NPR reports this morning, in a story so new, or so obscure, that it's not yet up in print on their website (but you can listen at Prisoner to testify on ease of tax scam), or in any wire reports I can find, that the administration is attempting to block a Congressional effort to have a federal prisoner convicted of computer identity theft testify during hearings on that subject. The immediate occasion for the NPR report was the judge's ruling against the administration in this dispute.
The reasons the administration cited in its legal arguments against allowing the prisoner to testify before Congress seem quite unconvincing. They argue both that the prisoner would be endangered among the prison population by his testimony, and that testifying would unduly augment his power within that population. The administration also cited concerns for the security of those at the hearing. Given that Congress regularly hears testimony from terrorists and other violent criminals, it is hard to understand what insurmountable new security concerns are raised by having a convicted computer nerd in the hearing room.
What's going on here?
The simplest explanation would that the administration is trying to hide something to do with the subject of the hearings themselves. The prisoner in question was able to get the IRS to send him $40,000 in refund checks by stealing the online identities of several taxpayers. Perhaps the ease with which he could do this would be embarrassing to the IRS, and the administration wouldn't want this rehashed in public as yet another story about their incompetence. But this person was convicted eight years ago, which would seem to put any IRS incompetence to be exposed squarely in the Clinton administration. Unless there's some wrinkle to this story not even hinted at by the admittedly scant facts in the NPR story, I think we can reject the idea that there's anything about the identity theft issue itself that caused the administration to take this unprecedented move.
The NPR story had Senator Grassley on, and he opined that the otherwise incomprehensible objections to having the prisoner testify were just a cover story for a non-specific administration effort to put any and all blocks available in front of any Congressional oversight, even oversight that doesn't threaten to embarrass the administration. This is plausible as a general idea, and may be all the explanation needed for the doings of an often irrational admininstration. But I don't think we should give up looking for reasons they might want to block this one specific thing, the ability of Congress to compel the testimony of federal prisoners.
There is, of course, one particular class of federal prisoner that the administration has a history of not wanting the public to hear from. The prisoners at Guantanamo, and elsewhere in the new American gulag, have, so far, largely had their habeas corpus rights to a public hearing in the courts successfully denied by the administration. But there is still the potential for Congress to compel their presence and public testimony on Capitol Hill.
The administration clearly believes that it has committed crimes in the handling of these prisoners. The President himself admitted in 2006 that he needed the Military Commissions Act both to define torture sharply upward, or the torturers would face criminal liability for their acts, and to authorize military commissions to oversee these prisoners so that they could continue to be held incommunicado. Of course, this concern was phrased in terms of a desire to protect our brave CIA and DoD foot soldiers in the war on terror, etc., from criminal prosecution. But if those following the orders would be at legal risk, then clearly those who gave the orders would lack even the Nuremberg defense for their crimes.
Now, as a general and abstract proposition, the electorate seems quite willing to tolerate even gross mistreatment of folks even suspected of terrorism, if such treatment could reasonably be thought at all effective at protecting us from further acts of terrorism. This willngness to trade prinicples for security is generally seen as a not a very attractive feature of the electorate's character. And since, in this democracy, the electorate is the boss, it is perhaps not surprising that there aren't many elected officials around willing to get out front with telling the boss that he's ugly, morally ugly at that. So the MCA, and the American gulag it protects, has not attracted a serious effort to repeal this hateful measure, despite Congress having changed hands.
But I have always thought this way of approaching the issue, as if our personal security and our principles were in opposition, is foolish and self-destructive. There is no opposition in this case between the needs of public safety and following our long-standing principles against torture and other abuse of suspects. If torture actually worked, I would disagree with the principle that it not be used. If torture actually worked, we would never have abandoned its use in combatting ordinary everyday crime, which afflicts us far worse than terrorism ever will. But torture doesn't work, and that is why we abandoned it centuries ago. Allowing the police to use torture only serves to lay before them the irresistable temptation to solve all of their cases quickly and easily by beating any needed confessions out of the usual suspects. Police forces that are allowed to use torture quickly become incompetent at the hard work of finding those actually responsible for crimes. This is the lesson of the Soviet gulag, and all its historical predecessors.
We will only end the American gulag by making the case that torture doesn't work. And we will never make that case in the abstract and in general, as long as we confine the argument to fantasy scenarios of ticking time bombs. We will only make the general case from the concrete cases of the individual victims of our system of officially sanctioned torture. This is why the administration must keep these victims of the American gulag rigidly and systematically incommunicado. Let them tell their stories of incompetent, stupid, ineffectual mistreatment in the name of the American people, to the American people, and the whole system will begin to unravel. And once that begins, the end, hundreds of administration stalwarts on trial for crimes against humanity, is in sight. This is why the administration fought for the MCA, and why it fights now to create any shred of precedent, however far-fetched, that it can block Congress from calling federal prisoners to testify in public.