Jill LePore: The American Way of Torture

Jill Lepore

Mad Dog celebrated St. Patrick's Day by hiking up Mount Major with his sons and a good friend, Tugboat, a yellow lab who is the most open minded member of a rather opinionated family.

The Yellow Trail to the summit was socked in with hard packed snow, but there was little ice and most of the trail is sheltered from the wind by pine forests. The hike is a family event, executed whenever the sons are home in New Hampshire and the conditions on the mountain allow for the assault. This was the first time we reached to summit  when Lake Winnipesaukee could be seen from the summit as a series of white fingers, frozen.

Many topics are explored along the flat approach to the Yellow Trail, but by the time the more vertical ascent begins, there is usually one upon which the group fastens. This time it was the question of whether or not the executive branch of the United States government, particularly the President, should have the right to send drones out on execution missions, a practice Rand Paul sought to grab some headlines by condemning  in a theatrical filibuster. 

The younger son, no fan of the grandstanding Paul, nevertheless agreed this is a very undesirable and completely unjustifiable corruption of fundamental principles of the rule of law and American freedom. Older son agreed:  the idea of the President acting as prosecutor, judge, jury and hangman seemed to violate the idea of due process. But, he averred,  as long as the President was acting against people who were not American citizens, who were not in fact even in America and likely unlikely to make themselves available for trial, it may be permissible. The key for the older son was whether or not American citizens were targets, because our Constitution protects only citizens of our country and its benefits should not extend beyond its borders.

Mad Dog found himself defending "Terror Tuesdays," the sessions during which Mr. Obama decides on which targets will be droned bombed/ assassinated without  trial or notice. 

This stance appalled the younger son, and was thought inconsistent by both sons, with Mad Dog's virulent attacks on Dick Cheney, who Mad Dog had attacked when Cheney advocated for Guantanamo and torture of prisoners.

"So you do not mind killing people who have been singled out as terrorists, without trial, but you cannot abide imprisoning them or torturing them."

At this point Mad Dog had to reach back into history and forward into the present.  He pointed out that Abraham Lincoln had suspended Habeus Corpus during the Civil War, and Lincoln justified this with the logic that you cannot have a nation ruled by law if you do not have a nation, if you allow infiltrators, spies and terrorists to destroy the nation before it has a chance to hold a trial with due process.

Extending this precarious risk justification: What if you knew, or had good reason to believe, you had tracked a terrorist with a nuclear bomb in his back pack, headed to New York City?  What if events were moving so quickly you had no way of intervening to arrest him, but you could zero in on him just before he got on the airplane or boat to the United States and you could blow him to smithereens? 

Is there no circumstance you can justify summary action to save the good citizens of the United States? During war, officers can shoot soldiers who refuse an order or who endanger their comrades by willful disobedience. Why can we not act in a summary fashion in these new circumstances in our struggle with foes who live and plan and organize abroad and then slip past our defenses into our homeland?

This was all dismissed as reducto ad absurdum by the younger son, who called it a "24"  dodge, alluding to the TV show in which the American hero shoots the terrorist, without due process, who will blow up New York City.

The more we thought about the problem, it became apparent the justification for the Terrorist Tuesday meeting boils down to: 1/ Time  2/ Distance 3/Practicality.  The objections boil down to 1/ Protection of rights guaranteed American citizens under the Constitution 2/ Ethical reservations about an American government forsaking the process in which the idea of law is contained because it is cumbersome, difficult or impractical in an age where criminals can move with speed to outpace the deliberative process we call "due process."

The younger son pointed to the drone killing of that terrorist in Yemen, who had been an American citizen, and then went to Yemen to preach hate against America and who may have been tied to the underwear bomber who tried to blow up a plane over Chicago. In that case, the accused was accused of doing more than preaching hate, but moving from incitement to action, that is, to arming a terrorist or at least becoming part of the process by which that terrorist was armed and sent packing on his mission.

 Plans by our government for that terrorist killing had been emailed about for months prior to the decision to kill him and his targeting and execution. So it could hardly be argued, there was a time factor--kill him now or lose your chance, possibly forever.  In cases like this, where there is time to think, you can argue for a trial, in absentia if necessary, with an appointed defense counsel, and with  notification of the verdict,. If that verdict is guilty, then the government can attempt notification of the accused of  the sentence. Now the terrorists knows he has been targeted, but he likely knew that before the trial.

There were sham show trials in absentia in Stalinist Russia but that does not mean our trials would be a sham.  It may be argued the defendant is not benefited by this exercise.  But we do not do funerals for the benefit of the dead; we do them for the living. We can do trials for the benefit of the citizens who value the argument prior to the execution. 

In her wonderful New Yorker article, "The Dark Ages," (March 18) Jill Lepore traces the idea of trials, of justice as they evolved from trials by fire to trials by jury with the institution of Habeus Corpus, (in which the simple principle requiring the man who imprisons another human being to offer some justification for this,) to the travesty at Guantanamo. 

Professor Lepore points to Mr. Cheney, whose posture has been consistent: He smirks at suggestions government is acting in a pernicious way. He attacks his critics as people who are hopelessly effete, who never had to make hard decisions in a hard world, who have no concept of the magnitude and risk of the forces which seek to harm this country, who are too weak to pull the trigger as the terrorist runs toward a vulnerable city, arm cocked, ready to hurl a dirty bomb.  If we are at war, then we have to have the courage to take swift and effective action to protect ourselves.

The problem is the word, "War."  What we have now is "asymmetric war" or something we really do not have a word for. We have no definable nation, no territory with flags and a capital to capture and a government and an army to defeat. Our enemy is largely invisible, diffuse, often unconnected to other enemies operating independently. It is more like the "war on crime" with drug organizations operating independently, for their own purposes.  We can use due process against drug organizations because the purpose of the drug organization is not to destroy our government or population, but what about the case of an enemy who is trying to destroy you?

Even in a democracy, we outlaw organizations whose expressed purpose is to destroy our government--except in the case of the Tea Party, but they say they are trying to save our nation by destroying our federal government. 

Every despot, from tinpot South American dictators to Joe McCarthy( the senator from Wisconsin) has claimed it is necessary to suspend our nice system of due process because the enemy is hidden, cunning, capable of subverting the due process and using due process to protect himself, as he sinks the dagger into our heart.

But how do we know the enemy is as dangerous as our leaders say he is? How do we know when we are in such danger we have to pull the trigger and ask questions later?

You cannot do ethical, much less legal analysis until you establish the facts, i.e., the circumstances. The critical piece of evidence, the fact that the Yemen/American "terrorist" who was droned in the desert, had been in our sites for weeks to months. If we could wait that long to get him, then he could not have posed an immediate threat. He was not racing toward New York City with a bomb in his backpack. He may have been planning that, but he was not launching an attack in proximity to the date he was killed. That fact, if true as construed, would suggest he could have been tried in absentia, invited to defend himself in a court of law and then, once warned, droned to death, and we could feel satisfied about that process.

The other "fact" about that case is the government accidentally droned the innocent son. This would imply the accuracy of the government's information can be poor enough to raise the question, the information about the target terrorist was accurate?  If we cannot even distinguish the son from the target, his father, how good is any of our information?

What Jill Lepore is saying, of course, is Mr. Obama's Terror Tuesdays have returned us to those days before Habeus Corpus, when the king did not have to justify imprisonment or death penalties.

All this makes Mad Dog even more anxious about Mr. Obama's upcoming trip to the Middle East, where he has no business going, less business than Kennedy had in Dallas. They have grudges out there in Palestine. Why fly into that hornet's nest?

Mr. Obama has not been a perfect President. But he is intelligent enough to be corrected and educable and he can be dissuaded from Terror Tuesdays. 

But not if he's dead.