We're Shocked, Shocked!

Crux News beat me to the reference, but the reaction of so many people to news that the Bush Administration is trying to find a legal justification for torturing people in order to (turn off your irony sensors, to avoid feedback) fight the war on terror reminds me of Captain Reneau, the Vichy policeman who was "shocked" to find gambling going on at Rick's Cafe Americain. Of course I haven't read the Bush torture memos. No one outside the apparatus of state security is supposed to read them. They're classified, and as any good fascist will tell you, the legal principles which guide the state must be kept secret in order to protect the people. We can't have a bunch of sleazy trial lawyers making stupid arguments about human dignity and the rule of law. There's a war on, you know.

But the documents are available nonetheless. Or at leas one of them is -- a Department of Defense memo classified by Secretary Rumsfeld himself. The best and brightest who came up with this stuff have performed to their usual "Vietnam's not a war, it's a police action" standard. For example, the memo explains why U.S. laws criminalizing torture do not make it a crime to torture people (Americans or otherwise) who are in the United States. (Section III(A)(1)). With respect to torture inflicted on persons (Americans or otherwise) who aren't living in Dubuque, the memo explains that since the statute only criminalizes actions "specifically intended to inflict severe physical or mental pain," it can't be violated by someone whose actions are specifically intended to obtain valuable information by means of severe physical or mental pain. (Section III(A)(1)(a)). A note to that section goes on to warn the Administration that juries are legally empowered to reject that argument and find specific intent despite the torturers' high-minded desire to protect schoolchildren from those identified (mistakenly or otherwise) as terrorists.[1] Nasty things, juries. A bunch of ignorant yahoos empowered to put spokes in the wheels, like they do in all those frivolous tort cases, at the behest of sleazy trial lawyers. We probably ought to get rid of juries too. There's a war on, you know.

What really bothers me is that there's nothing shocking about this. Our present Administration is searching for legal justifications for torturing U.S. citizens. So what? Back in Clinton's day, the U.S. Marine Corps conducted a study to find out if Marines would gun down "U.S. Citizens who refuse or resist confiscation of firearms banned by the U.S. government."[2] Bobby Kennedy had Martin Luther King's telephones tapped, as well as the phones at the Southern Christian Leadership Conference, for reasons of "national security." [3] It gets beaten to death, but it's still true that the Nixon administration attempted to affect the conduct of a presidential election. The only thing that really ticks me off about the constant references to Watergate is the same thing that sticks in my craw about how "shocked" everybody is about Donald Rumsfeld's "the Dog Ate My Constitution" memos. This isn't shocking at all. It's business as usual.

Using law to evade the law is what governments do. All governments, all the time, everywhere. Hell, even King David used "national security" to get Uriah killed and sleep with Bathsheba. If I had to pick one text for required reading in every civics class, it wouldn't be Montesquieu's The Spirit of the Laws, The Federalist Papers, Burke's Reflections on the Revolution in France or any similar work. It would be 1 Samuel Chapter 8:

And it came to pass, when Samuel was old, that he made his sons judges over Israel. Now the name of his firstborn was Joel; and the name of his second, Abiah: they were judges in Beer-sheba. And his sons walked not in his ways, but turned aside after lucre, and took bribes, and perverted judgment. Then all the elders of Israel gathered themselves together, and came to Samuel unto Ramah, And said unto him, Behold, thou art old, and thy sons walk not in thy ways: now make us a king to judge us like all the nations. But the thing displeased Samuel, when they said, Give us a king to judge us. And Samuel prayed unto the LORD.

And the LORD said unto Samuel, Hearken unto the voice of the people in all that they say unto thee: for they have not rejected thee, but they have rejected me, that I should not reign over them. According to all the works which they have done since the day that I brought them up out of Egypt even unto this day, wherewith they have forsaken me, and served other gods, so do they also unto thee. Now therefore hearken unto their voice: howbeit yet protest solemnly unto them, and shew them the manner of the king that shall reign over them.

And Samuel told all the words of the LORD unto the people that asked of him a king. And he said, This will be the manner of the king that shall reign over you: He will take your sons, and appoint them for himself, for his chariots, and to be his horsemen; and some shall run before his chariots. And he will appoint him captains over thousands, and captains over fifties; and will set them to ear his ground, and to reap his harvest, and to make his instruments of war, and instruments of his chariots. And he will take your daughters to be confectionaries, and to be cooks, and to be bakers. And he will take your fields, and your vineyards, and your oliveyards, even the best of them, and give them to his servants. And he will take the tenth of your seed, and of your vineyards, and give to his officers, and to his servants. And he will take your menservants, and your maidservants, and your goodliest young men, and your asses, and put them to his work. He will take the tenth of your sheep: and ye shall be his servants. And ye shall cry out in that day because of your king which ye shall have chosen you; and the LORD will not hear you in that day.

Nevertheless the people refused to obey the voice of Samuel; and they said, Nay; but we will have a king over us; That we also may be like all the nations; and that our king may judge us, and go out before us, and fight our battles. And Samuel heard all the words of the people, and he rehearsed them in the ears of the LORD. And the LORD said to Samuel, Hearken unto their voice, and make them a king.

Or, as the legal scholar Roscoe Pound observed, the same elements of human nature which make governors a necessary part of civilization also make them a constant threat to civilized life. I'm not making an argument that "godly societies" shouldn't have kings, presidents, or national security agencies. I don't think that government is purely a consequence of the Fall. But I am reminding all and sundry that even if government isn't a consequence of the Fall, it's nonetheless a human phenomenon which is affected by the Fall.

Donald Rumsfeld and George Bush suffer from depraved appetites and darkened intellects. As do we all. That fact, and not some good-government instinct for organizational tidiness, is the real reason for checks, balances, and governmental transparency. To paraphrase another President who was prone to tearing up the Constitution in the pursuit of noble goals, Satan can tempt some of the people all the time, and all the people some of the time, but he can't tempt all the people all the time.

Whether George and company have deluded themselves into believing that the ends can justify the means, or whether they're suffering from a form of "combat fatigue" that's caused them to quail at the burden of defending the legal order while also obeying it, the fact remains that this is what happens to everybody, albeit on a much smaller scale on the order of worldly things. George Bush thinks he can inflict severe mental pain on people to get needed information. An assistant manager at Wal-Mart thinks he can humiliate a worker to get needed productivity. John Ashcroft thinks he should refuse to disclose the torture memos. A bank vice president thinks he should hide his bank's losses. And all these fellows have really, really, good reasons for what they're doing. It's all part of a whole, which is why our Lord exhorted us to be faithful in small things first, because the moral challenges that come with big jobs really aren't all that different.

Now that's shocking.

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[1] You can find the memo in PDF format here.

[2] Col. Charles Dunlap, Revolt of the Masses: Armed Civilians and the Insurrectionary Theory of the Second Amendment, Tennessee Law Review, vol. 62, no. 3. Note #3. The text is available here. Colonel Dunlap attempts to minimize the implications of the story by saying that "the question turned out to be merely part of a graduate student's project aimed a studying unit cohesion and whether Marines understood the difference between lawful and unlawful orders." Sure it was. And it also "merely" a study which told the Marine Corps just how far Marines will go in enforcing federal law as well. The results of the graduate student's project are also classified.

[3] David Garrow, The FBI and Martin Luther King, in The Atlantic. You can find the whole text here.