Restoring Our Nation's Honor

Restoring Our Nation's Honor

Restoring Our Nation's Honor

Slate's blog on legal issues.
March 18 2008 10:17 AM

Restoring Our Nation's Honor

by Dawn Johnsen

For this my inaugural substantive blog I want to pose a question much on my mind:  how do we restore our nation's honor, as well as our own? 

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I am a bit tempted instead to join the fray over VP Cheney's filing of the D.C. guns brief, flatly at odds with the Bush administration's brief, begun by David Barron . Perhaps more later, but I can't resist just a quick response to Adam White's attempt to defend Cheney's consistency by repeating what I personally find a ludicrous argument that the VP is not part of the executive branch. Adam suggests that perhaps "the Office of the Vice President ... is simply sui generis ." This suggestion that we can have constitutional entities not squarely in one of the three constitutional boxes simply is not going to fly with unitary-executive types of Cheney's stripe-at least not if they are being principled.

But back to the question weighing on my mind--which I know also concerns many fellow Slate bloggers, because they have eloquently expressed and forcefully addressed it in their work:

[T]he US administration ... not only sanctions the torture of prisoners taken in the so-called wars on terror but is active in every way to subvert laws and conventions proscribing torture. ... [T]he issue for individual Americans becomes a moral one: how, in the face of this shame to which I am subjected, do I behave? How do I save my honour?

These are words I recently read in Nobel-prize winner J. M. Coetzee's new novel Diary of a Bad Year . They hit me hard. What are we Americans to do to, confronted with a government that does not respect the legal and moral bounds of human decency, a government that believes torture is justified whenever the president so decrees and that all views to the contrary, of Congress and the world community, are to be ignored? How do we save our country's honor, and our own?

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I felt the sense of shame and responsibility for my government's behavior especially acutely in the summer of 2004, with the leaking of the infamous and outrageous Bush administration Office of Legal Counsel Torture Memo . I served at OLC during the Clinton administration, including as OLC's head from 1997-98. It was a great privilege to serve this country I so love-and a tremendous and painful shock to see the corruption of OLC's work in the torture memo. One response from 17 former OLCers (including Slate bloggers David Barron, Walter Dellinger, and Marty Lederman) was to develop 10 "Principles To Guide the Office of Legal Counsel" (published here and in an appendix to this article ). We hoped these principles, if followed, could help prevent future OLC advice that was similarly, in the words of fellow blogger and former OLCer Jack Goldsmith in his must-read The Terror Presidency , "deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President."

The same question, of what we are to do in the face of national dishonor, also occurred to me a few weeks ago, as I listened to President Bush describe his visit to a Rwandan memorial to the 1994 genocide there. Now let me be clear (before "comments" erupt): I am not in any way equating anything the Bush administration has done with the brutal mass murder of 800,000 people. That would be ridiculous. President Bush correctly described the Rwandan genocide as one of the most horrific episodes of the 20 th century.

But President Bush spoke there, too, of the power of the reminder the memorial provides and the need to protect against recurrences there, or elsewhere. That brought to mind that whenever any government or people act lawlessly, on whatever scale, questions of atonement and remedy and prevention must be confronted. And fundamental to any meaningful answer is transparency about the wrong committed.

A more comparable incident, in terms of scale and potential to serve as a model, is how the Canadian government dealt with its complicity in the United States' "extraordinary rendition" of Maher Arar. The Bush administration wrongly suspected Arar, a Canadian, of terrorism and seized and "rendered" him to Syria in September 2002, where he was tortured for almost a year. The Canadian government extensively investigated the incident (hampered by the United States' refusal to participate); it ultimately issued a lengthy report and formal apology, compensated Arar with $10 million, and filed a formal protest with the United States. The Bush administration, to the contrary , has refused to apologize and has used claims of national security to keep secret any details, though when pressed in a congressional hearing, Secretary of State Condoleezza Rice finally admitted the United States had mishandled the case.

The question how we restore our nation's honor takes on new urgency and promise as we approach the end of this administration. We must resist Bush administration efforts to hide evidence of its wrongdoing through demands for retroactive immunity, assertions of state privilege, and implausible claims that openness will empower terrorists. Coetzee writes of his fear that "[t]he worst of their deeds we will never know":

The judgment of history is clearly a matter that exercises the minds of the US administration too. History will judge us on the basis of the record we leave behind, they say in public; and over that record, they remind themselves in private, we have an unparalleled degree of control. Of the worst of our crimes let no trace survive, textual or physical. Let the files be shredded, the hard drives smashed, the bodies burned, the ashes scattered. ... On their priority list, security-by which they mean secrecy-comes first, second, and third.

Here is a partial answer to my own question of how should we behave, directed especially to the next president and members of his or her administration but also to all of use who will be relieved by the change: We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation's past transgressions and reject Bush's corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation's honor be restored without full disclosure.

Dawn Johnsen is the Walter W. Foskett Professor of Law at Indiana University Maurer School of Law. She headed the Office of Legal Counsel from 1997–98, and was the legal director of NARAL from 1988–93.