Memorial Day Reflections - What have we lost in their names?

Each Memorial Day, we as a nation are asked to pause and reflect on the sacrifices made in our name by countless soldiers. It used to be an easy thing to do, because we, as a nation, had a lot to defend. But in our descent into rendition, torture and indefinite detention, I am afraid that all those lives have been lost in vane. Those were not the values our soldiers, sailors, Marine, and airmen dies for.

And while we ponder that, let's ask each other another, fundamental question - what does it say about America that we allowed Saddam Hussein (he of the existential WMD threat to our Nation) to be tried in front of judges, with defense counsel, in the Iraqi legal system; and yet we are so afraid of the detainees in Guantanamo that we refuse the trial in our supposedly superior federal court system? How much longer will we run from this duplicity? What are we really afraid of - the prisoners, or us?

The legal case FOR torture prosecutions

As the Torture Watch continues in the blog-o-sphere, there are a lot of defenders of the Bush 43 Administration who do so based on one or more of the following strawman:

• You say we tortured terrorists, but we do it to our own servicemen all the time, so it can’t be torture. A variant is to ask if waterboarding is torture for the same reason.
  
• There’s no legal basis for calling this torture, especially since we’re at war and so we have to circumvent the laws in order to keep our people safe.
  

There are a host of others, but I think you get the point. What they are driving at, as Glenn Greenwald so elegantly puts it, is proving that Serious and Thoughtful People know more then we mere plebs do, and so we must TRUST them with our very existence, lest we all vaporize in the latest terrorist attack.

Now I’m no lawyer. I’m an oceanographer. That means I’m trained to look at things skeptically, ask questions, formulate hypotheses, test them, and then draw conclusions. In this case, that means I want to know what the law actually says we can and can’t do.

So I went to Google, and there, from the U.N. Convention on Torture (At Part 1, Article 1, §1) we read (highlighting mine):

For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Scrolling on down, we fin in Part 1, Article 2:

Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Further, in Part 1, Article 4:

Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

And way down in Part 1, Article 16, we find:

Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture or references to other forms of cruel, inhuman or degrading treatment or punishment.

Sadly for my many conservative, torture-defending sparing partners, the language could not be clearer on what torture is, and how we as a nation are supposed to deal with it. Basically, the Convention says you can’t inflict severe mental or physical pain and suffering intentionally, especially to get a confession or obtain information. It also says you can’t do that at the direction of any public official; that orders from a superior officer aren’t reason to do it, and that you can’t even do it under the rubric of war. And it says you can't inflict any other cruel or unhuman punishment even when told to do so by a public official or anyone acting in a public capacity.

Ok, I can hear them saying, why do you think this applies to us? It is, after all a U.N. convention, and what right does the U.N, have to tell us what to do?

It’s an interesting argument, until you read the U.S. Constitution. It says in Article Six, Paragraph 2:

“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 not with-standing.”

Translating that to modern, non-legal English: When the United States enters into a Treaty (which we do by Presidential Signature and congressional Ratification), that Treaty becomes Federal Law, and the language of the treaty becomes binding on the U.S., and particularly our judicial system. And Since President Reagan signed the Convention in 1988, and COngress Ratified it in 1994 (Under Republican control, as I recall), the Convention is the highest law of the land.

In other words, since the Convention on Torture says explicitly what torture is, and that it can not be sanctioned by any public official or in any public capacity, and since it says that the signatories must criminalize the act, and since it says war is not an excuse for torture, And since our own Constitution says this is our highest law; then the U.S. legal system has NO CHOICE but to investigate and prosecute any official for torture

“when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

The President, Vice President, White House Counsel, their Chiefs of staff, and the CIA and military officers are all public officials. The law is exceedingly clear. For anyone to pretend otherwise, is, as I see it, to destroy both the legal framework of the Constitution, and to pervert the intentions of our Founding fathers so they can engage in a sick, revenge drive blood bath. We need to eat our humble pie, investigate and prosecute. Otherwise, we are now a Nation that has 280 Million accomplices to torture in its name.

Shame on us!

UPDATE: Hilzoy has the best response to Mr. Obama's proposal for indefinite detention I've seen to date.

The root of the torture defense - the Republican Culture Wars?

Much has lately been written about the American understanding of, and response to, the actions of the Bush (43) administration, as well as Mr. Obama’s not quite full record in keeping his promises. I won’t rehash what is already on the books, so to speak. Readers interested in my views are certainly invited to browse the blog entries below.

So today, running through my morning blogroll, I was really blown away by Stephanie Z over at Almost Diamonds. This is one of the longest non-fiction posts I’ve seen from this prolific writer in a while, and I read all the way through it. I highly encourage you to do the same.

In a nutshell, Stephanie points out that, as often as not, debates about rules and laws are really debates about cultures, societies, and the definition of “us” and “them.” She weaves this meme together very nicely, citing everything from internment of Japanese Americans to the Bush torture debates. At the end, she notes in what may be her most important paragraph (FWIW) that increasing numbers and kinds of rules, which supposedly further the divide between groups or culture, are also increasingly resource intensive. A very fine closing.

Having read it, I think I am beginning to see the torture debate in much sharper, and perhaps more sinister focus. If, as Stephanie suggests, this debate about the “legality” of the torture actions by that Administration is really a mask for a cultural debate, it makes more sense why the “Law & Order” Republicans are so hung up on excusing law breaking by their highest elective officials. It would also explain why so many former Bush Administration folks are so prominently attacking Mr. Obama these days.

Think about it – the Republican/conservative culture wars have gone on for almost three decades by my shallow count. In that time, we’ve seen conservative commentators and politicians over and over again trot out an “Us vs. them” meme – whether on abortion, gay rights, the economy, or the Iraq war. That latter was, in my view, one of the worst culture war episodes, with the Vice President essentially calling me a traitor to the U.S. because I saw no strategic value in attacking a country that hadn’t attacked us (using trumped up evidence to boot).

Of course the great irony in the culture wars is there is a lot of enflaming of the “Base” with little follow on action. And I do have to wonder if this current rearguard reaction to the call for torture prosecutions will play out the same way. After all, if the Republicans could, for six years, have majorities in the House and Senate, and a willing President in the White House without passing a single Abortion banning bill, how can they really expect to hold off legal action if in fact they broke the law with regard to torture?

Obviously, I need to ruminate over this a lot more to fully see if Stephanie’s meme leads in this direction. Until I’m done though, I just want to say thanks – you made me think, which made my day.

Glenn Greenwald keeps up the good fight on Torture

This may be the most cogent (and most frightening) thing I've seen on the web regarding our post 9/11 actions as a nation. It's a comment (early in the thread too) about Glenn's post today on the Obama Administrations decision to keep some sort of military commission in place to deal with suspected terrorists. PDA's response, and Glenn's whole point, are the reason Mr. Bush and his Administration were such a disaster for the U.S.

UPDATE: See the Comments Section Here and Here for my reasons in supporting prosectuions against Bush Administration officials regarding torture. I need to go lie down now.

Nationalizing the banks - that horse has left the barn!

As we all wait anxiously for the "official" results of Treasury's Stress Tests of banks (!) - ponder this from Simon Johnson and James Kwak. It may take a few minutes, to read but they aregue (based on the actual evidence to date) that we are in effect slowly nationalizing banks without using the word, but on the banks' terms, not terms that benefit the U.S. taxpayer or economy in th elong run. They also prove, FWIW, that bloggers can indeed do real journalism.

Americans now PATRIOT ACT Targets

I don't have time to go into all the reasons this is wrong, but suffice it to say that I, and many many others, were worried about just this sort of thing happening. Both versions of the Patriot Act were wrong, and I fear this will not be the last time we hear a story like this.

America tortures - and the Far Right yawns.

I haven't weighed in much on torture here - but I am commenting elsewhere when I see fit. Part of the reason is that this whole thing sickens me. The other part is other do it so much better.

There was a day when I respected Mr. Krathammer. Almost admired him. But as time goes on, he descends so far into the lap of the Far Right, that I can no longer count him among those whose words I read to frame a cogent opposition argument to my own beliefs. Rush Limbaugh passed that mark many years ago too. These men, who have so often called for greater imposition of their morals as the law of the land on many issues, refuse to sanction the application of that law (signed by Mr. Reagan whom they claim to revere). The double standard is appalling. I hope that some of the other conservative I monitor won't go there, but I fear for their souls as well.

Waterboarding is torture. So are a whole host of other "enhanced" interrogation techniques. These actions have ABSOLUTELY no place in a country supposedly dedicated to the rule of law. They are morally and religiously repugnant acts (their practice by the historical Catholic Church not withstanding). As such, there is no justification for their use other then revenge or unbridled evil masquerading as punishment. And to be clear - a government that tortures others will eventually begin to torture its own.