20 November 2008

Power and Imagination

There's been a lot of discussion on the potential for the Obama administration to end the use of torture by the US. (At least the direct, officially sanctioned use of torture; the indirect use has been going on as long as there's a US.)

One of the things that comes up in that discussion is the likelihood that anyone, or anyone at the Cabinet level, or anyone who actually performed torture, or anyone writing an authorizing order, or whatever, will be tried and if found guilty punished.

Power comes down to "do people do what you tell them?"

There are all sorts of shades to this; when they think you are wrong, when they think you're the wrong person for the job, if they do just what you specifically say (or just claim to be doing that) , or if they set out to do their best to implement your policy intentions despite any doubts they may have. There are all sorts of supports-civilization ideas like respecting the office, not the person, and the rule of law, that says you're supposed to respect duly constituted authority, not the wishes of individuals, and so on.

At seventh and last, though, it comes down to if, when you tell somebody to do something, they do it.

Both the neocon and corporatist movements have spent a lot of time pushing the idea that they they can't really be told what to do; that, somehow, the rules everyone else is bound by don't really apply to them.

This is a naked power grab; it's also mostly worked, because a sensible, cautious, respect-for-consensus sort of approach doesn't have a good way to deal with something that is not, itself, a violation of law. It's an attempt to set up a separate process of decision that makes law irrelevant for a class of people, but talking about aspects of that in the abstract isn't itself unlawful.

The problem is that once there's this alternate system, you get people who start making the decisions about who or what to obey based on the alternate system, rather than the ostensible laws and governing institutions. And that means no one in the legitimate system is sure what's going to happen when they pick up the phone and give someone lawful orders. The orders should be obeyed, but what if the person is in the other camp?

That makes people reluctant to give orders; it's a very bad idea to give an order you know won't be obeyed, and if you can't be certain your order will be obeyed, you get more careful and more circumspect.

This is precisely the result that the neocon and corporatist folks want; they think it's wrong for anyone to be able to tell them what to do, and they want as many people as possible to agree with that.

Not prosecuting people for their really flagrant violation of the spirit of the laws about the treatment of prisoners makes the alternate source of legitimacy and authority really strong; it is good enough to let you get away with murder. (There's been lots of people tortured to death, at least one for purposes of amusement.)

So the Obama administration has to do that, or surrender its legitimacy. (Which will already be under attack, because the corporatists own the news.)

It should do that under the exact same rules Douglas MacArthur imposed on the Japanese at the end of the Great Pacific War, and under those rules—and under current precedent, President Obama can just declare that these, and only these, are the rules that apply—everyone found guilty of torture will hang.

That's the guys who authorized it, and those who carried out those orders. They get real trials, but if found guilty, they hang.

That's the very least much that will start the rest of the world believing that anything important has changed, and it might also be the very least much that will convince the neocons and corporatists that, indeed, the hurt can stick to them. Which is absolutely vital to restoring the supremacy of the duly constituted civil authority by means short of war.


Mac said...

That, sir, is a really strong argument and there may not be a good answer to it. Still, even if you are using "hang" metaphorically, and I don't think you are, I just can't see in any practical sense that the Obama administration is going to haul George W. or Dick C. into court and charge them with torture.

So, is the Obama administration condemned, then, to illegitimacy?

Graydon said...

I am certainly not using "hang" metaphorically; General of the Army Douglas MacArthur most certainly did not use it metaphorically, and how the exact same category of war crimes were tried by United States authority when the Empire of Japan committed them against Amercians is the inescapable precedent binding on the United States.

President Obama has a choice of perpetuating the idea of Republican exceptionalism—It's OK If You're Republican—or upholding the law as he will swear to do.

If he does not uphold the law, of course he, and his administration, will be condemned to illegitimacy. The legitimacy of Presidents of the United States once duly elected to office derives from their energy, ability and effectiveness in upholding the Constitution of the United States, just as their legitimacy to take office derives from the expressed will of the people in an election.

Note that in the case of George W. Bush and Richard Cheney, Obama has the option of treating them as former heads of state and sending them to the Hague to be tried for war crimes. (Of which they are unquestionably guilty.) Sets a precedent, too.

But he must, to uphold the law, charge and try those who actually committed the atrocities with the full rigour of the law. That's the only way to make it clear to the people participating in it that the alternative system of legitimacy will not and can not protect them.