Sunday, September 24, 2006

"The torturer is the enemy of all mankind" (includes audioblog)

Audio blog (transcript included at the end of this post):

this is an audio post - click to play

There have been a number of good comments and analyses in the blogosphere of the Torture Legalization Act of 2006 (officially titled the "Bringing Terrorists to Justice Act of 2006". Here is a sampling of some of them.

Handmaidens to torture by David Neiwert, Orcinus blog 09/22/06

Much is being said about Democrats' abysmal failure in stopping the White House's plans to proceed with torturing people suspected of being terrorists, and for good reason. As Digby (in a typically definitive take) points out, the supposed forces of liberalism have simply been rolled by the machinations of the Bush administration.

But equally abysmal has been the performance of the press in making clear to the American public just what is going on here - from the get-go. Indeed, for the most part, the press has looked the other way, burying stories that should have been atop their front pages, and treating what should have been monstrous scandals as simply politics-as-usual.
He also quotes the late Joan Fitzpatrick with a nice summary of what's at stake, which I used for the title of this post: "The torturer is the enemy of all mankind."

Delegating to the President on Torture by Juliette Kayyem TPM Cafe 09/2206:

Marty [Lederman] and others are commenting on the wiggle room left to the President in determining what methods would be prohibited but may not constitute grave breaches of the Geneva Conventions and for some reasons its a big deal that those have to be published. Let's assume for the sake of argument that there ought to be a series of interrogation tactics that fall short of grave breaches [of the Geneva Conventions] but that ought still not to be permissible. That sounds right, indeed. But, the problem is the complete deferral to the President on this determination.

It is this concession to the President that is mindboggling in almost all respects because the hold-outs could have given the President the less than grave tactics without giving him the sole authority to determine what they were. I'm eating my words; Marty is right - McCain is a tragic figure now.
Even that's being generous to "Maverick" McCain!

Torture's Long Shadow by Vladimir Bukovsky Washington Post 12/18/05. Includes a description from personal experience of prolonged sleep deprivation as a torture technique.

Digby has been running a number of spot-on posts at her Hallabloo blog, by herself and others:

Punked by Digby, Hullabaloo blog 09/21/06:

Can anyone in the know explain to me how letting McCain run with this torture debate benefitted the Democrats in any way? ...

I honestly think it would have been much, much better if they'd have forced their way into the debate and taken a firm stand - if only to show they give a damn. This is a turn-out election and I have a feeling many a Democrat's stomach will turn as they see this triumph of GOP "leadership" in action.
Josh Marshall in a post of 09/22/06:

A bit earlier this evening, in the comments section at TPMCafe, I said that from what I could tell the torture compromise is that we agreed not to reinterpret the Geneva Conventions, only to continue violating them. The Post now has its editorial out. And they appear to have to come to something like the same conclusion. (Can't wait to hear the Dean's [David Broder's] verdict.) The senate won't formally reinterpret the Geneva Convention or explicitly sanction the president's torture policies. But they'll allow him to keep using them.

That's the compromise.
What the torturers agreed to by Stephen Soldz Psyche, Science, and Society 09/22/06:

A close reading indicates a total capitulation to Bush. The President is free to define his interpretation of the Geneva Convention as he sees fit. "Cruel, unusual, and inhumane treatment or punishment" continues to be defined in terms of the Fifth, Eighth, and Fourteenth Amendments to the US Constitution, which as has been explained by several postings here [see this and this], is a way of introducing relativism and situational morality via the "shocks the conscience" criterion.

Over the last few weeks I have debated with myself whether McCain et al were genuine in their opposition to torture. Yesterday’s "compromise" makes it clear that they were not. They settled for a transparent fig leaf that will provide, for the first time, a legalized framework allowing torture as official policy. There will be no need to hide the scars or the destroyed souls. It will all be legal. (my emphasis)
Senate to endorse torture by Stephen Soldz Psyche, Science, and Society 09/22/06:

How long until domestic opponents are proclaimed "enemy combatants?" Not so long ago I thought that unlikely. Today, it is hard to believe anything is unlikely.
Tracking the ‘Torture Taxi’ by Onnesha Roychoudhuri, 09/19/06. This is an interview about how the two authors of a new book on the CIA's "special rendition" torture program went about researching the secret project.

Jack Balkin and the other contributors to his Balkinization blog have been running some great commentary on this, as well:

Senators Snatch Defeat From Jaws of Victory: U.S. to be First Nation to Authorize Violations of Geneva by Marty Lederman Balkinization blog 09/21/06.

Text of Current Bush-Senate Compromise Bill by Jack Balkin Balkinization blog 09/22/06

This is a bill that all Americans can truly be ashamed of. And it has been given to us courtesy of our elected leaders, the party of Torture-lite. ...

They think that we Americans will actually reward them at the polls for legalizing torture.

That is one of the most chilling things about this entire episode. Have we become so complacent as a country, so easily lied to, that our leaders now think that they can legalize torture before our very eyes and that we will actually thank them for doing so? (my emphasis)
Three of the Most Significant Problems with the "Compromise" by Marty Lederman Balkinization blog 09/22/06:

Equally alarming is section 7 of the "compromise" bill, which would purport to prevent any person - alien or citizen, overseas or in the U.S. - from so much as invoking the Geneva Conventions - any provision in any of those Conventions - "in any habeas or civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States, is a party, as a source of rights, in any court of the United States or its States or territories."

Apparently, this not only would foreclose the possibility of a private cause of action under Geneva - even solely for injunctive or declaratory relief - but, more ominously, would also prevent any litigant from so much as raising Geneva as a ground for relief in any properly filed lawsuit ... even when, as in Hamdan, one or more provisions of Geneva determine the scope and effect of federal statutory law.

What this means, in effect, is that the President's interpretation and application of the Geneva Conventions will be virtually unreviewable, no matter who the affected parties may be, in this and other armed conflicts, now and in the future ... across the board.
This doesn't mean, as Lederman notes, that this will stand up in to court challenges. But that's the intention of the administration and the Republican Congress in the legislation as it stands. And the federal judiciary is heavily loaded with a big majority of Republican judges.

Legal Realism 101 and the McCain Capitulation by Sandy Levinson Balkinization blog 09/22/06

So are we on our way toward an American versio[n] of what Ernst Fraenkel termed "The Dual State" (1941), in which a fairly ordinary legal-state co-existed with a lawless one that felt free to do just whatever it wanted vis-a-vis its ideological opponents, secure in the knowledge that there would never be a legal remedy (at least not until Nuremberg) for anything the regime did? No, I don't think the Bush Administration should be compared with the Nazis, but, as I've been repeatedly arguing vis-a-vis Carl Schmitt [a rightwing German political scientists], I believe that we ignore the legal thinking and analysis that took place during Weimar and its aftermath at our peril. It is no great compliment to say that we are, as yet, nowhere near the Nazis. ...

George Bush has fundamentally reshaped the "conventional wisdom" of American political life in a way that most presidents can only dream of. Ronald Reagan elicited only agreement, at least rhetorically, that "the era of big government is over." George Bush has elicited agreement that "those claiming to have been tortured by the United States have no rights that the United States is bound to respect" in any ordinary legal sense, as by having to show up in court. America will be paying for that reshaping for many, many years to come.
The burning question by David Luban Balkinization blog 09/22/06. Luban writes about what the torture legalization bill does to the US position on international law:

That means the customary international law of war is henceforth gone in the United States – ironically, to say the least, because it was the U.S. Army’s Lieber Code that forms the basis for the Law of Armed Conflict (LOAC) and which launched the entire world-wide enterprise of genuinely international humanitarian law. Ironically as well, because our own military has taken customary LOAC as its guide, and used it to train officers and interrogators. Apparently there is no need to do that anymore, at least when it comes to war crimes. Goodbye, International Committee of the Red Cross; the Swiss can now go back to their fondue and cuckoo clocks. (Those who, like me, shelled out over $400 for the ICRC’s three-volume treatise on Customary International Humanitarian Law can try to sell it on E-Bay.) Goodbye, jurisprudence of the Yugoslav tribunal, which the United States was instrumental in forming. ...

In the end, the three courageous Republican mavericks didn’t want the President unilaterally twisting Geneva until it screamed. Now it turns out that the principle they were fighting for was Congress's prerogative to grant him the unreviewable power to do so.
Thoughts on the "Bringing Terrorists to Justice Act of 2006" by John Dean 09/22/06

So why, five years into the war on terror, has the Bush Administration been unable to bring a single terrorist to trial?

The answer, it seems, is that politics has trumped everything for Bush. The war on terror helps elect Republicans; bringing terrorists to trial, however, could embarrass Republicans - for federal courts are making the Administration play by the rules. (my emphasis)
Dean's article focuses on how the administration's proposals in the torture legalization act for tribunals to try accused terrorists is actually designed to evade the Supreme Court's ruling in Hamdan v. Rumsfeld.

We've sunk to Osama's level by Joseph Galloway, McClatchy Newspapers 09/20/06. Galloway is a jaded war correspondent. He doesn't give a flying [Cheney] if rightwingers want to accuse him of "moral equivalence" or whatever their bogeyman of the day is. Galloway writes:

The torture of prisoners is not only illegal under American and international law it is, put simply, immoral and unjust. It is also un-American.
Will we still be able to say that if the torture legalization bill is signed into law?

The president's bill - blocked in the Senate by three Republicans who know war and know the law and know what's right - would allow Central Intelligence Agency operatives to subject prisoners to water-boarding, or near-death by drowning; to being forced to stand for 40 hours at a time; to sleep deprivation; to being tossed naked into a freezing cold cell for days at a time.

Sleep deprivation was a favorite of the Soviet KGB. They knew that after three or four days their victim would be hallucinating, shivering and shaking, weakened to the point where he would admit anything just for the hope of half an hour of sleep.

I saw water-boarding long ago in Vietnam. A half-naked young man, suspected of being a local Viet Cong guerrilla, was handed over by his American captors to South Vietnamese troops.

Four of them held him down. An old, dirty rag was coiled around his face covering his nose and mouth. A fifth held a five-gallon tin of water slowly pouring it into the coiled rag.

The water took the place of air for that prisoner. His chest heaved violently as he sought the air and took in only water. I turned away before I could see whether he talked or drowned. An American captain shrugged; it was a Vietnamese thing.
Gallaway also isn't mincing words about the senior-level legal jeapordy involved:

If all these illegalities, if all this immoral and un-American conduct, were not set right and somehow made legal in some hasty legislation, then it would not only be the agents who poured the water and beat the prisoners who someday might face war crimes charges, it could also be those who bent and broke the laws and the treaties.

Thus we are treated to the spectacle of a president declaring that if Congress did not pass the law he wanted, allowing the torture of prisoners, then we would cease interrogating prisoners in the war on terrorism.
There aren't that many political issues that present the kind of clear-cut moral issues that this one does. As Galloway asks:

What's the middle ground on torture? No water boarding or work on the fingernails allowed but sleep deprivation and the ice-box and minor beating around the head and ears are just fine?
A religious anti-torture group; needless to say, not one associated with the Christian Right: National Religious Campaign Against Torture

Traditional Values Coalition (a Christian Right group) endorsing the torture legalization bill: America´s New War Is With Faceless Enemy Who Attacks Unarmed and Innocent 09/18/06

Values Voter Summit: Personal Thoughts on Day 1 by Rev. Katherine Ragsdale 09/23/06:

Then came the evening and Gary Bauer. It seemed the entire deck he drew from held nothing but hate cards. Again and again he returned to themes of vengeance, hate, vindictiveness. That ember of hope flickered into near oblivion when he received ovations for his snide diatribe against ending torture. When a group who call themselves Christians and profess to be working to maintain America’s place as a moral beacon in a fallen world rise to their feet so support this nation’s use of torture, there seems little basis for hope.

It continues to astonish me that the courteous people who welcomed me at breakfast could so easily be turned to a crowd cheering for torture. Sure, it took an all day diet of half-truths and outright lies carefully delivered for the greatest emotional impact. But it worked - at least for the evening. (See, that ember of hope refuses to die entirely!) Hatefulness and vindictiveness took home the pot last night – a sad ending to a long day.
Southern Baptist theologian Albert Mohler offers a mealy-mouthed defense of torture here: Torture and the War on Terror: We Must Not Add Dirty Rules to Dirty Hands 12/20/05 (he's okay with the "dirty hands"; he just thinks it would be unseemly to have "dirty rules"; I haven't found any statements by him on the current torture legalization bill).

See also The Truth About Torture?, an Evangelical Post symposium Dec 2005, which features the Mohler piece just linked.

Transcript of audioblog:

I'm doing another audioblog today. And the topic is one that I find difficult, the torture policy that the Cheney-Bush administration and virtually every Republican in Congress seem determined to enact.

I won’t try to describe verbally the various provisions of what is officially called the "Bringing Terrorists to Justice Act of 2006". I’m providing a number of links in the written blog post that do that better than I could. What I want to say here is that we all need to recognize what a significant step this is if Congress passes the torture legalization bill and Bush signs it into law, which could happen as early as this week.

We should not hide the reality of what we’re talking about behind euphemisms like "aggressive interrogation techniques" for "torture", or "professionals" for "torturers". This is torture legalization legislation. We've seen and heard about the kinds of sadistic acts that have been part of the torturers' menu at Abu Ghuraib and Guantanamo. The particular practices that have been discussed in connection with this torture legalization bill include things like "waterboarding", in which the victim is immobilized by being tied to a board, and water is then poured down his or her mouth to induce the feeling of drowning.

Others include the so-called “stress positions”, which involve tying a person into one position for an extended period of time, which is extremely painful and often immediately dangerous. Sleep deprivation, sensory deprivation and sensory overload are others of the torturers' methods the Republican Congress seeks to legalize. All of these are cruel, sadistic practices. All of them can result in serious physical and psychiatric injuries. They're torture.

There are a number of things to say about these sadistic practices. One is that they're wrong. Wrong, with a period at the end of the sentence.

Another is that if the torture legalization bill is enacted, the United States will be legislating to exempt itself from the Geneva Conventions. This will damage the cause of human rights worldwide.

There are a number of very practical and negative consequences. One is that it greatly increases the likelihood that American soldiers in captivity will be tortured. Another is that the American endorsement of torture will disgust many American allies as well as democratic dissidents in non-democratic countries.

I agree with those writers, several of whom I reference in the written post, who believe that the Democrats’ role in opposing the torture legalization bill has been inadequate. Don’t misunderstand me here. Almost all Democrats in Congress oppose it, and virtually every Republican member supports it. It the Republican Party that’s the Torture Party, no question about that.

In the current Congressional fight, though, the Democrats decided for pragmatic reasons to hide behind the skirts of that media darling, the marvelous Maverick McCain, and of Lindsay Graham and John Warner. If the Democrats had made their voices more prominent in the anti-torture fight, it would at the very least have dramatized how complete a capitulation to the pro-torture position that Maverick McCain and Huckleberry Graham made.

This is also an extremely important issue. The Democrats needed to be taking a leading position in opposing torture just on the merits of the issue. But, again, we shouldn’t let this cloud the political side of the issue. The Republican Party has not simply failed to oppose it aggressively enough. The Republican administration has instituted torture as a regular practice, and defended it publicly before the world. Now the Republican Congress is prepared to pass a law which would effectively legalize these sadistic practices.

It’s also important to recognize the role of the Christian Right in all this. The Republicans have become in effect, a conservative-Christian religious party. Republican politicians and pundits have been demanding for years that we "put religion back in the public square."

So it's worth remembering what’s happening here. The Christian faith holds that God himself took human form in Jesus of Nazareth, who was literally tortured to death by the Romans. It’s hard to imagine how any serious Christian would be unwilling to flatly condemn the Cheney-Bush torture policy.

But ask yourself, who have you heard on the Christian Right opposing the torture legalization bill? Pat Robertson? James Dobson? Gary Bauer? James Kennedy? John Hagee? The ugly reality is that the supposed "family values" and religious beliefs of the Christian Right include support for sadistic torture.

There's nothing much uplifting to say about this. It's an ugly moment in American history. It will become much uglier if the torture legalization bill is enacted into law.

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