Sat May 2nd, 2009 at 05:10:06 AM EST
We have started to see some elaborate defenses of the Bush era torture program, but all of them resolutely ignore the issue at the very heart of it.
For more on pruning back executive power see Pruning Shears.
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Now that we are seeing more and more details about the Bush administration's torture program, it is forcing those in favor of it do defend in greater detail. Right wing blogs have been the lustiest advocates. Even someone like A.J. Strata who in his own words has "left the conservative fevered swamps" can write of the left: "Their base is adamant that there be public witch hunts against the Bush administration for being aggressive in the war on terror, and for inflicting a faked drowning reaction in established mass murderers tied to 9-11." The terminology is fascinating - investigations are witch hunts, the gutting of habeas corpus is being aggressive, waterboarding is fake drowning (sounds more like a girl at the beach trying to get a lifeguard's attention), and Abu Zubaydah and Abd al-Rahim Nashiri have been transmuted through some heretofore unknown Terrorism Philosophers Stone from low level al Qaida functionaries - or potentially even less (via) - into key architects of 9/11. From there, the story goes, these people gave up valuable intelligence. The subtext: They had it coming.
Moving up the conservative food chain, on Tuesday Fox News reported that Khalid Sheikh Mohammed was waterboarded far fewer than 183 times in a single month, and therefore reports of his torture are "highly misleading." It grants that he was waterboarded but will not acknowledge that waterboarding is torture, allowing only that president Obama banned it because HE thinks it is. The article quotes an anonymous official who breaks down the waterboarding into individual "pours" (you know, like you'd pour yourself a drink) and then tries to compress these pours into single waterboarding "sessions." And in any event, as David Rivkin and Lee Casey argue (via), as long as it is closely monitored and certain details (such as not allowing water to actually enter the lungs) are observed these sessions are above reproach. This is what I called the strategy of "play, pause and explain" last year - take something horrible, play it back a little, pause the tape and explain why that little bit it isn't really so bad; repeat. By chopping it up into many little pieces the accumulated violence of the whole event can be rationalized.
Top conservatives were busy, too. This past Sunday George Will said "if we are going to say meretricious lawyering is a crime...what do you do about those who are commissioning the lawyering and whose behalf the lawyering was done. Condoleezza Rice, Don Rumsfeld, Dick Cheney and George Bush." The main argument at this level is that investigating torture would amount to criminalizing political differences. Teddy Partridge did the honors on that one. Notice the theme of inept counsel too. Administration officials did not solicit and receive criminally negligent advice, but were unknowingly handed bad advice. They then innocently toddled off in blissful ignorance of their legal exposure. Sorting out which it really was would require an investigation, of course, and since we are now looking forward we cannot ever possibly determine that.
Here is the problem with all of those arguments: Waterboarding has been universally regarded as torture for hundreds of years - this is no "some say..." debate - and the United States is a signatory to the Convention Against Torture (CAT). As Andrew Sullivan points out, the CAT is explicit - any act of severe pain, no exceptions. As Glenn Greenwald points out, Article VI of the Constitution states that treaties we sign are the supreme law of the land (legalism to watch for: the CAT and Geneva Conventions are not technically treaties so they are not binding). Therefore, even if those tortured were key players, even if they gave us a trove of fantastically valuable intelligence and even if it was only done one time it still is a war crime that we are obligated to prosecute. Even if we discovered some novel wrinkle to waterboarding that distinguishes it from what was done by the Khmer Rouge or during the Spanish Inquisition, we are still obligated to prosecute. Even if the decision came as a result of the worst lawyering in the history of law and threatens to lead all the way to the Oval Office, we are still obligated to prosecute.
All the arguments from torture apologists amount to an insistence against that. If they were honest they would not be approaching it from any of the points of view above. They would not be trying to convince us that waterboarding isn't torture, that it wasn't done very often, that it wasn't real according to Hoyle waterboarding, that the lawyers screwed up or that it would be terribly difficult to hold the previous administration responsible. Instead they would simply argue that we withdraw from any agreement that obliges us to do anything about it.