Jewish World Review June 16, 2004 / 27 Sivan 5764
The legality of evil
Some men wish evil and accomplish it
But most men, when they work in that machine,
Just let it happen somewhere in the wheels.
The fault is no decisive, villainous knife
But the dull saw that is the routine mind.
Why, if a man lay dying on their desk
They'd do their best to help him, friend or foe,
But this is merely a respectfully
Submitted paper, properly endorsed
To be sent on and on, and gather blood.
Stephen Vincent Benet,
"John Brown's Body"
Some days I tell myself that nothing in the news would shock me, not anymore. Some days I'm wrong. Like when I read a legal memorandum churned out by the Justice Department, with the aid of distinguished counsel in the White House and in the Office of the Vice President. It's a memo that explains in 48-page detail why the Constitution and laws of the United States permit torture.
How could Americans sitting in clean, well-lighted offices come up with such ideas? Maybe precisely because they are sitting in clean, well-lighted offices instead of in some dank torture chamber at Abu Ghraib, confronted by the actual results of their legal legerdemain.
This memo must have presented only a legal challenge to those who put it together -just another brief to date and stamp and file, just another assignment to get done by another deadline. It wasn't as if it were real. And could have real results.
And so they did their job. They did it by approaching the law as a collection of elastic statutes and ordinances to be manipulated for whatever purpose the higher-ups had in mind that day. ("3. Legal doctrines could render specific conduct, otherwise criminal, not unlawful. See discussion of Commander-in-Chief Authority, supra.")
And so, half a century after the Nuremberg Trials, American officials are now found citing the very arguments made there - by the defense. Here is the same old refrain used to justify torture and worse: Orders Are Orders. It sounded better in the original German: Befehl Ist Befehl.
Indeed, the whole memo sounds like some pallid translation from the German penal code circa 1938. ("In light of the complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the President's ultimate authority in these areas. . . .") The Nazis were more concise; they had one word for this whole, strained line of reasoning -fuhrerprinzip.
But it is too easy to pretend that only The Other - Nazis, Fascists, Communists, Jihadists, whatever name they go by this time - are capable of evil. Or that when we commit evil, it is only because we have caught the contagion. No, this evil is as American as a certified legal document signed, sealed and delivered. Every clause is in place, every citation verified, every sophistry certified. It's as legal as Indian Removal, aka the Trail of Tears, or those Japanese internment camps in the '40s. The law is a tree of life to those who hold fast to it, says the Book. This memo reduces it to a dead letter.
This is what good lawyers do, says one of the Justice Department's defenders, that is, they give their clients a list of options without cluttering it up with ethical considerations. That this is what our definition of a good lawyer has become may be more damning than anything in the memo itself.
The redeeming aspect of this memo is that it was leaked - evidently by lawyers who still understand that the law is something more than a sophisticated way to skirt the simplest moral imperatives.
Let it be noted that objections to these legal games were raised by counsel for the State Department and the Joint Chiefs of Staff, both of whom realized that a memo justifying the torture of others could be used just as readily, mutatis mutandis, to justify the torture of American prisoners. (Not that our enemy bothers with legal memos before beheading captives or hanging the scorched bodies of Americans from bridges.) But there is still a difference between our enemy and us, isn't there? Other than our insistence on some legal justification before committing crimes, that is. This is still a war on terror, and not a war of terror, isn't it?
Wasn't it Nietzsche who told us to beware fighting monsters for so long that we become one? He knew, being German. Maybe if there had been more German lawyers who thought of the law as something more than a rationalization for whatever The Leader wanted done, who leaked revealing memoranda and raised objections and defended the old standards . . . there would have been no Nuremberg Trials and no need for them.
Whoever got this memo out to the public, whoever objected to its oh-so-reasonable presentation of the case for torture, they represent the true spirit of law, and of America.
As for those who got caught up in this enterprise, in all this reasoning against that higher reason we call simple human decency, they represent something else: how easy it is to begin treating evil as a technical necessity.
This is the kind of memo Kurt Waldheim could have initialed with a routine flourish, and he did. Everything about it is In Order. Technically, it is unobjectionable. But only technically. In every other way, in every way that matters, it sounds alarm bells that surely only a legal education could muffle.
Hannah Arendt, covering the Eichmann trial years ago, wrote about the banality of evil. This memorandum is evidence that there is also a legality of evil.
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