Andrew Sullivan’s Dear President Bush

I owe many thanks to Kevin, and the Opinio Juris community, for inviting me to join the conversation.

Although it has been in circulation for over a month now, I find myself still mulling Andrew Sullivan’s provocative open letter, Dear President Bush, in October issue of the Atlantic. It is a unique and thoughtful approach to the problem of torture and responsibility.

Sullivan’s letter unflinchingly describes official practices and acts during the Bush years as torture.

“The point of this letter, Mr. President, is to beg you to finally take responsibility for this stain on American honor and this burden on a war we must win. It is to plead with you to own what happened under your command, and to reject categorically the phony legalisms, criminal destruction of crucial evidence, and retrospective rationalizations used to pretend that none of this happened. It happened. You once said, “I’m worried about a culture that says . . . ‘If you’ve got a problem . . . blame somebody else.’” I am asking you to stop blaming others for the consequences of decisions you made.”

Why must President Bush take responsibility? For one, Sullivan claims that “[N]o previous American president has imported the tools of torture into the very heart of the American system of government as you did.” Moreover, “[B]y condoning torture, by allowing it to take place, and by your vice president’s continuing defense and championing of torture as compatible with American traditions, you have done enormous damage to America’s role as a beacon of freedom and to the rule of law.” Finally, regarding the policies and actions taken in violation of the Geneva Conventions and other laws, Sullivan writes: “The responsibility for all of this is yours—before the American people and before the court of history. And you need finally to own these decisions, to take full responsibility for them, to account for them, to explain them, and yes, to apologize for their scope and brutality.”

Why not hold all official actors who authorized, justified, and perpetrated torture accountable? Why President Bush alone? Sullivan believes ignoring the evidence of torture and war crimes is not an option, but neither is seeking to prosecute high officials such as President Bush or his vice president, because to do so would be even more damaging to the polity. Prosecuting lower officials would be to persist in scapegoating under a “few bad apples” theory. Thus, Sullivan arrives at a model he attributes to Ronald Reagan: “Only you can move this country forward by taking full responsibility for the past and supporting the current president in his abolition of torture and abuse.” Citing Reagan’s 1987 speech in which he took responsibility for trading arms for hostages in Iran, Sullivan continues:

“You may not have intended to torture people, but you did; you may have acted to protect the country within the law, but that admirable desire too easily slid into your approval of actions that are indefensible, illegal, and deeply damaging to America’s reputation and honor. You were let down, as Reagan was. He took responsibility. You need to as well.”

Sullivan’s approach is unique. It is a direct appeal, using direct address. I have a number of questions, however. If President Bush were to take responsibility as Sullivan eloquently requests, would that really “help restore this country’s reputation.”? Is restoring our reputation the main objective? What is the objective of any call for accountability? Sullivan’s call sounds in the language of reconciliation, language he explicitly deploys in his letter. But is reconciliation the right discourse? One view regarding the relation between torture and responsibility, is that where it might seem an viable response to conditions of necessity ex ante, any official who succumbs to the temptation to torture must be held to account ex post (I discuss this more here). The process of holding officials responsible is one where other governing bodies, as well as the sovereign people, get to pass judgment on actions taken in their name. By contrast, Sullivan’s approach seems to accept at least one premise of executive unilateralism by focusing on the unilateral responsibility of the executive.

As James Bennet, the Atlantic Editor, suggests in his Editor’s Note for the October issue: “[T]here is nothing cynical or glib about Andrew’s request: he knows he is not asking the former president to do an obvious or easy thing. Indeed, the difficulty of the step, if Bush took it, would give the measure of the man’s character, and the sense of honor and public responsibility of the Bush family.”

Such appeals to “the man’s character,” a “sense of honor” and the responsibility of a dynastic political family all fall well outside the typical discussion of national security policy and the illegality of torture. On the basis of such generalizations, can the former President Bush really put back together what he has broken? Can it be that the legal and moral integrity of official government practices rely on President Bush’s character (and continue to do so many months since he was in office)? To think so places far too much emphasis on a view of President Bush the man, not President Bush the office. It as if by shear dent of character President Bush could own up to his adolescent drunken behavior the night before by assuming a sober and reflective apologetics the day after. But politics is not a fraternity party, and our system of government does not rely on “Enlightened statesmen” always being “at the helm.” Madison’s idea brings into focus what is missing from all this talk of executive unilateralism: the need for other institutions and the people to have a say in the matter. Until 2006, there was no Congressional oversight. We now have the Senate Armed Services Report. We also have a Department of Justice investigation. These steps involve other governing institutions playing their oversight role, even if the political atmosphere is at best vexed. Restoring America’s reputation as a nation devoted to the liberty and dignity of persons requires restoring America’s governing institutions.

Relying on former President Bush to take full responsibility leaves us institutionally vulnerable to the next unenlightened statesman to take the helm. I use “unenlightened” purposefully here. For if any one thing helped define the emerging spirit of enlightenment, it was the rejection of practices such as torture (I think Lynn Hunt’s book, Inventing Human Rights, tells the story well). The ready resort to torture is the paradigm of unenlightened statesmanship. Our governing solution is to check the unenlightened impulses of Presidents such as Mr. Bush and his vice president, through the governing responsibility of others. No doubt, this system of checks, manipulated through fear of the next attack, has not worked terribly well of late. But if no other institutions do their job to hold former (and continuing) executive officials responsible, then we are as vulnerable as ever to future acts of torture, depending on the “character” of the person occupying the office, and his or her commitment to our founding enlightenment ideals. No matter the political difficulty—and whoever thought taking moral responsibility or holding others morally responsible is ever easy—we should expect nothing less than full institutional accountability.

This need for institutions to play their constitutional roles in holding others responsible is a key problem with using reconciliation discourse. In the case of official practices of torture, there is no political, ethnic, or cultural group who needs to reconcile with another. Rather, there are individuals who broke the law while other individuals, who were constitutionally bound to faithfully execute the laws, either did nothing or actively sought to justify illegal conduct. Although there are no groups in need of reconciliation here, there are certainly individuals (and institutions) who need to take responsibility or be held accountable to others.

Let me hasten to add, that I do largely agree with Sullivan. I think enormous good might flow from an open, honest, and thorough apology from President Bush. I simply think that it can only be one component of a full accounting of those responsible for torture. President Bush did not, and could not have, acted alone. He required the active support of many others to perpetrate official, systematic, and purposeful acts of interrogational torture. Even now, his vice president brazenly defends policies of torture (though always certain to use euphemisms, as if “torture” were only a word), while criticizing the current administration’s attempts to alter those policies. Such active support for policies Sullivan has no problem calling torture, cannot be institutionally displaced by President Bush’s apology. Indeed, the former vice president’s campaign can only auger the return of torture at some future time if no one else takes any further institutional or individual responsibility—whether through prosecutions or new legislative initiatives. Every bit of Sullivan’s argument applies equally to former Vice President Cheney. I presume the difference for Sullivan is implied by his operative premise: Sullivan believes that Mr. Bush is a decent man who might respond to his entreaty.

President Bush’s apology could provide great moral and political weight to any future legal forums that judge specific officials for their conduct, forestalling some of the impact of the “already polarized society” Sullivan fears prevents criminal prosecutions. And one certainly wants to say with Sullivan regarding the nation’s reputation and commitment to the rule of law: President Bush, you broke it; would you have the decency to help fix it? Maybe Mr. Bush is waiting for the appropriate opportunity. It is up to Congress, the Attorney General, and the American people to provide that opportunity.