Demosophia

One of the current arguments

One of the current arguments for the McCain "anti-torture statute" is that if there were ever a "ticking bomb" scenario the people in charge of interrogation would have the option of sacrificing their careers and futures for the common good, choosing to disobey the law in order to save thousands (h/t: Dan at WoC). Although I see some problems with this argument, especially in marginal cases or situations where the interrogators don't know there's a ticking bomb, it seems somewhat convincing. But in the analogous case where an individual deliberately chose to break a national security law "for the good of all" (Daniel Ellsberg's leaking the Pentagon Papers) the authorities chose not to prosecute. This was a mistake, regardless of whether you think Ellsberg's actions justified. I'll explain why.

Wretchard suggests that, at a minimum, two factors ought to be weighed in determining whether this self-appointment as public guardian is appropriate: the competence and responsibility of the "public" agents:

No one is above the law and the President's actions will be judged in the manner provided. But it's also important to ask -- and the answer is of more than academic interest -- when and to what extent an individual or corporation can divulge a secret military operation on the basis of a self-appointed duty. The mantle of secrecy is not absolute and few would argue that German officers with a knowledge of the Holocaust should keep it quiet out of a regard for operational security. But the wiretapping case, as Orin Kerr points out, is much more marginal. Two factors are probably relevant in making that determination. The first is competence. To what extent is an individual whistleblower or organization like the New York Times competent to judge what operations of war should or should not remain secret? The second is responsibility. Assuming that an individual or news organization were qualified to weigh operational security requirements against their duty to inform, who takes responsibility for any deaths or injury that may result?

The set of documents that Ellsberg revealed were actually part of an attempt by the Pentagon and the Johnson administration to police itself--to deal with the groupthink phenomenon by commissioning a rigorous review of history. And Ellsberg was commissioned to facilitate that process of self-correction with the understanding that he'd keep his big yap shut. He betrayed that trust, and paid no penalty. If anyone paid a penalty it was the Vietnamese who were left behind in the bug out, and the Cambodians who were left to the mercy of the Khmer Rouge. So one could argue that Ellsberg made the wrong decision, and lots of people have made that argument (including me). But had he paid the penalty for having made the decision, whether right or wrong, the institutions involved would have remained uncorrupted.

So the pro-McCain argument is simply that some corruption is necessary and good, because that's where a pardon would leave us.

Now clearly, the NYT and the person who leaked the telephone surveillance information (whoever he [she] is and whatever his [her] reasons) thought of themselves as the moral equivalent of Daniel Ellsberg. Their authority was self-appointed, as would be the case were an interrogator to take upon himself the onus of torturing an Al Qaeda detainee who might have knowledge of a WMD attack. And given the realistic possibility of a pardon for a correct decision the interrogator would have to weigh the odds that there might not be a pot-o-gold at the end of the rainbow, leaving him in the lurch. Would the public be sufficiently understanding to take into account the fact that he rightly assumed, under conditions of uncertainty, that the threat outweighed the laws against torture, regardless of whether the threat turned out to be real? The public's reaction to the threat of Saddam's WMD suggests they just aren't that wise. So, such an officer's decision process is corrupted not by the possibility that he might be wrong, but by the possibility that he might be right. And this compels him to weigh the situation in an unnatural way, side-slipped by the possibility that the public would grant amnesty and hero status if his decision were perceived to be justified.

It seems to me that such an upright officer would find that duty compels him to ignore those odds, and simply assume the worst: that he'd be prosecuted. Moreover, to preserve the integrity of the institutions the possibility of pardon ought to be removed completely, though that might be legally difficult since a President retains the right of pardon. It seems appropriate that the interrogator who chooses to torture could count on being prosecuted whether his assessment of the threat was accurate or not. Duty would then be in complete accord with law and principle.

To draw an analogy, there'd be no Christianity if Pilate had decided that Jesus' willingness to suffer and die for the sake of his faith absolved him. There'd be no Christianity, because there'd have been no sacrifice. That would have been a sentimental ending to the story. In fact, this is pretty close to the version of the story that appears in the Koran. It's a sentimental favorite, but it's also inherently corrupt.

Sorry, but that's the way it is.

So the mistake that was made those many years ago, during the Vietnam War, was to grant Ellsberg a pass. That failure to act by the Johnson administration corrupted our institutions, and we're still paying the price for that corruption. And the only way the mistake can be corrected is... to correct it. Regardless of whether the outing of the President's order regarding the telephone surveillance was justified, the only way to reestablish the integrity of our institutions is to make every attempt to apprehend, prosecute, convict, and sentence the leaker.

Sorry, but that's the way it is.

And if, for some reason, we can't bring ourselves to do that... then we ought to oppose the McCain statute and seek some sort of specific guidance for when torture is allowed. Because we're probably too sentimental to get this right.

Update: A reader in the comment section of the Jawa Report observes:

You desperately need to read history. Ellsberg was prosecuted and faced life in prison. During the case, President Nixon even went so far as to interview the presiding judge of the case to replace Hoover at FBI. The case had to be thrown out because Nixon's secret goons burgled the office of Ellsberg's doctor to get dirt on him. Ellsberg leaked the documents knowing that he might face life in jail. It was an act of honor because he was willing to pay the consequences.

Contrary to popular belief I'm not passing judgment on whether Ellsberg deserves to be sanctified, arthough I've been told by people who worked with him at RAND that he "was a cowboy," and S.M. Lipset suggested to RAND management that he be terminated long before the leak had occurred. Note that I said above that the authorities "chose not to prosecute." Mea culpa, in the strict sense that it's more accurate to say they "chose not to bring the prosecution to fruition." And the authorities, in this case, were mainly in the Federal Court. I don't see how this invalditates my point. In fact it's reinforced.

On June 13, 1971, the New York Times began publishing a series of articles based on the study. The Justice Dept. obtained a court injunction against further publication on national security grounds, but the Supreme Court ruled (June 30) that constitutional guarantees of a free press overrode other considerations, and allowed further publication. The government indicted (1971) Daniel Ellsberg, a former government employee who made the Pentagon Papers available to the New York Times, and Anthony J. Russo on charges of espionage, theft, and conspiracy. On May 11, 1973, a federal court judge dismissed all charges against them because of improper government conduct. (Source: Infoplease)

I'm suggesting that the failure to prosecute Ellsberg successfully corrupted American institutions. If anything, the need to "dig up dirt" on Ellsberg in order to convict him of a crime for which he was manifestly guilty suggests that by the time the Nixon administration was in office the instutitions of the country, including the Court, had already been severely corrupted by sentimentality, and by the reaction against it. I don't see how it's possible to more convincingly make the case that this dynamic currupts the decision-making process. In other words, the attempt by the Nixon administration to move sentimentality over to their own side by finding out irrelevant details of Ellsberg's life was just further evidence of corruption.

Whether or not Ellberg's leak was justified, what almost everyone forgets is that he only leaked what the government itself and found about their own actions, and having commissioned such a work of self-reflection apparently just got them crucified.

Do you really expect them to repeat the exercise?

The actions that produced the Pentagon Papers were methodologically sound, but Ellsberg's actions ensured that no other administration could afford to follow the same sound route. It might well be argued that this was precisely why the Bush adminstration never took the methodologically sound path of attempting to disprove their own assumptions about Saddam's WMD stockpiles. The threat of a leak prevented them from taking the risk.

I reiterate, Ellsberg should have been convicted. Sorry, but it's the truth.

Posted by Demosophist at December 22, 2005 01:00 PM | TrackBack