The Reasonably Prudent Law Student

A word from fellow law student @LyleLanley:

If you have facts on your side, pound facts. If you have law on your side, pound law. If you have neither on your side, pound table.

…

If you can’t innovate, litigate. If you can’t litigate, legislate. If you can’t legislate, Watergate. If you can’t Watergate, waterboard.

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Torture seems to be getting top billing in the news this week (well, after the teenaged swash-buckling Somali pirate) and you already know why: the Bush administration’s torture memos have been released, despite Cheney et al’s warnings that their release would compromise national security, blah blah, in an endless game of Cover Your Ass.

Long story short, in the course of the war on terror, the CIA set up black posts in other parts of the world where they could torture alleged Al-Qaeda operatives for information. Torture tactics included sleep deprivation, electroshocks, and waterboarding, which involved holding a person’s head under water for brief but successive intervals and, worst case scenario, could result in permanent brain damage. (Wouldn’t swirlies have accomplished similar results without the whole pesky brain damage thing?)

Torture emerged as a topic for national discussion back when pictures from Abu Ghraib were released, and then when use of waterboarding tactics were reported. (At least waterboarding is, for now, a less-blue word than teabagging.) You remember those pictures, spoofed here in Fox’s critically acclaimed and foolishly canceled “Arrested Development.”

The author of the Bush torture memos was UNLV law professor and current Ninth Circuit Court of Appeals judge Jay Bybee.From 2001 – 2003, Bybee served as the head of the Justice Department’s Office of Legal Counsel and during that time approved the use of torture tactics. (Transcript from US Senate.) (Bush administration torture/terrorism memos.) (Memo to Alberto “I Don’t Recall” Gonzales — the most infamous one.)

The NYT called for ByBee’s impeachment (federal judges sit for life, so it’s not a matter of reelection). Now Senate Judiciary Chair Patrick Leahy (D-VT) is saying that the “decent and honorable” thing for Bybee to do is resign. (More detailed report here.) Leahy is also pushing for a bipartisan investigation into the Bush-era torture practices. Several members of the House are also discussing the possibility of impeaching Bybee.

Somehow, and feel free to call me crazy here, Baudrillard’s discussion of hyperreality sprightly springs to mind.

Yes, torture is an abominable practice.

But let’s be honest: it’s not like we (the general public, members of the government, collective national conscience, whichever way you want to think about it) didn’t realize that there was a possibility this was happening. It’s not like we couldn’t possibly conceive of the fact that our government agents might – might – be using questionable – dare I say, downright mean – tactics to get information out of suspected terrorists.

And let’s be honest and get it out of the way: we’re not even all that shocked and appalled by this.

What superpower spearheading an international war, with (arguably) the world as its playground in terms of military posts, etc, wouldn’t engage in these interrogation practices? To think anything else is just to be naive. In matters of national security, of course every available interrogation practice is going to be used, whether we want to get indignant about it or not, whether we think it’s criminal or not.

The connection to hyperreality: Baudrillard wrote of the concept, saying that we construct a reality (which becomes a hyperreality, a supreme, elevated sense of reality, a True reality in a sense) to distract ourselves from the reality that exists around us because we have to reject that prevalent reality. We create Disneyland as a place to be children/childish to distract ourselves from the fact that we’re still children/childish. We create prisons to lock men up in to distract ourselves from the fact that we’re all in prison, incarcerated or not. And so on. (The Mobius Strip of reality, really.)

Now we’re getting all worked up in a huff over this federal judge that authorized torture so that we can outwardly broadcast how strongly we oppose torture; his impeachment would stand as a ‘real’ sign that torture practices have come to an end and we’ll be able to distract ourselves from the fact that torture tactics will still be employed, with or without our knowledge, with or without our approval, with or without our moral outrage.

This is not to say that I don’t want to see this judge resign. I think it would be a positive way for this administration to come out against the policies and/or image of the previous administration, as well as to show what it stands for in terms of dealing with enemies of state. Torture is bad, m’kay. (South Park.) Bybee should be impeached or should voluntarily resign, no excuses.

I just don’t think his impeachment or resignation will accomplish anything. We’ll feel good about ourselves and our country. And we’ll be lulled into complacency about our military tactics abroad against terrorists and alleged terror suspects (many held without any sort of investigation or due process, on the basis of mere suspicion/allegation).

We’ll be able to point to former-Judge Bybee and say, that was the guy that said torture was okay, that was the guy we got rid of, that was how we fixed it.

And torture tactics will continue on as they ever did, only those conducting them will work harder to make sure they aren’t disclosed or revealed to the public in any way.

Win?