Below 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
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.
AnonY: Please let that pass, please Sir. Thank you.
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.
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.
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.
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.
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.
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.
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……….
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.
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.
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.
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.
The appearance of trolls means their masters are scared. I always feel reassured when they post because of that.
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.
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.
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.
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.
i agree, the longer you wait they nastier it will get