I’m sitting in my office listening to the radio. In Pakistan, President-General Pervez Musharraf has shut down independent media and demanded that judges take an oath to uphold what he calls “provisional” military rule. He has denounced the courts for “judicial activism” in failing to support his suspension of Pakistan’s Constitution. He has attempted to dissolve the Supreme Court and all provincial High Courts. Hundreds of opposition leaders and human rights activists have been arrested, including Imran Khan, the former cricket star. Martial law, says Musharraf, is a way to “preserve the democratic transition that I initiated.”
A knock at the door. It’s a student; his paper is about torture. The subject of torture is a first for me, but apparently I’m among the last on the bandwagon. The young man tells me that every course he’s taking deals with torture in one way or another. Should there be judicial warrants for torture? What practices constitute it? Is organ failure an appropriate outer limit? Should state-sponsored torturers be granted immunity from prosecution? How do we reconcile international treaties barring torture? My student and I narrow his topic amid an embarrassment of choices. He decides to analyze a series of opinions by Berkeley law professor and former Justice Department official John Yoo, and I send him on his way.
Until recently, torture was about the only thing every nation on earth condemned. Until recently, there were no such equivocations about it. And until recently, “democracy” meant something other than the power of unchecked violence wielded by either a strongman or a unitary executive.
I turn the radio back on. Judge Michael Mukasey has won Senate Judiciary Committee approval to replace Alberto Gonzales as the highest government representative of “the People” in our collective prosecution of US laws. This, despite Mukasey’s belief that the President is bound by no law in defending the country–and that such power may include the ability to lock up US citizens indefinitely, without trial or even charge. Mukasey was approved despite his equivocation about the illegality of techniques like waterboarding–which the United States had heretofore prosecuted as a war crime when committed by others. None other than Senators Dianne Feinstein and Charles Schumer assert that approving Mukasey is a better option than allowing the White House an interim appointment. “Judge Mukasey would be more likely than a caretaker to find on his own that waterboarding is illegal,” says Schumer. On his own? I wonder why it’s even a question: waterboarding, after all, has been recognized as illegitimate since the Spanish Inquisition. As Dahlia Lithwick observes in Slate, to “change decades of settled law into unsettled law [is] not independence; it’s lawlessness.”
I peruse the pictures in the newspaper. It’s beguiling. General Musharraf has a nice, friendly-to-America face. He’s revoked the Constitution ever so politely, while dressed in civilian garb. He doesn’t look like a dictator. No beard, no beret. He doesn’t make chopping motions with his hands, and the whites of his eyes do not gleam against the full circles of irises wide with hysteria. No froth adorns his lip. He invokes Abraham Lincoln’s rationalizations of executive power to free the slaves–what’s not to love!
Judge Mukasey cuts a similarly fetching figure, in or out of his judicial robes. He testifies in dulcet, measured tones. His voice is reassuring and measured. He lays claim to the high ground of not prejudging any issue. Torture? Couldn’t say… How reasonable his demeanor. How rude it would be to jump up and shout, “Hold on! You want to be the Attorney General? And you don’t have a clear stance on waterboarding? How about hooding? Dogs chewing on limbs? Electrodes on genitals? And while we’re at it, is cannibalism beyond your pale?”
I flip to a story about Pakistan, where thousands of lawyers have taken to the streets. They march and chant in Lahore, Karachi, Multan and Islamabad. Wave after wave they come, in well-educated hordes. Wave after wave, they are swung up by their ankles and wrists and dragged off to prison, garbed in their suits and their ties and their Oxbridge, Harvard and very possibly even Columbia law school degrees.
President Bush sends wishes to Musharraf that he give up his army post “as soon as possible” and praises him as a “strong fighter against extremists and radicals.” Bush presses for Mukasey’s swift confirmation and deplores Congressional sluggishness in expanding warrantless wiretapping: “There are some,” he complains, “who have lost sight of the fact that we are at war with extremists and radicals.”
One of the books I turn to repeatedly in these ever-so-well-behaved times is Argentine journalist Jacobo Timerman’s slim memoir, Prisoner Without a Name, Cell Without a Number. In 1977 Timerman, editor and publisher of La Opinión, one of Buenos Aires’s most widely read newspapers, was “disappeared” by the military junta, then held and tortured for thirty months. Unlike so many unfortunate others, he survived, and was eventually released and deported to Israel. In wondering how a modern liberal democracy could slide into a totalitarian state with so little public protest, he writes, “I’ve often asked myself whether democrats believe in the existence of Nazism. The slogans, ideology, beliefs, and myths of Nazism sound so absurd that it’s impossible to conceive of Nazis acting with perfect rationality, convinced of their logic, constructing an internal coherence that links events and ideology until it produces hallucinatory results.” The terrible losses of the Dirty War “could have been prevented…. What is frightening is to realize how content we feel because we suppose there are deeds that cannot be repeated.” Ultimately, he warns, “what obsesses me most is the repetition of silence.”
Mukasey asserts that he can’t denounce waterboarding because, until the President briefs him on it, it’s only “hypothetical.” How unworthy of the suit and tie to speak without permission; how rude–how activist indeed–to speak of truth to power.