Why the New Torture Defense Fails

(The Nation)  This story was written by Ari Melber.

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Jacob Weisberg, the talented journalist, editor and opinion leader, floats a very dangerous idea in the new issue of Newsweek.

Weisberg argues that because illegal torture was essentially America's official policy after 9/11, operating with complicity from the general public, it would be wrong to enforce US laws against torture now.

This argument basically morphs the infamous Nixon standard into a referendum--if the public supports something, then it is not illegal.

Does that sound too crazy to be a serious proposal? Here is the core premise of Weisberg's column,"Our Tacit Approval of Torture:"

...waterboarding was ordered and served up in secret. But it, too, was America's policy--not just Dick Cheney's. Congress was informed about what was happening and raised no objection. The public knew, too. By 2003, if you didn't understand that the United States was inflicting torture upon those deemed enemy combatants, you weren't paying much attention. This is part of what makes applying a criminal-justice model to those most directly responsible such a bad idea. (emphasis added)

In this lawless paradigm, public awareness of government misconduct is cited as a justification for placing government officials above the law. Weisberg rules out the "criminal justice model"--you know, those laws that govern the rest of us--because some segment of the public "knew" about government torture in 2003. "Well before the nation reelected George W. Bush in 2004," the article states, "investigative reporters had unearthed the salient aspects of his torture policy."

This argument makes no sense. Elections do not cancel our laws. All kinds of politicians, from the charismatic to the corrupt, can get re-elected after being exposed for crimes or misconduct. Yet public sentiment should not bully an independent, apolitical Justice Department from enforcing the laws equally, regardless of the power or popularity of alleged criminals. The public disclosures about President Bush's "torture policy," to use Weisberg's taxonomy, simply have no bearing on the legal question of who knowingly broke the law. Torture is illegal, as even Bush officials concede, and the Justice Department has a duty to investigate and prosecute crimes.

Weisberg admits, however, that he actually envisions a Justice Department cowed by political pressure. In his narrative, corrupted executive branch decisions masquerade as hard-nose realism: "Pursuing criminal charges would be too hard politically." That is a reckless declaration, obviously, but Weisberg is not alone.

If there is one partisan obsession that independent commentators and die-hard Obama supporters share, it is the crass premise that politics should trump equal enforcement of the law. Many even admit it openly.

Time columnist Joe Klein opposes enforcing torture laws "for political reasons, mostly," he recently wrote, to avoid detracting from Obama's "important domestic and foreign business." I've heard this same argument from many Obama supporters in e-mail, blog comments and at political events. (To be fair, though, it is also countered by apolitical accountability efforts on the left, from organizations taking the new administration to court, like ACLU and CCR, to blogs criticizing Obama's legal muddle, such as FireDogLake, Glenn Greenwald and Democrats.com.)

This agenda argument, however, is totally out of bounds. It is offered by people who have forgotten, perhaps temporarily, that some goals are simply illegitimate in a democratic society bound by the rule of law.

The Justice Department is never allowed to enforce (or undermine) the law for "political reasons." That's what the US attorney firings and the Saturday Night Massacre were about. It is perverse to oppose the enforcement of war crimes like waterboarding because one happens to support the policies of the incumbent president. Would Joe Klein reverse course if prosecutions thwarted the agenda of an administration he opposed?

Political meddling at the Justice Department, like torture, must be off the table, regardless of its utility. Nor should the government weigh whether national security is advanced by, say, canceling elections.

Our constitution does not allow a shift towards dictatorship or war crimes, even if it would make us "safer." Yet the current torture debate returns to the surreal contemplation of crimes against humanity on the basis of their (contested) intelligence value.

"It's almost an out-of-body experience to me to listen to this debate going on," said General Barry McCafferey in an MSNBC interview last month, scolding pundits and policymakers who openly advocate a criminal torture regime. "We should never, as a policy, maltreat people under our control--detainees. We tortured people, unmercifully, we probably murdered dozens of them," he said. McCaffrey supports an investigation of the government lawyers who knowingly advocated illegal torture, and he specifically cited Bush's White House counsel and attorney general in the same discussion, emphasizing that "we better find out how we went so wrong."

One reason we went so wrong, as the public record now proves, is that policymakers and government lawyers gave fraudulent counsel to advance an illegal torture regime. If the United States does not independently investigate those crimes with all the potential legal consequences on the table--taking testimony under oath, punishing perjury, disbarring lawyers (or judges) and prosecuting war crimes--we are more likely to get it wrong again in the future.

To put it on Obama's preferred terms, we must "look forward" to give the citizens who live through the next attack, whenever it comes, a clear guide for how to uphold American values under duress--and a tangible disincentive against returning to torture. As it stands, the current precedent leans heavily towards lawless immunity, not accountability. And no, it's not your fault.

Ari Melber is The Nation's Net movement correspondent and a writer for the magazine's blog.(www.arimelber.com.)
By Ari Melber
Reprinted with permission from The Nation

[thebob-bob]

Right On, Ari!!
After hearing the Republicans chanting, "rule of law, rule of law" during the political lynching of Bill Clinton, their silence now is deafening. The wheels of justice turn slowly. Let's let the D.of J. investigate and see what they come up with. Timing is everything.

Meanwhile we can enjoy the spectacle of Cheney and Limp-paw urging on the pro-Torture party.

[stychokiller]

I don't understand why everyone in this forum is so shocked that our Govt took the politically expedient route and ignored their constitutional obligations. One only has to look at U.S. History to see that this is nothing new:
Hundreds of treaties with Native-American tribes -- ignored/abrogated when something of value was found on/under the land they were promised in the treaty.
Japanese-American citizens forcibly relocated to "Internment" (read Concentration) Camps until the end of WW2.
Social Justice for freed African-American slaves effectively thrown by the wayside by segregation and other Jim Crow laws.

Perhaps it's time to admit the truth and round up all practicing Moslems and put them in "Re-education Camps."

How is it that becoming a govt leader at any level suddenly allows you to justify ignoring or sidestepping what the Constitution demands from you? How do you live with yourself?

Until such time as real accountability (jail time, death penalties) apply to our political leaders, nothing will change.

[PNKust]

The problem with attaching illegality to waterboarding is that Congress accepted the idea that waterboarding was NOT torture, and therefore was legal. America did not endorse the use of "torture" per se, but rather endorsed the idea of waterboarding. Similarly, the other enhanced interrogation techniques were presented AND ACCEPTED as being "not torture."

Identifying an interrogation technique as torture is a value proposition. For all the seeming rationale international treaties put behind the term, at the end of the discussion torture is whatever we say it is, and it is not whatever we say it is not. If the consensus then that the enhanced interrogation techniques were not torture, therefore legal, it is a poor notion of justice to declare a mulligan on the proposition now--to say "oops! we changed our minds, waterboarding IS torture after all."

For all the prattle about the "rule of law," there is no system of law that can sustain when the interpretations and definitions intrinsic to the law are subject to arbitrary and capricious whimsy. The pious pontifications from those clamoring for show trials is, in truth, a sickening display of a most shallow, most arbitrary, and most capricious whimsy--and is a grotesque injustice to all as a result.

[amacd2-2009]

?You can?t handle the truth!?

From WSWS?s Bill Van Auken on Torture Acknowledgment and Prosecution:

(The) ?recent report issued by the Senate Armed Services Committee confirmed, a major aim of the torture was not to uncover intelligence about an imminent act of terrorism, but to extract confessions of ties between Al Qaeda and Saddam Hussein in order to bolster one of the Bush administration?s phony pretexts for a war of aggression against Iraq.?

?The failure of the Obama administration to initiate such an investigation and its cowering before the CIA and the rest of the national security apparatus only confirms that there exists no real constituency within any section of the US ruling elite for the defense of democratic rights.?

?Moreover, the Obama administration, like its predecessor, is committed to upholding the interests of a financial oligarchy at the expense of the broad mass of working people in the US and around the world. This cannot be achieved by democratic means. It requires a continuation of the policy of aggressive war abroad?with the administration?s military escalation in Afghanistan and Pakistan?and a continuation of the assault on basic democratic rights at home.

The fight to put an end to wars of aggression, torture, extraordinary rendition and the other (war) crimes with which the US government is identified all over the world cannot be advanced without holding accountable those responsible for these practices.?

http://www.wsws.org/articles/2009/may2009/tort-m07.shtml

IMHO, No matter how loudly Obama (and the American people) may cry ?Out, damn?d spot!? ?- we will not be able to walk out of this tragedy alive until this most odious crime is expunged.

Alan MacDonald
Sanford, Maine

[dottygirl5161]

All I know is that waterboarding was considered a most heinous form of torture after WWII. My grandmother was involved in the infamous Double Tenth interrogations in Singapore (indeed, her actions caused them to happen, perhaps). I wrote a play posted at www.tighsolas.ca/page745.html about it - using her unpublished memoirs and the book the Trial of Sumida Haruzo. Indeed the British prosecutors created a hierarchy of tortures for their purposes, mocking what what the women went through. Indeed, according to the prosecution, the worse thing the women suffered was the humiliation of having to sleep near the men, in a small bug infested cage. My grandmother was brought to the brink of death and back..this incident proves torture doesn't work. they didn't get anything out of anyone.

[pdchapin]

I'm not qualified to say whether waterboarding is torture under the law. But on the scale of possible torture techniques, it's pretty far down the list. For instance, compared to what US prisoners in VIetnam went through, waterboarding would have been a good day. Somebody even figured out that we've waterboarded over 20,000 of our own troops as part of training.

If this is a crime people should be prosecuted, but let's keep things in perspective. There was no pulling arms out the socket here. No electrical current through parts of the anatomy that this site would probably censor. In fact most of torture was based on trying to make people believe we were about to do something really bad. Potential punishments should be scaled accordingly.

[paddyhayes]

We called waterboarding torture when we tried Japanese military Officers for authorizing it.

After 23 years in the Army, 19 of which were as a Commissioned Officer, I can tell you this: "Know your enemy" does not mean "Become your enemy."

[engineer001-2009]

The first argument is whether or not the actions taken were torture. Many seem to disagree. I for one do not believe the list rises to the level of torture. Pressuring these guys to tell us what we want to know by making them very uncomfortable and possibly fearful of us is the prudent thing to do. By that argument there is no evidence that we tortured people.

However, in the heat of battle, I believe that one might just be justified in going over that line to get information that might be necessary to defend oneself and this country. Just be prepared to be prosecuted for it.

Using "torture" interchangeably with "waterboarding" doesn't make it so!

[habu99-2009]

I find if funny that Democrats are all up in arms about "illegal" torture that was in fact legal at the time - and you want people prosecuted for not breaking the law.
Posted by noloyalisti at 4:01 PM : May 6, 2009

You don't get it do you? Waterboarding IS torture and has always been considered torture dating back to the Spanish Inquisition. The United States helped write the Geneva Convention laws applying to every nation on the face of the planet in dealing with prisoners of war and the prohibition of torture (like waterboarding). Just because Jabbering Junior's boot licker lawyers came up with some half baked legal loophole, the fact is they did so out of thin air. Their arguments don't stand up. Period. Georgie and his master Cheney are war criminals, so is Dumbsfeld and now apparently Condi Rice as well. The entire torture "policy" didn't provide one scrap of evidence to keep us safe, but did serve to provide many recruits to the Islamic extremists who want to kill us.

This needs to be investigated and prosecuted. Those found guilty should hang. I don't care if Democrats were involved (I doubt it because Bush and Cheney never told the truth in 8 years), EVERYBODY who was part of this needs to either rot in jail or dangle on the gallows.

And if those idjits on the right insist that waterboarding isn't torture, Keith Olbermann has offered the Manatee $1000 per second donated to a veterans charity if that blowhard allows himself to be waterboarded. If it's not torture, then he should have no problem being strapped down to raise money for the troops.

[AnAmericanAmericaAgain]

I can't believe how many ignorant people are commenting about how necessary & terrific TORTURE is! Do we not remember what America stands for (or at least, we used to stand for)!!! Those who stray away from there virtues & philosophies so easily, were never true followers of these virtues & philosophies. In other words, If you don't understand why torture is bad you were never a follower of American ideals in the first place. I Call for all Americans to raise hell with your representatives to ensure these crimes are prosecuted. Not for some justifiable vegance, but for precedence. If we don't prosecute war criminals, then future generations are gauranteed an easy excuse to perpetrate these crimes because "we've done it before & noone got into trouble".

BTW. Can someone explain to me how the terrorists didn't already win the war on terror? I mean there intent has always been to "change our way of life". Didn't we let them win when we decided to torture & spy on civilians. Face it. conservatives were terrified & allowed the terrorists to win in the name of security.

Those who would trade liberty for security, deserve niether.