To Live Outside the Law, You Must Be Honest

I just read an article in the February 27th issue of The New Yorker entitled "The Memo" by Jane Mayer. It is an examination of a memo written by then General Counsel to the U.S. Navy, Alberto Mora, about the use of torture at Guantánamo. Mora made it clear that the conduct of interrogations at Gitmo as he had seen them laid out was in violation of the Uniform Code of Military Justice (Sect 893.93 Cruelty and Maltreatment) as well as the Geneva Convention and other international laws and treaties. The general argument for the use of torture or techniques that closely approach it is simple: They were used to attempt to thwart another 9/11.

Well, who among us wouldn't want to prevent another attack on the United States and its citizens? Do whatever it takes, torture them, kill 'em all and let God sort them out! But, wait. For decades — certainly my entire life — we've seen ourselves as the good guys, the guys in the white hats. How can we justify acts that violate a variety of laws as well as moral codes we've tried to uphold? That article rang some changes in my head, causing me to remember some pieces from my back pages.

There is a role-playing game out there called Dungeons and Dragons. I first learned about it back in the late seventies and for a time was surrounded by people my age and younger who played a great deal. From what I observed, there were two basic types of character, the Lawful and the Chaotic. There were gradations within the two — you could be "Chaotic Good" or even "Lawful Evil" for instance — but beyond that they were a little too subtle for a non-player like myself to absorb. Suffice it to say that what I took away from my experience was that you had your good guys — the men in white hats — and you had your chaotic types, flouting law as it suited them. It seemed to me that playing as a chaotic character, even one who was "Chaotic Good" working outside the law but adhering to a strong moral code, you had advantages not available to the Lawful characters. The Lawful characters seemed to be playing the game with one hand tied behind their back by the bonds of law. I saw an advantage in the game for those who chose Chaos.

Although I toyed with the idea of playing the game and doing so with a character aligned with Chaos, I never did. In the real world, I've always felt the constraints of trying to live my life as a good, lawful person. I've had problems for most of my adult life making my libertarian side and my cop side work together. There are so many opportunities in law enforcement to violate people's constitutional rights in the name of expedience. It meant that I often felt at a great disadvantage dealing with the bad guys. I had the Constitution, Miranda and all the other laws, decisions and so forth. The bad guys had the laws of physics and little else to constrain them. We had rules of evidence. They did whatever worked.

It is frustrating to see criminals able to avail themselves of all manner of "rights" in order to escape the punishment their crimes should merit. We can argue for days the whole criminal justice system and its deviance from libertarian principles. In general, cops enforce the laws that are presented to them. Like the rest of society, they have little influence on what laws are passed. Wearing the white hat of a good guy often makes it difficult to effect arrests and make your cases stick, especially if you have to look over your shoulders all the time for the ACLU. I managed a career under these constraints and left with my honor intact.

So here we are, with an administration that would like to be perceived as aligned with the forces of "Lawful Good" in terms of D&D. What is being done in Guantánamo, in Afghanistan, at Abu Ghraib is, at best, the act of a "Chaotic Good" character. In this game, we have become someone who abides by a moral code but violates the law for "good" purposes. I'm not sure that we can afford to be a nation of "Chaotic Good" characters, adhering to some nebulous code while breaking whatever laws get in our way. This administration seems to see itself as above the rules of law, able to transcend the Constitution or any other set of laws when it is convenient, expedient, necessary . . . so long as the cause is "just." In his song "Absolutely Sweet Marie," Bob Dylan said, "To live outside the law, you must be honest." Well, we've certainly come to learn just how much honesty there is in this administration. When they decide to live outside the law, we're in deep . . . trouble.

With regard to the subject of the New Yorker piece, we have our government deciding that the laws pertaining to torture and the mistreatment of prisoners don't apply and the President can waive them if it's in the "national interest" or "necessary for national security." Torture is something that might seem expedient, however illegal it might be for us to use it. Many people in both the intelligence field and law enforcement can attest to the fact that it often doesn't work. Once you start down that road, you invest the results with a lot of weight they might not have. That's especially true if you start out believing that the answers you want are the answers you will get.

If we can believe what we read — and that leaves us with a whole other can of worms — terrorists, like our troops, are taught to resist interrogation, even torture for a period of time. When I was in the military, we were given certain techniques to resist interrogation. It was obvious, however, that no one could resist forever if they were tortured. We were told not to divulge important information but to give them meaningless information that would play into their expectations. Well, I expect that al Qaeda probably trains its people along similar lines.

Now, we have a government that seems to be saying, "Hey, whatever it takes to get the job done, do it." Once the forces of law break down, we are left with the need to trust the morality of those in power. I'm not at all sure that we can do that in this case. So, we are going to have to deal with trying to obey the law with respect to handling prisoners. The government is going to have to resign itself to playing its fantasy role playing game as members of the "Lawful Good" and we are going to have to hold them to it. Or we are going to have to resign ourselves to living in a chaotic world where laws have no meaning or mean whatever the current government says they mean. The current administration — perhaps big government in general — is involved in a very complex fantasy role-playing game with the world as its gameboard. I'd rather sit this game out. Unfortunately, I can't. We can't.

March 2, 2006