Confronting Fundamentally Un-American Conduct: Resisting Pathological and Deviant Behavior

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Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

I went to my 30th reunion from Harvard Business School two weekends ago, at which I listened to a presentation by a former Bush Administration person about Iraq and Afghanistan.   While the person spoke for non-attribution as to what they said, I am free to say what I said to them.  I confronted them on the point of us having been lied into the War in Iraq – no WMD and no link between Saddam and 9/11 reminding them of the Cincinnati speech of President Bush.  I pointed out the joking by then President Bush about not finding WMD”s at the White House Correspondents Dinner 2004 (  I stated that all of this was still galling to  someone who thinks of the American kids who are dead or injured having served in that war started on false pretenses by then President Bush and the persons around him.  I said that murder and conspiracy to commit murder had happened and that it was for a jury to decide whether there was the requisite intent (mens rea) in light of all this by President Bush and the top cabal who got us into that war.  At one point, a person there accused me of being ungrateful and I turned to that gentleman and in the firmest tone told him he should never dare to question my gratitude for our service people.  My gratitude to the service people should take nothing away from my calling on the carpet our leaders.

This past weekend, with the announcement of the targeted killing of Al-Awlaki – an American citizen – I watched State of the Union on CNN in which former Vice President Dick Cheney and his daughter Liz were interviewed.  Former Vice President Cheney appeared to be saying that since we have target killed Americans (of which he approved), all the more reason now to apologize for the criticism of the enhanced interrogation techniques subject of criticism in President Obama’s May 2009 Cairo speech as torture.

This same weekend, as luck would have it, in complement to an interview of Ali Soufan, experienced FBI interrogator of Al-Qaeda types about which I have written before, I saw Glenn Carle, CIA Interrogator and author of a new book “The Interrogator: An Education” on C-span discussing his book.  Glenn Carle had been orderd to use and had used the Enhanced Interrogation Techniques and explained the bizarre pattern of how he was to proceed.  If a person answered the question they were considered to be cooperating.  If a person said they did not have any information, they were to be presumed to be uncooperative and therefore to be subjected to the enhanced interrogation techniques.  Carle, based on his experience, was absolutely categoric in saying that this was absurd and counter-productive.  Between Soufan at the FBI and Carle at the CIA, we have interrogators (at the level of a lieutenant-colonel so to speak) describing in detail the nature of the enhanced interrogation techniques and their ineffectiveness.  An additional revelation from Carle was that when he was to start his interrogation tasks at secret sites of these Al-Qaeda types, he was assured that there was a Presidential finding (President Bush authorizing the action) as well as the Justice Department analyses saying these techniques were authorized and legal.  At the same time, when he saw the relevant Yoo-Bybee torture memos back in 2002, he did question the quality of the legal advice but he was a person at the level of a lieutenant-colonel being told that up his chain of command to the President everyone had signed off on these actions.

I recite all of these points so that the reader can appreciate the false pretenses that led to War in Iraq and Presidential authorization of torture that has occurred and for which no one has been held accountable.  On the contrary, we learn that former Attorney General Gonzales has recently been given an endowed chair at a law school, we see former Vice President Dick Cheney on all types of television shows expounding on the soundness of the policy, and, last but not least, the parade of books by the instigators of the aggressive war in which too many Americans were killed or injured on false pretenses and in which Americans tortured at the request of these same leaders.

It is bizarre that we allow these persons to parade their pathology and exult in their deviant behavior before us.  It is a pathology of the body politic and the political bodies in that there is no reaction by the powers that be to these persons, and only meek reaction, if at all, to these persons by the media who call them in.  In this regard, I find the parading by the media of a frail Dick Cheney particularly bizarre as on  the one hand he defends the most horrendous things and at the same time appears to seek and get empathy for his frail state.  It is a bizarre mix of listening to a person who ordered horrific acts and being asked as a human to have sympathy for him.  This type of passive-aggressive display I find repugnant and shocking.  The way I understand it is that the American elite are letting him be the scapegoat and waiting until his health fails and he passes to, after that, both laud him as a hero of the nation and place all blame for all that happened on him in his grave.  We have seen this before with regard to Iran Contra several years ago with the then head of the CIA William Casey who died of cancer (with the secrets as it was said).

That pattern of ending any prosecutoral prying into the murder and injury of American soldiers in a war started on false pretenses and the torture ordered by our leaders is too facile a solution for it neither confronts the pathology that led to these actions nor does it show there is any resistance to this type of deviant behavior.  What it shows is a profound passivity of the spirit – a passivity to those in powers – that is almost slavish in its acquiescence to these people’s acts just because they were in roles in which they had power to do these acts.  Americans can be better than that and that is why I write again to call on my fellow Americans to insist on criminal accountability for these horrendous acts: aggressive war in Iraq and torture by American leaders.  For if we do not do those things to persons who were at the levers of power representing us, then we are saying that we countenance America acting pathologically and engaging in deviant behavior.  That, to this American citizen at least, is fundamentally un-American.