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!