This book is for my parents ... and my grandparents Mary and Allan Nevins, who passed on to me a love of American history and an admiration for those who have fought to fulfill the promise of the country's ideals.
-- Janet Mayer, dedication in The Dark Side
I am about 2/3 of the way through this book and other than slip-ups like "Chief Justice Robert Jackson," which make me wonder about editors, my overall sentiments repeatedly fall into three categories -- anger, despair and respect. Consider Yoo writing how use of "scalding water, corrosive acid, or caustic substance" was arguably legal when done for "national ... self-defense." This was promoted by Yoo, Addington, et. al., often acting like little cabals blocking out top officials, with equal arrogance and incompetence. The secrecy only aggravating the problem. Smarts without wisdom was the watchword. Inhumanity but part of it.
[Someone who truly cared about the administration could easily be troubled with all of this. How many failed them, and the party overall. Thus, we have people like John Ashcroft almost looking like moderates.]
This barbarism (what else is it?) was opposed by the likes of Alberto Mora, general counsel of the U.S. Navy among others who actually respected law and morality. Likewise, it was opposed by many lifers in the field, including those who actually knew something about getting information from alleged terrorists. This makes it all so tragic -- we are not just talking a "conservative" failing, since many strongly opposed were actually quite conservative. Not only a dark side of conservatism, but one that was simply incompetent. Surely ignorant of the lessons of history.
Today is Law Day, and "[i]n a very real sense, the world no longer has a choice between force and law. If civilization is to survive, it must choose the rule of law." Another path was chosen by the last administration with a lot of help from outside, while many inside (and out) strongly opposed it in various respects. There was so much wrong. For instance, Abu Ghraib guards were used as scapegoats, much more disrespectful of the military than any liberal war opponent. We all were lied to:
Justice Ginsburg: But if the law is what the executive says it is, whatever is necessary and appropriate in the executive's judgment, as the resolution you gave us that Congress passed, and it leads you up to the executive, unchecked by the judiciary.
So what is it that would be a check against torture?
Mr. [Solicitor General] Clement: Well, first of all, there are treaty obligations.
But the primary check is that just as in every other war, if a U.S. military person commits a war crime by creating some atrocity on a harmless, you know, detained enemy combatant or a prisoner of war, that violates our own conception of what's a war crime.
And we'll put that U.S. military officer on trial in a court marshal.
So I think there are plenty of internal reasons...
Justice Ginsburg: Suppose the executive says mild torture we think will help get this information.
It's not a soldier who does something against the Code of Military Justice, but it's an executive command.
Some systems do that to get information.
Mr. Clement: Well, our executive doesn't
Those who did their jobs were punished. And so on. We cannot just "move on." We need to investigate and when proper prosecute. The mistreatment and even murder, in some cases involving clear innocents, and even some American citizens demands nothing else. I'm sorry. Talk of restraining the CIA etc. too far is absurd. Look what lack of legal threats (and many here feared prosecution ... what will happen when the next set think there really was no such threat at all?) wrought. But, obviously, we also need to inform, get a full picture of what was done (not just torture, but overblown secrecy, incompetence, arrogance, ill advised policies based on panic and ignorance, etc.) so that we can try to not do something this bad again.
The bottom line is a need for both a brain and a soul, lacking in various respects in our policies as shown well by Jane Mayer and others. A symbol of the type of person we need clearly includes the like of the ready to retire Justice David Souter, a repeat player at the Supreme Court nicely suggesting why:
Justice Souter obviously has a significant legacy at the Supreme Court. I will mention some of the cases in a moment. But it is important to pause and recognize he will go down in history as a gentleman and (rare these days) a scholar who (even more rare) sees no need to show that fact off. He has the kindness of Justice Stevens and the smile of the late Justice Brennan, but he also is perfectly capable of confronting an advocate who was out-and-out wrong. He is respectful but direct. You know where you stand with him. His colleagues and the Court staff will miss him when he leaves.
A lot can and will be said about Souter and the process of replacing him. For instance, you can note that he wasn't quite as "stealth" as many suggest, and even if he personally was in some fashion, few are. I myself respect both him as a person and his overall judicial ideology. Some choice opinions include federalism (Commerce Clause), sovereign immunity, establishment and free exercise, substantive due process and (of immediate interest) Hamdi. And, much more.
Other than the fact it is surely going to be a woman, I don't know who will be his replacement, though this gal has something going for her at least. Someone from the South Bronx who was denounced by Rush can't be all bad. Be well, David.*
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* Along with Stevens, who has noted that Souter is the justice he trusts the most, Souter is something of a libertarian Republican. New Hampshire fits his personality in that respect. Marci Hamilton, a somewhat atypical conservative herself in various ways, has an interesting essay about how Roe v. Wade helped to break apart that party, not blaming the the decision as such, but the party.
The party might want to be sure to welcome in the likes of Souter if it wants to gain back some of its lifeblood as a truly national party.