Tuesday, January 27, 2009

Defending the Torturers - the Richard Cohen Story

Like so many in the media establishment in the D.C area, the Washington Post’s Richard Cohen thinks we shouldn't prosecute American civil servants or politicians who engaged in or authorized torture in the Bush Administration. His argument, similar to his Post colleague David Ignatius (and many others in politics here) is that lives may well have been saved, and post-9/11 we all wanted to be safe. So, a few bad guys got really messed up psychologically and physically? So what if the U.S. finally came out of the closet as a harsh, potentially totalitarian state, like many of our “allies.” If we have to do something, a blue ribbon commission will find the truth, set us free, and that should be the end of that.

Well sir, your lengthy career not withstanding, you have it wrong. You are looking at this through the lens of the D.C. national political establishment (where you are an elitist who enjoys certain kinds of privileged access), instead of the lens of the big picture. And you are either ignoring, or are ignorant of the real damage those actions, and their actors have done to the United States.

First, there is really no line between torturing foreigners whom you believe to be a threat, and torturing your own citizens who dare to disagree with you. I know, there is no evidence that American civil servants or military personnel tortured anyone who can claim U.S. citizenship, but there is plenty of evidence that those same officials thought Americans were a threat unto themselves. How else do you explain warrantless wiretapping programs that, even now, are shielded from the public’s scrutiny? How else do you explain the arrogance of telling the American people “So” when it is pointed out to you that 70% of them disapprove of what you are doing supposedly in their name? Among the many things it has left behind, the Bush Administration has left a serious disregard to both American laws, and American institutions.

Second, and perhaps more important, is the legal side of the issue. Our constitution says (in Article Six) “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” It is remarkably straightforward language, especially since it was written so long ago – and basically says that America, once she enters into a treaty relationship that is duly and properly ratified by Congress, must take that treaty law and act upon it as if it had been passed by the Congress itself and signed by the President.

Where that gets sticky for the Bush Administration, and Mr. Cohen’s defense, is the Geneva Convention. The four parts (adopted between 1864 and 1949) expressly govern the treatment of combatants in all types of conflicts. For our purposes, the “war on terror” certainly falls into the definition of the second convention as an international war with involvement of at least one “Higher Contracting Party” – namely the U.S. The second convention has specific requirements for humane treatment, including expressly forbidding torture. And, as a treaty fully ratified and adopted by the Congress, it is the highest law of the land in the U.S.

Thus, anyone torturing in the name of the U.S. and anyone authorizing or directing torture in the name of the U.S. is in violation of the Convention, and the U.S. Constitution, since the later clearly directs the former to be the highest law of the land. A generation ago, we forced a President to resign because he had broken other U.S. laws, though none of the legal issues raised in Watergate were of this caliber.

Yet now, with mounting evidence of a significant breach of U.S. law, Mr. Cohen (and too many others) labor intensively to tell we the people that we should just look the other way. We should not open this wound, prosecute these men, because it will make us unsafe – and potentially take away tools that might save lives later (though there is no specific evidence ever presented to back this claim). Well sir, you are wrong. The best and highest tool we have to defeat terrorists is the Constitution, and the civil liberties and protections it contains. Anything that weakens that Constitution, anything that subverts our laws, is a victory for those who seek to bring us down. And I, as a citizen, refuse to let the Constitution be weakened. Further, I refuse to let it be weakened so that folks like Mr. Cohen can continue to hide from the hypocrisy of claiming to love and support our nation, while all the while destroying it from within just so they can maintain their “elite” status in the fish bowl that is D.C.

As usual, this is an issue that resonates across new media. Hat tip to Glenn Greenwald for this quote from Thomas Jefferson, which summs up the situation nicely:

"I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." --Thomas Jefferson to Thomas Paine, 1789. ME 7:408, Papers 15:269

I hate it when others jump on my band wagon. Ok, Not really.

Apparently, the judiciary is now weighing in - and their take might just surprise you.

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