Category: Old Dish

Bad intelligence. This case is almost a perfect one for the anti-torture position. Not only did we send Libi to be tortured, the intelligence he gave us was wrong, and that evidence was used to launch a war. The fundamental casus belli for that war was completely undermined by that bad intelligence. And the disastrous consequences in Iraq led to more torture being used to obtain more bad intelligence. And on and on. Isn’t it time we stopped this?

The ruling by the House of Lords this week, barring any legal testimony extracted by torture, makes for inspiring reading. It provides a long history of how English common law banned torture for any reason from as far back as Magna Carta. Torture was indeed introduced in the sixteenth and early seventeenth century by the Crown, but was revoked in 1640, which was the year the last torture warrant was issued in Britain. After that, the use of torture was unthinkable in English jurisprudence. Nineteenth century legal historians deemed the practice “totally repugnant to the fundamental principles of English law” and “repugnant to reason, justice and humanity.” In the words of one scholar, writing in 1837,

“Once torture has become acclimatized in a legal system it spreads like an infectious disease. It saves the labor of investigation. It hardens and brutalizes those who have become accustomed to use it.”

This statement was, in the words of Britain’s highest court, “more aptly categorised as a constitutional principle than as a rule of evidence.” There can be no weighing of any evidence procured by torture.

THE INTERNATIONAL CONTEXT: Moreover, in the view of the highest British court, “the international prohibition of torture requires states not merely to refrain from authorising or conniving at torture but also to suppress and discourage the practice of torture and not to condone it.” What does “torture” mean, according to the U.N. Convention to which the United States is a signatory? It means:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession … when such pain or suffering is inflicted at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

Waterboarding is not even close to being regarded as faintly permissible. To do what Charles Krauthammer proposes would require the U.S. withdrawing from the U.N. Torture Convention. But at least Charles is intellectually honest about this. The president merely wants to do this but not be seen to be doing it and to be given a formula to say in public when it comes out. The ban, enforced by treaty, is, however, categorical:

No exceptional circumstance whatsoever, whether a state of war or a threat of war, internal political stability or any other public emergency, may be invoked as a justification for torture.”

In the notorious Demjanjuk case, those who advocate torture are regarded as “common enemies of mankind.” In the words of Europe’s Commissioner for Human Rights, “torture is torture whoever does it, judicial proceedings are judicial proceedings, whatever their purpose – the former can never be admissible in the latter.”

A MATTER OF HONOR: There is also another dimension to the bar on torture. That dimension is something called “honor.” In 1628, King Charles I of England had in his hands a man who had assassinated a public official. The king wanted to put the man on the rack to discover whether he had any accomplices. (Recall that Torquemada regarded the rack as less terrifying than “waterboarding.”) Charles asked his own judges if the law permitted such a thing. William Blackstone recalled their response:

“The judges, being consulted, declared unanimously, to their own honour and the honour of the English law, that no such proceeding was allowable by the laws of England.”

Honor. That’s the fundamental principle at stake here: the honor of Anglo-American democracy. Lord Hoffmann in his concurring judgment writes:

That word honour, the deep note which Blackstone strikes twice in one sentence, is what underlies the legal technicalities of this appeal. The use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal system which accepts it. When judicial torture was routine all over Europe, its rejection by the common law was a source of national pride … Just as the writ of habeas corpus is not only a special remedy for challenging unlawful detention but also carries significance as a touchstone of English liberty which influences the rest of our law, so the rejection of torture by the common law has a special iconic importance as the touchstone of a humane and civilised legal system. Not only that: the abolition of torture … was achieved as part of the great constitutional struggle and civil war which made the government subject to the law. Its rejection has a constitutional resonance for the English people which cannot be over-estimated.”

And from English common law, through the English civil war, to the birth of America, this tradition is indeed a matter of fundamental honor for Anglo-American civilization. I get emails every day saying I have become a bore on this topic. But I cannot let it go because it is such a central, critical fulcrum on which our entire Anglo-American system of law and freedom and justice rests. It is constitutive of our treasured inheritance of liberty. It dishonors our ancestors to betray this principle now. These are not pieties. They are the most basic of constitutional principles. We must never surrender them.

That’s the hot buzz on the Hill as of now. Lieberman will replace him. The timing may be imminent. With Rumsfeld gone, Cheney sidelined, and the McCain amendment passed, the omens look good for restoring credibility to the war effort.

Marty Lederman does the job. I have to say I have long been a big fan of Rice’s. I think she’s trying to do very good work in the Middle East and is dedicated to improving our Iraq policy. That’s why it’s so distressing to see her ground up in the truth-shredder that is the Bush administration’s detainee policy. But ground up into tiny mendacious pieces she is. Sad, but inescapable.

This hadn’t occurred to me, but it fits like a glove:

“The only observation I felt your essay lacked is this: Torture is the tool of the slothful. The main attraction to those who defend the use of torture is how easily and quickly a suspect can be broken. Unlike other forms of interrogation, torture requires only a small amount of training, no particular understanding of the suspect, and scant concern for the veracity of what is revealed. It requires only the willingness to do to another human being what one would not do to an animal. Understanding torture as the lazy person’s tool makes it a bit more comprehensible why the Bush Administration would be the first in American history to defend the practice.”

The same slothfulness that forced the 9/11 Commission to give this administration a failing grade when it comes to the difficult but thankless task of making the country safer.

National Review’s Mark Levin wakes up, stretches, rubs his eyes and asks:

And where is all the evidence that U.S. armed forces and intelligence serves are engaged in torture? Is it widespread? Where is this occurring? McCain hasn’t made the case. We get mostly the same kind of platitudes he was famous for during the campaign-finance reform debate, e.g., the system is “corrupt,” money equals corruption, and so forth. Shouldn’t we stop beating up ourselves over this until such evidence is presented? We seem to be making law here based on hypothetical arguments, or worse — left-wing and enemy propaganda.

I refer Levin to the Schmidt Report, the Taguba Report, the Jones-Fay Report, the Schlesinger Report, the mounds of evidence collected by the International Red Cross, the hundreds of carefully checked newspaper reports documenting torture, abuse, murder, rape, and beatings in every single theater of this war by every branch of the armed services against defenseless military detainees. I refer him to the testimony of West Point graduate Ian Fishback and countless others. I refer him to the many memos constructed by the Bush administration defining and redefining “torture” to the point of meaninglessness. May I offer him a cup of coffee and a warm welcome to reality as well?

(By the way, the Lowry notion that the McCain Amendment offers no guidelines as to what is permitted is untrue. The McCain Amendment specifically endorses the Army Field Manual, which specifies 17 specific interrogation techniques, and has been the gold standard for decades, until the Bush administration endorsed torture. One question for Lowry: does he define “waterboarding” as torture? It’s funny but I have yet to get a single Bush apologist on record saying so. I’d think waterboarding is indisputably torture. Condi Rice won’t say if it is. Rumsfeld won’t say if it is. Bush won’t say if it is. Ever wonder why? Memo to Lowry: because we’ve done it.)

Anti-Semitism is as integral to Islamo-fascism as it was to Nazism. Iran’s president helpfully reminds us of this fact.

Remember when the two were connected? Maybe David Cameron’s Tories will lead the way back to a conservatism that actually defends liberty, rather than attacking it whenever it can. Money quote:

We may yet see a party emerge in the true tradition of Tory liberalism, nurturing both civil society and civil liberties. If that is what David Cameron is trying to reinvent, all power to him.

Amen.

LENNON REMEMBERED: Why we still listen to his music.

More evidence here.

Good news from Iraq. Next week will be the most critical election of them all: one which actually leads to the first, real constitutional, democratically elected government in decades. We still have so much to do; and our guide should be the millions of ordinary Iraqis who do not kill, who are not mass-murderers or religious fanatics, but who want to lead a normal life. After all this, we owe it to them to stand by them. However long it takes. For all the blunders of this blighted administration, it is absurd to expect perfection a mere three years after being liberated from totalitarian dictatorship. Thirty years is a more reasonable time-line. My hope is that U.S. troops, albeit in a minuscule presence compared to today, will still be there in thirty years’ time. Just as they are today in Japan, Germany and South Korea.