Worst Constitutional Crisis Since...

Yesterday, the new government, the one we had hoped would repudiate torture in all its forms, invoked the State Secrets provision in court in San Francisco, in a case in which the only threat to national security still left seems to be the threat of a court decision that the United States government tortured and rendered prisoners into torture.

Washington is having a rough time with torture. The international community is having a rough time with torture. In his book, Torture and Democracy, Darius Rejali recounts what happened in France in the late 1950's, when torture became an instrument of the state during the Battle of Algiers (pp.47-48):

What is important here is that democratic institutions were unwilling or unable to stop the turn to torture. One after the other, the judicial system, the legislature, the opposition parties, and the press failed. The police and military soon operated outside the law. In effect, they formed a closed state within the state. The military used its privileged position to establish covert torture, delay investigations, shape information, recruit political allies, and mobilize the public opinion for the war. The consequences for France were severe. In 1958, the army threatened to intervene in national politics for the first time since Napoleon's coup of eighteenth Brumaire, leading to the collapse of the Fourth Republic. In 1961, the army finally did organize a putsch and failed.

To be specific, above all, the judicial system faltered. Lacking information, prosecutors in Algiers depended on the press to identify the victims. The victims did not always have marks, so how could one bring charges against the police in these cases?...

At first, the government disputed press reports and suppressed publications about torture. La Question, the prison account of the well-known editor Henri Alleg, became the first book suppressed since the French Revolution....

Eventually, the government was compelled to investigate the allegations. It recruited investigators who were sympathetic to the police and military....

The old leftist parties and the press also failed. The internationally minded Communist party, for example, had its own torture skeletons in the closet, notably Stalin's victims....The press at first described "torture victims" in proper inverted commas. Even as the left-wing press became more vociferous, there were notable lapses....

Some military and police commanders broke ranks, resigned and denounced the torture, but there were just as many officers who wrote vociferously in favor of torture and threatened meddlesome amateurs. "You will be made to pay, all you academics. You will pay for lecturing us." Prowar journalists lionized the torturers in popular novels, asking the public: If you knew this terrorist had planted a bomb, would you not torture him too? The secret service recruited an author to write a book of counterpropaganda. The archbishop of Paris was reminded that certain funds might be cut if he was too publicly outspoken.

Okay, it differs in some details, doesn't it? But haven't we seen precisely these actions in our national anguish over torture and rendition? What does it mean, the new administration campaigns on the rule of law and both parties claim on the stump that torture is wrong, but then the same invocation of the State Secrets privilege, not 3 weeks into the new regime and the new Democratic majority?

Washington, in particular, and the nation at large, acts like a social brain, ruminating on what to do to avert the looming crisis. Like any functioning intelligence, it desperately sorts through its memories of the past, looking for an antecedent, some solid bedrock of experience on which to base its actions, in hopes of reducing the fear of the unknown and improving its chances of a good outcome. Most clearly, we see this right now on the financial crisis. Though the behavior is to lurch from solution to solution, or to get distracted in minutiae of exactly how and when to implement some fix, there is always a solid knowledge of things past, a daily reading of what happened before, even as the chorus of opinions on what should be done now cause settled history to change and mutate and take on different tones depending on the mood of the moment. But always, there is the antecedent. This is the worst financial crisis since 2001. This is the worst financial crisis since Japan in the 1990's. Since Argentina. Since the Great Depression. But the invocation of a crisis we have never seen before by President Obama, leads to a tone of genuine fear as reporters query the new president with real trepidation about the unknown:

[Jennifer Loven of AP]: Thank you, Mr. President. Earlier today in Indiana you said something striking. You said that this nation could end up in a crisis, without action, that we would be unable to reverse. Can you talk about what you know or what you're hearing that would lead you to say that our recession might be permanent when others in our history have not? And do you think that you risk losing some credibility or even talking down the economy by using dire language like that?

I will try to say this in the starkest of terms:

Torture is the worst Constitutional crisis we have faced since slavery.

The worst since slavery. Since the crisis which, once it could no longer be avoided, plunged the nation into the deepest of crises, literally ripping the new nation apart, and causing a war that still tops the list of all American wars, in numbers of American dead. And that, the fact that there is no nicer antecedent, is why the nation will do anything to avoid facing the crisis, even as it is dragged inexorably towards creating its own judgment day. There are three horsemen of the very real jus cogens apocalypse, and they are slavery, genocide, and torture. And when a country does not avoid them, and cannot live with itself if it bargains with them, then it faces judgment.

It's our fault, us the civil libertarians, the humanitarians, the human rights advocates and activists, just as it was the abolitionists fault the last time. Or was it the next to last time. We had a crisis with genocide. We sanctioned it, postponing civil and human rights, suppressing a frank appraisal and a forswearing. Our government sanctioned massacres and deportations, breached treaties and looked the other way from suffering. The industrial revolution was happening at the same time, and the mood of the nation not to look too hard at itself in the mirror, tolerated that injustice, and many more, power grabs by corporations, loss of voting rights and registrations, laws that would have to be repealed and actions that would beget apology and remorse, generations later. Gangs surrounding the Civil War generals, never asked to stand down, marauded the Great Plains in private criminal wars against the Cheyenne Nation. Arguably, we did not emerge stronger from a battle not fought. Arguably we stalled the gains of facing down slavery by a hundred years. Arguably, the strength of We the People in this democracy was permanently reduced. Arguably, you cannot make peace with the unthinkable and not lose something of yourself.

But this time, we move towards the crisis. We may try compromise. Our denial is no longer viable, our anger is evident, we begin to bargain to forestall the inevitable. As the facts seep out, so do proposals for Truth and Reconciliation commissions, proposals to investigate but not prosecute, proposals to acknowledge the great guilt of those at the top and be lenient on those who carry out orders. Yes, the State Secrets got invoked yesterday. But things are changing: It provokes editorial vehemence now, before the fact. Where most major news outlets did not cover the news of torture meetings in the Situation Room in the White House when it first broke, news outlets could not help but cover yesterday's court surprise. Where angry letters to senators and congressmen once provoked a tired, patterned response, now senators rush to sign on to some kind of investigation. Where one or two "fringe" representatives once called for a full accounting and prosecution, now eyes are watching as the House Judiciary Committee moves forward.

The bargaining and depression in Washington are part of the process. There will be an investigation of torture by the United States during the years following September 11, 2001. There will be an understanding that we may have lost our best chance for bringing all the perpetrators of that act to justice because we tortured and rendered. There will be prosecutions. They are unavoidable. The world will not sanction what we have done, even if we would like to. And just as our economic woes are calling into question a generation's assumptions about a healthy economy, our crisis over torture will call into question several generations acceptance of the "closed state within a state" where, in our case, the military and the intelligence agencies "operated outside the law". Most of us have never lived in a democracy not protected by a state secrets. And now the state secrets have threatened our democracy.

The sooner we accept that the battle between the privilege of keeping state secrets and the inevitability of judgment for breaking a law that upholds our humanity is a battle that must be fought, that cannot be avoided, and that will bring pain and pit friend against friend and sibling against sibling, the sooner we can begin to talk realistically about how to avoid the worst of all possible consequences. Because we know we should not solve this with violence. Powerful forces are allied with those who tortured, and powerful emotions, exhibited only in the tiniest fraction during the election cycle, could really and truly tear the country apart. Torture stands as the personification of all the secret government that some believe is necessary for our very existence. They will not relinquish it willingly. But we know that torture cannot continue to tear at our fabric any more than slavery could. The worst moral and Constitutional crisis. Not since Clinton, not since Nixon. Since Abraham Lincoln. I hear Barack Obama is a fan. People need to make sure he understands: The economy is not the only unique crisis we face.