Last month, Ross Douthat wrote an extremely immoral – and not coincidentally, poorly-argued – piece in favor of the death penalty. The occasion was Troy Davis' execution in Georgia. If you're not familiar with the Davis case, this and this cover the main points. (He may have been innocent, and several eyewitnesses who testified against him recanted, raising the issue of reasonable doubt.)
It's already been dissected ably by TBogg, driftglass, Susan of Texas, Freddie deBoer, John Casey, and Steve M. Feel free to check those out; I'll make some similar points, and as usual, I'm getting to this way later than I'd have liked. But while Douthat making poor and disingenuous arguments is nothing new, this piece exemplifies his worst traits and cannot receive too much scrutiny.
September 24, 2011 Justice After Troy Davis By ROSS DOUTHAT
IT’S easy to see why the case of Troy Davis, the Georgia man executed last week for the 1989 killing of an off-duty police officer, became a cause célèbre for death penalty opponents. Davis was identified as the shooter by witnesses who later claimed to have been coerced by investigators. He was prosecuted and convicted based on the same dubious eyewitness testimony, rather than forensic evidence. And his appeals process managed to be ponderously slow without delivering anything like certainty: it took the courts 20 years to say a final no to the second trial that Davis may well have deserved.
For many observers, the lesson of this case is simple: We need to abolish the death penalty outright. The argument that capital punishment is inherently immoral has long been a losing one in American politics. But in the age of DNA evidence and endless media excavations, the argument that courts and juries are just too fallible to be trusted with matters of life and death may prove more effective.
The invocation of DNA evidence is odd and unclear, since it's lead to innocents being freed, and capital punishment opponents are all for a more accurate judicial system. Still, let's say Douthat's on decent ground here. He glosses over the many arguments against capital punishment, particularly those about its inherent immorality, but in an op-ed with limited space, this may be forgivable. Poll data shows that public opinion is not as clear-cut as Douthat suggests:
A 2011 Gallup poll showed 61% of Americans favored it in cases of murder while 35% opposed it, the lowest level of support recorded by Gallup since 1972. When life in prison without parole is listed as a poll option, the support for the death penalty drops substantially; a 2010 Gallup poll found 49% preferring the death penalty and 46% favoring life without parole.
Nonetheless, Douthat's last sentence here seems to be his main point: for death penalty opponents, emphasizing that innocents have and will be killed will persuade more people than arguing that execution is inherently immoral. All right.
If capital punishment disappears in the United States, it won’t be because voters and politicians no longer want to execute the guilty. It will be because they’re afraid of executing the innocent.
Douthat rephrases his previous point. Again, there's some truth to this. It's probably Douthat's best paragraph.
This is a healthy fear for a society to have. But there’s a danger here for advocates of criminal justice reform. After all, in a world without the death penalty, Davis probably wouldn’t have been retried or exonerated. His appeals would still have been denied, he would have spent the rest of his life in prison, and far fewer people would have known or cared about his fate.
This is Douthat's first huge pivot in the op-ed. Counterintuitive arguments can have substance, and when backed by empirical evidence and sound reasoning, can even be profound. On the other hand, shallow contrarianism is a favorite ploy of Slate writers and other hacks. It's a good way to churn out something provocative, to attract a few links, and to posit one's self as a bold, independent thinker. The shallowest and silliest counterintuitive arguments amount to little more than debater's tricks or attention-seeking ploys, pseudo-intellectualism sold with swagger, glossy enough to fool some of the rubes, but not capable of holding up to deeper scrutiny. Let's see where Douthat falls on the spectrum.
His main argument seems to be, "Careful what you wish for, death penalty opponents!" bolstered by, "That more effective argument I just mentioned? It's not that great, after all!" Astute readers, remembering the glaring fact that Troy Davis was in fact executed and is thus, ya know, dead, may at this point be thinking to themselves, "What a load of bullshit." Douthat emphasizes his point in the next paragraph:
Instead, he received a level of legal assistance, media attention and activist support that few convicts can ever hope for. And his case became an example of how the very finality of the death penalty can focus the public’s attention on issues that many Americans prefer to ignore: the overzealousness of cops and prosecutors, the limits of the appeals process and the ugly conditions faced by many of the more than two million Americans currently behind bars.
Douthat's throwing out a great deal here, perhaps to see what sticks. Most strikingly, Douthat is indeed arguing that Troy Davis – who was recently killed – is a lucky ducky. Holy crap. (I'm envisioning a cocky high school student confident in his powers of bullshit standing up to make his bold, daring, opening statement, smugly assured that his opponent will be flummoxed and never see this one coming.)
You may have noticed that Douthat has conveniently completely glossed over whether capital punishment is moral or not. We'll return to that. But he's basically said, "Argument B is more effective than argument A – but argument B isn't effective, either!" He's attempting to tightly frame the terms of debate and move it to ground where he thinks he can win. In the process, he's implicitly characterized death penalty opponents as only caring about banning capital punishment in the long run, not caring about its inherent immorality, and not caring about injustice to Troy Davis specifically. (Those death penalty opponents are a cold, crafty bunch.) He's also used a preposterous, offensive argument to get this far. Douthat's at least partially aware this is a hard sell, so he piles it on:
Simply throwing up our hands and eliminating executions entirely, by contrast, could prove to be a form of moral evasion — a way to console ourselves with the knowledge that no innocents are ever executed, even as more pervasive abuses go unchecked. We should want a judicial system that we can trust with matters of life and death, and that can stand up to the kind of public scrutiny that Davis’s case received. And gradually reforming the death penalty — imposing it in fewer situations and with more safeguards, which other defendants could benefit from as well — might do more than outright abolition to address the larger problems with crime and punishment in America.
At this point, Douthat has completely jumped the rails (although he'll range even further). Who, exactly, is supposed to be performing this "moral evasion," beside Douthat himself? In an amazing coincidence, the same people who object to capital punishment also tend to be concerned about injustice in general, including "the overzealousness of cops and prosecutors," and "the ugly conditions" and "more pervasive abuses" many prisoners face. Perhaps Douthat's heard of the Innocence Project, the ACLU, and the Southern Poverty Law Center? On the international front, there's Amnesty International, Human Rights Watch, and various agencies at the United Nations. The Red Cross has long been charged with monitoring humane conditions for prisoners. In fact, they delivered a thorough and damning report on torture under the Bush administration. (It bears mentioning that Douthat has long been generally supportive of Bush and Cheney, including vouching for their good faith on torture and abuse, but did at least support investigations.) Douthat presents a grotesque and despicable false choice here.
Douthat writes, "We should want a judicial system that we can trust with matters of life and death, and that can stand up to the kind of public scrutiny that Davis’s case received." Why? Where is the slightest bit of support for the first half of this statement? Douthat is once again trying to assert that the death penalty is moral without directly arguing the point. He wants us to take it as a given. By all means, we should work to ensure that our judicial system is fair, can accurately assess the facts, and actually delivers justice. How does it then follow that we should execute people? Douthat seems to be arguing that executions somehow are the mark of a good system... and what? For what purpose? Perhaps it will impress the cool kids, I guess, never mind that many other nations have abandoned capital punishment. Possessing the wisdom to make a life and death decision – if necessary – in no way obligates one to takes someone's life... especially if it is not necessary. Douthat has yet to argue that it is necessary, or that capital punishment is moral. It’s as if Douthat has argued that America's doctors should be so good they can re-attach severed hands – therefore, we should chop off peoples' hands!
He argues that the system should be able to hold up to scrutiny – no disagreement there – but then essentially wants to ignore it if it doesn't. The obvious answer to the system killing the innocent is to suspend executions in the short term, or just abolish the death penalty altogether. Douthat doesn't want that outcome, however, nor is up for challenging it directly, hence his convoluted and scattershot arguments. Here, he claims to favor some "gradual reform," firmly in the Buckley conservative tradition of standing athwart history yelling stop, in this case asking us to search our consciences so that we… continue to execute people.
You may have noticed that Douthat is for the death penalty yet claims to oppose prisoner abuses; all right. Apparently, that's his sense of justice. Yet he still hasn't bothered to argue that the death penalty is just. Nor has he bothered to argue why death penalty opponents are wrong to hold executions as unjust. Instead, he's trying to argue that there's somehow a disconnect, in terms of consequences if not necessarily philosophically, between fighting against capital punishment and fighting for humane treatment of prisoners. That's rather obviously ridiculous, and also pretty offensive given the stakes of this issue. But then, almost all SAHYS arguments (Standing-Athwart-History-Yelling-Stop) rely heavily on theorizing unconnected with facts, and conjuring dread (often implausible) consequences.
Douthat isn't content to stop there; he pushes further, insisting we should want this system, implying that our national honor will somehow be stained, or we will be morally weak, if we don't execute people. I'm not sure if Douthat's arguments are just poor logic or pure sleaze, and they're probably a bit of both, but I'm more inclined toward the latter. My chief objection is that he just isn't honest, and keeps doing an convoluted end-around to get to his pro death penalty stance. He could instead make a forthright case for the death penalty, and directly address the many arguments against it. That, however, has never really been Mr. Douthat's style, and I think he believes his arguments are awfully clever.
Douthat's column is a row of straw men (and we'll return to it in a bit), but it's worth taking a step back at this point to consider the many reasons to oppose the death penalty that he ignores. The Death Penalty Information Center site (DPIC) gives an impressive and thorough overview on the subject, but I'll recap a few arguments here. You don't need to agree with all of these, but were you a serious public intellectual like Mr. Douthat and you supported the death penalty, you'd address at least some of them. Off the top of my head:
1. The Death Penalty is Immoral: It is simply immoral to kill another human being, especially if one has a choice.
2. The Death Penalty is Final: Unjustly held prisoners later found innocent can at least be released from prison and paid restitution. Killing an innocent person cannot be undone.
3. The Justice System is Fallible:DPIC reports that "since 1973, 138 people in 26 states have been released from death row with evidence of their innocence." How many more innocent people have been imprisoned or executed that we don't know about? (Needless to say, argument #3 ties in very strongly with #2, and related to #1, it forms a very strong moral argument against the death penalty.)
4. The Death Penalty has No Proven Deterrent Effect on Society: While this remains a topic of contention and speculation, the burden of proof is on those who advocate an irreversible action – killing another human being. In fact, the murder rate is consistently higher in states with the death penalty.
5. The Death Penalty is Expensive: Because of the cost of capital trials, appeals, and other factors, the death penalty is very expensive, much more so than life imprisonment would be.
6. The Death Penalty is Primarily About Vengeance: The primary reason we have the death penalty is not because it deters other crimes or is cheaper or anything else so practical. It's simply because some people want other people to die. This may be due a specific sense of justice, that some crimes are unforgivable and/or the executed deserve it; it may simply be bloodlust; it may be some mix. Regardless, it's deeply dishonest to pretend that a desire for vengeance is not a driving factor.
7. The Death Penalty is Part of a Continuum of Abuse: Camus argued that it would be impossible to eliminate war without eliminating capital punishment. Essentially, the state is advocating killing as a respectable solution to problems. It's hard to conclusively prove all the negative effects of a death penalty mindset, but when it comes to general abuse, torture, and the "accidental" killing of prisoners, there's quite a bit of evidence. The Oscar-winning documentary Taxi to the Dark Side does a superb, chilling job at delving into this, and as Soviet-era torture victim Vladimir Bukovsky put it: "Why run the risk of unleashing a fury that even Stalin had problems controlling?" The vengeance mindset cannot be shut on and off, and it holds far-reaching, negative consequences.
The DPIC site has much more, but that should do for now. (I'm guessing anyone who studied or debated the death penalty in high school or college is familiar with most of this stuff.) Again, you don't need to agree with every single element of it, but a serious death penalty advocate would address at least some of it.
Back to Douthat's piece at last. His last argument was that "gradually reforming the death penalty — imposing it in fewer situations and with more safeguards, which other defendants could benefit from as well — might do more than outright abolition to address the larger problems with crime and punishment in America." He continues:
This point was made well last week by Pascal-Emmanuel Gobry, writing for The American Scene. In any penal system, he pointed out, but especially in our own — which can be brutal, overcrowded, rife with rape and other forms of violence — a lifelong prison sentence can prove more cruel and unusual than a speedy execution. And a society that supposedly values liberty as much or more than life itself hasn’t necessarily become more civilized if it preserves its convicts’ lives while consistently violating their rights and dignity. It’s just become better at self-deception about what’s really going on.
Again, who's engaging in deception (self or otherwise) here? As we've already established, this is a grotesque false choice, and the people fighting against capital punishment are also fighting for a more fair justice system and fewer prison abuses. The most charitable interpretation of Douthat here still leaves him loathsome and presenting a false choice: that Davis' death was tragic, but served to shine a spotlight on a worthy cause, prison abuse... therefore we need to keep executing people... or something. The end game is unclear here, if one actually wants to end both abuse and executions. It seems Douthat's sorta trying to make an argument in that territory in this column, painfully poor contrarian logic though it is. However, that doesn't excuse what's arguably Douthat's most offensive contention: Douthat is arguing that Troy Davis is better off dead than in prison, willfully ignoring that Davis was fighting for his life and did not want to be executed. Douthat, a social conservative, can often be paternalistic and authoritarian, but even for him, it's awfully despicable to essentially write that, regardless of what Troy Davis the actual human being wanted, killing him was really in his best interests.
(The reason I've mentioned torture earlier is that this stuff really does exist on a continuum – an arrogant, dehumanizing mindset is the sort of thing that also fuels unnecessary wars and torture. That doesn't mean Douthat necessarily supports every negative consequence of the positions and mindset he holds. However, if Douthat isn't going to bother to think things through, others must fill that yawning gap. And let's make no mistake, regardless of his other views, Douthat's mindset here is absolutely contemptible.)
Back to Douthat:
Fundamentally, most Americans who support the death penalty do so because they want to believe that our justice system is just, and not merely a mechanism for quarantining the dangerous in order to keep the law-abiding safe. The case for executing murderers is a case for proportionality in punishment: for sentences that fit the crime, and penalties that close the circle.
The "because" here is absolutely ridiculous; Douthat is reversing the process. Sure, Americans would like to believe our justice system is fair and accurate, but they don't support the death penalty because of that, and they certainly don't support the death penalty because they want to believe that, as Douthat contends. As we've noted before, and should be obvious, most Americans support the death penalty out a desire for vengeance, the old code of an eye for an eye, a life for a life. They believe some crimes deserve the death penalty and some people deserve to die. The more honorable among death penalty supporters would and are given pause by innocents being executed, because then justice is not being done, and a great injustice has been done. The more bloodthirsty don't really care. And they certainly exist. At the Republican primary debates, the audiences have cheered letting an uninsured man die and cheered Rick Perry's execution record . Perry probably executed an innocent man, Cameron Todd Willingham, but when told of that, one of Perry's constituents reportedly said "Well, I like that. Takes a lot of balls to execute an innocent man.” Perhaps this voter figured the man must have been guilty of something, or executing an innocent just fit his twisted notion of manhood and toughness. But that is a bloodthirsty attitude, hardly some thoughtful desire for justice. It's anti-justice: just get to killin', and let God sort them out.
Notice that once again Douthat is arguing for the death penalty in a sideways manner; this time, he argues that Americans want to believe in our justice system, and the death penalty is somehow necessary to sustain this belief. (Clap your hands if you believe in executions, kids! And then Troy Davis will come back to lif – oh, wait.)
Instead of dismissing this point of view as backward and barbaric, criminal justice reformers should try to harness it, by pointing out that too often our punishments don’t fit the crime — that sentences for many drug crimes are disproportionate to the offenses, for instance, or that rape and sexual assault have become an implicit part of many prison terms. Americans should be urged to support penal reform not in spite of their belief that some murderers deserve execution, in other words, but because of it — because both are attempts to ensure that accused criminals receive their just deserts.
This is darkly comical. As we've shown already, it's perfectly easy and actually natural to both support prison reform and oppose capital punishment, all as part of a commitment to being more humane. However, Douthat is arguing here that death penalty supporters oppose abusing prisoners. Some surely do. But many don't, particularly in the conservative base. For them, it's a bonus. On cop shows, made in supposedly liberal Hollywood, it's still pretty common for cops to threaten suspects, or joke with convicted bad guys, about getting raped in prison (someone's going to make you their bitch, etc.). Meanwhile, a desire for vengeance and to see other people in suffer (in their minds, justly) are defining impulses in the conservative base, driving the push to go to war with Iraq (and other nations), to torture, to deny health care to others, to beat up or kill protesters and critics, and influencing many other issues. There's no way in hell Douthat is completely unaware of what makes his fellow travelers tick. Here's a representative taste, and here's the statement from one of the more intellectual conservative bloggers:
I particularly like the involvement of the victims' relatives in the killing of the monster; I think that if he'd killed one of my relatives, I would have wanted to play a role in killing him. Also, though for many instances I would prefer less painful forms of execution, I am especially pleased that the killing — and, yes, I am happy to call it a killing, a perfectly proper term for a perfectly proper act — was a slow throttling, and was preceded by a flogging. The one thing that troubles me (besides the fact that the murderer could only be killed once) is that the accomplice was sentenced to only 15 years in prison, but perhaps there's a good explanation.
I am being perfectly serious, by the way. I like civilization, but some forms of savagery deserve to be met not just with cold, bloodless justice but with the deliberate infliction of pain, with cruel vengeance rather than with supposed humaneness or squeamishness. I think it slights the burning injustice of the murders, and the pain of the families, to react in any other way.
And, yes, I know this aligns me in this instance with the Iranian government — but even a stopped clock is right twice a day, and in this instance the Iranians are quite correct.
UPDATE: I should mention that such a punishment would probably violate the Cruel and Unusual Punishment Clause. I'm not an expert on the history of the clause, but my point is that the punishment is proper because it's cruel (i.e., because it involves the deliberate infliction of pain as part of the punishment), so it may well be unconstitutional. I would therefore endorse amending the Cruel and Unusual Punishment Clause to expressly exclude punishment for some sorts of mass murders.
Naturally, I don't expect this to happen any time soon; my point is about what should be the rule, not about what is the rule, or even what is the constitutionally permissible rule. I think the Bill of Rights is generally a great idea, but I don't think it's holy writ handed down from on high. Certain amendments to it may well be proper, though again I freely acknowledge that they'd be highly unlikely.
In any event, there's nothing unconstitutional about letting victims' relatives participate in the execution; it's only the use of cruel means that would require an amendment.
That was law professor and blogger Eugene Volokh in 2005. To be fair, he amended his positions somewhat later on, although apparently mainly on practical versus moral grounds. He's also more honest and articulate here than most in the pro-pain camp. But the disturbing thing is how much thought he put into this while still refusing to abandon his bloodthirsty position. He had time to think on it and update his post, but he still advocated cruelty. Predictably, he received attaboys from other conservative bloggers. As more sober observers pointed out, while the desire for vengeance among the family and friends of a victim is human and understandable, it's a very poor, destructive way to run a society and a justice system. Nor is this a new observation: Gandhi may have said that "an eye for an eye makes the whole world blind," but the basic idea goes back a couple of millennia.
Here's Douthat's big finale:
Abolishing capital punishment in a kind of despair over its fallibility would send a very different message. It would tell the public that our laws and courts and juries are fundamentally incapable of delivering what most Americans consider genuine justice. It could encourage a more cynical and utilitarian view of why police forces and prisons exist, and what moral standards we should hold them to. And while it would put an end to wrongful executions, it might well lead to more overall injustice.
This is nonsensical and essentially an authoritarian argument, recapping Douthat's previous arguments. Note once again that nowhere has Douthat actually argued that the death penalty is moral or addressed the many arguments against it. Inescapably, we must conclude: Whether or not innocent people are killed is of much lesser concern to Douthat than the public's faith in the justice system. In other words, he doesn't truly care about justice and injustice, only the rabble's belief in system's justice. Furthermore, Douthat believes (or at least claims) that executions are vital to maintaining that faith, although he never really provides evidence of this. In a neat little bit of scumbaggery, he presents this astoundingly cynical and (more importantly) cruel view as a fight against cynicism.
"And while it would put an end to wrongful executions, it might well lead to more overall injustice" is utter bullshit and the reeking turd atop his little contrarian confection. As if this is the choice we face, or that Douthat's soulless solution is the answer. His mindset is an extremely aristocratic, dehumanizing one. Take what Douthat actually writes and treat it seriously: he doesn't care if Troy Davis lives or dies. He doesn't care if a few innocents are accidentally executed. He doesn't care if the general populace has an accurate view of the justice system or not. Really, he's showing an incredible contempt for democracy, the justice system, and his fellow human beings here. This matters because Douthat holds a prestigious spot as a New York Times columnist, and holds extra responsibility in being one of the paper's resident conservatives, supposedly showing off to the readership the intellectual heft and integrity of his movement. Douthat characteristically crafts very poor arguments, but this may be his most immoral, disgraceful one to date. It deserves to be remembered, and hung around his neck like an albatross until its rotten stench awakes whatever conscience he possesses.
Those familiar with Douthat's work may notice a glaring omission from his pro-death penalty column: his Catholicism. Douthat was not born Catholic; he converted. This is notable only because becoming Catholic was his choice, and presumably some degree of thought and research went into it. Douthat often argues against abortion, gay marriage and other issues by citing his Catholicism directly or obliquely. He frequently appeals to, and begs tolerance for, socially conservative "values." Yet the Catholic Church is strongly and unequivocally against capital punishment. Douthat never bothers to acknowledge this, or say anything like, "I follow the Church on most issues, but disagree with it on this one, and here's why." As we noted continually throughout Douthat's column, he never directly argues about the morality or immorality of the death penalty; the most he does is claim that it is popular. Perhaps Douthat's contortions aren't just to avoid logic, but to avoid his own faith's teachings as well. His column doesn't just show abysmal logic – or despicable immorality – it betrays deep cowardice.
Addendum
If you're not familiar with Douthat's work, and his penchant for poor arguments and whiny sanctimony, I'd recommend checking out the Douthat archives of TBogg and Susan of Texas. (I've addressed Douthat previously here, here, and in very brief passing here.)
If you didn’t check out the posts I linked earlier on this Douthat column, here's a little more information.
TBogg provides a very apt and scathing "shorter" Douthat. (Also check out the comments.)
Driftglass provides a great picture of "Young Master Douthat," pegs his aristocratic duping-the-masses angle, and compares him to a novice high school debater (plus, he lifts a great comment from the thread).
Susan of Texas examines Douthat's Catholicism and deep hypocrisy in detail, and notes that Douthat's argument for capital punishment parallels his argument about abortion (basically, we wouldn't have to fight if liberals would just capitulate).
Freddie deBoer examines the Catholic hypocrisy angle as well, but also forcefully calls Douthat to account for his inhumanity.
John Casey dissects some of the poor logic Douthat exhibits (read his comment in the thread, too).
Steve M. delves into Douthat's "mind-boggling" lucky ducky argument, and also notes that Douthat is essentially blaming the problem on liberals' refusal to capitulate.
The questions we ask determine the answers we receive. The specific form of those questions, and the assumptions they hold, further shape our answers. Those are the key ideas in one of my favorite pieces on critical thinking, a short 1976 essay by Neil Postman called "Silent Questions." Unfortunately, it can be hard to find a copy. Here's a taste:
I cannot vouch for the story, but I have been told that once upon a time, in a village in what is now Lithuania, there arose a most unusual problem. A curious disease afflicted many of the townspeople. It was mostly fatal (although not always), and its onset was signaled by the victim's lapsing into a deathlike coma. Medical science not being quite so advanced as it is now, there was no definite way of knowing if the victim was actually dead when it appeared seemly to bury him. As a result, the townspeople feared that several of their relatives had already been buried alive and that a similar fate might await them—a terrifying prospect, and not only in Lithuania. How to overcome this uncertainty was their dilemma.
One group of people suggested that the coffins be well stocked with water and food and that a small air vent be drilled into them just in case one of the "dead" happened to be alive. This was expensive to do, but seemed more than worth the trouble. A second group, however, came up with an inexpensive and more efficient idea. Each coffin would have a twelve-inch stake affixed to the inside of the coffin lid, exactly at the level of the heart. Then, when the coffin was closed, all uncertainty would cease.
This is no record as to which solution was chosen, but for my purposes, whichever it was is irrelevant. What is mostly important here is that the two different solutions were generated by two different questions. The first solution was an answer to the question, How can we make sure that we do not bury people who are still alive? The second was an answer to the question, How can we make sure that everyone we bury is dead?
The point is that all the answers we ever get are responses to questions. The questions may not be evident to us, especially in everyday affairs, but they are there nonetheless, doing their work. Their work, of course, is to design the form that our knowledge will take and therefore to determine the direction of our actions. A great deal of stupid and/or crazy talk is produced by bad, unacknowledged questions which inevitably produce bad and all-too-visible answers...
The first problem, then, in question-asking language may be stated this way: The type of words used in a question will determine the type of the words used in the answer. In particular, question-words that are vague, subjective and not rooted in any verifiable reality will produce their own kind in the answer.
A second problem arises from certain structural characteristics, or grammatical properties, of sentences. For example, many questions seem almost naturally to imply either-or alternatives. "Is that good?" (as against "bad"), "Is she smart?" (as against "dumb"), "Is he rich?" (as against "poor"), and so on. The English language is heavily biased toward "either-or-ness," which is to say that it encourages us to talk about the world in polarities. We are inclined to think of things in terms of their singular opposites rather than as part of a continuum of multiple alternatives. Black makes us think of white, rich of poor, smart of dumb, fast of slow, and so one. Naturally, when questions are put in either-or terms, they will tend to call for an either-or answer. "This is bad," "She's dumb," "He's poor," etc. There are many situations in which such an answer is all that is necessary, since the questioner is merely seeking some handy label, to get a "fix" on someone, so to speak. But, surprisingly and unfortunately, this form of question is also used in situations where one would expect a more serious and comprehensive approach to a subject...
A similar structural problem in our questions is that we are apt to use singular forms instead of plural ones. What is the cause of...? What is the reason for...? As with either-or questions, the form of these questions limits our search for answers and therefore impoverishes our perceptions. We are not looking for causes, reasons, or results, but for the cause, the reason, and the result. The idea of multiple causality is certainly not unfamiliar, and yet the form in which we habitually ask some of our most important questions tends to discourage our thinking about it. What is the cause of your overeating? What will be the effect of school integration? What is the problem that we face? I do not say that a question of this sort rules out the possibility of our widening our inquiries. But to the extent that we allow the form of such questions to get unchallenged, we are in danger of producing shallow and unnecessarily restricted answers.
This is equally true of the third source of problems in question-asking language, namely, the assumptions that underlie it. Unless we are paying very close attention, we can be led into accepting as fact the most precarious and even preposterous ideas...
A number of these observations may seem like common sense, but that doesn't mean they're commonly applied. Some of Postman's references are dated, but his core ideas hold up very well, and go nicely with George Orwell's essay "Politics and the English Language." These days, it's more common to hear people speak of these dynamics as "framing." The recent book The Death of Why? seems to center on similar issues. Postman looked at this from the teaching angle himself in several books, including Teaching as a Subversive Activity (the first chapter is called "Crap Detecting"). And all of this is completely in the spirit of what Socrates did in Plato's dialogues and many a good teacher or thinker has done throughout the ages. One can speak of silent questions, framing, false premises, unchallenged assumptions, implicit false assertions, or something else. Whatever one calls it, the point is to reflect and use a critical eye, on the world and discussions around us, but also on our own thinking.
Most of the liberal blogosphere's media critiques attempt to do just this – question the framing and the unspoken (and often false) assumptions driving coverage. Everyone has his or her blind spots, but the corporate media definitely has its patterns. And poor questions tend to lead to muddled conversations which contribute to poor public understanding and poor policy. Sadly, it's not hard to find examples every day.
"Marquee" events can be even worse. Almost all the questions during the presidential/primary "debates" were absolutely atrocious, despite above-average prep time for the journalists (the NPR debate was probably the sole good one). James Fallows gave a useful overview of the debates, but for a partial recap, there's: Wolf Blitzer asking misleading questions on taxes and Charlie Gibson believing $200,000 joint income is middle-class (no class issues in our media coverage, no sirree), Gibson making misleading claims about capital gains taxes, Fox News asking irresponsible questions on torture ripped from 24 for a Republican machismo contest, badgering by Brian Williams and Tim Russert, Russert asking misleading questions about Iraq, Russert haranguing Obama on Louis Farrakhan after he'd already answered repeatedly, a "debate on race" with superficial questions aimed to make candidates squabble ("Do you believe this is a deliberate attempt to marginalize you as the black candidate?" "Senator Edwards… what is a white male to do running against these historic candidacies?") and the absolute nadir, the ABC primary debate between Obama and Clinton. That debate capped off a steady pile of loaded, shallow, gossipy questions with a few poor policy questions for a turd on top. Yet theoretically, given their importance, the debates should have represented the best of mainstream political journalism. It's pretty easy to ask a candidate a question to make him or her uncomfortable due to its slanted nature or sheer idiocy, of course. But posing a tough but trenchant question on policy or governance that might actually inform the public requires that a journalist be thoughtful and interested. As Neil Postman writes later in the same essay, poor questions "insinuate that a position must be taken; they do not ask that thought be given."
Some important questions rarely ever get asked. The media seldom seems to wonder "How do we hold Wall Street/Washington accountable?" or pose other questions about abuses of power. I've used this example before, but Dahlia Lithwick captures Senator Lindsey Graham's contortions on torture beautifully:
All morning, Graham clings to the argument that he believes in the rule of law. And as he does so, he explains that the lawbreaking that happened with respect to torture: a) wasn't lawbreaking, b) was justifiable lawbreaking, c) was lawbreaking done with the complicity of congressional Democrats, d) doesn't matter because al-Qaida is terrible, or e) wouldn't be lawbreaking if the Spanish police were doing it.
I'd say Graham is flailing because rather than using consistent principles, he's arguing from a conclusion backwards – don't investigate or prosecute these abuses. However, if we phrase that in the form of a question, Alex, it becomes something like, "How do I prevent my pals in the Bush administration from being prosecuted for war crimes?" You can see the same basic dynamics in some beginning acting exercises or everyday situations (such as teenagers trying to borrow the car keys from their parents) – the objective never changes, but the tactics and specific arguments shift constantly. Sometimes pundits and politicians will contradict themselves even within a single segment, because their goal is "to win the half-hour" (as Dan Froomkin puts it), not to build or maintain a system or principles.
Graham's maneuvering is also designed to shut down questioning – he's not inviting anyone to examine these matters more carefully, he's trying to prevent it. Graham's mostly a partisan hack, but in the case of torture it's because he has some inkling of the stakes of accountability. In partial contrast, while many torture apologists in the punditocracy are biased toward protecting their luncheon buddies and oppose investigations and prosecutions too, it seems they're genuinely unreflective and uninformed as well. Take a look at Glenn Greenwald's conversation with Chuck Todd on torture investigations. Todd's amiable enough, I suppose, but he's painfully uninformed on the subject matter, including legal statutes mandating that credible allegations of torture be investigated, and the strong evidence that the OLC memos "authorizing" torture were neither issued in good faith nor legally sound. Like most of the Beltway crowd, apparently Todd has simply never asked, "What are the possible consequences of not investigating this?" As Greenwald points out, it's one thing to argue against investigations, but never for a moment to consider why they might be desirable or even necessary is an appalling omission. But that's the rule rather than the exception in the corporate media. Issues are decided largely by unreflective consensus, and there's simply little social pressure among the chattering class to be informed about policy, the law, or facts, let alone care about them.
As bad as most of the mainstream media is, no one loads their questions up with crap quite like Fox News. One of my favorites comes from the 2005 edition of their annual "War on Christmas":
Now there's a fair and balanced question: Economic Disaster if Liberals Win the "War on Christmas"? This presupposes that a "war on Christmas" can exist, that one is being waged, that such a war can be "won" or "lost," and that liberals are waging it – all before we even get to the question of whether "economic disaster" will occur. But that part of question, as breathlessly sensationalistic as it is, is largely superfluous. The main point of asking the question in the first place is to push its premises, that liberals hate Christmas, Christians, and prosperity, and are the enemy of all that is good and holy (apparently, Bill O'Reilly).
This example's actually more innocuous than most of their blather, and Fox News' routine, demonizing propaganda would be merely funny if it weren't for two factors – Fox News pretends to be legitimate and is often treated as such, and together with the rest of the right-wing echo chamber, it does have an effect. While Bill O'Reilly and Fox News aren't directly responsible for Dr. George Tiller's murder, all that ridiculous anti-abortion "liberals hate babies" and "Tiller the Baby Killer" crap contributed to a dangerous climate and validated extremist views. Fox News certainly never portrayed Tiller as a compassionate person who helped women facing some very tough situations. The teabaggers, birthers, and angry, uniformed town hall mobs spring in part from the same fevered mindset. Liberals may view right-wingers as dangerous and mock and insult them, but it's pretty rare for liberals to use eliminationist rhetoric, which is disturbingly common on the right-wing. (It's not both sides bringing guns to town hall meetings and threatening violence there, either.)
Rachel Maddow and Steven Pearlstein have produced good pieces at major media outlets on how conservatives have distorted the health care debate. The "shrill one," Paul Krugman, is also reliably incisive. But a great deal of mainstream coverage has been pretty bad on the issue, and it's more common for journalists to make ridiculous contortions to present false equivalencies. It's extremely rare for health care reform to be criticized from even slightly to the left, all the more so because those perspectives are crowded out by blather such as Sarah Palin's idiotic and irresponsible statements about government death panels (Newt Gingrich doubled down on that). Such tactics push the discussion into paranoid fantasy land, and challenging that vile stupidity wastes time that could be spent debating possible solutions to very real problems. (In this case, pointing out how insurance companies effectively have their own death panels is rather pertinent.)
The media simply decides what's important and what's not, but often with little regard for public opinion or reality. As DDay and Ezra Klein note, single payer was deemed Not Serious, just as war protesters weren't, but astroturf organizations have often been treated as legitimate. Meanwhile, as Thers quipped, "Imaginary Liberal "Disruption": Fascism! Actual Conservative Disruption: Democracy!"
Some of the most glaring unchallenged assumptions are on budgetary matters. As Stephen Walt observes:
One of the great triumphs of Reagan-era conservatism was to convince Americans that paying taxes so that the government could spend the money at home was foolish and wrong, but paying taxes so that the government could spend the money defending other people around the world was patriotic.
This comes via Eric Martin, who has more on the inconsistency between Beltway attitudes on war and health care. Television journalists, most of them richer than the average American, have repeatedly pressed Obama about what the middle class must "sacrifice," yet never acknowledge the massive wealth inequity in America, nor how it's grown worse over the past 30-some years. Might the most prosperous and privileged have some duty, too? Again, everyone has his or her blind spots (this writer included), and while there's far too much deliberate hack work out there, some of these unchallenged assumptions are probably unconscious. But they're even more harmful and persistent because of that. As Paul Krugman points out, "the fundamental fact is that we can afford universal health insurance — even those high estimates were less than the $1.8 trillion cost of the Bush tax cuts," which he notes most Blue Dog Democrats supported, and which disproportionately benefited the wealthy. Furthermore, "even as they complain about the [health care] plan’s cost, the Blue Dogs are making demands that would greatly increase that cost." (Matthew Yglesias dissects these contradictions as well.) The issue has never been costs - it's priorities. As Digby notes:
...You have to recall that there was no discussion, zero, when the last administration asserted without any debate that we were engaged in a war without end, for which costs could not be measured nor should they be. It was accepted by members of both parties as a simple imperative and no discussion of cost-benefit analyses were even on the table. But when it comes to directly benefiting Americans with a life and death threat of another sort, that's all we talk about. This is not an accident.
It's also no accident that Robert Samuelson, who's expressed feudal attitudes on health care, has also made misleading attacks on Social Security and attacked decent wages and health care for auto workers as "welfare." Nor is it an accident that many opponents of health care reform have health care themselves, and largely ignore that roughly one in six Americans is uninsured, and that many of those who are covered are underinsured. They've got theirs. Perhaps it's hard for these pundits to imagine otherwise.
Occasionally health care opponents do voice their silent questions and unchallenged assumptions, such as the one that 'people who don't have the money to pay for good insurance deserve to die.' My favorite recent example comes from the reliably disingenuous and callous Wall Street Journal editorial page, in a piece by a British physician titled, "Is There a ‘Right’ to Health Care?":
When the supposed right to health care is widely recognized, as in the United Kingdom, it tends to reduce moral imagination. Whenever I deny the existence of a right to health care to a Briton who asserts it, he replies, “So you think it is all right for people to be left to die in the street?”
When I then ask my interlocutor whether he can think of any reason why people should not be left to die in the street, other than that they have a right to health care, he is generally reduced to silence. He cannot think of one.
I can think of a lot of things wrong with this argument. In the first place, perhaps Dalrymple (that's the author's name) ought to ask different people from the men on the Clapham omnibus. Secondly, it's weird that the people he asks always give the same answer and are stumped by the same objection. Third, Dalrymple's question is adequately answered by the person, who takes it as self-evident that no one should be left to die in the street when someone can do something about it.
Rights, for the average guy on the Clapham omnibus, are like that. Ask the average American on the 151 Sheridan whether she has the right to private property, and she will say "yes." Ask her why it shouldn't be the case that no one should take away her goods for no reason at all and she will stare at you and repeat that she has a right to private property.
The recognition of baseline inalienable rights (so we can say for the sake of argument) does not mean one lacks moral imagination...
Beyond any questionable claims about Britishhealth care, the Dalrymple op-ed is a dreadful piece, even as just a thought experiment (and if you're familiar with the WSJ editorial page, or if you read the whole op-ed, you'll know it's not). It's quite an amazing conceit that posing that it's "all right for people to be left to die in the street" somehow represents bold, independent thought versus the usual selfishness married to unusual ghoulishness. It certainly doesn't show "moral imagination" - just a privileged, feudal outlook and a contempt for one's fellow human beings. Compassion basically requires imagination of a sort, but certain political ideologies don't fare well with either compassion nor imagination, and are belligerently proud of that. I suppose it's refreshing to hear someone from this group actually come out and explicitly state their actual positions. (I wonder, does this guy tell his patients, "Tell me why I shouldn't let you die"...?)
To return to Postman's essay, I've always gotten a strong nosferatu vibe from the buried alive story he tells at the start. The tale's also strangely relevant to several of the political battles of today (as the WSJ piece shows). In the story, the first group ("How can we make sure that we do not bury people who are still alive?") is concerned with people, and set on preventing or alleviating their suffering. The second group ("How can we make sure that everyone we bury is dead?") is focused on money, perhaps on fear, and essentially ignores the concerns of the first group. Crucially, the second group doesn't or can't imagine itself in that horrible situation, and their "solution" is one which allows them to dismiss it. Looked at one way, liberal reformers are the first group and their opponents are the second. But stepping back, perhaps it's the reformers who need to wield stakes (metaphorically only, of course) against a parasitic and predatory ruling class, to combat that boot stamping on a human face, the steady stream of zombie lies, and that great vampire squid wrapped around the face of humanity.
David Rivkin, a lawyer who worked for the Reagan and H.W. Bush administrations, is one of the most slippery and adept torture apologists out there. He testified last week to Congress against forming a Truth Commission to investigate torture and prisoner abuses under George W. Bush's administration. As someobservers have noted, Rivkin and others arguing against a Truth Commission may have inadvertently made a stronger case for criminal investigations instead. (Alternatively, they could just think that the Democrats lack the resolve for criminal investigations.) Last week, Digby revisited an excellent earlier post of hers on Rivkin, "It's Just Like Hell Week." I'd recommend reading both posts. Meanwhile, I wanted to examine more closely some of Rivkin's specific argument techniques and his protean logic on torture. (I'll warn you this is a long post.)
Background
As we've explored before, torture is (1) immoral, (2) illegal, (3) endangers us (especially American troops in the Middle East), and (4) doesn't work – unless one wants to inflict pain, produce bogus intelligence or elicit false confessions. For obtaining reliable information, more humane, rapport-building techniques are far more effective.
Meanwhile, almost every excuse from Bush officials and their allies fits somewhere in the following pattern of descending denials: We did not torture; waterboarding is not torture; even if it is torture, it was legal; even if it was illegal, it was necessary; even if it was unnecessary, it was not our fault. Furthermore, the "debate" on torture and specific techniques are stalling tactics by torture proponents and apologists, who consistently favor fantasy over reality in their arguments. They will discuss Jack Bauer and hypothetical ticking time bombs endlessly, but not Maher Arar or Binyam Mohamed (among many others). Hollywood fiction is somehow more important than the very real consequences of our policies.
The general public has not been well served by the press on these matters. Since at least 2007, a key question Bush allies have tried to push has been: "Is waterboarding torture?" There never has been any serious doubt that waterboarding is torture under U.S. and international laws, and in the past, the U.S. has prosecuted people as war criminals for committing it. Historical consensus since at least the Spanish Inquisition has been clear on waterboarding being torture – in fact, it's been a signature technique for defining torture. Yet strangely, after news broke that the Bush administration had used the practice, Bush officials and their allies claimed to be terribly uncertain over whether it was torture or not. They no doubt prefer keeping the "debate" on whether or not waterboarding is torture to a discussion centering on: "What exactly was done, and who authorized it? How can we best uncover the truth? Are members of the Bush administration guilty of war crimes? If so, how can they be brought to justice, and what should their punishment be?"
I've been very concerned that over the past several months, the national "debate" on torture has further degraded, with a steady stream of poor reporting on the issue, torture apologists making false claims unchallenged, some torture opponents on television seemingly unable to press back, and Beltway pundits insisting that any investigation into abuses by the Bush administration will tear the very nation apart more horribly than a blow job in the Oval Office (as always, class solidarity trumps justice and accountability). In some cases, the Overton window has been pushed even further askew than "Is waterboarding torture?" so that even saying "torture" has been deemed somehow... impolite. An NPR story from 12/3/09 on the successfulopposition to John Brennan being appointed as head of the CIA referred to "coercive interrogations" and "coercive interrogation methods" rather than torture – although torture was a key reason for the opposition. Even the typical hedge of "coercive interrogation techniques that critics view as torture" wasn't used (although the print version of the story did mention "torture" once).
Meanwhile, also in December, after the completion of the Levin-McCain Report on abuse of detainees in U.S. custody, Republican Congressman Duncan Hunter went on Hardball to debate Democratic Congressman Jim Moran on whether waterboarding was torture. While Moran made some decent points, he didn't challenge Hunter when he repeatedly parroted unsubstantiated Bush administration claims that torture had saved American lives. Neither Moran nor Matthews pointed out that Bush officials had offered no proof for their claims, and had very strong motives for lying - avoiding prosecution for war crimes. Moran and Chris Matthews didn't even challenge Hunter when he made the blatantly false claim that Rumsfeld was never implicated in the report. While a moderator should allow guests time to speak, basic fact-checking shouldn't be such a rarity. (You can watch that segment here or read the transcript here. You can read more about the report, with a link to the released version, here - Conclusion 13 is especially pertinent to Hunter's false claims. Hunter apparently also didn't read Torture Team: Rumsfeld's Memo and the Betrayal of American Values by Philippe Sands, or perhaps he just goes momentarily blind whenever Rumsfeld's name appears.)
We’ve seen this scenario played out several times in the last week, as broadcasters and newspapers around the country see the Levin-McCain Report as an opportunity to debate torture, despite the logical fallacy of this approach. (Perhaps for Christmas proper we’ll be treated to arguments for and against genocide, and on the fourth day of Christmas we’ll read the arguments for and against the practice of infanticide.) We’ve been treated to Christopher Hitchens against Michael Smerconish, Duncan Hunter against Jim Moran, and now the Alexander versus Rivkin encounter.
There are some similarities: Torture works, the defenders of the Bush Administration say. Torture saves lives. The safety of our country depends on torture. But it didn’t depend on torture before George W. Bush. In fact, as the World War II era poster found in post offices around the country taught my parents’ generation, “Torture is the tool of the enemy.” It’s also the tool of Dick Cheney–go figure. And “Vice” himself has been heard this week. Torture is good for you, he told us. Torture is the moral thing to do. Duncan Hunter offered us the most surreal, inane defense of this thesis and David Rivkin the most nuanced.
We'll return to the Horton piece (although I'd recommend reading the whole thing at some point). For now, I'd like to focus on David Rivkin, because he is one of the more clever of torture apologists and many of his arguments are emblematic. In May 2004, Rivkin and his frequent co-author Lee Casey defended Donald Rumsfeld, argued that the newly reported abuses at Abu Ghraib prison were the fault of "individuals, not the system" and that the Bush administration had not violated the Geneva Conventions. (They were probably trying to rebut the charges of systemic abuse reported by Seymour Hersh and others, although how far up the directives went only came out later.) In December 2005, Rivkin and Casey wrote an op-ed defending Bush's warrantless surveillance. Their April 2008 piece, "The War on Terror is Not a Crime," decried the "witch hunt" against John Yoo and other Bush administration lawyers over their radical legal opinions (the op-ed mentions waterboarding, but avoids the word "torture"). Rivkin's July 2008 testimony to the Senate Committee on the Judiciary further defended Yoo and his cohorts. In May 2006, Rivkin briefly faced off with Scott Horton on radio show To the Point (41:00 in) about torture. Crooks and Liars has a clip of Rivkin's November 2007 C-Span appearance, where he called torture "unpleasant.". Last month, Glenn Greenwald dissected Rivkin and Casey's 'no accountability' arguments. Meteor Blades gave an overview of the March 4th, 2009 hearings, Rivkin's opening statement is here, and emptywheel has a good post featuring the video of Sheldon Whitehouse's skilled grilling of David Rivkin (she also live-blogged the proceedings).
David Rivkin's segments with Charles Swift and Matthew Alexander are particularly revealing. Back in December, when I saw David Rivkin was going to be appearing opposite Matthew Alexander, I was enthused because unlike Jim Moran or some other torture opponents, Alexander knew a great deal about effective interrogation techniques and could speak with authority on torture. However, the segment wasn't entirely satisfying. I realized afterwards it was because it was a mismatch. Alexander did well, but essentially, he was an expert witness facing off with a defense attorney trying to pick holes in his testimony. There was no prosecuting attorney to give balance.
Many of the public "debates" on torture are similarly skewed, and very few if any torture apologists are arguing in good faith. They still need to be rebutted on substance, but it's folly to go in presuming intellectual honesty from them. As Scott Horton observed when facing off on torture with Rivkin's frequent partner Lee Casey (in November 2007), Casey's arguments made little sense except as a defense attorney's attempts to protect his clients from prosecution. I haven't conducted an exhaustive review of all of Rivkin's statements, but I've caught enough to see him argue that: torture is appalling, waterboarding may not be torture, waterboarding cannot be torture if American personnel undergo it, waterboarding is not torture, waterboarding is torture, and torture works. The protean logic and contradictions are rather dizzying, and that's precisely their intent. They make much more sense if the person offering them isn't trying to make a coherent argument – like a good defense attorney, he's trying to muddy the waters and seed doubt in the minds of jurors.
If you've read Digby's posts, you've already seen the transcript of David Rivkin appearing with former JAG and current law professor Charles Swift on CNN, ironically enough on Armistice Day, 11/11/07. (Crooks and Liars has some of the video.) Let's take another look.
FOREMAN: On Friday, Michael Mukasey became attorney general of the United States despite his refusal to define an interrogation practice known as waterboarding, essentially convincing a person that he is drowning as torture. In a world where terrorists really are out there trying to kill us, where is the bright line between what must be done and what should be done? Retired Navy Lieutenant Commander Charlie Swift teaches, now teaches at Emory Law School in Atlanta and still represents one of the Guantanamo detainees. And with me in Washington, David Rivkin, an official at the Justice Department in the Reagan and George H.W. Bush administration. Professor, let me start with you. Where do we stand in this debate now. It seems now that we've gone through months of trying to decided what we think torture and what is not.
LT. COMDR. CHARLIE SWIFT, U.S. NAVY (RET.): Well, as far as waterboarding goes, it's an unusual debate to begin with, because as far as the military was concerned with, that was decided back in 1890 during the Spanish-American war when General Crowder ruled that water boarding was always illegal and never justified and we tried Japanese soldiers who did it to our troops during World War II where again we said it was illegal. So, it would seem that the bright line is on the other side of waterboarding, at least historical.
Swift makes the crucial point – waterboarding is torture, and this has been known for a long time.
FOREMAN: Listen to what John Edwards said at a town hall meeting on Tuesday about the debate.
(BEGIN VIDEO CLIP)
JOHN EDWARDS (D), PRESIDENTIAL CANDIATE: Can you believe that we are having a debate in America about what kind of torture is tolerable? I will tell you what kind of torture is tolerable - no torture is tolerable. The United States of American should not be engaged in torture.
(END VIDEO CLIP)
FOREMAN: Mr. Rivkin, a lot of Americans in the polls seem to have a similar-type view, why is it so hard, why can't we agree on a definition and stick to it?
DAVID RIVKIN, MILITARY LAW EXPERT: Incidentally, it is not a debate about whether torture is permissible, at least in my mind, it's what things amount to torture. And with all due respect to my friend Charlie, there are several forms of waterboarding. Waterboarding is a very capricious term, it connotes a bunch of things. There are clearly some forms of waterboarding without torture and off the table. They may well be some waterboarding regimens that while tough and useful in extracting information are not torture. My problem with the critics is that they don't want to have, contrary to what Senator Edwards said, we are ought to have a debate as a serious society about what stress techniques of interrogation and what to do with it. Let me point out one thing, we actually waterboard our own people. Are we torturing our own people?
Rivkin throws out quite a bit here. He often seems to open with a planned concession, perhaps to unbalance his opponents. Here, he suggests that torture isn't permissible - but then, as always, pivots to a framework that favors him. He argues no one really knows what waterboarding is (and ironically uses "capricious" while doing so). There are indeed different methods of waterboarding, but the four key methods are all clearly torture and illegal (in the linked piece, scroll down to "Act Three"). There is no serious debate on this. The charge about torture opponents not being "serious" is particularly rich given that torture proponents have consistently offered fantasy scenarios such as "ticking time bombs" while ignoring the accounts of torture experts and actual victims. Moreover, Rivkin is trying to make the key question "How much discomfort or pain can we legally inflict on prisoners?" That leads nicely away from "What war crimes did the Bush administration commit?" But Rivkin's framework is also pointless if one knows that rapport-building techniques are far more effective. A competent interrogator would not be asking, "How much pain can I inflict on this prisoner?"
Foreman picks up on the flaw in Rivkin's last argument, about waterboarding American personnel in SERE training:
FOREMAN: But we're waterboarding our own people to give them an idea of what they would encounter if they were captured by somebody else.
RIVKIN: Well, forgive me, as a matter of law and ethics, if the given practice like slavery and prostitution is officially odious, you cannot use it no matter what our goals is, you cannot even use it to volunteers. So, if all forms of waterboarding are torture then we are torturing our own people, and the very same instructor who spoke before Congress the other day about how it's torture, is guilty of practicing torture for decades. We as a society have to come up with the same baseline using (inaudible) in all spheres of public life instead of somehow singularizing this one thing, which is interrogation of combatants and we need to look at it in a broader way.
Rivkin andothers have offered this argument several times. It may not be convincing, but it is inventive. (It seems to have first emerged as an attempted rebuttal of former SERE trainer Malcolm Nance's authoritative 10/31/07 piece, "Waterboarding is Torture... Period." Nance, a "former Master Instructor and Chief of Training" at the U.S. Navy SERE School, who testified before Congress, appears to be the "very same instructor" Rivkin's claiming is hypothetically "guilty of practicing torture for decades.") Rivkin's also pulling a fast one here, trying to set up a paradox to befuddle the listener. Torture is odious and immoral. SERE training, while tough, is not. Rivkin tries to skip to his conclusion without proving it. He ignores Foreman's common sense objection and makes a substitution. Looking at the explicit and implicit claims in this exchange, it goes something like this:
RIVKIN: Waterboarding cannot be torture if we subject American personnel to it.
FOREMAN: But SERE training is not torture.
RIVKIN: Aha! But torture is always wrong! Therefore, you must either prosecute our brave men and women in uniform, or not prosecute Bush officials for authorizing torture!
This is precisely the paradox and uncertainty Rivkin wants to sow in listeners' minds. Rivkin hasn't actually addressed Foreman's point, but pushes past it to offer a statement most everyone will agree with – torture is odious – while pretending that he has proven that SERE training is torture. Comparing torture to slavery and prostitution is fine, but Rivkin's conclusions depend on accepting the false premise that SERE training is torture. It's certainly not under U.S. law, and Rivkin can't honestly believe it is – but he's trying to defend his "clients" in the Bush administration here. Slavery and prostitution are not at all analogous to SERE training (or military service in general – and Rivkin is implicitly comparing American troops to prostitutes here). Looked at another way, Rivkin's essentially arguing that all sex is rape or vice versa. He does mention that volunteering doesn't matter, but argues this in relation to torture, while treating as a given a separate point which Foreman has just directly contested – that SERE training is torture. Rivkin ignores the crucial elements of consent, control, purpose, trust and short duration that differentiates the brief waterboarding in SERE training from the illegal and immoral torture technique of waterboarding. Rivkin's line of argument is particularly despicable given that SERE training is meant to prepare American military personnel against possible torture upon enemy capture, not to justify the torturing of prisoners under American control. SERE training is a defense against an evil practice, not an endorsement of that evil. Most of the American military do not view torture as either moral or legal, and much of the internal pushback against the Bush administration's policies of torture, abuse and indefinite detention came from military lawyers, many of them conservatives.
I'm sure Rivkin can be refuted more elegantly, and jcasey nicely captures the shifting logic in the same Rivkin paragraph:
Um. So, in order to teach preparedness for torture, the military has used its methods on its own people, but in using these methods, by definition, they are not torture, because you cannot torture someone who is a volunteer. But if it was torture, then the instructor is guilty of torture. So it follows that these people are either guilty of torture, or since no one wants to be guilty of torture, their students learned nothing about torture, since waterboarding isn’t torture.
On a similar theme, Glenn Greenwald discusses Jonah Goldberg’s agony over the definition of torture.
This man claims that if an American trainee can endure something, it can't legally be called torture. He shamefully goes even further to state that if we call it torture, it means that all of those who have trained our troops to withstand it are guilty of being torturers.
He neglects, of course, to admit that the recruits and trainees who are put though such exercises can quit at any time and they know very well that their instructors won't actually kill them. The total lack of control in the hands of someone who believes you are an enemy is what what makes waterboarding torture, and people who do it voluntarily have control. That's the difference, and it's clear to anyone who isn't an intellectual fraud as Rivkin is.
He and others (like Pat Buchanan) are now saying that we need to make waterboarding explicitly illegal if we have a problem with it --- even though one would think that any torture that was used by the Spanish inquisition and Pol Pot would automatically come under the heading of "torture" which is illegal under at least five different statutes and treaties. They are trying to pretend that waterboarding isn't already illegal, pretending that waterboarding is merely "controversial" so they are pushing for a "debate."(Swift even admits that they've left us no choice between the weasel words, parsing and secrecy.)...
But Rivkin's bobbing and weaving serves another purpose. He's literally defining deviancy down. He submits that these "stress positions" and the "hot and cold" and the waterboarding and other things they've done (plus God only knows what we aren't yet aware of) are necessary when you are dealing with "bad guys" who always lie. And anyway, if Army rangers can endure it in training then so can suspected terrorists (who've been blindfolded, stripped, sodomized repeatedly with "suppositories", held in painful restraints for days, subjected to extreme cold while being splashed with water and denied sleep.) This is what the right wing has left of their principles: if our special forces guys can live through something during their training that means it's ok for us to do it to others under much more terrifying circumstances.
As Digby also notes, if Michael Mukasey had admitted that waterboarding was torture, many high ranking Bush officials would have had to be arrested (at the very least, investigated). But let's return to the transcript, because there's more dissembling from Rivkin to be done:
FOREMAN: Then, why don't we Professor Swift, just in deference with what the American people believe in, I think, why don't we just back away from anything that gets close to this line?
SWIFT: I think we should. To me, it is unfathomable that we are up against the line. You know, again, looking back at World War II, what history has taught us and what we found is that the reliable means of getting intelligence, at least in the context of a war, are using those things that build rapport with the person that they find out that you are not the ogre that they have been told. They begin to question the people who are leading them, and eventually, that leads to actionable intelligence and it is reliable, and you see, that is the real problem with anything that is coercive. When you force somebody to talk, you cannot count on what they tell you. It is going to - in that case, I think it is really an unreliable form of interrogation, and again, that is why we don't use it in court, because it is not reliable data.
That statements obtained through torture are unreliable should be common sense. Foreman presses Rivkin on this point:
FOREMAN: I seem like I have heard this in a lot of places, the same comment, what's your response to that?
RIVKIN: It is historically and practically not true for a very simple reason. First of all, the reason stress techniques were used if you look at it is because there are four building techniques of the FBI. This has been reported in the newspapers like "Washington Post" and the "New York Times." In late 2001, early 2002, I'm not working. You are not able going to be able with Khalid Shaik Mohammed, because while they're evil, they're enormously committed to their ideology. They're prepared to die for it. Point number one. Second, bad guys always lie. Why will you try to build a rapport with them, will interrogate them stressfully. If you have enough time, your biggest problem is they say nothing. If they start talking, you're able to go back and, for example and you ask, where is your safe house? You go and you see if he told you the truth.
Rivkin's core arguments here simply make no sense. First of all, rapport-building techniques are much more effective than torture at obtaining accurate, reliable information. His "historically and practically not true" claim is pure balderdash. As John Yoo often has, Rivkin also ignores that we have tortured innocent people, who are not "evil," nor some sort of inhuman zealots committed to their ideology and prepared to die for it. But beyond that, Rivkin is essentially arguing, why bother trying to build a rapport when you can skip right to the torture? He argues that "the biggest problem" is a prisoner not saying anything, and the goal is get him to talk, so why not make him uncomfortable (or torture him) to make him talk - even if what he says is a lie? Really, is there a more charitable reading of this? If Rivkin admits that the prisoner may lie under duress, but argues the lie can be checked, why is the duress even necessary? It's just as easy to ask the prisoner a question without torturing him. Rivkin's argument depends on the dodgy premise that a hardened terrorist will stay quiet if treated humanely but will speak under torture, and furthermore, that he will occasionally speak the truth and offer actionable intelligence in addition to lies if tortured, and yet again, that he will not do the same if treated humanely (or the truth-to-lie ratio will somehow be lower). How is this possibly a good tradeoff? What possible advantage is there to torture in Rivkin's argument here – besides a bizarre defense of his clients?
The truth is, there are far bigger problems than a prisoner not saying anything. False statements obtained through torture lead to bad intelligence, which squanders important resources. Rivkin might have been aware that this precise scenario occurred with at least three prisoners. Dan Froomkin has a good piece on how all the Bush claims about torture "working" and giving valuable intelligence are completely unsubstantiated and in some cases contradicted by other accounts. At least one claim by Khalid Sheik Mohammed, that of killing Daniel Pearl, remains questionable given that Mohammed was tortured and another prisoner confessed to it already. Much of the "intelligence" obtained from Abu Zubaydah was bogus and lead to wild goose chases. As Ron Suskind puts it in The One Percent Doctrine, "the United States would torture a mentally disturbed man and then leap, screaming, at every word he uttered." Meanwhile, in the case of Ibn al-Shaykh al-Libi, as The New York Times reported:
The Bush administration based a crucial prewar assertion about ties between Iraq and Al Qaeda on detailed statements made by a prisoner while in Egyptian custody who later said he had fabricated them to escape harsh treatment, according to current and former government officials.
Stretching intelligence resources thin and tiring out agents, using statements obtained through torture to justify an unnecessary war, committing war crimes and excusing those crimes - somehow these all seem worse than a prisoner merely not talking. But I suspect that David Rivkin, like most of the Bush officials he's defending, might see things differently, and certainly doesn't want to bring such matters up.
Why torture at all, when the historical record, experts, victim testimony and common sense all argue that it doesn't work? I've quoted this passage before, but Hilzoy puts it nicely:
One of the things that has always perplexed me about the debate about torture is this: I would have thought that anyone who was thinking about endorsing torture would first stop and think very, very carefully about whether it is actually effective. Torture is presumptively immoral and abhorrent. If you care about morality at all, the question of using torture will not so much as arise unless you truly have no good alternative at all. Even then, I think it's just wrong. But if it is not the most effective way of getting information, then debating whether or not we should use it is just stupid: of course we shouldn't engage in torture if some other technique is just as good, or better. Arguing about torture without asking this question is like arguing about whether you must, absolutely must, eat your children to keep yourself from starving to death without first checking to see whether you have any other food available.
Let's return to the transcript for the end of the segment:
FOREMAN: These are borderline techniques you're talking about. If they were done to you, would you consider them torture?
RIVKIN. No. I am not, by the way, I am not even propounding waterboarding. My problem is that there is a range of stress techniques including temperature manipulation, sensor manipulations and maybe sometimes waterboarding that are actually used. Look, when people go for basic training for hell week, they sleep little bits of time at a time, their diets. There's lots of abuse, instructors yelling at (inaudible).
FOREMAN: I have to cut you for a moment for a last word, very quickly, from Professor Swift, are we any closer, briefly to coming to a conclusion as to where we're going with this debate and it seems like it is going on forever, and it sill is lively as ever?
SWIFT: Well, the reason we can't have the debates, to get down to particular techniques is that the administration won't tell us exactly what they are doing and won't tell Congress exactly what they are doing, so when one lies on the edge of these things, it is impossible to have a debate until Congress completely looks at the question and stops using general terms. Congress has tried general terms, general terms haven't work but we're going to have need a specific debate.
FOREMAN: I'm afraid, we have to go. Professor Swift, thanks so much. Mr. Rivkin as well.
Swift makes the key point – we don't know all of what happened, Bush officials refused/refuse to tell us, and we still need to know. And here's Rivkin offering his loathsome "hell week" defense. But let's also note Rivkin's stance on waterboarding. What is it, exactly? He's said he's not "propounding it" but has argued that no one can exactly define it, it can't be torture because American personnel are subjected to it, it's a part of a range of effective techniques, and those techniques taken as a whole are no worse than "hell week." Rivkin's trying to muddy the waters here, but has certainty not condemned waterboarding or admitted it is torture. Foreman asks Rivkin if he'd consider these techniques torture if they were done to him, and Rivkin says no. Rivkin might be choosing to misconstrue Foreman on "these techniques," but given the context of the entire discussion, Rivkin's opening statement, and his previous writings and appearances, it's fair to say that Rivkin holds that waterboarding is not torture or is not always torture. Rivkin's statements are the sort that a good prosecutor would push on to nail him down. But let's keep an eye on his claims as we proceed…
(Heracles wrestles the shape-changing Achelous - although "achelousian" doesn't sound as good as "protean," does it?)
Rivkin versus Matthew Alexander
I'm going to spend much less time on Rivkin's face-off with Matthew Alexander in December 2008, but it presents some striking similarities and differences with Rivkin's stint opposite Charles Swift. If you're unfamiliar with Matthew Alexander, he's the author of How to Break a Terrorist, led an interrogation team in Iraq, and is using a pseudonym to discuss effective and harmful interrogation techniques to better serve national security. On 11/30/08, The Washington Post ran his op-ed, "I'm Still Tortured By What I Saw in Iraq," which made the crucial point that prisoner abuses at Abu Ghraib and Guantanamo radicalized many of the fighters in Iraq he encountered, and thus abusive practices endangered American troops. Meanwhile, rapport-building techniques proved far more effective at obtaining actionable intelligence than abusive practices, and Alexander's team acquired some important information with their approach, which Alexander identifies with American values. He appeared on The Daily Show, and also discussed these issues with Scott Horton in "The American Public has a Right to Know That They Do Not Have to Choose Between Torture and Terror."
You can watch the entire discussion between Matthew Alexander and David Rivkin on Riz Khan's show below (it runs roughly 23 minutes). I'll quote some key sections and indicate their times below.
Roughly 3:30 in, Rivkin offers his opening statement:
RIVKIN: Let me clarify, torture in my view is always unacceptable, and in fact I frankly think characterizing American interrogation policy, or debates about interrogation policy, as torture is misleading. We're really talking about – and let's also stipulate, it's always better to extract the maximum amount of information with the least harsh techniques. But that's not the real issue – the real issue is, in a situation where the kinder, gentler, purely rapport-building techniques prove unavailing, how far you can go? And I think common sense is useful here. Torture is defined somewhat imprecisely in international law, but basically, in my view, waterboarding is torture. In my view, things like stress positions, sensory deprivation, it's what we lawyers call all facts and circumstances, depends on how much is enough. Let me submit to you that any interrogation, the custodian interrogation that Mathew is talking about, in a police station, does have elements of coercion. And you're being told, as the people who worked for Enron, that if you don't cooperate with us we're going to go after your wife and make sure she gets sentenced in the same time frame as you so your children would have to go into a foster home. There's, there's always an element of coercion. The question is, how much of it? To me, the problem with the critics is, they paint everything with a broad brush, they see no difference between modest use of stress techniques, modest use of sensory deprivation, loud music being played, some temperature variability, again, the interrogator being in the same room, in the same amount of clothing as the person being interrogated. Those things are, I think, legally permissible, and may come in handy. If Matthew doesn't need it, he would not use it. But we're talking about a situation where it's not working, just being kind and gentle.
Yet again, Rivkin starts with a concession and a pivot – torture is unacceptable, but it's wrong to call American interrogation policy torture (for some reason), and the real question is how much pain, suffering or discomfort one can legally inflict on a prisoner. As we covered before, this is precisely the wrong question to be asking if one wants reliable information from a prisoner, but sources such as Angler, The Dark Side, Torture Team and Torturing Democracy report this is the one of the questions Bush officials asked (if only for legal cover), and focusing on it versus "what war crimes did the Bush administration authorize?" could benefit Rivkin's "clients." (I think Bush officials did this out of fear, arrogance, a desire for vengeance, ignorance and their Jack Bauer fantasies. That's a separate but related subject, but retired Rear Admiral John Hutson put it well when he said, "torture is the method of choice of the lazy, the stupid and the pseudo-tough.") The simple answer to Rivkin's question, 'how far can you go?' is nowhere. As we've covered already, in addition to the illegality and immorality of torture, it generally produces bad intelligence that harms security efforts. Torture is defined "imprecisely" in the Geneva Conventions because its drafters didn't want anyone to say that because a specific torture technique wasn't explicitly banned, it must be okay. Rivkin again makes his complaint about how unserious torture opponents are. While there may be legitimate issues of what precisely is and should be allowed, the Army Field Manual is a pretty clear guide, and the chief objections have always been about practices that most people other than Rivkin call torture. At the end, Rivkin pretends he's trying to offer Alexander, a skilled interrogator, a useful tool he can employ at his discretion. This is awfully disingenuous, as Alexander has already explained what's most effective, and at issue is the torture and other war crimes committed by Bush officials, who certainly do not deserve the trust and deference granted Alexander. Still, overall, Rivkin's main ploy is to move listeners away from the fact that Bush officials authorized torture at all, something he has never directly acknowledged (that I've seen), and he does this by discussing less extreme practices and pretending that's what we're "debating."
However, it's very interesting that Rivkin acknowledges that waterboarding is torture here, a marked departure from (and I'd say a direct contradiction of) his earlier appearances. I suspect he realized claiming otherwise just wouldn't fly on this program. Rather than trying to depict waterboarding as some mysterious, indefinable procedure as he did with Swift and elsewhere, here his muddying-of-the-waters centers on coercive techniques other than waterboarding (and other forms of torture) and pretending that those are the big scandal. He's trying to set a straw man he can defeat to avoid having to explicitly defend the indefensible or even admit it occured. Rivkin acknowledges that torture is wrong, and this time also concedes that waterboarding is torture, which he has elsewhere admitted was done to prisoners in American custody – but strangely, as we know from his other appearances, he opposes accountability for these offenses. Rivkin's correct that some coercive and discomforting techniques are not torture, but it's disingenuous to pretend that critics are objecting to those and not the long list of more shocking abuses perpetrated at Abu Ghraib, Guantanamo and other sites. It's also disingenuous to try to conflate the Bush administration's torture policies and worst offenses with more trivial matters.
Shortly afterwards in the segment, Matthew Alexander says that there's no question that waterboarding is torture and explains why.
At around 10:35 in the first video, Rivkin returns to his main points, but with some interesting variations:
RIVKIN: Can I just say one thing, again, I wish we did not use the word torture, because to me, there should be no serious debate about torture. The real question is, should we use coercive techniques, well short of torture, or should we take them off the table. And just one more thing – I believe that most forms of waterboarding are indeed torture, but let's be clear about one thing – Matthew, we're doing it to our own people, with SERE. And remember, if it's torture, we can't do it to ourselves, even if they volunteer. You cannot volunteer for slavery, you cannot volunteer for prostitution. Thousands of American servicemen have gone through SERE training that specifically includes waterboarding. So let's be consistent – if that's torture, we cannot do that, it's illegal.
ALEXANDER: I've been through SERE training, so I can speak to that, and I was exposed to harsh techniques, but that's a very different situation than when you're a captive, when you're a prisoner of war, you don't have control over the force that's keeping you captive.
Yet again, Rivkin does not want the word "torture" used, and goes back to the same arguments he used with Swift and elsewhere. But is this force of habit for Rivkin, trying to throw his opponents and listeners into confusion? Or can he just not help himself? Because he's contradicted himself here. On Riz Khan's show, he's acknowledged that waterboarding is torture (although he's argued against that in other appearances), yet here at the end argues once again that waterboarding isn't torture – its illegality and immorality are in question because of SERE training. As Alexander points out (with great authority), SERE training is not torture. Once more, Rivkin is hiding behind American military personnel to push a false paradox : either SERE training must be outlawed – or, the implication is, Bush officials should not be prosecuted for torture, because what constitutes torture is so terribly unclear that somehow, one could waterboard a prisoner in good faith and not realize it was torture. Oh, those poor, confused Bushies, just trying to do the right thing, and certainly not ignoring expert warnings in their own administration in the process!
Arguing that the Bush administration didn't know these practices were torture is despicable. As Marty Lederman has pointed out, "Waterboarding, even the CIA version, entails excruciating and intense physical suffering. That's why they use it. . ." And Scott Horton, drawing in part on research by Darius Rejali, has pointed to the ancient Romans and "their carefully charted system of torture." The Romans used torture, but only as punishment, because they knew that testimony obtained through torture was unreliable. It would be hard to overstate how radical and arrogant the Bush administration was, but even so, it's stunning to think they wouldn't know any of this history, wouldn't care, or would dismiss the grave moral, legal and practical risks of torture.
Is there a more charitable, plausible reading of Rivkin's arguments above as he turns yet again to SERE training? Does this make any sense outside of a defense of Bush officials? What is Rivkin's actual position? It's incoherent. Does Rivkin hold waterboarding is torture or not? In previous appearances, he's argued it's not torture, or isn't always, or no one can say, yet here he's argued waterboarding is torture, but also that it's not clear and maybe it's not. Rivkin's logic is protean, shifting and malleable. What's consistent is his attempt to sow uncertainty and make the "bright line" on torture dim, fuzzy and grey.
In the second video, right near the start, Rivkin once again says that "most forms of waterboarding, to me, certainly qualify as torture." That makes at least three times he makes this concession (even if it's sometimes with qualifiers). Rivkin can't keep his story straight. I have to add, Rivkin lecturing Matthew Alexander about interrogation and opining on how well the Guantanamo prisoners are treated is pretty repulsive to watch.
Rivkin is too sophisticated to make the same mistakes [as Duncan Hunter]. He focuses instead on two arguments. Like a good criminal defense lawyer, he plays semantic games: the Bush Administration’s torture techniques can’t be torture, he says, because we use them on pilots being prepared to resist torture by our adversaries as a part of the SERE training program. That argument lies at the core of the dubious Justice Department Office of Legal Counsel opinions which Justice even now refuses to show to President-elect Obama’s transition team—such is their confidence in their analysis. These arguments are pure sophistry, with all the persuasive force of Richard Nixon’s famous answer in his Frost interviews–When the president does it that means that it is not illegal. The doctrine of presidential infallibility, or at least impunity, lies at the heart of current Bush doctrine; it is a sledgehammer used to demolish the Constitution. Rivkin knows how to wield it.
But Rivkin offers another argument: Torture works. He repeats this in the face of Major Alexander, an interrogator trusted with the toughest cases on the battlefield in Iraq, who made the most significant intelligence breakthrough in the Iraq conflict and got the Bronze Star for his efforts. Alexander offers us specific documented evidence that torture doesn’t work and neither do highly coercive techniques. In one case, the Bush techniques were applied for twenty days on a detainee. It got nowhere. Then relationship building was used for just six hours: at the end, the interrogator left the room with the keys to finding al Zarqawi.
What’s Rivkin’s evidence to the contrary? “I have interviewed a dozen interrogators who tell me so,” he claims. I have interviewed dozens of interrogators (Alexander is one) and I have never heard one present evidence or even express faith in the utility of torture, or what Rivkin would call “highly coercive techniques.” Torture does get people to talk, no doubt about that. But does it get what the experts call “actionable intelligence”? No. FBI Director Robert Mueller just confirmed that fact. The Bush Administration’s claims of success in using torture techniques like waterboarding have been thoroughly and repeatedly debunked, most recently by David Rose in Vanity Fair.
Personally, I think Rivkin's claims about interviewing "dozens" of interrogators who have validated his positions are complete bullshit, and any serious study of effective interrogation techniques would strongly validate Alexander's approach and condemn torture. Alexander doesn't challenge Rivkin on this, and that's not really his job, but Riz Khan doesn't push on this dubious claim either, and alas, Scott Horton or someone similarly prepared isn't there to press Rivkin. Dan Froomkin has a saying called "winning the half hour," in which a guest makes an outrageous or dubious claim, but can scurry off without being fact-checked or being called to account due to the typical way political talks shows proceed. Regardless, Rivkin's claims are highly questionable and completely unsubstantiated.
Let's return to Horton (and again, I'd suggest reading the entire piece if you haven't):
What drives the torture enablers like Rivkin and Hunter? The Wall Street Journal’s editorial page considers the torture debate to be a left-right struggle; torture is the cause of the right and the critics are on the left. But anyone who has studied the debate knows this is absurd, for there are as many convinced conservatives in the ranks opposing torture as liberals. Andrew Sullivan offers this week a series of posts that make this point. He looks at Glenn Reynolds and Jonah Goldberg, two powerful voices on the political right, both staunch defenders of Bush policy. How did they react when the first photographs of Abu Ghraib surfaced? Both were quick to condemn the images as grotesque, sickening, and criminal. Both called immediately for prosecutions to restore the nation’s honor. And how do Reynolds and Goldberg react when the Bush Administration is revealed as the author of that abhorrent conduct? Suddenly what was once morally reprehensible, is a necessary tool in a just cause. Indeed, it makes us safer they suggest against overwhelming evidence to the contrary. Is their agenda to support and justify the conduct of their political leader, no matter how depraved or unlawful that conduct is? The threshold from principled analysis to partisan propaganda has been crossed.
And in the case of Rivkin, who is generally more cautious and circumspect, we see the same process. Rivkin tells us that we must close our eyes to what happened. He opposes even an inquiry into the genesis of the torture program, saying we know everything from the voluntary disclosures of the Bush Administration. But of course even the Levin-McCain Report tells us that we know very little. That report fails to unearth what went on in Jerry Boykin’s and Stephen Cambone’s Special Operations Command, where by consensus the most serious abuses involving the military occurred, starting with Cambone’s authorization of torture in rules of engagement issued shortly after 9/11. And the Levin-McCain Report notes that the role of torture remains unknown inside of the CIA, though we have two directors who have offered up a series of public whoppers in their efforts to get the dogs off the scent.
But Rivkin’s history is much like that of Reynolds and Goldberg. Back when the Democrats were in power, in 2000, he offered this: “As an alternative to expansive universal jurisdiction and the International Criminal Court, the United States should promote a renewed commitment to the prosecution of ‘international’ crimes in national judicial systems.” (”The Rocky Shoals of International Law,” National Interest, Winter 2000, co-authored with Lee Casey). I happen to agree with this perspective. That is, the International Criminal Court cannot be a forum for the enforcement of the laws of war against the great powers; if that happens, the support upon which it depends for its credibility will collapse. The great powers, and particularly the world’s paramount power, the United States, must enforce the laws itself. And this is precisely why the weaseling of the torture enablers presents such a threat to America’s security. It robs us of moral stature just as it robs American service personnel of the protections that Americans labored for two centuries to create. It marks the ultimate triumph of petty partisanship over principle. And that is the essence of the torture debate.
Rivkin's Congressional Testimony
Nowhere (that I've seen) has Rivkin argued that the torture that Bush officials have admitted to and Rivkin supposedly decries should be investigated and prosecuted. Before his March 4th testimony, Rivkin commented to The New York Times on Congress' intent to investigate prisoner abuses:
They want to pillory people... They want to destroy their reputation. They want to drag them through the mud and single them out for foreign prosecutions. And if you get someone in a perjury trap, so much the better.
It's interesting that Rivkin avoided this more partisan language with both Swift and Alexander. Meanwhile, in his prepared statement on March 4th, one of his closing arguments was:
President Obama and the Democrat-controlled Congress are entitled to revise and reject any or all of the Bush Administration's policies. No one, however, is entitled to hound their political opponents with criminal prosecution – whether directly or through the device of a politically unaccountable commission.
Well, what if these former officials broke the law? Rivkin tries to claim that the only reason Bush officials could be prosecuted is because of a partisan witch hunt. He ascribes motive to the investigators, but ignores cause and justification. He does not acknowledge that Bush officials authorized torture and that they committed war crimes. He ignores that Bush officials have publicly admitted to authorizing torture and that specific prisoners were tortured. He refuses to admit that an investigation and probable prosecution would be simple justice and even mandated under the law.
Some of the most telling moments with Rivkin came during his grilling by Sheldon Whitehouse, who was sharp enough to challenge Rivkin's many hedges and qualifiers. Another statement was highly revealing, when Rivkin was allowed to go into high dudgeon mode, being shocked, shocked that anyone would question the upstanding Bush administration. Here's the video (via TPM):
The key lines:
RIVKIN: I do not see how going through another round of self-referential and self-absorbed exercise that would not lead to any kind of national consensus, but basically would dwell at great length on our alleged sins, and by the way, we're all entitled to our opinions, I fundamentally disagree with the narrative that has been portrayed here of the Bush administration's alleged misdeeds. Yes, mistakes were made. Yes, some bad things happened. But compared with the historical baseline of past wars, the conduct of the United States in the last eight years, Senator Cornyn, has been exemplary, measured by any objective indicia of misdeeds - abuse of detainees per thousand captured, excessive use of force per thousand troops in the field - so I don't see that at all.
[…]
WHITEHOUSE: I would suggest, Mr. Rivkin, that until you know, and we all know, what was actually done under the Bush administration, you not be so quick to throw other generations of Americans under the bus, and assume that they did worse.
"Mistakes were made" – Rivkin uses the classic passive formulation. Yet again, he pretends that we're talking about more common abuses committed by individuals. He ignores that there was an official policy of torture and abuse authorized at the highest levels. Rivkin's much smoother than Duncan Hunter, but he's just as selectively – and conveniently - blind. He takes his summoned umbrage out on a straw man and argues statistics of cruelty on the ground level to avoid discussing that, higher up, Bush officials chose this, tried to hide all they could, and ignored or squelched expert advice warning them against their radical course of action. The "narrative" of the Bush administration Rivkin 'disagrees' with is pretty clear at this point, but he just chooses to ignore it. See the books Angler, The Dark Side and Torture Team, the documentaries Taxi to the Dark Side and Torturing Democracy, and the Frontline episodes "The Dark Side,""Cheney's Law" and "Bush's War, " for starters. Many details are still secret, but the basic story is not, or is at the very least damning enough to cry out for further investigation.
According to Rivkin, suddenly it's "self-absorbed" to investigate probable war crimes. Presumably, insisting that officials are entirely above the law regardless of the scope of their misdeeds is the true mark of humility. Rivkin's attitude reminds me of Doug "What's Common Article III?" Feith's "assholes"line, and it's no surprise that Rivkin's 2004 op-ed on Abu Ghraib and Feith's arguments that the Geneva Conventions did not apply share so many similarities. The arrogance and recklessness of these people is staggering. Hubris is just too tame a word.
(It's also not surprising that Rivkin's statements were facilitated by the friendly questioning of that paragon of integrity, Republican Senator John Cornyn, who's previously tried to defend waterboarding with a ticking time bomb scenario.)
Rivkin would not be so objectionable if he were the actual defense attorney for a Bush official on trial, since he'd be playing an important role in the judicial system. And as a private citizen, he's certainly entitled to his views. But Rivkin generally presents himself in public appearances without owning up to his agenda and core positions. He is generally presented as a conservative, but in his appearances with Swift, Alexander and others, he has not stated what he's made clear elsewhere – he opposes investigations and prosecutions regarding Bush officials and holds that they committed no crimes. It's not hard to see why he would hide this. He can accomplish much more appearing as an expert, with some presumption of intellectual honesty and disinterest. He can present himself as far less radical than he actually is, and try to win over some converts or at least sow doubt with his inconsistent, terribly disingenuous arguments. That again is his right, but it is despicable - and it never serves the public well to have false claims and deceptive arguments go unchallenged. I'd also contend that Rivkin's efforts are focused on preventing rather than serving justice, and deceiving rather than informing viewers, and this approach doesn't serve the public well, either. Rivkin's a clever fellow, but extremely intellectually dishonest. Duncan Hunter may be dishonest or delusional on Rumsfeld's culpability, and he's dead wrong about torture 'working,' but he's upfront enough to say he believes torture works, it saved lives and Bush officials shouldn't be prosecuted. That shouldn't win him any prizes, but it's a very different approach from Rivkin's. Rivkin is slippery enough to adjust his pitch to different audiences, telling one that no one can say whether waterboarding's torture, admitting to another that it is, colorfully complaining to The New York Times about nasty partisanship, and toning down the same charges in his more formal challenge to Congress, scolding them if they dare seek justice. He's insisted that the Bush officials acted in good faith, he's claimed it's a different world after 9/11, and he's ignored pretty much every major piece on Bush administration wrongdoings. His arguments shift about, but ultimately, he's defending it all. At no point that I've seen has he ever admitted that crimes were committed (or that actions that could reasonably be considered crimes were committed). He's consistently pushed for no transparency and zero accountability for everything the Bush administration has ever done.
Going Forward
I'm sure many of our fine legal bloggers can do a more thorough examination of Rivkin and the latest torture apologist arguments against investigations and accountability. But the outrageousness of Duncan Hunter's claims and the skilled disingenuousness of Rivkin's arguments require that torture opponents appearing in public discussions know their subject cold and come prepared for a dizzying array of false assertions and misleading tactics. Experts on torture such as Matthew Alexander, Malcolm Nance, Darius Rejali and others definitely help the public arrive at a clearer, better understanding of these issues. But having them face off alone against a torture apologist can be a mismatch, because the primary goal of experts usually is to inform and elucidate, not necessarily to argue or to challenge and debunk false claims. Given that these torture apologists are arguing as defense attorneys for Bush officials who should be investigated for war crimes, the most effective torture opponents are those who prepare as skilled prosecutors. Rivkin and his ilk will try to move off-topic, argue questionable points, sell misleading framing and false, hidden premises, or outright lie - and then move on. Sometimes, it's wisest to clamp down on one point and not let them wriggle away. The entire discussion may wind up focusing only on a few points, but the goal of torture apologists is to sell their hidden premises and spread confusion. Any muddying of the waters they can achieve is a small victory.
Investigating the Bush administration will be all the more difficult given a Beltway class that views calling someone a war criminal as a far worse sin than actually committing war crimes. Luckily, the public supports investigations into wrongdoing by the Bush administration. There are legitimate debates about the benefits and drawbacks of a "truth commission" versus a Justice Department investigation, and on whether a truth commission would pave the way for later criminal investigations or interfere with them. All that's fine. But the public should also hear that there's never been a serious debate on whether waterboarding and other forms of torture are legal, that torture makes us less safe, and contrary to apologist claims, it doesn't work. The moral arguments for opposing torture are important, as is the American tradition of justice exemplified at Nuremberg, not to mention the simple idea that no one is above the law. When a guest declares that "torture works!" there's no good reason not to point out that Bush officials have a vested interest in lying about the usefulness of their law-breaking, that they have little to no proof to support their claims, and that they were warned about their actions. Torture apologists shouldn't be able to offer a host of grossly deceptive claims and slip away unchallenged and with their reputations unscathed. And as long as we're going with metaphors from Greek mythology, in addition to tenaciously holding protean logic accountable, Perseus and Medusa spring to mind. John Yoo and the gang are absolutely petrified of being forced to face their own monstrosity.
(Caravaggio's "Medusa.")
(Edited for typos and clarity, and added two sentences and a link in parentheses. It was a long night. The repetitive prose remains, though. Cross-posted at Blue Herald)
