Friday, May 01, 2009

Thinking about war crimes

I watched a couple of minutes of Meet the Press several days ago and heard host David Gregory talk about how the issue of prosecuting torturers being a matter of the tremendous pressure President Obama is receiving from "the left" of his Party. Is that really where we are in American politics? That only "the left" support enforcing the laws against torture?

No, that's where the general consciousness of the Beltway Village is. And they've been creating their own reality for some time.

I don't mind being regarded as one of the dang hippie bloggers that so distress the Village people. But I actually don't see prosecution of torture as a "left" issue in any meaningful qualitative sense of the word. Though it's sadly true right now that Democrats are more interested in prosecuting the torture crimes than Republicans and our Pod Pundits, most of whom clearly support the Cheney-Bush torture program either overtly or "objectively", to borrow a favorite neocon word (which in turn is a heritage from their Troskyist intellectual background). My own thinking about the torture issue when it was beginning in 2001 and hints of it were first emerging in the press was shaped by several different things.

One is the legacy of lynch-law. I am most familiar with the Deep South version of it because I grew up there, not least because my small Mississippi hometown was the scene of the lynch-murder of two 14-year-old boys back in October of 1942, which became something of a international incident at the time. As Dave Neiwert explained in Death on the Fourth of July: The Story of a Killing, a Trial, and Hate Crime in America (2004), events like that leave a very lasting impression on small towns especially.


Another is having studied the Second World War and the Nuremberg War Crimes Trials and learning from that the importance of the enforcement of national and international laws against war crimes. A related area with which I'm familiar and that influenced my thinking a great deal is the "politics of memory" particularly over the Second World War and the Holocaust in Germany and Austria. I also paid close attention in learning about the Vietnam War to the issue of war crimes there. The book Nuremberg and Vietnam: An American Tragedy (1970) by Telford Taylor, who was the US Chief Counsel at the Nuremberg War Crimes trials really impressed on me the importance of an international law framework to limit the horrors of war.

And ever since the fall of the Berlin Wall in 1989 - almost 20 years ago now! - I've been fascinated by both the "politics of memory" and issues of transitional justice when major regime changes happen. It was only more recently that I began to learn much more about transitional justice issues in Spain and Argentina.

So I knew that torture, the execution of prisoners of war (or "enemy combatants") and some other practices were big-time problematic. And I keep saying that the torture accountability issue isn't going away. I find myself struggling not to sound melodramatic in saying this, but torture goes to the heart of the rule of law. If the government can torture confessions and use torture as an instrument of terror against its own people and others, it breaches the whole concept of the rule of law. You can have a lot of laws in that situation but not the rule of law. It's really that serious. And I don't see that in a qualitative sense as a left/right, liberal/conservative kind of issue. But it's a very discouraging development that the Republican Party is willing to embrace this kind of criminality. It's a sign of how authoritarian a party it has become.

We also have to face the fact that while torture is an issue that has to be dealt with in itself, the Cheney-Bush torture program was part of the implementation of Dick Cheney's Unitary Executive theory of Presidential power which holds that the President is not bound by the laws or even the Constitution itself as long as he's acting in what he himself decides are situations to protect national security. That justification was elaborated repeatedly in Bush's notorious signing statements and explicitly in relation to torture in at least one of the Bybee memos. And in the Pedilla case, they applied the torture and illegal detention program to an American citizen arrested on American soil. If the Cheney-Bush torture policy is taken to be a legitimate policy option, then the precedent for using completely arbitrary Presidential power even on American citizens is set.

The one piece of the Cheney program that hasn't fall into place yet if for a successor government - Obama's in this case - to effectively validate those policies by refusing to prosecute criminal acts committed under those policies. The damage went far beyond the torture program. John Dean spells out the seriousness of Justice Department prosecutorial misconduct in The Strong Message Attorney General Eric Holder Sent to All Federal Prosecutors When He Dismissed the Indictment Against Senator Ted Stevens, and the Apparent Basis for the Dismissal 04/03/09. (Dean's Findlaw articles always have long titles.) Dean weighed in on the torture issue on Olbermann's Countdown in this segment of 04/17/09.

And if you think that a new Republican administration won't resume the same policies and worse, watch this segment of Dick Cheney's daughter Liz defending torture:



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