitutional system where the rule of law is paramount, but where that very respect for law may endanger the community and the system of law as a whole. But when there is a breach in the rule of law, then it is the duty of the official responsible to heal that breach by being explicit about what has happened and exposing himself to the law. It demonstrates respect for the law.
In his letter on the Chesapeake affair, Jefferson recognized that in an emergency, public servants must hold to the principle that the welfare of the people trumps the letter of the written law. "The officer who is called to act on this superior ground, does indeed risk himself on the justice of the controlling powers of the constitution, and his station makes it his duty to incur that risk." The risk Jefferson refers to here is the moral risk of prosecution or disgrace. Jefferson ran that risk in the Chesapeake affair, when he assumed powers of the purse assigned to Congress, but he placed his faith in the people, and so in their representatives forgiving the breach by an officer of the law who acted with honor and good faith during an evident crisis. As long as the act is limited in scope and duration and is openly acknowledged by the officer as a temporary departure from the normal operation of the rule of law, the modern executive should have the same expectation. But to refuse to acknowledge the breach, to act as if it were the prerogative of power, is to enter on the path of despotism.
To round out the analogy, both civil and executive disobedience operate on the foundation of an allegiance to the rule of law and the institutions of civil society. Just as civil disobedience, then, will not break the law frivolously or hastily, executive disobedience will break the law only under emergency conditions when all other options have been exhausted (although sometimes the time for exploring other options may be desperately short). This means the officer will break only the specific laws that pertain to the emergency at hand; he will not consider himself to be above the law generally. Civil disobedience requires that its practitioners act openly, although sometimes this might not be immediately possible in the case of executive disobedience, if the emergency requires secrecy. At least the details of the President's Surveillance Program following 9/11 might fit this description.
There is a great danger to secret executive lawbreaking. What is done in secret could metastasize into the arbitrary, lawless power of the tyrant—as it did in the Weimar Republic, with Hitler's rise to power. It is crucial, then, that executives keep clear records of their lawbreaking, in a distinct and explicit chronicle of the actions taken that might reasonably be construed as a breach of the rule of law, a chronicle intended for public revelation as soon as the immediate crisis is over. And even during the events, they must share their immediate secrets with some in another branch of government, for in a republic worth saving, the executive and its servants cannot be the only ones trusted. The Bush administration not only showed no inclination to make public its extraordinary decisions, but also proclaimed that no act performed by the president in his capacity as commander in chief could be construed as lawbreaking at all. When cornered, the administration sent Attorney General Alberto Gonzales to Congress to offer testimony so clumsily evasive as to mock the very notion of democratic oversight.
One might ask, how can we expect officers of our government to do what is needed for our welfare when that might call for breaking some laws, if afterward they must expose themselves to dismissal, resignation, or even prosecution? Indeed, our proposal is that they themselves take the initiative in calling attention to the laws they have broken. But won't this requirement have a chilling effect so that those in positions of authority will not do what necessity requires when our national security is at stake? We must listen to Locke's warning that the reign of excellent and effective princes who transcend the law is a great danger to a people's liberty. A chilling effect is exactly what we need when it comes to the rule of law. And we must ask our executive officers to demonstrate a civic version of the virtue that we ask of our soldiers, who risk so much more in defending the country. This is the pledge of sacred honor evoked by the Founders, and the necessity of civic risk identified by Jefferson. After all, we know this is possible, because practitioners of civil disobedience accept this same risk of prosecution.
The Circle Won't Square: Coming to Terms with Torture
Our analogy between executive disobedience and civil disobedience works quite well as applied to the President's Surveillance Program under Bush. The claim would be similar to Lincoln's and Jefferson's justifications for their extralegal actions. All three presidents could contemplate a retroactive wiping clean of the slate if Congress ratified their judgments. But the interrogation program urged by Vice President Cheney and the notorious Yoo memos defining away the reality of torture in order to justify and immunize it are of quite a different order. It is not as if the statutes and treaties banning torture and cruel, inhuman, and degrading treatment were inadequately drafted or failed to imagine novel circumstances (as with FISA). There was nothing at all novel about the need to extract information from unwilling prisoners; nor, on the controversial analogy to war, was there anything novel about the imperatives to identify and prevent attacks by clandestine enemy agents. The prohibitions against torture and cruel, inhuman, and degrading treatment were written for just such situations.
Eavesdropping, provisioning the army without statutory warrant, even arresting and holding suspected enemy aliens are of an entirely different order. Laws might be drafted (after the fact, if need be) and compensation paid to cover such actions. For torture, never. When a public official tortures, that is when his hands are dirty indeed. Confession and asking for retroactive validation will not do. There must be justice, condemnation, disgrace. To hesitate, to draw back is to condone and to make us all accomplices after the fact of moral abomination.
Should the president and his subordinates—the vice president, his counsel, and his collaborators—not pay for their moral "heroism" in doing our dirty work for us? History has examples that point both ways. The Nuremberg War Crimes Trials accomplished a great deal in publicizing and punishing the crimes of the Nazi regime. They serve as the name for a calm, dignified, and probing retribution. And they headed off the much more summary retribution that the Nazi leadership would otherwise have faced. The monsters heard their victims accuse them. The victors had to make a case. The accused were allowed to defend themselves. The same can be said of the tribunals for the atrocities committed during the wars in the former Yugoslavia, for the genocide in Rwanda, and for the remnants of the Khmer Rouge.
But President Truman and General Curtis LeMay were never prosecuted for ordering the firebombings of Tokyo or for Hiroshima and Nagasaki. William Ranney Levi recently collected the great deal that is known but never discussed about brutal interrogation techniques used by the CIA since at least 1951. Project Artichoke focused on the use of a wide variety of little understood drugs; heat, cold, isolation, and "electric" methods were in use as early as the early 1960s. And "President Truman reportedly provided Walter Bedell Smith, CIA director from 1951 to 1953, a blanket and undated presidential pardon when concerns about legality began to trouble 18] But even the promise of a retroactive pardon at least concedes that crimes might have been committed, and therefore concedes that the law is something the chief executive is bound to take into account. It is another thing, as the Bush administration has done, to argue that a president's directives can never result in crimes on the grounds that whatever the president orders, in his role as commander in chief, is for that reason lawful.
Is there talk of prosecuting Bush and Cheney and Gonzales and Yoo only because it is far from clear that their tactics have succeeded? If we had quickly captured Osama bin Laden and Mullah Omar, found weapons of mass destruction, and left a peaceful, prosperous Afghanistan and Iraq, would these inquests and questions have attained any traction?
If there is only victors' justice, that would mean in effect that torture is not wrong, but only torturing and losing. The Bush administration broke the law in ordering torture, mocked the Constitution in its interpretation of executive authority, and outraged common decency. Must there not be prosecutions to reaffirm constitutional limits on the executive and lift the cloud of complicity from us all? In working together, we have talked through to agreement every other issue we have addressed, but this one leaves us at an impasse.
Gregory thinks that restoring our constitutional and moral integrity requires that these loose ends be tied, and that knitting up can only be accomplished by treating the culprits as the criminals they are. First, it is patently unjust that low-level lawbreakers be prosecuted for overstepping their orders from above, while the officials who issued those orders, knowing they were a perversion of their authority, are not. And yet that has happened. Such double standards can have just as corrosive an effect on the public trust as vindictiveness, between parties in and out of power, knifing each other back and forth through politically motivated impeachments and prosecutions. Furthermore, in cases where executive lawbreaking sets a dangerous precedent—in the expansion of dictatorial powers and in effectively legalizing torture—the failure to prosecute risks leaving that precedent in place. Finally, to the extent that the United States or any democratic republic wishes to exert pressure on countries where the rule of law is only developing, failing to hold our leaders accountable for their crimes when it proves awkward sets a lamentable example.
Democratic governments and decent communities rely on certain shared understandings about what kinds of actions are simply beyond the pale. This is at bottom a conservative argument about how devastating it can be to meddle with shared ethical instincts cultivated over generations: to encroach on fundamental taboos, even when the usefulness of torture, for example, might seem clear in a particular case, is to risk eroding the grounding moral habits of the people, their government, and its officials. Torture is the habit of tyranny, not of free republics, and it cannot simply be switched on and off. As we know from Abu Ghraib, once it is unleashed, even as a supposedly well-quarantined tactic practiced by putative professionals, torture spreads like cancer. This is the lesson of history for all governments that turn to torture. Prosecution of those responsible, not just hapless subordinates far down the chain of command, would reassert the salutary vigor of a taboo essential to a democratic nation.
In the United States the decision to go forward with such prosecutions is ultimately political. The actual decision will be taken by the attorney general, who serves at the pleasure of the president but is supposed to come to prosecution decisions independently. So how should the attorney general decide? His decision must depend on how far the high officials concerned went in breaking the law, and there is still very much that we do not know. But we should know what has been done in our name. If we are to assume the worst, only criminal prosecution and conviction proclaim in the clearest terms that what was done was a high crime, that no one, not even the president, has the authority to commit such crimes in our name.
Charles is not so sure. The option for prosecution for high officials should remain open—there should be no pardons; at issue here is a practical point about maintaining faith in a democracy. One of the strengths of successful, long-standing republics has been the peaceful transfer of power between sworn political enemies. Far more usual in other types of regimes has been the severe and vengeful punishment, killing, banishment, or dispossession of the leaders of the outgoing regime by the new. Where the incoming party has shown restraint—the establishment of democracy in Spain after the death of Franco, and most shiningly in the behavior of the Mandela-led new South Africa after the dismantling of apartheid—this was seen as a sign of strength and confidence, and led to stability. That is why the criminal prosecution of the leaders of the defeated administration unsettles the body politic. Surely those prosecuted today, or their loyal partisans, will turn in fury on the prosecutors when it comes their turn to throw the rascals out. This not only undermines the public notion that disagreements are settled at the ballot box and not in the courtroom, but also has a bad effect on the incoming regime. The new leaders might be more timid than they should be, fearing retribution when their turn comes; or they will have a motive to cling to power as long as and as fiercely as possible in order to stave off the evil day. This unsettling melody has played itself out in a minor key and muted way by the series of independent counsel prosecutions following the ouster of Nixon. The Republicans were aching to go after the Carter people—the highest they aimed for were Billy Carter and Jody Powell, and both of those were misses. The pursuit by a Democratic Congress after 1986 of high-level Reagan officials was followed by the black comedy of the Whitewater and Lewinsky prosecutions and the debacle of the Clinton impeachment. To the public, these episodes began to look rather like politics masquerading as law—and therefore sordid and vengeful.
Whether to prosecute or not should depend on many things: the scale of the transgression—Cheney is not Hitler, Stalin, Mao, Pol Pot—the depth of the crimes, their essentially defensive motivation and context. After all, the Bush administration was protecting us against an enemy for whom killing and maiming innocents was the signature technique. All these factors weigh in favor of our torturers in this instance. We are in the realm not of justification—the acts cannot be justified—but of excuse. The administration of justice excuses those who have acted wrongly under unbearable pressure. Our argument about the absolute wrong of torture holds even if we excuse someone who has done it in a moment of terrible emergency; to excuse an isolated act is not to endorse that act, and it certainly is not to validate a whole regime of "enhanced interrogation" as a matter of settled policy. As much as we might wish to see all wrongdoers brought to justice, that general expectation is not always just in individual cases. And so prosecutors do not always prosecute, grand juries do not always indict nor trial juries convict, even if a crime has been committed. Furthermore, a failed prosecution would come at a greater cost to our nation and our decency than leaving the crimes unprosecuted. Weighing against the offenders is their arrogance, their mendacity, and their perversion of constitutional government.
Finally, there is the question, what alternatives are there? The possibility of prosecution should continue to hang over their heads—there should be no immunity. Also, as they purported to act in our name and in our defense, there should be an accounting, exposure, and repudiation. The use of poison gas in World War I led to its being outlawed, its hardly being used in World War II, and those who ordered its use in Iraq being hanged. And atomic weapons have not been used in the six decades since Hiroshima and Nagasaki.
Thomas More was right that unwavering insistence on the law is a shield against tyrannical power; but in prosecutions and punishment the law works not as a shield but as a sword. The decision to swing that sword, the decisions whether to prosecute or punish are questions of prudence, discretion. Here the hero is not Dick Cheney but Nelson Mandela.
This online version of the Forum article includes footnotes from the Frieds' book.