by Sanford Levinson

Many Germans protested that they had "no idea" that untoward things (beyond ordinary and presumably "acceptable" levels of anti-Semitism) were occurring during the years of the Final Solution. These have come down to history as the "good Germans," who preferred not to know what was going on about them (assuming, of course, we credit their sincerity with regard to their claims of ignorance). One of the things that came out of World War II was an increased emphasis on basic human rights, including, extremely high on the list, the right not to be tortured. Indeed, one of the few international human rights treaties signed and ratified by the United States is the United Nations Convention Against Torture... , which explicitly provides that "no exceptional circumstances whatsoever" justify breach of the solemn commitment not to torture. Perhaps this was unwise; there is a vigorous and often acrimonious debate about whether it is really the case that there exist no circumstances whatsoever that might justify torture. One of the most eloquent defenses of this position is Andrew Sullivan's essay published in TNR and republished in a book of essays that I edited, Torture: A Collection (pb. ed. 2006). He was responding to an essay in the Weekly Standard, also republished in the book, by Charles Krauthammer. But the United States has formally committed itself to Sullivan's position as a matter of law and not only a proposition of morality. Moreover, it is the official position of the United States, repeated many times, that "we do not torture." One of the purposes of the justifiably maligned "torture memo" secretly submitted by the Office of Legal Counsel to then-White House Counsel Alberto Gonzales on August 1, 2002, was to provide such an extraordinarily narrow definition of torture--among other things, it ostensibly required the infliction of "excruciating" pain for a "prolonged period"--that the actual methods used by the United States would fall short of that taboo. The Office of Legal Counsel at the end of 2005 engaged in the extraordinary act of formally repudiating its own earlier memorandum and conceded that the definitions offered earlier (by John Yoo and now-Ninth Circuit Judge Jay Bybee) were indefensible. But how many aware observers really believe these professions of non-torture by President Bush and his underlings? (The answer is very few.) On the other hand, how many "good Americans," like their German counterparts, prefer to believe such self-serving (and salving) claims, especially inasmuch as many (though certainly not all) of the claims to having been tortured are necessarily made by quite unattractive people, including those described sometimes as "the worst of the worst"? I suspect the answer is all too many. So consider in this regard the recently released transcript of the "hearing" receiving by Abd al Rahim Hussein Mohammed al Nashiri before a Combatant Status Review Tribunal (CSRT) at Guantanamo. Mr. Al Hashiri may well be among the worst of the worst; indeed, he confessed to a number of clearly criminal acts. But he also claimed that he confessed only because he was tortured. The transcript of his hearing (should one wish to dignify what is basically a kangaroo court, though this might be unfair to kangaroos), does include his claim of having been tortured, but then explicitly "redacts" all of his particular illustrations of the alleged torture. No doubt the United States would claim that providing such information would provide dangerous tip offs to our enemies as to what kinds of interrogation methods we are using. But do they really not know by now? Isn't the real point to keep from providing American citizens authoritative information about what is being done in our name, for which we, as citizens in an ostensibly democratic country, we are ultimately responsible? Perhaps the most devastating comment that can be made about the disastrous administration of George W. Bush (which still has approximately 660 days before its blessed termination) is that Mr. Nashiri is a more credible witness, in claiming to be tortured, than the United States is, in claiming that he has not. It is barely conceivable, of course, that the United States is not lying, but that would require a return to the spirit of the Declaration of Independence of paying a "decent respect to the opinions" of others, including setting out the concrete evidence that would allow the onlooking world to adjudicate differences of opinion between George Washington and King George III or Mr. Nashiri and George W. Bush. But for this administration, "coverup" is an essential means of governance. The newly Democratic majority is more than happy to exercise its subpoena powers with regard to Attorney-gate, and I certainly applaud this. But Democrats have, over the last six years, been little better than their Republican counterparts with regard to genuinely confronting what is being done in our name at Guantanamo and elsewhere. John Kerry said literally not a word about this in 2004, and we have yet to hear anything about this from the leading candidates now in 2007. It is far past time that we wake up from our "good Germanness" and confront the truth. Would Democratic candidates rein in the CIA and "private contractors" or not? Are they, like Lynne Cheney, devoted fans of "24" who cheer on Jack Bauer's willingness to do "whatever it takes" to conduct unending warfare against America's enemies, or do they believe that the United States should be held to its commitments not to torture? Few of us who subscribe to TNR will in fact be asked by our children and grandchildren, "what did you do in the war?" since most of us, I am confident, have determined, as did Dick Cheney in the 1960s, that we have "higher priorities" than service in the military. But all of us might well be asked what, if anything we did, in response to information about what is being done in our name, including the use of torture and, even more clearly, "cruel, inhuman, and degrading" methods of interrogation that are also prohibited by the United Nations Convention.