Legal Commentary

Although I?m a week late in commenting, I wanted to add a couple of thoughts about President Bush?s veto of the Intelligence Authorization Act for Fiscal Year 2008, which would have confined interrogation techniques to those approved by the Army Field Manual on Interrogations. I think that this veto demonstrates a disturbing tendency by the executive branch to privilege acting according to necessity over acting in accordance with legal constraint. In a signing statement, Bush explained that ?I cannot sign into law a bill that would prevent me, and future Presidents, from authorizing the CIA to conduct a separate, lawful intelligence program, and from taking all lawful actions necessary to protect Americans from attack.? The CIA maintains a ?separate and specialized interrogation program for terrorists who possess the most critical information in the War on Terror? according to the President, which ?the Attorney General has reviewed it and determined that it is lawful under existing domestic and international law, including Common Article 3 of the Geneva Conventions.? Moreover, we are reassured that the United States ?opposes torture,? even though we find it necessary to torture terrorist suspects through the use of waterboarding (and other undisclosed techniques?).

In short, President Bush wants flexibility to do what is necessary under perceived circumstances. The problem, as I see it, is with the conception of necessity at stake here. Taking ?lawful actions necessary? appears to mean taking actions free from legal constraint (absent constraint, actions are lawful). Moreover, the President is asserting that (1) he gets to define narrowly what counts as torture, so that authorized ?techniques? are not torture and that (2) he should be free to act outside of specific legal constraints to do whatever is necessary under the circumstances. We should simply trust that he is acting in accordance with the law as he defines it. The problem is that our system of government is not well-suited for either trust or necessity as organizing principles. The very idea of distributing the powers of the federal government is based on a certain amount of mistrust, and the very idea of limiting the distributed powers is based on government action under constitutional constraint, not according to perceived necessity. The problem with acting according to necessity is that it displaces constitutional commitments to constrained action because necessity, not law, becomes the ultimate authority for official action. Circumstances will dictate whether the President authorizes further use of waterboarding, not legal constraints as Congress proposed.

When we rely on necessity to override principled commitments, such as the prohibition against torture, we change our practice and principles, creating the conditions for changing fundamental aspects of our constitutional culture. A fundamental feature of our constitutional culture is its profound respect for personal dignity and autonomy, as well as its recognition that some rights are to be protected against derogation, even when officials claim compelling state need ? features inconsistent with the practice of torture, even if thought necessary. If we enlarge the role of necessity as a structuring principle of our constitutional culture, at least when it comes to the all-encompassing war on terror, we risk undermining the very constitutional constraints recourse to necessity is meant to preserve and protect.

Notice the change even in how we talk about torture evidenced in the following statement from a NY Times article: ?The C.I.A. confirmed last week that one of the six defendants, Khalid Sheikh Mohammed, considered the chief plotter of the 2001 attacks, was subjected to the technique known as waterboarding, considered by many legal authorities to be torture, while in C.I.A. custody.? The paper of record hesitates to call waterboarding torture, relegating that job to ?legal authorities,? and choosing instead to call it a ?technique.? Maybe I?m particularly attuned to the problem of language and its relation to the culture in which the language is used because I?ve been re-reading Hannah Arendt?s Eichmann in Jerusalem. German officials are described as employing special ?language rules? in order to talk properly about official actions involving detention, deportation, and murder (?special treatment,? and ?resettlement,? among others). Arendt writes, ?The net effect of this language system was not to keep these people ignorant of what they were doing, but to prevent them from equating it with their old, ?normal? knowledge.? Our normal knowledge tells us that waterboarding is torture, and violates our fundamental norms. Are similar language rules being employed to mask the fact that despite all of our domestic and international commitments to the prohibition against torture, and despite the fact that the prohibition has taken on a fundamental role in expressing a central commitment to the dignity and liberty of persons, Americans do engage in torture, because necessity seems to require it? The President simultaneously states that ?America stands against and will not tolerate torture,? while having authorized torture, evidence that language may have gone off the rails somewhere. In vetoing Congressional limits on his available ?techniques? last week, the President continues to hold out the possibility of authorizing torture again in the future. Why? Because the President wants to remain flexible to take any ?actions necessary to protect Americans from attack.? The langugage of necessity invokes its own vocabulary in which just as the normal legal rules may not apply, the normal language rules may not either (let's talk about "harsh interrogation," not torture). When necessity governs, rather than legal constraint, special language rules can alter constitutional culture if we adopt the new vocabulary and its new way of envisioning constitutional constraint. If we refuse this new way of looking at things, we must learn to overcome necessity as a way of confining legal constraints to normal occasions.