In "The Right Approach to Rough Treatment," he grapples with the moral, legislative, and practical aspects of the detainee bill and offers some common sense solutions whereby virtually everybody on every side of this debate could come away reasonably satisfied. And all in a relatively short article in wonderfully clear and lucid language. A sample:
In any case, if a law bans the use of "alternative methods" even in the direst circumstances, it will succeed only in driving those methods underground. "Any president, Democrat or Republican, faced with really frightening, bone-chilling threat reports and credible claims that he can stop bad things from happening, is going to be very hard-pressed not to push his powers to the full extent of the law," says Jack Goldsmith, a professor at Harvard Law School and a former official in the Bush Justice Department. Responsible law-making respects not just human rights but also human realities.Read the entire article, as this excerpt taken out of context doesn't really do it justice. If I were an American citizen, I would be contacting my Congressman and Senators to promote Rauch's solutions.
My view is worth no more than yours or anyone else's, but here it is: The law should leave room for exceptional recourse to "alternative" interrogation techniques, while making sure that their use is genuinely exceptional. On that score, both the Bush bill and the Senate alternative improved on the post-9/11 Bush regime, under which the president made up the law as he went along and no one could say boo about it; and both improved on the Supreme Court's Hamdan regime, under which almost any sort of rough interrogation, however necessary, might be judged a war crime.
Both bills, though, made the same mistake: While concerning themselves quite properly with legality, they omitted accountability.
As a normal rule, I don't comment much on internal American affairs, for the simple reason that I'm not an American. I've made an exception for the whole question of torture for several reasons. First, the moral issues are so profound and could have such a major impact on the rest of the world in so many ways, that I felt it would be irresponsible to just look the other way. Secondly, foreign nationals, including Canadians, are directly impacted by American legislation and practices. Lacking a vote and a representative to affect the issue directly, I have to hope that my discussion of it will, in some small way, contribute to the best possible outcome.
Technorati tags: Detainee Bill, Jonathan Rauch, National Journal Group
3 comments:
Nice overview..thanks for the heads up!.;)
Yikes. I'm sure Maher Arar is so relieved we Americans are finally getting our legal house in order. Now we'll be able to do what we did to him with a clear legal conscience. And we probably won't have to ship him to Syria now. We can do it right here in the lower forty eight. He has not suffered in vain.
The idea that there is going to be some kind of congressional oversight is downright silly for anybody who knows how things work here. This article is a clever rationalization that whitewashes a horrible piece of legislation that sets legal precedents that we will all live to regret.
In fairness, put next to your article from the National Journal with theses two articles from the Los Angeles Times and the New York Times: http://www.latimes.com/news/opinion/la-oe-ackerman28sep28,0,619852.story?coll=la-opinion-rightrail
and: http://www.nytimes.com/2006/09/28/opinion/28thu1.html?ex=1317096000&en=3eb3ba3410944ff9&ei=5090&partner=rssuserland&emc=rss
It's all kind of moot, Jack, seeing as Rauch wasn't involved, and the bill wasn't passed with the same kind of provisions he was recommending.
There's been a lot of mixed messages coming out. McCain says a lot of the more objectionable techniques have been specifically prohibited.
I liked Rauch's ideas for two reasons: one, he recognized what was possible and what wasn't politically, and within those restrictions came up with the best proposals I've seen. And two, he proposed a very strong accountability mechanism that would oblige both the government and the CIA to answer for their actions. I think it would have effectively kept abuses in check.
It would take a while, but this bill should definitely be revisited. There are some provisions I consider dangerous in there, particularly if they are built upon in future legislation.
But that doesn't have to be. Bad legislation can be superceded by better, and the job of Americans who object to this bill is to persuade enough of their compatriots that change is necessary to create the political pressure to effect that change. I think Rauch's piece provides a blueprint that could persuade even the people who are very frightened and believe strong measures are necessary. Politics has always been the art of the possible.
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