Home -> Law Blog Directory -> Legal Commentary Blogs -> Balkinization

Legal Commentary

: Balkinization

Is Obama really serious about "upholding our values"?

By Jack M. Balkin

The New York Times reports that President Obama (still one of the sweetest phrases imaginable) told the CIA today

What makes the United States special and what makes you special is precisely the fact that we are willing to uphold our values and our ideals even when it?s hard, not just when it?s easy, even when we are afraid and under threat, not just when its expedient to do so....

I dearly hope he means it, but I must say I'm not optimistic. "Upholding our values" means that people are truly held accountable, and the Administration seems extraordinarily reluctant to do that. As it happens, I am ambivalent about criminal prosecution, as much as I would love to soo a number of high-level Bushies go to prison. But I have come to the conclusion that the better response would be a blanket amnesty followed by the setting up of a high-powered "truth commission," with full-scale subpoena power, that would force everyone to testify, under oath, about the gestation of the policy, its implementation, and, very importantly, the known consequences.

Mark Danner has an extraordinarily important article in the current New York Review of Books on the extent to which the Cheyneyites are spreading the argument that "torture is effective," and he argues, if I read him correctly, that it is absolutely essential not only to denounce torture, but, even more importantly, to confront the argument head-on. On what occasions was torture "effective"? What is the evidence? Don't allow them to hide behind "it's all classified." A trustworthy "truth commission," led by Democrats, Republicans, and independents of genuine stature, should be able to get access to any and all data, whatever its classification, and tell the American people (and the world) how often torture "works," as against the frequency with which it is simply a disaster on any and all criteria. Otherwise, the Cheyneyites will simply renew their arguments for more extensive torture after the (more-or-less inevitable) next attack, and simply saying that torture is vicious and immoral will cut relatively little ice if we haven't taken pains to confront the argument about "effectiveness." And if the Cheyneyites are right--i.e., if torture really did save lots of lives, etc.--then perhaps some of the rest of us will have to rethink some of our own positions. But the point is that Obama cannot be allowed to think that disclosure of the memos and the wrecked reputations (and nothing more, perhaps) of John Yoo, Jay Bybee, Steven Bradbury, etc., constitute anything close to seriously "upholding our values" and engaging in the kind of leadership we need on this issue.

Full post as published by Balkinization on April 20, 2009 (boomark / email).