American Machiavellianism (12/21/2014)

The country will continue to debate the morality and usefulness of torture, but there is no doubt it remains illegal under American and international law, writes David Adler.

By David Adler

Former Vice President Dick Cheney’s efforts on national television to spin torture as useful, legal and morally justifiable were, for him, characteristically Machiavellian: the ends justify the means.

The framers of the Constitution specifically rejected torture and Machiavellianism – the antithesis of constitutionalism – and embraced the rule of law.

The issue of the use of torture “to save lives” is an enduring question of great moment, and the subject of water cooler conversations, tavern tantrums and classroom discussions.

It has also provoked intramural fights within both the Democratic and Republican parties, pitting liberals against liberals and conservatives against conservatives. Alan Dershowitz, the noted Harvard Law Professor, has defended the proposition, which generated squabbles with fellow liberals.

Sen. John McCain, a victim of torture while a prisoner of war in Vietnam, attacked the use of torture and squared off against fellow conservatives who defend it.

American citizens will likely remain divided on the moral aspects of torture, and also on its utility, although most experts deny that it yields valuable, reliable and actionable intelligence.

But they should be prepared to face up to the universe in coming to grips with the consequences of their position on this critical issue: The United States is a nation that engages in torture. With this comes the reminder that “a nation’s foreign policy,” as the eminent historian, Arthur Schlesinger, Jr., wrote, “is the face it wears to the world.”

However divided the true believers, agnostics and atheists remain on those questions of the morality and utility of torture, it is clear that torture was and is, illegal, under both American and international law. No amount of spinning from Cheney or that undertaken a decade ago by Justice Department lawyers under President George W. Bush can prevent that conclusion.

The lengthy story behind the attempts to clothe in legal garb the torture authorized by the Bush Administration in the aftermath of 911, finds twists and turns in the Justice Department’s Office of Legal Counsel, which generated the infamous “Torture Memos,” and in conversations in the White House, involving Bush, Cheney and top aides and cabinet members.

The groundwork – legal, political and strategic – erected a platform for Bush’s public assertion on February 7, 2002, that he possessed the constitutional authority to suspend the Geneva Convention, which protected prisoners of war as well as “others” within the possession of the American government.

His expansive claim of executive power swept away provisions of international law and domestic law, which barred torture.

Bush’s far-reaching claim of unilateral, plenary executive authority to terminate or suspend treaties would permit the president – with the stroke of a pen – to abrogate the full body of America’s international commitments, including those that involve nuclear and biological weapons, membership in the UN, NATO and other international organizations, as well as trade, tariff and humanitarian agreements.

The untrammeled assertions of power attributed to the president full authority over the conduct of American foreign policy, ranging from the power to initiate preventive war to the the direction of all international policies, including discretion to employ the ways and means of torture, impervious to any congressional checks and balances.

It left to the president, alone, the authority to create the face that America wears to the world.

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Adler has written extensively, and lectured nationally and internationally, on the Constitution and presidential power.