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
S/B, rut roh = gonif <John Hinderaker
“THE FRUITS OF HATRED”
http://www.powerlineblog.com/archives/2009/05/023518.php
rut roh = gonif < John
rut roh:
Your stepping on your lower lip. BTW where did you cut and paste the above?
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.
Intent will never equal consent. This 1/16 wit failed that question. 🙂
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.
mespo,
the 3 terrorists we waterboarded were TOLD they would not be harmed and they also were advised their was a doctor present.
Anon:
I forgot about that one. Good show. Here’s the video with the rendition of the unforgettable “Man in Black”:
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
I should have said the first clause of number 2. His stupidity was contagious.
Concerning the CIA and Pelosi.
Did the CIA all of a sudden become the source of truth and light?
During that time Porter Goss and Dusty Foggo (what a handle) were running that bad movie:
http://blogdredd.blogspot.com/2009/02/foggy-mountain-boyz-out-to-watergate.html
Thank you sir.
Mespon72cubed,
Which 2 sir?
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.
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.
Hmm,
Track five, same album, can substitute the lyrics,
from ‘to the one’, to ‘my son’. Peace big daddy.
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.
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.
AY:
Could I prescribe, “And It Stoned Me,” by the Belfast Cowboy.
Album: The Best of Van Morrison [Mercury] Thanks too, AY.
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.