Michael Ignatieff's third cover story for the New York Times Magazine, written on the wrong side of the Abu Ghraib torture photographs, was an instructive case of bad timing. On May 2, 2004 the magazine published Ignatieff's proposal to give U.S. presidents discretionary authority to preventively detain U.S. citizens to aid the U.S. war against terrorism, and to engage in "coercive interrogations" of detainees in U.S. custody. With respect to interrogations, and in a section titled "Torture," Ignatieff wrote (the words in parentheses are Ignatieff's): "Permissible duress might include forms of sleep deprivation that do not result in lasting harm to mental health or physical health, together with disinformation and disorientation (like keeping prisoners in hoods) that would produce stress." Ignatieff's article was written, printed, and put into the distribution pipeline for delivery to retail outlets and homes across the country too late for the Times to recall it following the CBS News broadcast on April 28, which showed for the first time photographs of tortured Iraqi detainees, including a hooded Iraqi standing on a box at Abu Ghraib prison.
Though it could not withdraw Ignatieff's piece, the Times did issue a correction of sorts by publishing three weeks later a hastily arranged cover story by Susan Sontag, who eloquently denounced the torture of Iraqi detainees. The magazine also published a June 27 story by Ignatieff, wherein he criticized the torture at Abu Ghraib and the legal memoranda by lawyers in the Bush administration that appeared to justify it.
We were disturbed but not surprised by the publication of Ignatieff's May 2 cover story in the Times magazine. We were disturbed because Ignatieff, director of the Carr Human Rights Center at Harvard, proposed institutionalizing governmental conduct that would certainly violate international humanitarian law and constitutional rights and liberties as they are generally understood. We were not surprised, however, because both Ignatieff and the Times, up to May 2, 2004, had already signaled their willingness to disregard huge swaths of law with respect to U.S. foreign policy, and the Ignatieff piece on May 2 simply exhibited the predictable infiltration of that outlook into the U.S. constitutional order.
We also were not surprised by Ignatieff's article, given his prior failures to heed applicable systems of legal reasoning and logic. First among these is the judgment of the Nuremberg Tribunal in 1946 that historically concluded—with historical and predictive accuracy—that a war of aggression contains within itself "the accumulated evil of the whole." Illegally invading Iraq, in fact, initiated the context wherein complementary illegalities and atrocities were committed, including those that we have witnessed to date: a brutal and insensitive U.S. military occupation; the killing and injuring of thousands of Iraqi civilians, including many hundreds of children; the cluster-bombings of towns and cities; the beheadings committed by Iraqi fanatics; prolonged illegal detentions of thousands of Iraqi men; the car bombings of public and private facilities by Iraqi anti-occupation insurgents that have killed and maimed additional hundreds of people, and the torture and otherwise cruel treatment of Iraqi detainees. Anyone who advocated on behalf of the illegal invasion of Iraq—a "crime against peace" and "the supreme international crime" under international law—as Ignatieff did, in effect advocated on behalf of this cascade of violence and terror. Like the logic of senseless violence that leads predictably to more violence, Ignatieff's exquisitely witless logic in support of an Iraq invasion (see chapter 2) appeared to initiate his slide down a slippery slope to his flirtation with torture.
The slide for Ignatieff began when he favored an invasion of Iraq while disavowing the laws that disallowed it. Recall that he supported an invasion in his first cover story, in part to strengthen an American empire that would "enforc[e] such order as there is in the world" while "laying down the rules America wants," including "exempting itself from other rules" like those embodied in the procedures of the International Criminal Court, which has jurisdiction over crimes against humanity and war crimes, including torture. Ignatieff's American empire "is multilateral when it wants to be, unilateral when it must be" and presents "a very different picture of the world than the one entertained by liberal international lawyers and human rights activists." It "is designed to suit American imperial objective" and "will not be tied down like Gulliver with a thousand legal strings."
In his second cover story, Ignatieff misquoted the Constitution when he invoked what he mistakenly asserted were powers of the president to disregard law in the war against terrorism. Ignatieff argued with evident admiration that President Bush, despite "the opinions of mankind," invaded Iraq anyway, "because the president believes that the ultimate authority over American decisions to intervene is not the United Nations" but "his constitutional mandate as commander in chief." "This unilateral doctrine alarms America's allies," Ignatieff wrote, "but there is not a lot they can do about it."
In his third cover story, Ignatieff espoused "trafficking in evils" as part of U.S. counterterrorism policy. While writing that "defeating terror requires violence," Ignatieff argued "it may also require coercion, secrecy, deception, even violation of rights." These methods, according to Ignatieff, are the "lesser evils" in the war against terrorism, about which Ignatieff wrote:
[T]hinking about lesser evils is unavoidable. Sticking too firmly to the rule of law simply allows terrorists too much leeway to exploit our freedoms. Abandoning the rule of law altogether betrays our most valued institutions. To defeat evil, we may have to traffic in evils: indefinite detention of suspects, coercive interrogations, targeted assassinations, even pre-emptive war. These are evils because each strays from national and international law and because they kill people or deprive them of freedom without due process. They can be justified only because they prevent the greater evil. The question is not whether we should be trafficking in lesser evils but whether we can keep lesser evils under the control of free institutions. If we can't, any victories we gain in the war on terror will be Pyrrhic ones.
Ignatieff argues that the authority to initiate and regulate these "lesser evils" should be given to our "free institutions," which he characteristically does little to de?ne or explain.
Undaunted and unembarrassed by his broad rejection of the rule of the law as we know it in the United States, Ignatieff proposes one outrage after another, each accompanied by vague notions of legislative or judicial oversight of what amounts to an authoritarian executive power. For example:
On all fronts, keeping a war on terror under democratic scrutiny is critical to its operational success. A lesser-evil approach permits preventive detention, where subject to judicial review; coercive interrogation, where subject to executive control; pre-emptive strikes and assassination, where these serve publicly defensible strategic goals. But everything has to be subject to critical review by a free people; free debate, public discussion, Congressional review, in camera if need be, judicial review as a last resort.
Even with robust congressional and judicial review, these proposals are problematic to say the least. For one thing, very little of the constitutional system of checks and balances is functional today when it comes to foreign policy and national security issues. There is no reason to believe it works any better within the framework of Ignatieff's brave new world and within the context of a gravely harmed U.S. Constitution. For example, Ignatieff's proposals would increase the power of the executive well beyond what the Constitution intended. Furthermore, how would "free people" engage in "free debate" in dissent from the president's policies if the president had the power to preventively detain U.S. citizens at will, subject to a congressional or judicial review a month or two down the road, which may or not correct presidential excess? And which member of Congress, judge, or justice would actually compel the president to release the "terrorists" that he had already detained in the wake of another September 11?
Despite such problems, Ignatieff continues, apparently finding kinship in a proposal by Bruce Ackerman,
a liberal law professor at Yale, [who] has recently proposed a wholesale revision of the president's current power to declare a national emergency, suggesting that if terrorists strike again, the president should be given the authority to act unilaterally for a week and to arrest anyone he sees fit. After a week, Congress would have to vote to renew his powers for a period of 60 days. Thereafter, an overwhelming majority would be required to extend the term further. Better to formalize and control emergency power, Ackerman argues, than to allow the president to slowly accumulate the power of tyranny.
Thus, a liberal Yale Law School professor and a prominent Harvard human rights intellectual propose to give the president the power to arrest and imprison any U.S. citizen, or any number of U.S. citizens, indefinitely, subject to review by what is now a predominantly rightwing and excessively deferential Congress. Ignatieff and apparently Ackerman weakly argue that this proposal is designed to co-opt unregulated executive tyranny. But if the executive is powerful enough now to elicit such proposals today, what proposals would a greatly strengthened executive, in the wake of this proposal and others, elicit at some point in the future?
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Commenting on June 27 specifically about Abu Ghraib, Ignatieff wrote:
At Abu Ghraib, America paid the price for American exceptionalism, the idea that America is too noble, too special, too great to actually obey international treaties like the Torture Convention or international bodies like the Red Cross. Enthralled by narcissism and deluded by servility, American lawyers forgot their own Constitution and its peremptory prohibition of cruel and unusual punishment. Any American administration, especially this one, needs to learn that in paying "decent respect to the opinions of mankind"—Jefferson's phrase—America also pays respect to its better self.
For someone who wrote a little more than a month earlier that to protect ourselves from terrorism we may have to stray from national and international laws in an unprecedented manner, this passage, with its refusal to acknowledge these earlier views, is nothing short of remarkable. After April 28, the Times published a good deal of excellent journalism on Abu Ghraib and the wider practice and policy of the United States toward detainees in its custody. This coverage for the most part to date (June 2004) sought to expose government misconduct and deception, to enlighten the citizenry with respect to such conduct, and favorably referenced laws that prohibited torture and cruel, inhuman, and degrading treatment of detainees. The result generally was sustained high-quality journalism.
To the extent that the Times failed to make a serious effort to expose government deception and misconduct, and neglected to incorporate even basic rules and principles of international law into its coverage of Iraq policy before April 28, its coverage was deplorable. The May 2 cover story in the Times magazine by Michael Ignatieff, who argued that the U.S. government should "traffic" in the "lesser evils" of preventive detentions, coercive interrogations, preemptive assassinations, and preemptive wars in violation of laws that prohibited this conduct, was arguably the low point of the Times' coverage of Iraq.
This is excerpted from The Record of the Paper: How the New York Times Misrepresents U.S. Foreign Policy, by Howard Friel and Richard Falk. Copyright © 2004 by Howard Friel and Richard Falk and published by Verso, an imprint of New Left Books. Excerpted with the permission of the publisher. You can buy The Record of the Paper at Amazon.com.