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
AY, Thank you for the kind response to me. Hang in there.
AnonY:
Sounds good.
If Nixon had not been pardoned, today’s mess would not be as deep and disturbing.
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.
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
Good Afternoon AnonY.
I trust that you are okay today.
Good to have you back. Take care.
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.
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…
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.
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.
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…
PC,
“You mean 18th, not 6th, month anniversary, right?”
_____________
Have you never had children?
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.
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?
Anon:
A’s are always better than B’s where I come from, but like everything else they involve a choice in their procurement.
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.
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.
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.
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.
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.
Anonymously Yours, I’m sorry to hear of your loss, my condolences to you.