Perhaps this shouldn’t come as a surprise: The Carson Times reports that Senator John Ensign (R-NV) is defending U.S. Court of Appeals Judge Jay Bybee, and calling suggestions Bybee should be impeached “outrageous.” Indeed, the Senator went further, “Ensign says he agrees with Bybee’s reasoning.” The Las Vegas Review Journal’s version of Ensign’s remarks added, “To call for him to be impeached when he was trying to give the proper legal advice is just ridiculous,” Ensign said. “You impeach people for ethical violations, for criminal violations. It would be like impeaching a member of Congress because they voted the wrong way.” And, Ensign fell back on the original GOP argument: “This was not torture,” Ensign said. “This is the thing we have to get away from, that this is somehow accepted that it was torture. The United States does not engage in torture. This was ‘advanced interrogation techniques.” [LVRJ] It’s surprising Senator Ensign would resort to the latter argument, because that one seems to be just about worn out in the more recent efforts of GOP leadership to alter the arguments.
Arguing by analogy is always difficult, especially if the two subjects under discussion don’t equate to one another. The situation in which Bybee found himself was not that of a member of any legislative branch called upon to vote on an issue, but that of a legal adviser called upon to provide a sitting president with the best possible advice available. Bybee chose not to offer the best advice (that what the Administration was considering was in violation of American law) but the worst advice, in two memos he essentially advised that the President could avoid the law by unilaterally redefining its terms.
To fight an analogy with an analogy: If the President had wanted to steal the Eiffel Tower, Bybee might have advised that the generally accepted definition of theft (to take, steal, or carry away, the personal property of another with the intent to permanently deprive the owner thereof..) really meant that the taking, stealing, or carrying away had to be accomplished under the terms of a plan known to all participants who fully acknowledged their comprehension of its terms, at a specific hour of the day during which the taking would have been clearly visible to a reasonable bystander, and all participants, principals and accessories had to intend to take the Tower and put it in the Grand Canyon as a tourist attraction for the benefit of western tourism – tourism being in such decline that drastic measures would be warranted to prevent catastrophic economic displacement. If this analogy seems tortured, it’s no more so than the specious contentions in Bybee’s originals.
Circular thinking is even more perilous. Ensign is arguing that because Bybee redefined torture as “advanced interrogation” therefore torture is acceptable because it is “advanced interrogation” and therefore not torture. Following Ensign’s logic yields the obvious conclusion that any presidential adviser may, by the simple act of redefining terms, change any law on the books. We are precipitously close at this point to a Nixonian statement, “It’s not a crime if the President does it.”
There have been some other Republican trial balloons launched as they attempt to justify the unjustifiable.
It wasn’t all that long ago that President George W. Bush was fervently pushing the point that “the United States doesn’t torture.” [MSNBC, Oct. 2007] This balloon has been well and thoroughly popped.
Maybe we did it because President Bush got bad advice? Senator John McCain (R-AZ) told the audience of Face the Nation that Bybee’s memos did violate the intent of both U.S. and International law, but “it was just bad advice.” [TP] Evidently, in McCain’s mind both beauty and law are in the eye of the beholder.
A more hawkish line is employed by members of the right who revert to the “torture is justified because it gets results” allegation. [Bnedit] This is a classic “ends justify the means” argument. And in the understanding of the Buffalo News editorialist it was perfectly acceptable for Barnaby Keeney to set up the MK-ULTRA program with tests on unwitting federal inmates (a majority of whom were African American) to chart the effects of hallucinogenic drugs. “All of this is reprehensible, horrible stuff. But it was generated by well meaning American officers from what has been called The Greatest Generation” to keep America safe.” [Bnedit] This line of argument can be reduced to: If your heart’s in the right place it doesn’t matter if you attach electrodes to someone else’s genitals. Whether or not torture “gets results” remains to be seen – most of the evidence points to torture resulting in having the tortured individual telling interrogators that which will make the torture stop. The old computer term for this is GIGO – garbage in, garbage out.
The Republicans give every appearance of wanting to talk about anything to avoid the subject of whether or not members of the Bush Administration authorized and conducted torture sessions. They’ve already had to concede that torture happened. Now, they seem to be grasping for justifications. The efficaciousness of the sessions has been called into question, and the ‘bad advice’ argument merely circles back on itself. However, they don’t seem willing to relinquish the national security slant. Telling the world that we tortured will make people think the worst of us, [DB] or telling the world reveals the ‘playbook’ and our opponents will be ready for us. Both of these contentions are specious.
First, the “world” already knows what happened, and has properly concluded it wasn’t the result of a few ‘rogue’ non-commissioned soldiers or ‘a few bad apples.’ The task at hand is now to convince our fellow human beings that we do not tolerate the use of torture and the consequent violations of U.S. law and the Geneva Conventions, and maybe we need to reassure ourselves that we are, indeed, a nation of laws (not men). As to ‘opening the playbook,’ this is nonsense because the techniques have all been described in various forms since the Korean War.
Perhaps the most absurd argument is that what was done wasn’t torture because the techniques were used in training our own troops, and if we did it to ourselves then it can’t be torture. [TP] First, because waterboarding was introduced in SERE training, this wipes out the ‘playbook argument.’ We trained soldiers to avoid already well known techniques. Secondly, the application of the old Water Cure in training and the use of the Cure during sessions at Abu Ghraib and Guantanamo were hardly the same. We know this from the Bybee memos themselves.
It doesn’t matter if “it kept us safe,” torture is illegal. It doesn’t matter if “the enemy knows the playbook,” torture in any book is illegal. It doesn’t matter if it was done because the President got bad advice – torture is illegal. It doesn’t matter if every single member of the Select Committee on Intelligence knew about it – torture is still illegal.
No matter how many trial balloons are launched by Senator Ensign and his cohorts in the Republican Party to clutter the air, our focus should remain on a single essential question – Did the United States during the Bush Administration approve and implement a policy of illegal torture, and who was responsible?