The Agenda


I'm sure many blog readers, like me, spend an inordinate amount of time reading about current events. The Iraq war, terrorism, a presidential election and all the other stories, many of which I barely have time to skim, much less write about or even think much about, all start to run into one another in my mind after a while. It becomes a sort of pageant for my amusement on some level, an entertainment from which I find interesting nuggets to amuse myself and my readers and friends. I'm laughing about silly things and ranting about outrageous things and it all becomes part of one long continuous comment that loses meaning with each pithy little observation I add to it.

And then I read something that shocks me, which is not easy to do since it seems that everything is, or should be, shocking on one level or another these days.

This torture memo (pdf) shocked me. And it shocked me not because of its endorsement of torture, we knew something about that already, indeed we've seen pictures of it. No, strangely, it shocked me because it was the product of a bureaucratic "working group" and it was delivered in the dry prose of a government report on the legality of setting aside an executive order on train travel requirements. But this "working group," consisting of lawyers from throughout the executive branch, was tasked with something a little bit different than your average government project. Its job was defining the legal limits of the president's authority to order people to be tortured.

They had meetings at which I'm sure they all believed very sincerely that they were doing important work on the War on Terror. I'm sure they worked long hours and diligently analyzed the law and offered their advice to the president and secretary of defense with nothing but the good of the country in their minds. And they produced a 50+ page paper from which, I understand, only one person --- the state department representative -- dissented.

And that report, this product of a bureaucratic "working group" of lawyers is so deeply depraved and contrary to American values that one wonders if at any time during the discussions if someone had stood up and said, "we're talking about TORTURE for God's sake!" they would have produced a report at all.

Perhaps they wouldn't have. But, more importantly, I seriously doubt that anyone stood up and said such a thing. After all, this was being dryly discussed in the op-ed pages of major newspapers and in the weekly magazines as if it were just another method of warfare --- like terrorism itself. I'm sure these fine bureaucrats and political appointees believed they were doing their duty.

People are undoubtedly already in the process of wearing out the term "banality of evil" (if it has not already been trod over until its meaning is completely eradicated.) And I have already been taken to task by some who continue to believe that any comparison of the Bush administration to Naziism or totalitarianism in general is some sort of cheating. But, totalitarianism, incipient or full blown, has many features. Legal torture is one of them.

Here we have a "working group" of government lawyers tasked to find out what, if any, legal obstacles there are to presidential orders to torture prisoners in the war on terrorism. They found that the president of the United States has the unlimited power to set aside the laws of the land within his capacity as commander in chief. As has been noted by others, this general idea was explicit in the Nazi Fuehrerprinzip and is implied in what Republican legal theorists similarly like to call the "unitary executive." The American government has, up to now, never openly embraced such a concept.


Michael Froomkin and other legal experts have examined the final product of this 'working group" and found the legal reasoning seriously flawed as one might expect. Froomkin concludes his review with this:

If anyone in the higher levels of government acted in reliance on this advice, those persons should be impeached. If they authorized torture, it may be that they have committed, and should be tried for, war crimes. And, as we learned at Nuremberg, “I was just following orders” is NOT (and should not be) a defense.


Whatever the legal merits (and I'm sure Froomkin is correct --- this is an abomination) there is something even more frightening at work, I believe, than following bad legal advice and committing a war crime. It's the fact that a group of people working together from all different parts of our government came to this conclusion apparently without serious controversy.

I can't get past the fact that this is the product of a "working group" of lawyers, all of them highly educated, presumably intelligent, decent hardworking Americans who love their country. And, not one of them resigned their post rather than participate in creating a legal justification for torture. And, it was not just an abstraction to them; they went into great detail about the precise amount of pain that was to be allowed. There are long passages in which the meaning of "severe pain" is discussed, the effect of long term mental damage is assessed and where the justification of the infliction of long term damage is defined as a matter of intent rather than result. The Washington Post describes it like this:

In the view expressed by the Justice Department memo, which differs from the view of the Army, physical torture "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." For a cruel or inhuman psychological technique to rise to the level of mental torture, the Justice Department argued, the psychological harm must last "months or even years."


Under this definition you could for instance, shove bamboo shoots under someone's fingernails, pull their hair out of their head in clumps or beat them with a hose. According to the memo, you can force hallucinogenic drugs on them. You can repeatedly threaten them or their families with death. The imagination is boundless under this definition. After all, who knows how another person experiences pain, and that is what underlies their definition of torture --- how the victim experiences his pain.

What was the process by which they came to these dry legalistic definition of when, how and where on is allowed to inflict terrible pain as long as it doesn't reach the level of intensity that would accompany serious physical injury or organ failure? Did they discuss this around a conference table over a take-out Chinese dinner? Did they all nod their heads and take notes and write memos and have conference calls and send e-mails on the subject of what exactly the definition of "severe pain" is? Did they take their kid to school on the way to the meeting in which they finalized a report that says the president of the United States has the unlimited authority to order the torture of anyone he wants? Did they tell jokes on the way out?

These nice people with nice backrounds and nice jobs spent weeks contemplating how to legally torture human beings. Then they went home and watched television and ate dinner and went to bed and made love to their wife or husband and got up and did it again because it was their job and their duty to find ways to legally justify it:

A former senior administration official involved in discussions about CIA interrogation techniques said Bush's aides knew he wanted them to take an aggressive approach.

"He felt very keenly that his primary responsibility was to do everything within his power to keep the country safe, and he was not concerned with appearances or politics or hiding behind lower-level officials," the official said. "That is not to say he was ready to authorize stuff that would be contrary to law. The whole reason for having the careful legal reviews that went on was to ensure he was not doing that."



These last few days in which I've been pondering the unique horror I feel at this latest revelation, I was reminded (of all things) of a quote from George Will recently, in which he condemned the admnistration for being unable to think:

This administration be trusted to govern if it cannot be counted on to think and, having thought, to have second thoughts.


I doubt that Will intended anyone to make this connection to his phrase but it is, of course, the central thesis of Hannah Arendt's Eichmann in Jerusalem: A Report on the Banality of Evil. Her observations of Eichman were of a "ludicrous" person defined by what she called his "thoughtlessness" as opposed to stupidity. He was filled with contradiction, spoke in nothing but bromides and cliches and believed that he had done his duty to the end. He was, in Arendt's view, the perfect embodiment of the banality of evil. A company man, a bureaucrat, a regular guy, the kind of man who would join a "working group" to find legal justification for torture without having one second of stricken conscience about it. Indeed, he was too shallow, too dully conformist to ever question himself about anything and thus even have a conscience. Arendt expounded on this theme in "Thinking and Moral Considerations" in which she says:

Evil is a surface phenomenon, and instead of being radical, it is merely extreme. We resist evil by not being swept away by the surface of things, by stopping ourselves and beginning to think, that is, by reaching another dimension than the horizon of everyday life. In other words, the more superficial someone is, the more likely will he be to yield to evil. An indication of such superficiality is the use of clichés, and Eichmann, ...was a perfect example.


These people who set about legalizing inhumane behavior on behalf of a president on whom they confer absolute power to order it at will are as shallow and evil as the cliché spouting president who demanded it. The slippery slope to totalitarianism started in a conference room where coffee and donuts and microsoft power point presentations on torture and pain were on the agenda one morning.