Category: Torture

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.

A useful time-line from Reagan through Bush, with a nice punctuation point from Senators Schumer and Feinstein.

Scott takes a stand against a man he has worked with and greatly admires, Michael Mukasey. I’m not surprised. Scott Horton has as much integrity as anyone I know:

The New York Times says the issue is one of legal culpability of those who have administered the program. In a speech I delivered in Ohio last October, “When Lawyers Are War Criminals,” I went over this analysis in some detail and concluded it was incorrect. The CIA personnel, military personnel and contractors all have immunity. But there is a class of persons who are probably not immunized in any effective way by the current statutes, namely the administration officials who authored this scheme: Dick Cheney, David Addington, Donald Rumsfeld, Jim Haynes and a handful of others. They are the figures “on the line” who are most adamant that Mukasey (or any substitute for Mukasey) provide them with the protection they feel they need.

Hence, the debate around Michael Mukasey has really ceased to be about Michael Mukasey and his qualifications to serve as attorney general. It has become a debate about the torture issue. And protecting the authors of a criminal scheme from their certain ultimate fate: prosecution.

Greg Djerejian comments here.

Jacob Sullum, a real libertarian, argues that Michael Mukasey’s position on the FISA law is just as disturbing as his refusal to call torture what it is.

Glenn Reynolds vs a real libertarian on torture.

A reader writes:

One further point to your post on Mukasey: when we make laws against certain things – let’s take the example of murder – we recognize that there may be certain circumstances where murder may be justified. We handle this in 2 ways:

* We write special-case exceptions into the law, e.g. self defense.
* We conduct trials where the guilt and punishment are determined by a jury of peers, who can refuse to convict if their collective conscience tells them that the crime was justified.

But more importantly, we create serious legal consequences for murder because we don’t want anyone to commit murder unless they’re willing to accept the consequences. This sets a ‘threshold of seriousness’ so that when a person considers murder, they must determine whether their justification is dire enough that they are willing to put their own liberty at stake. This sounds like a great standard for the president to have to meet when considering torture of an individual, doesn’t it?

Yes. And, moreover, to turn a one-in-a-million emergency exception into the rule, and to pretend that we need to know any more specific details to know that waterboarding is both torture and plainly illegal is to turn the rule of law on its head. The notion that you have to explicitly make waterboarding illegal – or even more absurdly that if the Congress hasn’t done so, it has essentially accepted the legality of waterboarding – is a little like saying that the law against murder doesn’t apply to someone who suffocated someone with a pillow, because that particular method hasn’t been specifically outlawed.

Murder is murder. Torture is torture. The latter is the application of any "severe mental or physical pain or suffering" to force an individual to say what he otherwise might not say in captivity. The point is the coercion – however it is applied. It is illegal and unconstitutional – and that applies not just to waterboarding but to any such tactic that has that effect. To give the president the power to order this against the law as a routine  matter and to declare that s/he has that power permanently and with respect to anyone is tyranny.

The last time I checked, conservatism is not a defense of tyranny. It is a defense of the Anglo-American tradition of freedom that this president and the current GOP have been abusing for six years. Conservatism must now mean resisting this president’s abuse of power, not enabling it.

It was something of a breakthrough for me to watch Jon Stewart last night pick up a dictionary and look up the definition of torture – both etymological, but more importantly legal. Pace the pro-torture Andy McCarthy, there is no "excruciating complexity" here. There is a broad and easily understandable legal ban on the infliction of

severe mental or physical pain or suffering

on any prisoner in wartime as a means to extract "information." Yes, to thrash a horse in advanced stages of rigor mortis, as a philosophical matter, this might, in a million-to-one scenario, still allow a president to authorize illegal torture if the entire republic was at stake or if a major city was about to go down in nuclear flames, and we knew we had an individual who knew how to stop it. But the president would still subsequently have to subject himself and all those who did such a thing to legal punishment. That is what the rule of law means, guys. It means there is no exception. We either live in a republic of laws or the imperium of one man. We cannot live simultaneously under both. The oath of the president is to enforce such laws, not to avoid them. And that is why it is insane to say we have no right to demand that the attorney-general nominee assure us in advance that he will uphold the rule of law in office. We do not merely have the right. We have a duty to ensure that an attorney general of the United States will uphold the law.

There is no question whatsoever that "simulated drowning," "water-boarding" or whatever name we give to a technique routinely deployed by the Khmer Rouge is illegal however it is done, whoever does it, and whomever is subjected to it. If the attorney general cannot say this in public without equivocation before he is nominated, then the Congress is indicating that it condones the Bush administration’s contempt for the rule of law and routine use of illegal torture. I cannot see how Republicans who impeached a president for perjury in a civil suit cannot see what the issue is here. It is the most bedrock principle of a free society. Do the laws apply to the highest executive authority? Do we live in a tyranny or a republic?

Alas, the president almost certainly will never be prosecuted for the war crimes he has committed. He has already seen to that and so, shamefully, has the Congress by passing a law that retroactively granted him immunity. Surely that is bad enough. To compound that by allowing an attorney general to take office by refusing to say whether he will uphold the law in the face of the Cheney-style Protector-Presidency is inexcusable. This is history in the making. Who will defend the rule of law?