Monday, April 20, 2009

Torture and the rule of law

Theodore Bilbo: he wasn't big on the idea of enforcing the laws against lynching, either

White House Chief of Staff Rahm Emmanuel was on ABC's This Week talking-heads Sunday morning show on 04/19/09. Host George Stephanopoulos asked him about the prospect of prosecuting those who broke the law by torturing people. Asked him as a "final quick question", which is the level of importance the Beltway Village consensus puts on such matters:

STEPHANOPOULOS: Final quick question. The president has ruled out prosecutions for CIA officials who believed they were following the law. Does he believe that the officials who devised the policies should be immune from prosecution?

EMANUEL: What he believes is, look, as you saw in that statement he wrote, and I would just take a step back. He came up with this and he worked on this for about four weeks, wrote that statement Wednesday night, after he made his decision, and dictated what he wanted to see. And Thursday morning, I saw him in the office, he was still editing it.

He believes that people in good faith were operating with the guidance they were provided. They shouldn't be prosecuted.

STEPHANOPOULOS: What about those who devised policy?

EMANUEL: Yes, but those who devised policy, he believes that they were -- should not be prosecuted either, and that's not the place that we go -- as he said in that letter, and I would really recommend people look at the full statement -- not the letter, the statement -- in that second paragraph, "this is not a time for retribution." It's time for reflection. It's not a time to use our energy and our time in looking back and any sense of anger and retribution.

We have a lot to do to protect America. What people need to know, this practice and technique, we don't use anymore. He banned it. [my emphasis]
This is Rahm Emmanuel's spin on this. But I can believe from everything I've seen that Obama himself would prefer not to have to deal with this. But this is not a matter of Barack Obama's policy preferences. It's a matter of law.


The treaties relating to torture to which the United States is a party require prosecution of torture. In the case of most crimes, prosecutorial discretion comes into play on whether or not to prosecute a particular crime. That is not permitted under the treaties on torture. (Deciding whether there is sufficient evidence to establish guilt is another matter.) Glenn Greenwald in Eric Holder v. America's legal obligations Salon 04/17/09 explains this at some length. Here, I'll quote one portion from the Convention Against Torture: "An order from a superior officer or a public authority may not be invoked as a justification of torture." That looks to me like a judge should not even allow a defense attorney to make such an argument, although I believe torture defendants have been allowed to use at least some variation of it.

This may be Dick Cheney's most significant accomplishment, and the most fatal to our Constitutional democracy: we now discuss whether to enforce the most straightforward matters of law about torture as though it were a simple policy matter, even a trivial one. "Final quick question" is apparently all that it means in the Village mentality.

Returning to Rahm Emmanuel's comment speaking on behalf of the White House, if we don't prosecute those who committed torture with their own hands - and feet, when it comes to kicked prisoners - and we don't prosecute those who ordered others to torture, and we don't prosecute the lawyers who wrote legal opinions for the purpose of facilitating the commission of a crime, why pretend we have laws against torture at all? Why pretend that we take even the most serious treaty obligations seriously?

I don't won't to be unfair to Emmanuel. After all, he gave a somewhat garbled answer to something that for the Village is just a "final quick question", not really anything of importance. But I also want to be fair to the rule of law here. In that statement, he is saying that the rule of law does not apply to the Executive Branch. And that enforcement of even the most specific laws is purely a matter of political preference and convenience. I just don't see how we could honestly interpret that as saying otherwise.

The Justice Department has the responsibility of investigating violations of the law and making a determination on the proper course of action independent of politics. Again, torture is a particularly blatant case, because it's an act of state terror that fundamentally violates the rule of law itself. If the Justice Department passes on prosecuting some tangled corruption case where getting a conviction is questionable, someone may say that the decision was "all politics". The Bush Justice Department that wouldn't prosecute the torture crimes that it, too, was legally obligated to prosecute did carry on political prosecutions. But they did still allow hypocrisy to give its tribute to virtue by at least pretending (more or less) that those were not political prosecutions. To treat the prosecution of torture as though it were "just politics" would be a stake in the heart of the rule of law.

As Digby put it in her reaction to Rahm's statement:

Maybe the President should clarify his position. According to his chief of staff, the President and the Attorney General are committed to breaking international law. Once again, we see that covering up past crimes does nothing but entangle the current executive in the crimes themselves.
I used the picture of Theodore Bilbo, a notorious racist Senator from Mississippi who name became virtually synonymous with virulent white racism, because I'm more impressed all the time at how the acceptance and even approval of torture among our political and press establishment reflects the actual practice of "lynch law" in the Deep South for decades. Lynch "law", of course, was the practical absence of the rule of law. But even then, public officials generally made a pretense of being against it. Some more convincingly than others. In the case of Dick Cheney's torture policy, they attempted to openly set aside all laws and treaties prohibiting torture.

We shouldn't forget the role our Establishment press has played and is playing in this process of setting aside the rule of law. They aren't really explaining the legal issues very well, when they bother to explain them at all. Addicted to horse-race coverage and generally indifferent to what we used to call "journalism", the press corps attitude toward torture and the rule of law was summed up brilliantly by the way George Stephanopoulos introduced the torture issue: "Final quick question". This is how democracy dies.

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