22 April 2009

America Must Act: Torture cannot be condoned

Let me start out by saying I am very troubled, and that's why I'm taking the time to write a long post. What troubles me is the lack of any real outrage and the now irrefutable evidence that torture has been committed in our name, as Americans. I hope you will find time in your busy life to read it. I am writing, not to confront or antagonize, but because this issue seems to me to be of literally paramount importance. I believe that if a civilization cannot uphold fundamental moral conduct, it will fail. What follows is my attempt to frame this issue in a pair of principles which I hold, like our founding fathers, to be self-evident, as well as supported by unassailable facts. This isn't ideological, or political, except in the broadest sense, of having to do with the polity, our country. The principles I'm talking about aren't liberal or conservative, right or left, Democratic or Republican. They're fundamental moral principles. After setting out two basic principles, I will discuss some irrefutable facts, and some additional possibly debatable facts, and then draw what I consider some unassailable conclusions. I welcome dialog with anyone reading this.

I hold the following tenets to be critical and essential principles of American civilization. By which I mean, if someone doesn't subscribe to them, I just don't see how they can claim to be anything other than an outlaw, someone who does not value or appreciate our country and its values, and who, in fact, doesn't truly care if it survives, as an American civilization, rooted in its Constitution and founding principles. In other words, such a person cannot claim to be a genuine patriot in any sense.

Here, then, are the principles, with some comments:

1. Torture is wrong and illegal, and can never, under any circumstances, be justified.

By torture, I include weasel words like "enhanced interrogation techniques" and "cruel, inhuman and degrading treatment." Whatever you call it, this conduct is not, and can never be, legal, and any twisted interpretation that says it is is flat wrong, morally compromised, hideously cynical, or so far gone into ideological self-justification as to be beyond the pale of rational discourse. Our very constitution prohibits "cruel and unusual punishment" and guarantees due process. These principles are wholly and irrevocably inconsistent with toleration of any form of torture by state actors. Our country has no business tolerating these things, whatever they're called, under color of law. Ever.

Please note: I don't hold it to be a principle that torture also does not work, and yields almost entirely useless information, but I do hold that to be true. It's secondary, but true. The literature on the subject is quite extensive, and anyone who seriously disagrees with this is either very ignorant, or willfully so. When torture has been used by intelligent, albeit evil, men in the past, (and is still today by such people) it was not and continues not to be used to obtain useful information. It was and is used to create terror. That is a simple historical fact, with virtually no exceptions. I maintain, in fact, that Torture is terrorism. I trust it need not be elaborated that it is certainly a principle of American civilization that there is no legitimate use for state terror. I will leave that as inarguable and go on.

2. We are a nation of laws, not of men.

2(a). Corollary: No one, no matter what position he holds (including the presidency), no matter what his imagined justification, is above the law, or has the right to just ignore the law, or to deliberately twist and subvert it to suit his ends.

I will leave the conclusions which flow from this alone for the moment: I ask only that you consider this, and decide: is this right? Is this a principle on which our country is essentially based? Is the corollary implicit in the principle?

I submit: yes to all. Of course, I'm not saying there aren't fine points, where law must be balanced against necessity. There are exigencies; there are rare instances where emergency action must be taken, and legal justification sought afterwards. I would include the president committing troops in an emergency without a declaration of war in this category (leaving alone the question of whether more protracted involvement without such a declaration is legal). These things have obviously occurred in our history. But the systematic use of torture, whether in secret or above board, does not fall in this category. It is illegal. Period. Even if it occurs as an isolated instance, it is a crime; and, as such, on many occasions in the past, it has been prosecuted in the U.S. The fact that is has sometimes occurred in a systematic ongoing way is merely to say that we have had instances of systematic and ongoing lawlessness in our history. This can hardly be surprising or debatable, but it is no sense a justification for anything. We cannot rationalize a failure to live by our laws because some in the past have failed to do so.

Here are some irrefutable facts. If anyone disputes any of them, I'd be very much interested in their evidence. The proof of these facts is widely available. Jane Mayer's The Dark Side and recent articles by Mark Danner in The New York Review of Books should suffice.

· Waterboarding has been stated categorically by the current duly appointed chief law enforcement officer of the United States to be torture. Update 4/30: President Obama said the same thing in his Press Conference yesterday.

· On numerous occasions in the past, notably in Occupied Japan after World War II, in Viet Nam, and in the Philippines after the Spanish-American War, tribunals of the United States convicted individuals, including American soldiers, of criminal conduct for waterboarding detainees. At least two Japanese officers convicted of waterboarding were shot, as a result of guilty verdicts before American Military Tribunals.

· Officials operating under color of law in the period roughly 2002-2004, and possibly at other times in the recent past, ordered waterboarding and other forms of torture to be committed, and employees of the U.S. government committed this torture repeatedly.

· Lawyers in the Office of Legal Counsel composed memoranda purporting to justify the use of illegal torture during this period.

· The then President and Vice-President of the United States knowingly participated in executive decisions resulting in the authorization of torture during this period; both have admitted their participation, without admitting the characterization of the conduct authorized as "torture."

· The current president of the United States has stated that employees of the government who acted "within the four corners" of specific authorization to conduct torture (without calling it that) will not be prosecuted.

· The United States, in the Nuremberg Trials, specifically and categorically rejected what has commonly come to be known as the "Nuremberg Defense;" i.e. that someone is not guilty of a crime if he committed it under orders from superiors. Numerous Nazi defendants were found guilty notwithstanding their having presented evidence that they did nothing illegal they were not ordered to do by their superiors.

· The United States participated in promulgating, in the aftermath of World War II, and is now bound by, International Law which recognizes Universal Jurisdiction for crimes against humanity, including torture, when the original jurisdiction fails to act on credible evidence that a crime has been committed.

· At least one prosecutor in a foreign jurisdiction (Spain) has expressed interest or intention to pursue prosecution of officials involved in the United States in authorizing torture during this period.

Here are a few possibly debatable facts.

· Claims of Dick Cheney and others that significant intelligence, resulting in aversion of terror attacks in the United States, as a result of conduct which qualifies as torture (albeit not acknowledged to be such by these people), are false. No useful intelligence was actually developed from the use of torture.

· It is generally acknowledged by experts in psychology that torture is ineffective in producing useful information, because torture victims will say anything at all, including making up confessions, to stop the torture.

· The scenario of the "ticking time bomb," which is a staple of such paranoid fantasies as the television program 24, is totally unrealistic: there has never been a case where a suspect in custody had actual knowledge of impending attacks, which, if known, could be used to prevent them, such that torture was the only way to successfully prevent the attack. This has never happened, and is so incredibly unlikely that it's safe to say it never will.

· Tortured detainees in U.S. custody during the period roughly 2002-2004 did in fact provide their torturers with numerous false leads and much misinformation, which ultimately proved not only useless, but harmful, to U.S. intelligence efforts.

· Even if useful intelligence were gained from torture, such would not constitute any kind of legal defense for those accused of committing it, under existing U.S. law.

Here are a few conclusions, which I regard as virtually unassailable. Again, I welcome any comments.

· Given the evidence, there is no rational basis for not investigating for possible prosecution officials who have acknowledged authorizing conduct which must be considered torture. This must include lawyers in the OLC, and officials in the executive branch at the time, including the Vice President and President himself.

· Given the evidence, there is no rational basis for not investigating for possible prosecution those employees of the U.S. government who actually carried out torture. Following orders is no defense. Such people cannot claim not to have known their actions were illegal, and even if they did, ignorance of the law is no excuse. Perhaps some consideration should be given to circumstances in deciding how to deal with the disposition of these cases, but to simply not consider prosecuting them is unconscionable.

· If the United States fails to prosecute those against whom credible evidence may be presented that they authorized or committed torture, other jurisdictions will, under the principles of Universal Jurisdiction, be empowered to do so.

I draw these conclusions not out of any sense of rancor or desire for retribution or political payback. I am chilled to my bones at the thought that officials of my government, it now appears absolutely undeniable, rationalized, authorized, and committed torture in the name of the people of the United States. This isn't a left/right thing. It is a moral imperative. Committing torture is totally unacceptable at any time. Those who have done this must be held accountable. The failure to do so will be a moral failure which will taint our nation's name and honor forever.

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