Three Legal Truths: The Case for The Prosecution of War Crimes By the Bush Administration

torture -abu ghraibBelow is today’s column in the U.S. News and World Report on the case for prosecuting torture and responding to the dwindling number of defenders of the Bush torture program:

For many people around the world, it is a sign of the decline of American moral leadership that we continue to debate whether the government should prosecute those involved the Bush torture program. Their confusion is understandable. Under our existing treaty obligations, we agreed to prosecute such crimes and we have prosecuted others for precisely the same acts for decades. The real question should be: Should the United States violate international law to shield individuals accused of war crimes? Our answer to that question will define or redefine this country for generations.

Notably, in the last few months, the many law professors who once defended the torture program have largely disappeared. The shrinking number of apologists for the Bush administration are left with largely political arguments in the face of three unassailable legal truths. First, waterboarding is torture. Second, torture is a war crime. Third, the United States is obligated to prosecute war crimes.

WATERBOARDING IS TORTURE
Despite early spin, there has never been a true debate about the status of waterboarding as torture. It has been a well-recognized form of torture since before the Spanish Inquisition. Indeed, it has remained popular because it leaves no incriminating marks and requires little training or equipment. It was the chosen form of torture of the Gestapo, Pol Pot, and the Bush administration.

The status of waterboarding as torture was established by the United States. Indeed, the U.S. military used waterboarding (“the water cure”) in the Philippines in 1898. While the accused insisted (as do many today) that the torture was justified under the necessities and law of war, members of Congress rejected the argument and demanded the prosecution of Maj. Edwin F. Glenn. He was court-martialed and convicted of the crime of torture.

The United States remained a moral leader on torture for decades, including our prosecution of Japanese officers for waterboarding American and Allied soldiers. One, Yukio Asano, was sentenced to 15 years of hard labor for waterboarding.

In 1983, the Justice Department prosecuted and convicted Texas Sheriff James Parker and his deputies for waterboarding a prisoner. Parker was sentenced to four years in prison.

Legal experts around the world have denounced the Bush program as classic and clear torture. They have been joined by interrogators and officials from the Bush administration itself, including various Bush administration lawyers who vehemently objected to torture at the time. Susan J. Crawford, a former judge and convening authority for the Bush military tribunals, and State Department official Richard Armitage acknowledged that we tortured individuals. Republican John McCain (himself a victim of torture) has called it torture. President Obama and Attorney General Eric Holder declared that waterboarding is torture. Leading organizations like the International Red Cross define it as not just torture but a war crime.

TORTURE IS A WAR CRIME
That brings us to the second truth: Torture is a war crime. This one is easy, and even the dwindling number of George Bush apologists do not seriously question this point. Torture is a crime under domestic and international law. Various federal laws address torture, not the least of which is the Torture Act, 18 U.S.C. § 2340.

There is also the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which President Reagan signed. The Convention Against Torture expressly states that “just following orders” is no defense and “no exceptional circumstances whatsoever” will be considered. This is acknowledged as a binding law, including most recently by former Secretary of State Condoleezza Rice.

WE ARE OBLIGATED TO PROSECUTE INDIVIDUALS WHO COMMIT TORTURE
Finally, the United States is obligated to investigate and prosecute war crimes. Under the Convention Against Torture, we agreed to make “all acts of torture offences under [our] criminal law” and to prosecute any such cases. The failure to prosecute war crimes committed by your own government is an offense of the same order as the original war crime.

Bush was adamant on the prosecution of war crimes in other countries. In 2003, he insisted, “War crimes will be prosecuted, war criminals will be punished and it will be no defense to say, ‘I was just following orders.’ ” On June 26, 2003, conservatives applauded as Bush told the United Nations, “[the United States] is committed to the worldwide elimination of torture and we are leading this fight by example.”

A TEST OF PRINCIPLE
Our failure to investigate and prosecute accused war criminals has led some United Nations officials to accuse the United States of violating treaty obligations. More importantly, our continued debate over this question puts our troops in danger. We will be hard pressed in the future to call for prosecution of leaders who torture our citizens and soldiers.

We cannot continue a war on terrorism while being violators of international law ourselves. Torture and terrorism are cut from the same legal bolt: Both are violations of human rights and international law. If we want the world to join us in fighting one crime against humanity, we cannot continue to obstruct the prosecution of another crime against humanity.

Ultimately, we all become accessories after the fact if we stand silent in the face of these war crimes. Bush ordered these war crimes because he believed that he was

above the law and others like Rice have claimed that, if the president orders such actions, they are by definition legal. They were both wrong. The law is clear. The only remaining question is whether we have the national character and commitment to the rule of law to hold even our leaders to account for crimes committed in our name.

Such prosecutions do not weaken a nation. They reaffirm the difference between ourselves and those we are fighting. To abandon our principles for politics would be to hand al-Qaeda its greatest victory – not the destruction of lives or buildings but our own self-inflicted wound of hypocrisy and immorality. True victory against our enemies will only be found on the other side of prosecuting those who (like our enemies) claim the right to wage war by any means.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University, who has served as lead counsel in a variety of national security and terrorism cases.

U.S. News & World Report Weekly: May 9, 2009

85 thoughts on “Three Legal Truths: The Case for The Prosecution of War Crimes By the Bush Administration

  1. Prof.,

    Well done, sir. Most succinct and in plain language anyone can understand. Jefferson would be proud of you. I am too.

  2. “It was the chosen form of torture of the Gestapo, Pol Pot, and the Bush administration.”
    ______________

    Excellent comparison.

    The only emphasis missing–for us less educated folks–within this excellent article is the aspect of time. The Spanish Inquisition occurred *531* years ago, so there is a longstanding international “legal precedent* establishing that waterboarding is torture.

    The Inquistion also started 14 years *before* that Columbus feller took his Ocean liner cruise/vacation to visit our American shores (supposedly) .
    ______________________

    From WikiPedia:

    {Quote: The Spanish Inquisition was an ecclesiastical tribunal started in 1478 by Catholic Monarchs Ferdinand II of Aragon and Isabella I of Castile. It was intended to maintain Catholic orthodoxy in their kingdoms, and to replace the medieval inquisition which was under papal control. The new body was under the direct control of the Spanish monarchy. It was not definitively abolished until 1834, during the reign of Isabella II.

    The Inquisition, as an ecclesiastical tribunal, had jurisdiction only over baptized Christians, some of who also practised other forms of faith and at the time were considered heretics according to the Catholic Church and recently formed kingdoms at the time. The Inquisition worked in large part to ensure the orthodoxy of recent converts. End Quote}

  3. There is another reason to prosecute, and it is forward-looking: deterrence. Cheney and Gonzales are currently defending the torture for which they share responsibility, saying that torture is legal and that it works, and that Obama is making the nation less safe. They are saying, in other words, that they would torture again if they were in power.

    It is possible, of course, despite Obama’s current popularity, that the Republicans could regain power. Suppose that there was a 9/11-type attack under Obama and the public was persuaded that it was caused by Obama’s unwillingness to torture. After all, there were no such attacks under Bush after he started to torture. People may be panicked enough and stupid enough to believe these arguments; don’t forget that Bush was re-elected in 2004, after we knew that he was torturing people. If we don’t prosecute, then they will do it again.

  4. Henry:
    “If we don’t prosecute, then they will do it again.”
    Hmmm, in our name too. Couldn’t agree with you more.

    Let’s not forget, we supplied the largest recruiting tool used by Al-Qaeda, Abu Ghraib and Guantanamo. How many Americans died due to these tactics?

    BushCo policy’s are a bigger threat to America than Osama bin Laden and Saddam Hussein combined.

  5. This is a great argument. It lays out clear moral, legal and political reasons for doing the right thing without delay, Thank you for continuing to speak honestly about the consequences of our failure to act and the promise of who we are, should we do so.

  6. Truly outstanding column. Succinct and to the point. One can almost hear the convulsive reactions of the trolls.

    This was engineered by Dick Cheney and has its genesis in the days of the Nixon administration. We are all well aware of Mr. Cheney’s support of an imperial view of presidential powers. I believe he will go to his grave firmly believing that if the president approves it, it cannot be unlawful, regardless of contrary legislative and treaty provisions. Mr. Cheney did not believe that written opinions from lawyers were necessary to provide legal support for torture; he wanted the opinions only to satisfy the needs of others in the Bush administration who did not share his belief in a unitary executive. I believe he instructed David Addington to secure the necessary opinions for the bureaucratic weaklings in the chain of command. Mr. Addington, well known for his intimidating manner, bullied the opinions out of lawyers whose primary interest was the preservation of their careers. We all know the results.

    Since the legal opinions are indefensible, it is not surprising that former members of the Bush administration become hopelessly contorted when they attempt to defend the opinions in public. Prof. Rice’s recent comments are a case in point. The lawyers themselves are scouring Congress for political cover rather than submitting to the inevitable humiliation of publicly explaining their reasoning. Only Prof. Yoo appears to remain defiant, but he chose that road before the memoranda became available to the world, and he now has no room to maneuver.

    I have probably said this before, but we are only as sick as our secrets. In addition to the legal mandates so well addressed by Prof. Turley, the moral health of this country is riding on the decisions made by Mr. Holder in the coming months.

  7. I don’t think the questions about this topic still revolve around “Is waterboarding torture?”, “Is torture legal?” and “Should this be prosecuted?” as these are fairly settled questions here and elsewhere (except for the few stubborn holdouts). I think the really interesting questions come in the form of “How high up the command chain can people be prosecuted?”, “Could Cheney be prosecuted?”, and “Could a former president (Bush) be prosecuted for crimes committed as the president?” Honestly, I have always felt that the reason many are hesitant both inside and outside the current administration to call for prosecution is because of these latter three questions and the huge constitutional can of worms that come along with them. I can only imagine the Supreme Court cases that would spring from either Bush or Cheney being formally indicted on any such charges.

  8. Charles C,

    As Professor Turley pointed out, George Bush answered the question about whether he and Cheney should and could be prosecuted. The answer is, yes.

  9. “First, waterboarding is torture. Second, torture is a war crime. Third, the United States is obligated to prosecute war crimes.”
    Great article, please keep posting and become more involved in social media. The discussions online could certainly benefit from people of your ability on these matters.

  10. My letter to Atty Gen Holder:
    Dear Attorney General Holder: Following are quotes from an article I read today:
    “Attorney General Eric Holder has said that “no one is above the law” and that his office would “follow the evidence.” He has not appointed a special prosecutor.
    President Obama said Holder will be the person who ultimately decides whether to prosecute Bush administration lawyers who wrote opinions providing a legal basis for interrogation techniques widely denounced as torture.
    President Obama also said CIA agents who tortured prisoners will not be prosecuted.”
    Can you tell me if we are now a country with a two tier system of justice? It appears we are going to have one justice system for government officials, departments and agencies, and another for ordinary Americans who, by the way, do not take an oath to preserve, protect and defend the Constitution of the United States.

    If I stole a car last week, and am pulled over this week and arrested, can I say, this crime was committed in the past and we should move on, this is no time for retribution? Can all the people who are currently in jail be released, because this is no time for retribution and we have to move on?

    It is clear to everyone that crimes were committed, our own laws and international treaties we signed were violated.

    It is clear to everyone that the President, Vice President, Attorney General, National Security Advisor and other members of the Bush administration ordered these crimes, that the Justice Department lawyers in the OLC justified them at the request of the administration, and that CIA officers and others carried them out. It is not just the OLC lawyers who are at issue here.

    They have all violated the law, as even Democratic members of Congress may have done by ignoring the violations of which they were made aware.
    There must be some legal process to deal with these crimes. There must be an investigation by a special prosecutor, and indictments and charges must be brought against everyone involved, if warranted, then they must go to trial. There is no way around that under the laws of this country.

    If President Obama doesn’t want to uphold the laws for political reasons, then he must pardon the perpetrators of these crimes. To sweep these crimes under the rug for political reasons is to deny and make a mockery of the Constitution. A legal process to deal with these crimes is required. There is no way you can just ignore them and then tell our citizens, and other countries, that we must have rule of law and we must obey the laws.

    Why must we obey the law when administrations and government employees who break the law are forgiven? How can you explain this?

    These matters cannot just be put in the past with no accountability. And that accountability should apply to everyone involved, no matter what party they belong to. We tortured and in the process of that we also killed people. And there is to be no accountability for this? The OLC lawyers tortured the law to please their masters in the Bush administration. The CIA officers and contractors carried out these violations of the law without a second thought, and without pity. And we should move on? Then why is anyone charged with a crime that was committed in the past? If it were me, I would make the argument in court that I, too, should not be subject to retribution, that society should just move on and let it go and I should no more be held to account for the crimes I committed than the President and his administration are being held to account.

    What other conclusions can we draw from this hypocritical stand that you and President Obama are taking?

  11. Jill, you are certainly correct, but the can of worms referenced by CharlesC is real. But I view it as a political, rather than a constitutional, can of worms. I’m not speaking of the politicians, but of the anguish millions of ordinary people will feel over the very idea of possible prosecution of a former president and vice-president. Perhaps the caution on the part of the Obama administration is due in some part to a perception that a lot more work needs to be done by the press to expose the sordid details before the American public is emotionally prepared to handle the legal consequences. That is, at least, a rational position to take, and the press certainly has a lot of complicity of its own to make up for.

  12. forgive me i am not a american citizen, but could someone explain to me why when a politician crafts legislation that benefits the people who give him/her campaign money it is not a fraud perpetrated upon the american people.

  13. jim, your question is a fair one. The answer is that it is a fraud perpetrated upon the American people.

  14. jim and MikeAppleton,

    I always learned that this was effective lobbying. Maybe I have my wire crossed, but when I worked for the Majority Leader D-Texas, that was way back when. It seemed perfectly ok to me.

  15. Mike A.,

    I hear this but I don’t think it’s the problem is appears to be. Neither Cheney or Bush are popular with most people. They left office with a very low approval rating. I grant you they have strong supporters though, even if few in number. We could wait 4 years but these strong supporters are unlikely to change their opinion. To their small group of fans, no amount of actual information will ever matter. So it doesn’t make sense to wait until these people come around, because they will not ever come around.

    I don’t see people rising up in mass protest over the investigation of war criminals. I think most people know that we were lied into the Iraq war and aren’t happy about that. I think we are not giving people in our nation enough credit. The arguments against prosecution come from the elites of our society–many of them in the “news” business, so I don’t think the news cadre may be counted on to bring anyone around to the need for investigations. They seem to be doing everything they can to stop them.

    Now I don’t underestimate the damage a frightened and enraged elite can do to a nation (we’ve already seen that). But not standing up to this elite has very bad consequences which I think JT addressed in this column. This situation isn’t going to be pretty. Any situation where one takes on the ruling, most powerful memebers of one’s society is going to get scary and dangerous really fast. However, we didn’t take them on for 8 years and look what scary and dangerous things did happen. I don’t see a way out of this except to do it. I don’t know what the end conclusion will be. I do know what the end conclusion of doing nothing is–a complete failure of the rule of law, the complete gutting of the Constitution and a defacto dictatorship. We need to get on with this. It’s one of those awful times that every nation seems to go through at some point. It’s like JT said, it’s time for us follow our best values.

  16. Pelosi’s new excuse:

    I Was Told CIA Tactics Were Lawful.

    House speaker amends claim that she wasn’t told about interrogation methods after records show she was briefed.

    Can’t wait to see her Frog Marched out of Congress along with Jay Rockefeller for lying through their teeth about waterboarding and lying about what they knew, when they knew it, and what they knew about the information it got us.

  17. Jill, Bush’s approval ratings are aleady rising.

    Remember, Harry Truman left office in the 1950’s with poll ratings lower than Bush’s at the end of Bush’s second term and now Harry Truman is considered one of our greatest Presidents.

    I see Bush gaining a huge comeback as Afganistan goes sour, the deficits and the generational theft comes to awareness of theyoung, Gitmo not getting closed, and third world thugs start mocking Obama.

    Funny how Bush was a war criminal to the left when even 2 Afganistan civilians were killed by air strikes, but OBAMA takes out 100 at once and nary a peep out of you.

  18. Rut Roh, I am glad that you are now in favor of the investigation and prosecution of all torture criminals, Democratic and Republican, gay and straight. Crime is an equal opportunity employer, and so should its prosecution. Welcome aboard the justice train.

  19. Obama to hold town hall meeting on credit cards
    Fri May 8, 2009 5:10pm EDT

    Oh GOOD LORD. Now the ONE is preaching populism to the up-to- their-eyeballs-with-debt credit card bunch. I can see the end of my rewards coming as credit card companies look for ways to reduce cost as the ONE leans on them.

  20. The appearance of trolls means their masters are scared. I always feel reassured when they post because of that.

  21. Mike:

    I just want those that LIED about what they knew about waterboarding frog marched out of congress. I don’t have a problem with waterboarding 3 terrorists 189 times (uh, and that was 189 EVENTS of dropping water on a cloth, you know, 3 tablespoons on a washcloth = 1 waterboarding count). I have a problem with congress members lying about not knowing about it.

    FROG MARCH PELOSI right to jail for lying about what she knew and when.

  22. Jill, how about those rotten harry truman poll numbers just after his term ended. I don’t doubt Bush will be considered one of our greatest Presidents ever after the left wing flap trap attacks peter out for lack of credibility.

  23. I don’t usually reference 1984 (because most of the people that do either misuse the terms or selectively apply Orwell’s message), but that is some double-plus good duckspeak.

  24. Rut Roh, given your views I don’t understand why you are not arguing that the U.S. should withdraw from all treaty commitments prohibiting torture and that Congress should repeal domestic laws against torture as well. Apologists for Bush administration torture policy refuse to explain why it is acceptable to ignore laws with which one disagrees, rather than comply with them until they are changed. That is all that the phrase “government of laws” means. Bush could have, and did, get Congress to agree to whatever statutory authority he wanted. Are you so fearful that you believe the president is free to do whatever the hell he wants, subject only to his own discretion? That is the dictionary definition of tyranny. My question is the elephant in the middle of the room that no conservative appears comfortable addressing, and I don’t honestly understand why.

  25. Mike Appleton,

    1) As has been pointed out dozens of times; the United States military has trained over 40,000 troops using severe & harsh interrogation methods since the late 1970’s

    2) This training has been investigated by Congress any number of times and approval was granted and funding was provided the Congress all those years.

    3) Nothing that we did to three terrorists exceeded what the United States Government did to our own 40,000 troops in 1) above.

    That means either

    1) Congress has permitted the US Military to “torture” 40,000 troops being trained since the late 1970’s and voiced no objections and nor did any demand accountability and the application of law against “torture – so all of Congress is guilty as charged and has been conspiring against the rights of 40,000 troops ince the late 1970’s.

    OR

    2) The training 40,000 United States troops have undergone WAS NOT TORTURE, therefor the harsh interrogation used on 3 terrorists WAS NOT TORTURE.

    You pick the answer……….

  26. Classic argument:

    Rule of three

    Strong Points raining down like hammer blows on an anvil

    Linear logic

    ethos, pathos and logos

    Inevitable conclusion

    This undistinguished student of rhetoric rates the professor’s work an “A.” How’s that for irony.

  27. mespo7272:

    Ok smart guy, you tell me the answer:

    1) As has been pointed out dozens of times; the United States military has trained over 40,000 troops using severe & harsh interrogation methods since the late 1970’s

    2) This training has been investigated by Congress any number of times and approval was granted and funding was provided by Congress all those years.

    3) Nothing that we did to three terrorists exceeded what the United States Government did to our own 40,000 US troops in mentioned in 1) above.

    That means either

    1) Congress has permitted the US Military to “torture” 40,000 troops since the late 1970’s while voicing no objections. None in Congress called this harsh interrogation training “torture”, therefor all of Congress is guilty of conspiring against the rights of 40,000 US troops since the late 1970’s.

    OR

    2) The training 40,000 US troops have undergone WAS NOT TORTURE therefor the harsh interrogation used on 3 terrorists IS NOT TORTURE.

    You pick the answer mespo7272. I await your clear answer.

  28. rut roh:

    Your just stating the same perspective BushCo used to form it’s policy.

    “The Survival Evasion Resistance Escape, or SERE, course is designed primarily for pilots and Special Forces soldiers who are at high risk of capture and interrogation.” By Peter Finn and Joby Warrick Washington Post.

    http://www.usnews.com/articles/news/2009/04/17/bush-lawyers-used-us-military-training-to-justify-cia-interrogation-techniques.htm

    Nothing that we did to three terrorists exceeded what the United States Government did to our own 40,000 troops in 1″

    Wrong rut roh, intention is the difference. Training people to survive torture is not the same as torturing people to extract information. Your premise and questions are spurious.

    Mike and others here will surely point you in a more lawful direction.

  29. JT’s arguments, along with mine, mespo’s and Mike S.’s, are based on contentions that our system of checks and balances long ago carved a path for our democracy and that the Constitution will, once again, light our way out of this dark paradox.

    http://jonathanturley.org/2008/03/04/mukaseys-paradox/

    “…In his twisting of legal principles, the attorney general has succeeded in creating a perfect paradox. Under Mukasey’s Paradox, lawyers cannot commit crimes when they act under the orders of a president — and a president cannot commit a crime when he acts under advice of lawyers…”

    ‘We Four’ are of the mindset that this country is strong enough to withstand the previous administration’s two damaging terms and determined have resolved not only to keep our heads, but to find our way – not ‘back’, but forward to an even better place., if possible.

    One need not take a stick of dynamite to a door in order to gain entrance, when simply locating the key and turning it in the keyhole will accomplish the primaary objective while keeping the basic structure intact.

    Confident in our history, we can afford to allow things to unfold, naturally, for a bit longer, while continuing to make our expectations and reasoning known by any and all intelligent means at our disposal.

    The idea that Obama was a slime-ball politician before the election, remains so today, and will, no doubt, continue to be well into the future and as a matter of course must never be trusted is not and never was part of our processes

    One can either choose to help Obama or not.

    And if people choose not to help, then they can handle the consequences of their choice by either feeling guilty or by clinging to their newly adopted roles of unfairly blaming Obama for their choice not to help and then by watching things turn out differently than they wanted.

    Some call that ‘passion’ – I call it something else,
    entirely.

  30. mespo,

    “This undistinguished student of rhetoric rates the professor’s work an “A.” How’s that for irony.”

    Sir, your modesty is an example. Undistinguished indeed.

  31. Far be it from me to want to be a part of a snobby class. There is a post that say me, mine and you and everyone else is too stupid to realize how smart I think I am.

  32. FFLEO,

    I went to the number 5 accounting school in the US The University of Texas-Austin. I finished in 3 years. I worked for 6 months and then went back. I was in the Honors program. I obtained another degree in Marketing took a number of years to get that next degree because time I took my time and picked up enough credit to get 8 degrees.

    One of the first classes I took, We had a Professor that said: “Students, I do not care how much education you obtain, when you fail to communicate with the people you are talking to, all your education is lost.”

    I then went to law school at Michigan, I played the game for my first year. I played the next 2 years. Why, because I could. When I told my family I wanted to go to Med School in Grenada, they said I had had enough education. I think it had something to do with starting in 76 and finishing up in 90. Oh well, maybe the next time I’ll get it right and be as smart as some people.

    I guess you are correct in I should leave it alone. But I have a bone right now. As you will see I did not name any names.

  33. Simply realize that others and I completely understand. I like to remember the song: Sometimes You Juss Caint Win.

    Post about what is important to the majority of us here. Thanks AnonY.

  34. AY:
    Could I prescribe, “And It Stoned Me,” by the Belfast Cowboy.
    Album: The Best of Van Morrison [Mercury] Thanks too, AY.

  35. CCD and FF LEO,

    I am in a funk, tomorrow will be 6 months since my son died. Yada Yada.

    I am a fan of Van, CCD do you remember the first group Morrison was with. Them. Yes, it was called Them. I guess it is kind of like naming your band, The Band.

  36. Prof. Turley,
    That was an excellent argument in favor of the full prosecution of all war criminals. Thanks to all for your attempts to reeducate Mr./Ms. Rut Roh. I don’t believe that you can bring the trolls back from the Dark Side, but your arguments were educational, nonetheless. Mike A., I was particularly interested in your comments about the public not being ready for prosecutions of the former President and VP. I agree with you, but the only way the media will start “preparing” the public is for Holder to start taking some definitive steps toward investigations and prosecutions. I don’t know if the law can wait long enough for the public to be prepared. Inherent in Prof. Turley’s argument is that the rule of law waits for noone. Happy Mothers Day weekend to all.

  37. Hmm,
    Track five, same album, can substitute the lyrics,
    from ‘to the one’, to ‘my son’. Peace big daddy.

  38. rut roh:

    “2) The training 40,000 US troops have undergone WAS NOT TORTURE therefor the harsh interrogation used on 3 terrorists IS NOT TORTURE.

    You pick the answer mespo7272. I await your clear answer.”

    **********

    Any person with a wit in his head can answer your question. You are certainly no Oracle at Delphi. The answer lies in the notion of consent. I may consent to have you punch me in the nose (we call that prize fighting); there is no battery since the conduct is both expected and hence arrangements can be made to defend myself. The notion of torture is devoid of any notion of consent. The victim is entirely at the mercy of the torturer and consents to none of it. This is why we don’t prosecute linebackers for, so called, “punishing” hits on running backs.

    The most important distinction of course is that the US soldiers know that no harm will come to them ultimately and the purpose of the consented-to exercise is to prepare them for the barbarism that is real torture. The victim in torture has no idea if he will ever see the sunrise, and its purpose, far from beneficent, is to extract some information or to exact some punishment.

    I am a little embarrassed having to explain this to a “civilized man,” but maybe my assumption is erroneous. The answer is #2.

  39. Anon:

    No word or combination thereof can ease your pain but I find this comforting sometimes:

    The time you won your town the race
    We chaired you through the market-place;
    Man and boy stood cheering by,
    And home we brought you shoulder-high.

    Today, the road all runners come,
    Shoulder-high we bring you home,
    And set you at your threshold down,
    Townsman of a stiller town.

    Smart lad, to slip betimes away
    From fields where glory does not stay,
    And early though the laurel grows
    It withers quicker than the rose.

    Eyes the shady night has shut
    Cannot see the record cut,
    And silence sounds no worse than cheers
    After earth has stopped the ears:

    Now you will not swell the rout
    Of lads that wore their honours out,
    Runners whom renown outran
    And the name died before the man.

    So set, before its echoes fade,
    The fleet foot on the sill of shade,
    And hold to the low lintel up
    The still-defended challenge-cup.

    And round that early-laurelled head
    Will flock to gaze the strengthless dead,
    And find unwithered on its curls
    The garland briefer than a girl’s.

    –A.E. Houseman

    I wish you peace.

  40. This is probably one of my favorite songs when I wanna blue.

    Kris Kristofferson, Sunday Morning Coming Down Lyrics
    Artist: Kristofferson Kris

    Well I woke up Sunday morning,
    With no way to hold my head that didn’t hurt.
    And the beer I had for breakfast wasn’t bad,
    So I had one more for dessert.
    Then I fumbled through my closet for my clothes,
    And found my cleanest dirty shirt.
    An’ I shaved my face and combed my hair,
    An’ stumbled down the stairs to meet the day.

    I’d smoked my brain the night before,
    On cigarettes and songs I’d been pickin’.
    But I lit my first and watched a small kid,
    Cussin’ at a can that he was kicking.
    Then I crossed the empty street,
    ‘n caught the Sunday smell of someone fryin’ chicken.
    And it took me back to somethin’,
    That I’d lost somehow, somewhere along the way.

    On the Sunday morning sidewalk,
    Wishing, Lord, that I was stoned.
    ‘Cos there’s something in a Sunday,
    Makes a body feel alone.
    And there’s nothin’ short of dyin’,
    Half as lonesome as the sound,
    On the sleepin’ city sidewalks:
    Sunday mornin’ comin’ down.

    In the park I saw a daddy,
    With a laughin’ little girl who he was swingin’.
    And I stopped beside a Sunday school,
    And listened to the song they were singin’.
    Then I headed back for home,
    And somewhere far away a lonely bell was ringin’.
    And it echoed through the canyons,
    Like the disappearing dreams of yesterday.

    On the Sunday morning sidewalk,
    Wishing, Lord, that I was stoned.
    ‘Cos there’s something in a Sunday,
    Makes a body feel alone.
    And there’s nothin’ short of dyin’,
    Half as lonesome as the sound,
    On the sleepin’ city sidewalks:
    Sunday mornin’ comin’ down.

    Do do do do do do do do,
    Do do do do do do do,
    Do do do do do do do do,
    Do do do do do do do.

    To fade

  41. Anon:

    I forgot about that one. Good show. Here’s the video with the rendition of the unforgettable “Man in Black”:

  42. mespo,

    the 3 terrorists we waterboarded were TOLD they would not be harmed and they also were advised their was a doctor present.

  43. rut roh:

    “the 3 terrorists we waterboarded were TOLD they would not be harmed and they also were advised their was a doctor present.”

    *****************

    I’ ve got some water front property in Florida you might be interested in plus a pretty little bridge in Brooklyn that is in need of a new owner.

  44. GREAT GREAT POST:

    For anyone who has been paying attention, one of the most striking political phenomena of the last six years has been the degree to which the Left, and over time the Democratic Party, has been swept away by a current of hate. The liberals’ animus has been directed largely, but by no means exclusively, at President Bush and his administration. Vast numbers of words have been consumed in trying to diagnose the reasons for this outburst of often-hysterical vitriol, but that topic is far beyond the scope of this post.

    Many thought that the liberals’ venom would abate with the end of the Bush administration, especially since liberal Democrats now control all the levers of power in Washington. But that has not been the case. Instead, the Democrats’ base has howled for “investigations” of alleged Bush-era malfeasance. The party’s office-holders needed little encouragement; as Paul has noted, those who refer to President Obama being “pressured” by the left wing of his party fail to appreciate that Obama is the left wing of his party.

    So we had the “torture” story–intended by the Democrats to be the torture scandal. The Democrats tried to vilify President Bush and his administration on the ground that they approved the waterboarding, and other relatively rough treatment–the dreaded caterpillar!–of a handful to top-level terrorists. It appears that the Democrats originally intended this agitation to lead to Congressional investigations and, perhaps, criminal prosecutions.

    In addition to lacking any merit, the “torture” theme was always stupid from a political perspective, for a number of reasons: 1) the Bush administration’s aggressive efforts to root out terrorism were popular, not unpopular; 2) at the time, the Democrats’ leaders in Congress were fully on board with being tough on terrorists; 3) the Obama administration, notwithstanding its grandstanding on matters like Guantanamo Bay, has actually kept the bulk of the Bush administration’s anti-terror policies in place, and no doubt would be hard on terrorists, just like the Bush administration, if it was necessary to prevent an attack; and 4) by promising a kinder, gentler attitude toward terrorists, the Obama administration virtually guaranteed that it would be blamed, and bitterly so, in the event of a successful terrorist attack.

    Which brings us to where we are now. The Democrats’ attack on the Bush administration, with respect to “torture,” has fizzled out. There will be no criminal investigation or prosecution; Nancy Pelosi is on the defensive due to a CIA leak of what everyone already knew, that she approved of waterboarding when she was on the House Intelligence Committee; polls show that most Americans approve of waterboarding, etc., and the Democrats are trying to forget the whole thing.

    The public is left with two conclusions: 1) the Democrats’ main indictment of the Bush administration is that it was mean to terrorists, and 2) if terrorists pull off an attack between now and 2012, the kinder and gentler Obama administration will be to blame.

    This is a terrible position for the Democrats to be in, and the wound is entirely self-inflicted. We’ve been waiting for a while for the Democrats to pay a price for their orgy of hatred, and it looks like they finally have.

  45. RutRoh, you do indeed have a point about that old hatred thing. I confess that as the truth gradually emerged and I came to realize that the leaders of this country willingly sacrificed thousands of lives, American and Iraqi, based upon lies and in pursuit of goals that cannot be accomplished for a myriad of historical, cultural and religious reasons, I became a tad upset. And when these same people persisted in the pursuit of those goals and repeated the lies when it was clear that all of us now knew they were lying, my anger grew. And I didn’t get over it after they left office (how immature of me), because none of those thousands of lives can be restored and thousands more will die due to willful ignorance and hubris. It hardly requires any particular brilliance to understand the ill will felt toward Mr. Bush and his merry band.

    On to your torture issues. You elected not to address the law, and I assume that you will not do so since it is patently contrary to your views. But here’s the point. I can say that I don’t believe that waterboarding is torture, but that is like saying that I don’t believe that light bends. In the former case, the law provides the definition. In the latter case, physics provides the law of refraction. Therefore, my belief is immaterial. Neither of the choices you presented as potentially correct answers is correct for the simple reason that your argument is predicated on a false premise, the conclusion that a technique used in the training of our troops cannot be classified as “torture.” The premise is not only false, but silly. The entire purpose of the training is to assist soldiers in developing methods for coping with torture in the event of capture. The techniques demonstrated during the course of the training are common forms of “torture” learned from our experiences in World War II and the Korean War, techniques that are prohibited by international and domestic law. As mespo earlier pointed out to you, soldiers undergoing the training understand that they will be experiencing actual torture techniques, but only briefly and under the watchful eyes of people whom they trust. In other words, we use actual torture in a friendly, controlled environment to help soldiers survive actual torture in situations in which they are not in control. Likewise, in the course of training fire fighters, buildings are ignited to teach techniques for retrieving victims, entering and exiting safely and controlling the blaze. Presumably you wouldn’t argue that training fires are not “real” fires. Or perhaps you would, in which event I’m staying up way late for no purpose.

  46. My fondest hope has been that the International Tribunal would prosecute these guys in due time. I have been reluctant to want the US govt to proceed with this as I fear it will take away from the energy that’s needed to fix our country’s, and the world’s, economic woes. Anyhow, until we are assured that integrity has been restored to our Justice Dept, they probably shouldn’t be tried. There are probably still Bush supporters in the ranks of the Justice Dept. now, and we need them to not be there. As soon as is feasible, I hope our Justice Dept. does prosecute Bush-Cheney, et al. to show the world we have to play by international rules and those who don’t will pay a price.

  47. Jill,

    I read this this morning and thought of you. I understand that you want something done and are afraid of it not being done. However, after living the “Fast Life” for so many years. And being as aggressive as Feiger in all that I did. I am and like a lot of others had developed this philosophy.

    “The chief danger in life is that you may take too many precautions.” – Alfred Adler

    I think that if we were all struck with “Balance” we would not even have anymore Wars.

    But then again don’t trust anybody under 30 or was that over 30. My how we change when reach reach the age that we are afraid of the most.

  48. Lotta-K,

    Thank you. You’re one well reason dude or dudette. In the likes of Mespo72cubed, FFLEO, Buddha, Mike S. and A, rafflaw, Jill, Patty C and a whole host of others not to be unmentioned.

  49. Mespo72cubed,

    Thanks for the “Sunday Morning Sidewalk.” One of the more interesting classes I took was the “Origin and Theory of Country and Western Music in the USA” I did learn a lot. The Cash Family is ok but greatly enriched by the Opry and Carter family connections.

    Some Irony, the Grand Old Opry was owned by the Rhymans, who happen to be Jewish (I went out with the granddaughter) How many of them serious rednecks would have ever gone to the Opry if they’d known these facts.

    I do not think that I would have ever graduated from college (even as hard as I tried to stay in) if they had had the internet. What I used to spend hours looking for in the library is readily available within seconds if not minutes, right here, right now, Instantaneous Gratification. What more could a slacker want. I wanted to use slackert but oh well.

    I am what you might have describe as a Type A personality in whatever I undertook. Whether it be school or work.

  50. Anon:

    A’s are always better than B’s where I come from, but like everything else they involve a choice in their procurement.

  51. Anonymously Yours 1, April 23, 2009 at 10:45 pm

    Me too. Me too. You don’t know how sorry I am and how sorry of a parent I felt and all the other guilt. Now I am ready, got the teeth sharpened. Skills never left, I just did not care. I came back home and Isolated for about the last 17 months. Now Teeth Sharpened, check.

    You mean 18th, not 6th, month anniversary, right?

  52. A.Y.,

    I didn’t realize your son had died until I read the rest of this thread today. I am truly sorry. That must be so incredibly painful.

  53. PC,

    “You mean 18th, not 6th, month anniversary, right?”
    _____________

    Have you never had children?

  54. Anonymously Yours 1, May 8, 2009 at 9:03 pm

    CCD and FF LEO,

    I am in a funk, tomorrow will be 6 months since my son died. Yada Yada.

    I am a fan of Van, CCD do you remember the first group Morrison was with. Them. Yes, it was called Them. I guess it is kind of like naming your band, The Band.

    I know when I’m being played.

    I also know when I am being stalked and I don’t care for that, either.

    My BS meter went off a couple of weeks ago on this one…

  55. Woke up late this AM with 106 E Mails from here sitting in my mailbox. The majority were on this thread and I’ve spent the last hour and a half reading them because my cable signal is low and my PC is slow. Very interesting discussion and even a persistent troll. Let me add what little I can, not having been part of the whole discussion.

    AY,
    As I’ve said previously your loss was great, my sympathy can’t approach what you must feel and healing (never confused with forgetting) takes time. Sunday Morning Coming Down was to me Kris K.s best song because it captures the feeling of despair we all experience at one point or another in our lives. To listen to it is to be brought back to ones own sense of the losses of life. your choice of it helps me approximate what you must be feeling, though it is such that I can never fully comprehend the effect of your loss upon you.

    Mespo,
    You Machiavelli quote was beyond appropriate and sums up what some of us have been saying on this topic. That it referenced Imperial Rome only underlined the aptness for what we face today. Part of the mistake that some well intentioned partisans make in their justifiable passion for justice, is that these overwhelming good v. evil issues of today, are merely a continuation of humanity’s age old battle to rise above our baser, lizard brain nature, into a world where justice and equity are predominant. A apt analogy to me are both the French and Russian Revolutions.
    Nowhere was there a more deserving of punishment nobility than in these venues and yet the speed of the victory brought with it excesses that equaled those being overthrown.
    It takes time and wisdom to do this right and the torture angle was only a part of the evils and excess of Bush/Cheney.
    There is so much in our system to fix and that is a process not aided by impatience. That Buddha and now myself are the only ones to comment on your gem, illustrates the difficulty of putting the present into historical context.

    Rut,
    You are typical of the cowardice that runs through workings
    of the Bush/Cheney Crime Family. You would be at least honest if you clearly stated: I agree with torture, we need it and it is lawful. Instead, knowing the silliness of your argument, yet with the tenacity of a partisan football fan, you try to work around the issue and think that you are finessing it. Instead you reveal that like that entire past administration of traitors you are far too afraid to express the vileness and immorality of what you really think.

  56. The trouble with reading 106 E Mails, on a balky PC, is that sometimes the threads get mixed in in my aging head. Of course none here commented on Mespo’s Machiavelli tour de force because it was on the Holder thread. If you haven’t seen it, try it and my apologies for the confusion. That’s what I get for waking up at 11:00am.

  57. Well Mike Spindell, at our age, Sunday Morning Coming Down is the same as Saturday Morning, Mon…Friday. And the song is ‘new’ to us because we don’t quite remember the tune or the lyrics between plays..

    With age, everyday is a fresh new day filled with wonderment…but mostly with, what the heck did I do with my socks, where are my glasses (look on your forehead, honey), and darn it I did not hear my 3rd-this-month’s new tea kettle whistlin’, I done boiled it dry again today, and now it it lays half melted on the stove…and the day has just begun…

    Everyday it’s getting’ closer, goin’ faster than a rollercoaster…

  58. Patty C 1, May 9, 2009 at 12:23 pm

    Anonymously Yours 1, May 8, 2009 at 9:03 pm
    CCD and FF LEO,

    I am in a funk, tomorrow will be 6 months since my son died. Yada Yada.

    I am a fan of Van, CCD do you remember the first group Morrison was with. Them. Yes, it was called Them. I guess it is kind of like naming your band, The Band.
    __________________________________________________________

    I know when I’m being played.

    I also know when I am being stalked and I don’t care for that, either.

    My BS meter went off a couple of weeks ago on this one…
    **********************************************************

    Patty C,

    If you are being played look in the mirror at the fool who is playing with you. You are mean spirited, nasty and crass. If you are in fact a Medical Doctor, I feel for your patients. You must be the most lonely and isolated person that your mind has ever dealt with.

    I grew up with parents in the medical profession. I have never heard someone with the alleged education such as yours lose so much.

    Yes, my Only Son COMMITTED SUICIDE 6 MONTHS AGO.

    I am pleased that I do not know you. But thank for leaving the others alone you disagree with.

  59. Good Afternoon AnonY.

    I trust that you are okay today.

    Good to have you back. Take care.

  60. We have to go after these guys legally. I find it deplorable that the only sound we hear when we ask “are we a nation of laws, or not?” is crickets instead of “YES! Emphatically, we are a nation of laws.” It sickens me to no end nobody’s been put in jail over this except the low level fall guys & gals who’ve served hard time.

    I have also written about the need to punish torture at http://www.7mesh.com/blog/?p=328. Thanks for an excellent column.

    mesh

  61. Former Federal LEO 1, May 9, 2009 at 3:56 pm

    Good Afternoon AnonY.

    I trust that you are okay today.

    Good to have you back. Take care.
    ************************************************

    I went to a support group this afternoon. It did not mean that I did not read someones snide remarks to me. Oh well.

    I am doing ok, I am watching Nixon/Frost right now. It is pretty good.

    Thanks for asking.

  62. AnonY:

    Sounds good.

    If Nixon had not been pardoned, today’s mess would not be as deep and disturbing.

  63. […] Jonathan Turley writes, Under our existing treaty obligations, we agreed to prosecute such crimes and we have prosecuted others for precisely the same acts for decades. The real question should be: Should the United States violate international law to shield individuals accused of war crimes? Our answer to that question will define or redefine this country for generations. […]

  64. Nobody has stated this more succinctly. Anytime I have the news on in the background, I always pay attention when it’s Turley’s/your turn to talk because I love to hear reasoned, logical, well articulated, and factually accurate information and spin-free interpretations of constitutional law. Thank you!

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