Saturday, April 18, 2009

Assigning responsibility for the torture program

I was going to post a comment following up on Mike's comment to Tanker's last post, Torture Excused 04/17/09. But I figured it would run long enough a separate blog post was in order.

Tankwoman expressed her disgust at the high-level criminality involved in this and the urgency of holding the senior perpetrators responsible. Mike in his comment expressed doubt that such a thing would ever happen. And, if the good folks of the Beltway Village have their way, it never will.

I think the case actually is that it will be difficult for the Obama administration not to prosecute people involved in the torture policy. Even though most of his team would almost certainly prefer to follow the Village consensus and "put it behind us" and "look forward".

There were a number of criminal activities, including malicious prosecution activities like those of Ted Stevens (who certainly appears to be major-league corrupt) and Don Siegelman, the former Democratic Governor of Alabama.

But the torture policy is especially urgent for several reasons. One is that torture represents such a fundamental violation of the rule of law. In fact, it is an act of state terror, which is one of the reasons the issues involved need to be vetted in court and probably in other official investigations, as well. As long as the debate stays in the current position of the torture supporters claiming that the torture program not only kept the country safe in the circumstances of the last eight years but is necessary on a permanent basis to keep us safe, while the ugly specifics of the program aren't authoritatively vetted and the particulars of what did and didn't happen with the actual people tortured, the pro-torture position will retain more credibility than it will if actual prosecutions happen.

One of the points that needs to become central to the discussion over torture, so central that even our Big Pundits will at least have to take notice of it (if they are even capable of doing so), is that even when used in interrogation, torture is not primarily if at all about getting accurate information. Sure, sometimes prisoners produce accurate information under torture, although it's well established that techniques not involving torture are better at that. (It's important to keep in mind that it has yet to be reliably established that any useful information at all was produced by the Cheney-Bush torture program.) Torture is an act of terror. Normally state terror, because only governments generally have the facilities and personnel to carry out torture systematically as the US Government did under Cheney and Bush. Jimmy Carter described this succinctly in his book Our Endangered Values: America's Moral Crisis (2005):

Aside from the humanitarian aspects, it is well known that, under excruciating torture, a prisoner will admit almost any suggested crime. Such confessions are, of course, not admissible in trials in civilized nations. The primary goal of torture or the threat of torture is not to obtain convictions for crimes, but to engender and maintain fear. Some of our leaders have found that it is easy to forgo human rights for those who are considered to be subhuman, or "enemy combatants". [my emphasis]
St. Ronald Reagan was the President who signed the 1984 Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment which was subsequently ratified by Congress. In addition to separate US legislation outlawing torture, the Torture Convention imposes stringent conditions on governments that overrules most prosecutory discretion about prosecuting participants in torture at either the direct or policy level. In the context of international armed conflict also obliges governments to prosecute torture cases, as does Common Article 3 of the Geneva Conventions, which the Supreme Court has specifically ruled applies to prisoners in the Bush Gulag from the "war on terror".

We shouldn't be starry-eyed about this. Some people support torture - a lot of people, actually - and will no matter what kind of additional horrors get put on the record from the Cheney-Bush torture program. Dave Neiwert in his excellent new book The Eliminationists: How Hate Talk Radicalized the American Right (2009) explains how the background of American policies toward Indian tribes, lynchings and the internment of Japanese-Americans during the Second World War provide a conceptual, emotional and political foundation for what he calls "eliminationist" thinking directed against hated minorities. I see the history of lynching in particular as providing a model of support for the torture policy.

Tankwoman argues against letting the policymakers and facilitating lawyers off the hook by scapegoating lower-levels perpetrators, which is what was done in the Abu Ghuraib prosecutions. On the specific issue of prosecuting the (literally) hands-on torturers, the laws oblige the Justice Department to prosecute those just as much as the policymakers, although in terms of conserving the rule of law, prosecuting the policymakers is more critical.

There is plenty of crime involved in the torture policy alone to prosecute. We know this was advocated and approved at the highest level of the government, i.e., Dick Cheney. Whether there is sufficient evidence of legal culpability for Cheney and Bush individually is a matter which the Justice Department would have to determine in a serious criminal investigation. But since Cheney has publicly bragged about being involved in the decision to inflict the drowning torture (waterboarding), he has already basically confessed in public to a war crime.

There had to be plenty of intermediate enablers, as well. Generals, corporals, majors and captains had to pass orders along the chain of command or look the other way and decline to do their duty in enforcing the law. We already know how senior administration attorneys prepared Mob-lawyer type legal findings that were designed to help perpetrators evade prosecution for acts that all parties involved knew to be criminal. There were contractors and civilian officials involved.

And, of course, the actual torturers themselves. The ones who poured the water and restrained the victims during the drowning torture. The ones who inflicted the beatings and slammed the prisoners into walls. The ones who put them in small boxes. The doctors who were present to help the torturers manage the pain levels of the victims and who otherwise participated in the torture in violation of all their professional ethical obligations. The ones who hung prisoners in agonizing positions for hours and days. The ones who kept their victims aware for protracted periods. The ones who maintained their victims in severe isolation with the associated damage that inflicts. The ones who staged the perverted sex shows in Abu Ghuraib and almost certainly elsewhere.

The Justice Department is obligated to prosecute all these criminals, from the most senior to the most junior. There are plenty of others morally culpable as well, not least among them our dysfunctional national press corps. But the press failures in themselves are technically crimes. And even pinpointing the moral blame for failure to do the right thing for the press would be difficult. Pinpointing the moral failings of Members of Congress who failed to do their Constitutional duties isn't so difficult a challenge.

One of my concerns is that there had to be a lot of people directly involved in actual torture of individuals. And some significant number of them must have been involved for months or years at a time. I don't know to what extent there is good information on the subsequent actions of trained torturers when their official gigs are up. Some of them probably do go back to normal lives without indulging their acquired tastes for cruelty and sadism further. I'm sure that a lot of them don't. And there are criminal organizations of various kinds, as well as nominally respectable "security consultants" like the company formerly known as Blackwater that will pay good money for their services. I'm sure there will be some blowback from people trained and practiced as the hands-on torturers.

I feel especially harshly toward the medical personnel involved. As far as my personal feelings go, I would like to see them receive the harshest punishments of anyone involved.

But getting the high-level perpetrators tried and convicted is the most critical issue for restoring the rule of law.

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