In Trouble With the Law

If press accounts are correct, we will soon have the long-awaited Executive Summary of the Senate Intelligence Committee Report on the CIA detention program.  The report itself, which has not been submitted for declassification, is massive, running some 6,000 pages and including about 37,000 footnotes.  In preparing the report, the Committee and its staff apparently reviewed millions of pages of material, much of it classified.  It is by far the most comprehensive study of the “enhanced interrogation program” ever undertaken.  All indications are that the report and summary are exceedingly critical of the CIA. I have a professional interest in this since I represent Abu Zubaydah, the first prisoner subjected to “enhanced” interrogations and the first held at a CIA black site.  In fact, the first torture memos were written to permit Zubaydah’s CIA interrogation.  My American co-counsel and I are among the few people in the world who actually know what was done to Zubaydah in America’s name, though of course we may not describe it.  I fully expect the summary will include a great deal about my client, since one measure of the program’s failure is the chasm between what responsible government figures now say about Zubaydah and the mythical monster they described when he was being tortured. When the summary is released, it will be hard to think over the din of the spin machines.  Few people will read it—it is, after all, nearly 700 pages, or so the press says—but many will opine about it, taking their cues from opinion leaders they trust in the media and political life.  And the question on everyone’s lips will be whether officials in the CIA and Bush Administration should be prosecuted for their many misdeeds.  It doesn’t matter that the report will not call for prosecutions.  It is a reflexive response, as predictable as a dog barking at the mailman. And that’s a real shame, but not just for the obvious reason.  When we give trivial answers to complex questions, everyone understands the risk.  But far worse is the conditioned impulse, nearly automatic in the United States, to dismiss complexity by invoking the one-dimensional simplicity of the criminal law.  We don’t need to think, let alone pause in somber reflection on the cultural, political, and historical pressures that led good people to do horrible things; we simply need to prosecute them. Of course, there is an irony in all this.  Elites on the Right have long maintained that conditions neither explain nor excuse crime; when the summary appears, they will forcefully remind us of the fear that gripped so many people when the Bush Administration acted.  And elites on the Left (at least, a few of them) have long insisted that crime is prominently explained by environment, a lesson they will quickly forget. But this irony is so obvious that we can count on others to give it ample airing.  My concern is with a more subtle and far more serious flaw. The problem with focusing on the criminal law to purge a national shame is that it pretends all is otherwise as it should be, apart from the crimes that were committed.  It is second cousin to the problem associated with the so-called anti-canonical cases.  These are the ignoble four horsemen of constitutional law, the decisions universally condemned as wrong from the day they were decided, including Dred Scott v. Sandford (a black man is not a person in the eyes of the law); Plessy v. Ferguson (separate is equal); Lochner v. New York (state legislatures cannot set maximum hours in particular industries); and Korematsu v. United States (a person can be punished because of his race or ethnicity).[1] But pretending that some cases are anti-canonical supposes that the canon is the same today as it was when these cases were decided; worse, that it was as clear then as it is now.  There is no account, in other words, that could possibly explain, let alone excuse, these decisions.  We condemn them as mistaken today and assume, because the decisions are so contrary to our cherished image of who we are as a nation, that it must have been equally clear at the time.  Historical, political, and cultural context is no more relevant than a 1950s box score. Only lawyers, so attached to the formalism of doctrine, would indulge this sort of prattle. And it is an exceptionally dangerous prattle.  It not only nourishes the fiction that the United States has always been on a journey toward a more perfect union, but that perfection has always had more or less the same look about it.  From this happy place, deviations from the course are easily dismissed as aberrations rather than carefully considered preferences strongly held by the great mass of people for an abiding length of time and supported by the coercive power of the law.  It is prattle, in other words, because it turns a blind eye to history, changing what was into what we wish it to have been. In addition, and far more importantly, it perennially absolves us from claiming responsibility for the cultural milieu we create.  We say to ourselves, “Occasionally, a few people make a few mistakes, sometimes quite a lot of mistakes,” and leave it at that.  The world which produced these people and their mistakes—the unspoken and unquestioned assumptions that have achieved the exalted status of common sense—is simply out of bounds.  We no more question it than we would question the morning sun.  The system is not only glorious, it is gloriously self-correcting, as demonstrated by the fact that we have recognized the anti-canonical cases for the mistakes we take them to be. To put it somewhat differently, the idea of an anti-canonical case denies the very possibility that the decision could have been entirely consistent with our national identity.  We embrace the idea of an anti-canonical case because without it, we cast doubt on the most cherished myth in American life—that we are now and have always been dedicated to ever-widening circles of personal liberty and social equality.  Phenomena like Jim Crow must be walled off in the national memory in order to create a kind of mental quarantine, which prevents the past from contaminating the present. And this brings me back to prosecutions for the torture program.  Unfortunately, imposing criminal sanctions on what was concededly criminal behavior would be the first and last step in a national campaign to define these events as merely aberrational.  Admittedly, if prosecutions were part of a larger re-examination of the foundational assumptions and structures in American life that led to this behavior, they could play a valuable role in the debate.  But that is not how prosecutions would be deployed or described. The very premise of the criminal law in this country is that the system which created the law is fundamentally sound and that compliance is a proxy and predicate for social order.  The criminal law, therefore, is invoked as a solution for disorder, complete in and of itself. When the Executive Summary is released, a very small number of us will call for institutional reform.  The rest will clang the partisan pans.  And when talk turns to prosecution, as it will, I will turn away—not because no crimes were committed, but because the crime implicates us all. [1] For a good summary of the anti-canonical problem, see, e.g., Jamal Greene, (Anti) Canonizing Courts, Daedalus, Summer 2014, Vol. 143, No. 3, 157-167.

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Joseph Margulies is a Visiting Professor of Government and Law at Cornell Law School.