Category: Torture

A reader writes:

Your discussion about torture is at once thought provoking and troubling. For this conservative it used to be a "slam dunk" for me. People like Khaled Sheik Mohammed got what they deserved and I couldn’t care one wit. The "Jack Bauer" method of Intel was good enough for me. But torture policy in the hands of a faceless government bureaucrats without accountability gives me real pause. Especially incompetent bureaucracies! (Has the CIA got anything right in the last 15 years?) Your post about the death of innocent people under our government authority questioning seems no better on the face of it than those poor souls disappearing in the subterranean haunts of Tehran.

Lincoln suspended Habeas Corpus and many other civil liberties during the crises of the Civil War but his greatness was, I think, in the fact that he realized it was an "abnormal", reluctant and extraordinary condition to be righted when the emergency, i.e., the war was over.  Cheney/Bush seem to think this is a perpetual state, a ceaseless war.

When do the extraordinary measures to extract Intel from suspects, like water boarding, end? If ever? How is it justified and/or different then the torture chambers in Falluja run by Al Qaeda? And no I don’t see a moral equivalency between us and the monstrous jihadists stated but one created when horrific means are used by our government even for the best of intentions.

Or are we to become a nightmare terror society as portrayed in the Movie "Brazil" with bombs going off everywhere among placid numb people, while innocent suspects are snatched from the streets, sometimes because of a misspelling of your name on a form? When does it just become one evil pursuing another evil?

I guess you’ve got a point; can Hillary or Rudy recognize extraordinary measures for extraordinary times that need the most careful rigorous control in their application if they are not to warp and twist our free society into something unrecognizable?

They were barred from even confidential access to some prisoners in Gitmo, we now find. This is the defense:

A spokesman, Lt. Col. Edward M. Bush III, said, "I am in no position to speculate about what happened in 2003 … All I can tell you is what we do today. And the absolute policy now, today, is that the I.C.R.C. is granted access to everything."

Why were some prisoners withheld from Red Cross access – and in writing, a sign of the confidence some had that the Bush administration was very comfortable flouting international law? You know and I know. They were being tortured.

The use of torture is fast becoming a core principle of today’s Republican party. My sense is that many in the base are uncomfortable with the defensiveness of the Bush people, and their use of euphemism in this respect. And so the NYT #1 Bestselling author is unabashed in his support of using Gestapo methods against terror suspects, seized without due process and tortured under presidential authority. Yes, of course he’s endorsing Giuliani. Who else will do what the quisling, gutless liberals won’t? Here is the Hannity-style argument:

"Congress really upset me with how they treated Attorney General Michael Mukasey and how the media pushed this question. Why aren’t reporters forcing senators and Congress to answer the same questions about torture? What do you think we should have done? Given them a lawyer, three square meals a day and let planes get hijacked?"

Give them Geneva protections if they are caught on the battlefield, and interrogate them legally. Or if they are seized in the US, they remain covered by the Constitution. Is that so hard to grasp? Meanwhile, here are two more pro-torture pieces in the Washington Times: Murdock’s open celebration of torture, and Mona Charen’s astonishing two sentences:

Under the U.S. Constitution, treaties are the supreme law of the land. But that hardly settles the matter.

Indeed. When we live under a presidential protectorate, it really is up to one man to make a subjective judgment, isn’t it? Even though no international body and no American precedents even question whether waterboarding is torture, the law is suddenly imprecise. It seems to me that the pro-torture right needs to make this explicit: legalize waterboarding explicitly, and withdraw from the Geneva Conventions, and the relevant UN Treaty. If resistance to America becoming a torturing nation is mere "moral preening" why not just get the Congress to do what the Republican base wants? It’s far more honest than voting for Giuliani in the sure knowledge that he will torture any terror suspect he can get his hands on, while pretending that America is still the same country it was before 9/11.

The only reasonable inference from her argument is that al Qaeda has indeed rendered the Geneva Conventions moot, and that from now on, for any procedure to be regarded as torture, the Congress must specifically ban it. And if it does not specifically ban it, it is not illegal:

Although, as a civilized people, our immediate and commendable instinct is to declare waterboarding repugnant and unlawful, that answer is not necessarily correct in all circumstances. The operative legal language (both legislative and judicial) does not explicitly bar waterboarding or any other specific technique of interrogation. Instead, it bars methods that are considered to be "torture," "cruel, inhuman and degrading treatment" or that "shock the conscience."

Faced with this assortment of legal standards, Mukasey can hardly be faulted for his answers. The only remedy that can provide legal clarity is legislation.

But under this "assortment" of legal standards – which are simply different ways of making the same extremely clear and fundamental point – waterboarding is clearly illegal, as it has always been illegal. It seems to me that if you want to legalize it, then explicitly legalize it. And that would require withdrawal from the Geneva Conventions and the UN Treaty on Torture. So, yes: go ahead and legislate.

Of course, the pro-torture Republicans in the Congress will never do such a thing. And the notion that the Congress has to make illegal every specific torture technique will just provide a guide for this administration and a future Giuliani administration to devise specific torture techniques that can evade specific bans. And, of course, they may not even bother to do that. White doesn’t note that this president has responded to previous Congressional attempts to ban torture by appending a signing statement to the law saying the Congress cannot impinge on his constitutional right to torture whom he wants and how he wants to. Legal clarity is beside the point when we have a president who claims he can ignore the law anyway.

I’d say the debate is over as to whether this torture technique is a) torture and b) illegal. Which means the debate is over as to whether the president and vice-president are war criminals.

A fascinating nugget from American history, unearthed by guest-blogger Shertaugh at the IsThatLegal? blog. Waterboarding was sometimes used in the Deep South to torture African-Americans and to extract false confessions to alleged crimes. And when it emerged in an appeal as long ago as 1926, even the Mississippi Supreme Court ruled it categorically "a specie of torture well known to the bench and bar of the country," and "barbarous." They over-turned a guilty verdict for murder by an African-American man against a white man because such methods invalidated any notion of a reliable confession:

In a case called Fisher v. State, 110 So. 361, 362 (Miss. 1926), Mississippi’s highest court ordered the retrial of a convicted murderer because his confession was secured by a local sheriff’s use of the water cure.

Here’s the court:

The state offered . . . testimony of confessions made by the appellant, Fisher. . . [who], after the state had rested, introduced the sheriff, who testified that, he was sent for one night to come and receive a confession of the appellant in the jail; that he went there for that purpose; that when he reached the jail he found a number of parties in the jail; that they had the appellant down upon the floor, tied, and were administering the water cure, a specie of torture well known to the bench and bar of the country.

Fisher relied on a case called White v. State, 182, 91 So. 903, 904 (Miss. 1922), in which the court took — as I understand history in those parts — the unusual step of reversing the murder conviction of a young African-American male, charged with killing a white man (it appears), because his confession was secured by the cure. The court said:

[T]he hands of appellant were tied behind him, he was laid upon the floor upon his back, and, while some of the men stood upon his feet, Gilbert, a very heavy man, stood with one foot entirely upon appellant’s breast, and the other foot entirely upon his neck. While in that position what is described as the “water cure” was administered to him in an effort to extort a confession as to where the money was hidden which was supposed to have been taken from the dead man. The “water cure” appears to have consisted of pouring water from a dipper into the nose of appellant, so as to strangle him, thus causing pain and horror, for the purpose of forcing a confession. Under these barbarous circumstances the appellant readily confessed…

In 2007, we have a US attorney-general who cannot say what a Mississippi high court was able to assume was common knowledge in 1926. That’s how far this president has dragged us down into barbarism. This is how cowardly today’s Congress is.