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War on Terror? Torture? Prosecute Us?

by BobHiggins Tue Jan 27th, 2009 at 02:22:33 PM EST

There is an ongoing debate over the closing of America's most notorious detainment/torture center at Guantanamo and the legality and efficacy of using torture to extract "information" from detainees in that and other facilities.

In a piece in this morning's Washington Post titled Torture? Prosecute Us, Too Richard Cohen leads with this:

"The past is a foreign country; they do things differently there." So goes an aphorism that needs to be applied to the current debate over whether those who authorized and used torture should be prosecuted. In the very different country called Sept. 11, 2001, the answer would be a resounding no.

Contrary to what has become the accepted noise, "the world" did not "change" on 9/11. Our laws, our treaties and international agreements as well as our values remained. We did not become a "very different country" on September 12, 2001 despite Mr. Cohen's (and others) claim.

In many ways it is our body of law that binds the past, present and future. The rule of law gives constancy to our "values." Laws may change but the process of change is, and should be reasoned and deliberate, not an impassioned reaction to the events of the day. That kind of reaction to the passions of the moment is the path of the lynch mob.

If, as is said in legal circles, "big cases make for bad law," the events of 9/11 and the rapid changes in our laws and public policy that resulted from the reaction to those events gives us the mother of all examples of the aphorism.  An extremely big case led to a series of terrible revisions of our laws.

Among the legion of egregious errors committed by the last Republican administration was the naming of the war that it proposed to fight following the criminal destruction of the World Trade Center, the attack on the Pentagon and the downing of a fourth commercial airliner in a Pennsylvania pasture.

As has been pointed out numerous times "War on Terror" is an unfortunate term which calls for a war on a tactic: terror. You can no more fight a war against "terror" than you can fight a war against "covering fire," "encirclement" "camouflage" or "surprise."

Bush, Rumsfeld, Cheney and the Goebbelian PR squad in the White House basement used the term "terror" more for its perceived effectiveness in arousing the public than for any accuracy in describing their strategy, or as Bush put it, "strategery." It was in the Bush White House that the ad boys gave the word a capital "T" and used it as their "brand" for instilling public fear and acquiescence in nearly any act that they chose to carry out over the ensuing seven years.

The attacks on September 11, 2001 involved specific criminal acts, all of which are spelled out in federal and state law and punishable by lengthy prison terms up to and including life in prison. Under federal law, death penalty statutes would apply for the murder of the thousands of victims of the crimes.

When the World trade center was bombed the first time in 1993 the crime was investigated by the NYPD, the ATF and the FBI with the help, no doubt, of other agencies both here and abroad. A thorough investigation by law enforcement professionals resulted in the arrest, conviction and life sentences for the criminals involved.

The Marines were not sent in, nor were the Army and Navy deployed in force and the country did not go to war. Rather than launching a full scale campaign of "shock and awe," the Clinton administration, in its wisdom, effectively, sent in "Columbo."

Following the crimes of 9/11 the mindset of our "leadership" was very different; actually, it now seems that the minds were made up before the event, made up in fact even before the 2000 election.

An investigation quickly confirmed the involvement of Osama bin Laden and al Qaeda and it was quickly decided to take on the Taliban and al Qaeda, Afghanistan was never intended to be the main thrust, nor was bin Laden to be the main target.

The public was, quite rightly, afraid after the attacks; I was. (I watched it on TV too) It was a time of fear and uncertainty that called for calm leadership and thoughtful action.

That is not what we got. We got a strutting cowboy alternately threatening the world, boasting of American might, and daring potential adversaries to "bring it on." He sounded like a drunken Saturday night drugstore cowpoke, cranked up on Jack Daniels, inviting any and all to a session of parking lot gravel dancing. "Mano a mano?"

Afghanistan and the Taliban were bottled up quickly, bin Laden isolated and rendered ineffective (at least temporarily) and the public roared its approval. (Cohen cites Bush's 92% approval ratings)

But our leadership kept feeding the collective fear and fanning the flames of public passion with manufactured intelligence, imagined alliances, an "axis of evil" cut from whole cloth and mythical "weapons of mass destruction."

Afghanistan and bin Laden was not enough, it would not serve as the entree to the Middle East that our "leadership" required, and in fact, his capture or death would retard the main goal of this posse. Saddam Hussein was to be the quarry, Iraqi oil the tool, American hegemony in the Middle East the ultimate prize.

Proof, (at least the appearance of proof) was needed to bind Iraq and Hussein with al Qaeda and bin Laden. Proof was needed to tie bin Laden's ability to acquire WMD to Hussein, to Iran, to anywhere they wanted to make a move.

They spread cash all over Afghanistan, all over Pakistan and all over the Middle East. Wads of hundred dollar bills, five grand here, ten there, were offered for information about al Qaeda members in some of the world's most impoverished countries, places where the annual per capita income is less than I spend on rum, and they got results.

People turned in cab drivers, personal rivals, enemies, tourists, their wife's divorce lawyer, you get the picture. Lots of suspects, never mind that they were often told by locals, by advisers, by interpreters that they were collaring the wrong guys, that many of these people were just hapless bystanders who had wandered into the net. It didn't matter.

It didn't matter because they weren't looking for facts; they were looking for "information." "Information" was necessary to tie Saddam to the "war on terror," so electrodes were attached, thumbs were screwed, genitals mistreated, people were "extraordinarily hydrated," and they got lots of "information."

Hook me up to the Toquemada machine and I'll confess to anything, any crime, any degradation to make the pain stop, and so will you. In a few days any of us will confess to being responsible for original sin, to make the pain stop.

Did they get facts, sure, cast a net that wide and you're bound to catch something edible, but I expect that the ratio of facts to "information" is, as they say, "highly classified."

At what cost did they gather these facts? We'll probably never know how many average Joes were destroyed, how many families ruined, how many people were murdered as a result of these "enhanced interrogation techniques," or how many minds were destroyed in the process.

And that is why we cannot "look forward," we cannot ignore these terrible, willful crimes, these war crimes, these crimes against humanity.

We must answer as a society for the criminality of our leadership by prosecuting them for what they purported to do in our name.

Cohen adds this:

At the same time, we have to be respectful of those who were in that Sept. 11 frame of mind, who thought they were saving lives -- and maybe were -- and who, in any case, were doing what the nation and its leaders wanted. It is imperative that our intelligence agents not have to fear that a sincere effort will result in their being hauled before some congressional committee or a grand jury. We want the finest people in these jobs -- not time-stampers who take no chances.

Is the cop on the street who beats a false confession out of a teenage suspect making a "sincere effort" to enforce the law? Is he saving lives?

Are the "finest people" those who can be persuaded to violate all norms of human decency?

Are those who resist power and insist on following the rule of law, now to be called "time stampers," "who take no chances?"

Cohen writes:

The best suggestion for how to proceed comes from David Cole of Georgetown Law School. Writing in the Jan. 15 New York Review of Books, he proposed that either the president or Congress appoint a blue-ribbon commission, arm it with subpoena power, and turn it loose to find out what went wrong, what (if anything) went right and to report not only to Congress but to us. We were the ones, remember, who just wanted to be kept safe. So, it is important, as well as fair, not to punish those who did what we wanted done -- back when we lived, scared to death, in a place called the Past.

I suggest that blue ribbon commissions are usually hired when whitewashing is felt to be the solution. I think that this is a job for the Justice department and perhaps a special prosecutor.

We don't need to find out what went wrong, there is a world full of opprobrium focused on our country as a result of these crimes, there is a sea of blood and body parts to attest to what went wrong. There is a universe filled with screams of torment to testify to what went wrong; it is time to find out whom, to what degree and to punish accordingly.

Yes we were scared, I too wanted to be secure but I have never been willing to give up my rights or the human rights of others for my personal safety; so don't, Mr. Cohen, try to blame this on me or the American people. We didn't sign on for crimes against humanity.

I'll leave you with this; I am a Marine veteran of Vietnam; twice a year (as I remember) we were instructed in the Military "Code of Conduct."

Here is a relevant excerpt:

"It is a violation of the Geneva Convention to place a prisoner under physical or mental duress, torture or any other form of coercion in an effort to secure information."
US Military Code of Conduct

Fact: Torture is illegal under US and international law.

Fact: We hung German officers and civilians for ordering others to commit war crimes and crimes against humanity.

Fact: We executed Japanese soldiers in WW2 for water boarding allied prisoners.

Fact: We punished our troops in Vietnam for the same offenses.

Leadership must be prosecuted for issuing unlawful orders to their troops which require them to violate our laws, treaties and conventions and the troops they lead are required to differentiate between lawful and unlawful orders whether from superior officers, from a frightened populace or... from a lynch mob.

Bob Higgins
Worldwide Sawdust

UN Convention Against Torture
No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.

That there is your entire argument against anyone who says differently. it's part of US law by treaty, Lawyers who claimed anything different in making policy should have been aware that there is a history of arresting and sentencing for excusing and allowing such action.

Any idiot can face a crisis - it's day to day living that wears you out.

by ceebs (ceebs (at) eurotrib (dot) com) on Tue Jan 27th, 2009 at 09:32:56 PM EST
Thanks for the heads up and taking time to comment.

by BobHiggins (rlh974@yahoo.com) on Wed Jan 28th, 2009 at 09:12:44 AM EST
[ Parent ]
and is the US a signatory? We are (.pdf - 4.08mb).

Convention against torture and other
cruel, inhuman or degrading treatment or
Done at New York December 10, 1984.
Entered into force June 26, 1987;
for the United States November 20, 1994.

"It Can't Be Just About Us"
--Frank Schnittger, ETian Extraordinaire
by papicek (papi_cek_at_hotmail_dot_com) on Fri Jan 30th, 2009 at 07:34:54 AM EST
[ Parent ]
Signed, and that date is the date that which the relevent house of government ratified the treaty.

From the Official UN site

United States of America  signed  18 Apr 1988   ratified  21 Oct 1994  

Any idiot can face a crisis - it's day to day living that wears you out.

by ceebs (ceebs (at) eurotrib (dot) com) on Fri Jan 30th, 2009 at 10:22:27 PM EST
[ Parent ]
Well written, irrefutable response to the Cohen article.

I can swear there ain't no heaven but I pray there ain't no hell. _ Blood Sweat & Tears
by Gringo (stargazing camel at aoldotcom) on Wed Jan 28th, 2009 at 09:33:18 AM EST
Thanks for this. A passionate defense of the rule of law against the shallow manipulations of an apologist like Cohen.

The Past, as Cohen so cavalierly writes, includes among many similar episodes, an innocent taxi driver in Afghanistan named Dilawar who was pulled off the road and sent to our Bagram prison on 'suspicion' of support of potential terrorist activity (he was rounded up by the Northern Alliance --our 'allies'-- who were paid for their captives). He was beaten so badly by our forces that his thighs were effectively pulverized--all of this was permitted under our so called 'enhanced interrogation' techniques.

His wife didn't know where he was. His family didn't know where he was. He was kept locked up and beaten for nearly a week in a US base in Bagram, Afghanistan with no charges brought against him. He screamed his innocence which only made the beatings that much more fierce (in a film about his death, Taxi to the Dark Side, the US military men explain that they beat him because he was so loud) He died when a blood clot from the beating finally stopped his heart.

Dilawar, a 22-year-old taxi driver from the poverty-stricken village of Yakubi in eastern Afghanistan, by US military forces at Bagram Air Base in December 2002. Dilawar and three of his passengers were captured by the Northern Alliance who falsely accused the men of firing rockets at the Camp Salerno military base.

Five days after being handed over to American forces, Dilawar was dead, killed by US Army interrogators who shackled him to the ceiling by his wrists and subjected him to sleep deprivation and savage beatings for hours on end. The initial official military report claimed that Dilawar had died of "natural causes". A subsequent autopsy revealed, however, that his legs had been reduced a pulp and that even if he had survived, it would have been necessary to amputate them.

This is what Richard Cohen is defending. Let him go and explain the problems with understanding 'our Past' to Dilawar's wife and children.

I'm sure they'll be happy to enlighten him.

by delicatemonster (delicatemons@delicatemonster.com) on Wed Jan 28th, 2009 at 10:47:50 AM EST
At the same time, we have to be respectful of those who were in that Sept. 11 frame of mind, who thought they were saving lives -- and maybe were -- and who, in any case, were doing what the nation and its leaders wanted.

So should we be respectful of anyone in that Sept. 11 frame of mind. isn't that going for a temporary insanity defence?  How long does temporary insanity last for a nation?

 The idea that they thought they were saving lives however has some weaknesses. At some point up the chain of command, someone should have read the apropriate research on torture, and found that all the work suggests that in discovering information it is the worst route to take. If someone didn't bring this to the leaderships notice then this is a systemic failure. If someone did then it's  a failure of Leadership.

If It is what the nation wanted, then somewhere there has been a severe failure of Education.

Any idiot can face a crisis - it's day to day living that wears you out.

by ceebs (ceebs (at) eurotrib (dot) com) on Wed Jan 28th, 2009 at 10:59:29 AM EST
Your problem isn't that Cohen is legally wrong, it's that, law be damned, so many people in the USA agree with him. Joe Scarborough can say that Bush and torture kept america safe and closing guantanamo (nd civilised behaviour) will make america into a target.

There are a lot of Americans who genuinely feel that this is true. Maybe not a majority, but enough who will then convince a majority that any pursuit of them will be political. And if it turns into a discussion over the politics, you've lost.

Sun Tzu counselled you to only fight battles you can win, ensure that you have done the groundwork before you ever engage so that winning is not just likely but inevitable.

So, before you do the legal thing, you have to do the hearts and minds thing of convincing america that banning torture isn't just some high faluting namby pamby liberal thing, but banning torture is wrong for hard faced practical reasons for the good of america, her soldiers and her people. That if you wouldn't want it done to you, how can you do it to others. Destroy the ticking timebomb argument.

Only when the American public can look at 24 and say torture is wrong, can hear Scarborough argue for it and revolt. Only when you've won the political battle. Only then can you actually do the legal thing.

Till then, it ain't worth the candle.

keep to the Fen Causeway

by Helen (lareinagal at yahoo dot co dot uk) on Wed Jan 28th, 2009 at 02:25:30 PM EST
"Your problem..."?

This is not personal.  It´s Bob´s problem only as much as it is Yours and Mine, since our "leaders", Bliar and Little shit, supported the entire FAKE plan from day one and never spoke up!  The whole EU´s problem, if we remember Barroso was sleazy enough to be the grand host and  tried to back out of the picture, but never looked back, either.

Let´s not go there, without looking at ourselves first.

Our knowledge has surpassed our wisdom. -Charu Saxena.

by metavision on Sun Feb 1st, 2009 at 05:00:40 PM EST
[ Parent ]
I wrote a comment on that snivelling little piece of garbage's blog:



The case you're making for what amounts to a truth and reconciliation process is more or less valid for lower-level apparatchiks.

But the people - and I use the term loosely - at the top were not merely in the grip of a national psychosis, the way it can be argued that their apparatchiks (and the general population) were: The people at the top - Bush, Cheney, Yoo, Rumsfeld and the rest of their gang - were actively fomenting this public insanity for partisan gain.

They knew precisely what they were doing. They knew precisely how utterly insignificant a threat terrorism poses (compared to - say - the deaths caused by lack of universal access to flu vaccination in the USA, terrorism is barely even a rounding error). They knew precisely what the consequences of their decisions would be - Cheney went so far as to publicly joke about it. And the amount of back-side covering that went on at the time shows that they had a fairly shrewd notion of the legality (rather, the lack thereof) of their decisions.

So prosecute the top three or four layers of political appointees to the fullest extent of domestic and international law. Prosecute every rotten congresscritter who voted for these despicable crimes against humanity. Those convicted should have their personal property confiscated (all if it, including the kickbacks stashed in their Swiss bank accounts) and be sent to rot in a prison for a very long while.

And stop these self-serving exercises in excuse-making masquerading as columns and op-eds: The corporate press was either very much complicit, being played like a fiddle, or both. These persistent attempts to sweep the last eight years under the rug amount to nothing more than a disgraceful gambit to employ the bully pulpit to exonerate yourselves and all the known criminals and their enablers (present venue very much included) inside the Beltway.


Fortunately, the comments over there seem pretty sane.

- Jake

Friends come and go. Enemies accumulate.

by JakeS (JangoSierra 'at' gmail 'dot' com) on Wed Jan 28th, 2009 at 03:55:51 PM EST
I wonder how Cohen would react if someone said we shouldn't have prosecuted Nazis because they were just doing what people wanted and Germany was afraid of being destroyed by Jews, Bolsheviks, Western democracies, gays, Gypsies, etc.
by rifek on Fri Jan 30th, 2009 at 07:55:38 PM EST
Imagine the worst psychopath in death row saying

´I didn´t destroy millions of human lives for a bunch of proven lies so,
if the 43s go free, why shouldn´t I?´  

It´s the biggest contradiction that ´justice´ cannot answer, nor ignore and a good reason to start by abolishing the death penalty.

War criminals should be dispossessed and prosecuted, starting at the top!  Those crimes should be the standard for life imprisonment, performing actual labor to pay their keep.

Our knowledge has surpassed our wisdom. -Charu Saxena.

by metavision on Sun Feb 1st, 2009 at 05:23:47 PM EST
I believe that there's a convention against the use of prison labour. And anyway, what would those gits produce that has any real value? It's not like most of them ever had an honest job anyway.

Also, I'm not sure all war crimes deserve lifetime imprisonment. Failing to wear a uniform is, technically speaking, a war crime (for a variety of generally excellent reasons). But surely that can be handled with a fine or a more limited prison term?

Confiscating their personal wealth, OTOH, is a program I can get entirely behind.

- Jake

Friends come and go. Enemies accumulate.

by JakeS (JangoSierra 'at' gmail 'dot' com) on Sun Feb 1st, 2009 at 06:55:59 PM EST
[ Parent ]

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