When its critics looked to define everything they saw as wrong with the Bush Administration, they frequently turned to the so-called “Torture Memos”. Penned by John Yoo, now unaccountably a Law professor at UC Berkeley, these memos represented a calculated effort to take advantage of a crisis situation to re-interpret executive power and privilege. Needless to say, that reinterpretation tended towards a dramatic expansion and abuse of that power. Specifically, Yoo played a crude game, redefining torture and narrowing the application of legal protections as they obtained to those who found themselves in conflict with the United States, whether through their actions or through being caught up in the often-indiscriminate dragnet constructed by our military and intelligence services as we invaded first Afghanistan and then Iraq.
These memos opened the door to an approach to the world that it is difficult to avoid calling evil. In a Subcommittee on the Constitution, Civil Rights, and Civil Liberties in 2008, Representative John Conyers conducted the following exchange with Yoo (the entire exchange is chilling, and worth seeing, but overly-long to reproduce here given Yoo’s persistent prevarication):
Conyers: “I didn’t ask you if you ever gave him advice, I asked you do you think the President could order a suspect buried alive?”
Yoo: “Mr Chairman, my view right now, is I don’t think that a President would—no American President would ever have to order that or feel it necessary to order that”.
Conyers: “I think we understand the games that are being played”.
Indeed. Citizens of what is ostensibly a democracy of some sort are being asked to accept the notion that in moments of “emergency” (and this is an emergency which has dragged on for eleven sorry years, and shows no sign of abating, as President Obama expands the war with greater vigour—if less outright enthusiasm and an equal lack of forethought—than his predecessor to “fronts” all around the world), rights go out the window. In an “emergency”, be it a moment like 9/11 or the “forever war” declared in the following months, we are required to debase ourselves as a people, trample on the very same rights we trumpet as we go to war, and engage in the most heinous of acts against our so-called enemies.
We are asked, in effect, to accept as a measure of good faith that our national security apparatus—an apparatus which has practised torture, murder, assassination, the surveillance of American citizens, the manufacture of evidence for multiple wars—would not misuse these powers which they don’t even bother to ask that they be granted, but instead cook up in back rooms with the aid of their lawyers. It’s as if a known and convicted murderer came to you and asked that you allow him access to deadly weapons, promising that he or she would not use them. It’s like a financial industry causing an economic crisis and then asking that you relax the regulations on them. Or like an energy industry taking advantage of poor oversight and then, through carelessness, causing an environmental and social disaster, and then coming to ask you to weaken said regulations further.
President Obama has learned some interesting lessons from the Bush Administration’s “Torture Memo”. Capitalising on a more trusting public, and the free pass given the administration by progressives who manage to reconcile themselves somehow to its despicable methods, the Obama Administration has embraced secrecy and non-disclosure even more fulsomely than its unholy predecessor.
Upon being elected, the President repeatedly reiterated that his administration would be “the most open and transparent in history”. He even issued a Memorandum for the Heads of Executive Departments and agencies on the subject of “Transparency and Open Government”, reiterating his commitment to “creating an unprecedented level of openness in Government. We will work together”, it went on to read, “to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government”.
Except, it seems, when it comes to the waging of war and the ordering of murders. Earlier this year, Charlie Savage wrote in the New York Times about the existence of a memo, now tacitly—snarkily, almost—acknowledged by the administration, which explains the rationale behind the President ordering the murder of American citizens. Such a murder—and let’s leave aside for the moment the moral character of the man who was murdered, Anwar al-Awlaki—did in fact occur, “despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war”.
The administration’s logic, according to those who saw Obama’s Murder Memo, threw these supposedly sacred laws under one bus after another, relentlessly mowing down legal protections on the basis that in wartime, anything, anywhere goes.
This, at least, is the general thrust. We cannot know precisely what the Murder Memo authorises, because the President has chosen to hide the rationale behind his frightful violence from the public. If the rights to which the President pays an increasingly-hypocritical lip service in virtually every public utterance are really so important, surely he could at least dignify the public—the public which elected him—with an explanation of why he sees the need to take the law into his own hand and give himself the power to kill American citizens without defending a change in the law before Congress.
Perhaps the President could even dignify us with an explanation of his more comprehensive thinking about national security. If he is prepared to act on the idea that national security trumps public rights, surely that is a fitting topic for a national address. If he is prepared to argue that the killing of people, the destruction of infrastructure, the assassination of individuals, and the overthrow of governments by using armed drones is not war, thereby evading Congressional oversight, then perhaps he could say this publicly to the nation. If he is prepared to endorse a system in which a whistleblower is tortured on a brig and kept away from his lawyers for months, but CIA personnel who murdered prisoners in their custody walk free, perhaps he could include a reference to this in his State of the Union Address. If he is prepared to persecute wars in Pakistan, Yemen, and Somalia, and contemplate expanding his War of Terror to Mali, perhaps his pollsters—who drive so much of Presidents’ thinking these days—could at least ask people what they think about their country going to war on a permanent basis against an ephemeral enemy in a manner calculated to imperil the public interest.
We have been at war on a steadily-expanding number of fronts for increasingly-opaque purposes since 9/11. In waging these wars, we have effectively entered a kind of tunnel as one country, and will emerge as an altogether different one. We have performed wicked deeds, and condoned unspeakable acts. Because they continue to take place in the dark, we can’t quite tell what they were, and I doubt that we shall ever know the full extent of the killing that’s been done in these wars. The prisons, torture chambers, rendition flights, dirty deals, weapons sales, kidnappings, and murders will never be fully documented. But the story of our descent into this pit will be more complete if we demand that our elected leaders explain the basis on which we are making these decisions. But I suspect that the President knows that his moral contortions would prove too much for the public, and that he would risk severe censure if his machinations ever became transparent.
So for now, the Murder Memos go unread by the public.