Torture and the Imperial Presidency

by: Cary Fraser, t r u t h o u t | Op-Ed - Monday 15 March 2010

In an ABC television interview on February 14, 2010, former Vice President Dick Cheney mounted a vigorous attack on the Obama administration's departure from its predecessor's embrace of torture as an instrument in the arsenal of the "war on terror." Cheney's defense of the use of torture was articulated in terms of challenging the possible prosecution by the Obama administration of Central Intelligence Agency (CIA) operatives who had engaged in torture, and opposing any effort to disbar lawyers who had been asked by the Bush administration to provide legal justifications for the use of torture after the al-Qaeda attacks on New York and Washington on 9/11. According to Cheney:

I thought it was important for some senior person in the administration to stand up and defend those people who'd done what we asked them to do.[1]

Cheney's comment was, in effect, an admission of the Bush administration's deliberate support for torture as an instrument of American state policy. It was also a reflection of the willingness of the Bush-Cheney administration to dismiss international norms on human rights and the treatment of prisoners of war. The administration's support for torture signaled the ongoing commitment of the USA to a policy of deliberate violations of the Geneva Convention on the Protection of Civilians and others caught up in the war on terror. Cheney's defense of agents of the American state for engaging in torture was but another effort to assert the immunity of the American executive branch of government from being held accountable for violations of American law and international treaty obligations in pursuit of "national security."[2]

The willingness to violate the Geneva Conventions had emerged in the campaigns to "pacify" Vietnam as the ineffectiveness of the American-backed South Vietnamese government became increasingly evident in the 1960s.[3] As North Vietnam and its allies in the South continued to pursue the goal of national reunification, the CIA, with its local collaborators, embarked upon a strategy designed to destroy the civilian support structure for the insurgent forces, which were fighting for the reunification of the country. The strategy targeted civilians for assassination, torture, and other forms of abuse that were designed to terrorize Vietnamese civilians into submission to the American-backed Saigon regime.[4] Despite its status as a signatory to the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, the US embarked upon the terror campaign in Vietnam as part of its efforts to prevent the unification of the country under the leadership of North Vietnam. The American war in Vietnam demonstrated that the US was prepared to flout international norms, which had won growing international support in the wake of World War II and its revelation of horrendous atrocities committed against civilian populations in the pursuit of "total war."

While the American "pacification" program has been recognized both for the casual brutality that defined its ethos and operations and for its ultimate ineffectiveness as a counterinsurgency strategy in Vietnam, it was a troubling indication of the danger of the expanded power of the American executive branch and its activities abroad.

"The Imperial Presidency" - to use the title of the book published in 1973 by Arthur Schlesinger Jr., the prominent American historian who had served in the Kennedy White House - has emerged as a powerful, and increasingly arbitrary, institution. In his study, Schlesinger explored the ways in which war, foreign policy and territorial expansion, from the founding of the American Republic to the present, had facilitated the expansion of presidential authority within the constitutional framework of a balance of power among the executive, legislative and judicial branches of the government. According to Schlesinger:

As the American presidency came to conceive itself the appointed savior of a world whose interests and dangers demanded rapid and incessant deployment of men, arms and decisions, new power, reverence and awe flowed into the White House. [After 1945] ... The image of the President acting by himself in foreign affairs, imposing his own sense of reality and necessity on a waiting government, became the new orthodoxy.[5]

Schlesinger was writing against the backdrop of the increasing evidence that the arrogance and hubris of the Nixon presidency posed a serious threat to the American Constitution.

The Nixon White House's secretive and authoritarian style followed upon the widespread disillusion that resulted from the collapse of Lyndon Johnson's credibility over his Vietnam decisions, which led to his decision to not run for re-election in 1968. By 1968, there was a widespread recognition that the Johnson administration had manipulated the American public and the Congress over the passage of the Gulf of Tonkin Resolution in 1964 - a blank check that Johnson and his colleagues used to escalate American military involvement in Vietnam. Nixon's willingness to widen the American war in Southeast Asia even as he sought a ceasefire in Vietnam did little to vitiate the crisis of credibility over Vietnam that had begun to infect the presidency under Johnson. In effect, the Vietnam War provided the opportunity for American presidents, both Democratic and Republican, to extend their institutional power and pursue policies designed to escape accountability on grounds of presidential prerogatives in matters of national security. However, for both Johnson and Nixon, this assertion of untrammeled presidential authority eroded their domestic credibility as perceptions of their arrogance provoked a domestic backlash that drove both men from office. While Johnson opted to forsake re-election in 1968, Nixon resigned as a result of the Watergate scandal and the threat of impeachment as his role in the scandal became clear.

The Vietnam War was the catalyst for a serious crisis of the American constitutional order.[6] However, it also represented a profound moral dilemma that was captured Martin Luther King Jr. in his speech against the Vietnam War on April 4, 1967, when he observed:

I am as deeply concerned about our own troops there as anything else. For it occurs to me that what we are submitting them to in Vietnam is not simply the brutalizing process that goes on in any war where armies face each other and seek to destroy. We are adding cynicism to the process of death, for they must know after a short period there that none of the things we claim to be fighting for are really involved.[7]

In March 1968, King's observation about the moral corrosion of the American forces was validated by the My Lai massacre. A unit of American soldiers led by Lt. William Calley killed hundreds of Vietnamese men, women and children in a demonstration of the "brutalizing process" and cynicism that had overtaken the military.[8] Francis Ford Coppola's searing examination of the Vietnam War in the film "Apocalypse Now" captured and dissected, through fiction, the ethos of brutality that shaped American military approaches to the war in Southeast Asia. Similarly, in a very pointed observation about the profundity of the crisis that Vietnam represented for America, Reinhold Niebuhr, observed:

The US regards itself as innocent of ideology because a democracy presumably has the freedom to challenge all class ideologies in the free market of ideas. But we fail to recognize that this freedom does not include the capacity to refute our own pretensions in international relations.[9]

The American war against the unification of Vietnam was a measure of the self-delusion that led American policy-makers to assume that Vietnamese nationalism could be broken by the force of American military power.[10] As King, Niebuhr, and other critics recognized, America had met an unstoppable force in Vietnamese nationalism and the continuation of the war would do enormous damage to America itself. King's 1967 critique was again very clear about the consequences of the Vietnam War:

We must find new ways to speak for peace in Vietnam and justice throughout the developing world - a world that borders on our doors. If we do not act we shall surely be dragged down the long dark and shameful corridors of time reserved for those who possess power without compassion, might without morality, and strength without sight.[11]

Cheney's defense of the use of torture against detainees in the war on terror by American personnel has validated King's prescient observation about the moral decay that the American war against the Vietnamese nation represented. The detainees captured by American forces in Afghanistan and elsewhere were classified by the Bush-Cheney administration as "enemy combatants" instead of prisoners of war entitled to protection under the Geneva Conventions. By using this linguistic sleight of hand, the detainees were reduced to the status accorded to people of African descent in the US in 1857 under the Dred Scott decision:

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit.[12]

In effect, "enemy combatants" had been reduced to "beings of an inferior order" - deprived of basic human rights and legal protections. In this context, torture was both acceptable and defensible in the mind of the Bush-Cheney administration. It was perhaps an indication of the hubris infecting the administration that it was quite willing to engage in this legal sophistry against people who were primarily of non-European origin, including those from African and Asian immigrant communities who held British citizenship. In the lexicon of fear that defined the Bush-Cheney era, the war on terror had also become a war against people of color - as had been the case in Vietnam.

Further, the Bush-Cheney administration sought an enormous expansion of presidential power in the wake of the destruction of the World Trade Center and the attack on the Pentagon on 9/11. As in the case of the Johnson administration's approach to Vietnam after 1964, the Bush-Cheney administration sought to make a legal case for the expansion of the powers of the executive branch of the government. One of the key advocates of this restoration of the imperial presidency was John Yoo, whose conception of presidential power seemed to have been so expansive that he was prepared to argue that the president could order the extermination of a village of civilians.[13] It was perhaps an indication of Yoo's sense of history that he was willing to advocate such powers for the American president despite the fact that Lieutenant Calley had been convicted and jailed in the United States for the massacre of civilians in March 1968 at My Lai in Vietnam.

The Bush-Cheney wars in Afghanistan and Iraq have seen multiple instances where innocent civilians have been killed as "collateral damage" by military actions, which suggest that the continued use of terror against civilians remains an American tactic of war. That tactic has also been increasingly used by the Obama administration in Pakistan with an increased reliance upon missile armed drones, which have been used against insurgents and civilians unfortunate to find themselves within the strike zones of these robots. Like the massive aerial bombing campaigns mounted in Southeast Asia to terrorize the Vietnamese and their allies, the Americans have once again assumed that military power would break the ideological fervor of non-European nationalists conducting an insurgency directed against Western occupation.

The Obama administration's embrace of military escalation in Afghanistan - with the support of the Republican Party and Cheney - has signaled, as in the case of the Nixon administration's adoption of Johnson's war in Vietnam after 1968, that war remains a bipartisan enterprise in American politics. It is also an indication of the continued appeal of the imperial presidency and its expansive vision of institutional power across both parties. In this context, it is completely logical that Barack Obama has been willing to focus upon the future and relegate the issue of torture in the war on terror to the past. Coming to grips with the American record on torture would require abandoning the culture of war that has defined American life in the latter half of the 20th century. That culture of war has done much to foster the growth of the imperial presidency and it is not evident that either American leaders or the wider American public have recognized that the Johnson-Nixon failures in Vietnam should have triggered fundamental constitutional reform to limit the possibility of presidential chicanery. As a consequence, George W. Bush followed in the path of presidential folly pursued by his fellow Texan, Lyndon Johnson, through the manipulation of dubious "intelligence" to persuade the American public and Congress to support an ill-advised and ill-conceived escalation of the war on terror by invading Iraq. Both wars in Afghanistan and Iraq have resulted in the irreversible weakening of American influence across the international system and the emergence of a multi-polar international order in which American leadership is increasingly contested.

The crisis of credibility that has been Bush's legacy hangs over the Obama administration. For Barack Obama, it is, perhaps, time for him to consider whether he wishes his legacy to be another president - like his predecessors, Lyndon Johnson, Richard Nixon, and George W. Bush - who walked the plank with eyes wide open in pursuit of a failed war and the atrocities, the angst and the agony that are its offspring. In light of his campaign promise to bring "change" to Washington, it would indeed be an irony if Obama proves himself to be an American president who is the recipient of a Nobel Peace Prize, offered a defense of "Just War" in his Nobel Address and shows himself to be a prisoner of the hubris and the culture of war that have crippled American foreign policy since the Vietnam War.

[1] "This Week" transcript: former Vice President Dick Cheney - ABC News - "This Week" interview transcript with former Vice President Dick Cheney.... abcnews.go.com/ThisWeek/week-transcript-vice...Cheney/story?id...3.

[2] In a critique of the Johnson administration's war in Vietnam, the theologian, Reinhold Niebuhr, wrote: "A final ironic touch is given by the fact that only our plutocratic wealth allows us to commit these stupidities in international relations. If only we were a little poorer, we would have been prevented from committing these mistakes which cost billions in money. The lives of American soldiers are not to be computed in economic terms, and we might have spent the blood in a more straited economic circumstance. Perhaps the cost in lives must be attributed, not to our wealth, but to our self-righteousness." See Reinhold Niebuhr, "Vietnam: A Study in Ironies," The New Republic , June 24, 1967, at http://www.tnr.com/print/article/vietnam-study-ironies.

[3] See Thomas L. Ahern Jr., "CIA and Rural Pacification in South Vietnam" (Center for the Study of Intelligence, August 2001), available online at the National Security Archive Electronic Briefing Book No. 283, posted August 26, 2009. www.gwu.edu/~nsarchiv/NSAEBB/

[4] For an account of Vietnam in the wider history of the American embrace of torture after 1945, see Michael Otterman, "American Torture: From the Cold War to Abu Ghraib and Beyond" (London/Ann Arbor, MI: Pluto Press, 2007).

[5] Arthur M. Schlesinger Jr., "The Imperial Presidency" (Boston, MA: Houghton Mifflin, 1973). Schlesinger's study of the relationship among foreign policy, war and the tensions between the president and Congress, which resulted in the expansion of presidential authority remains an important contribution to the study of the uses and abuses of presidential authority in American history.

[6] Lawrence R. Velvel, "The War in Viet Nam: Unconstitutional, Justiciable, and Jurisdictionally Attackable," Kansas Law Review, vol. 16, 1967-68, pp. 449-503.

[7] Martin Luther King Jr., "A Time to Break Silence" in James M. Washington (ed.), "A Testament of Hope: The Essential Writings and Speeches of Martin Luther King, Jr." (New York: HarperCollins, 1991), p.238.

[8] For an account of the episode, see Seymour Hersh, "My Lai 4: A Report on the Massacre and Its Aftermath" (New York: Random House, 1970).

[9] Niebuhr, "Vietnam: A Study in Ironies."

[10] It is even more ironic that the internal CIA history of its role in Vietnam confirmed Niebuhr's assessment: "It is clear now, although then obscured by American ideological preconceptions, local GVN successes, and the Communists' own weaknesses, that the Viet Cong exploited irremediable weaknesses in South Vietnamese society. Only a collapse of Communist will to win could have altered the outcome, and that will never faltered. The North Vietnamese tanks rolling into Saigon on 30 April 1975 sealed a victory that the Southern insurgents had won more than a decade before." Ahern, "CIA and Rural Pacification in South Vietnam," p. 413.

[11] King, "A Time to Break Silence" in James M. Washington (ed.), "A Testament of Hope: The Essential Writings and Speeches of Martin Luther King, Jr." (New York: HarperCollins, 1991) p.243.

[12] Dred Scott v. Sandford (1857).

[13] Department of Justice, Office of Professional Responsibility, Report - Investigation into the Office of Legal Counsel's Memoranda Concerning Issues Relating to the Central Intelligence Agency's Use of "Enhanced Interrogation Techniques" on Suspected Terrorists, July 29, 2009, p. 64.