On torture-11: Invoking the extreme hypothetical

(For previous posts on torture, see here.)

Let’s look at the final excuse on the list put out by torture apologists.

Excuse 11: Finally, the emotional appeal that takes various forms but one of the strongest is: If your children were being held hostage by terrorists, wouldn’t you want any suspects to be tortured if that would save your child?

Before I directly address this question, let me make one thing clear. My unequivocal opposition to torture is based on the principle that I will not approve of any measures against other people that I would not accept if it were done to my own loved ones. There is no circumstance under which I would EVER consent to have my own child tortured. My opposition to torture is on the same grounds as my opposition to corporal punishment of children and the death penalty, that whatever I find objectionable when applied to my loved ones is also objectionable when applied to the loved ones of other people whom I don’t know personally.

Not only am I opposed to torture on principle, I also oppose it because governments and security services have no compunction about lying about what evidence they have or have obtained that justifies torture, and will try and justify their contemptible actions using such lies. Read this appalling account of how the FBI coerces confessions from the innocent and how the courts help them cover it up.

Furthermore, we should never specify in advance the conditions when things like torture, murder, and corporal punishment are acceptable because doing so inevitably leads to abuse.

To explain, let’s take murder, since that case is the easiest to understand but the action itself is the most extreme. We all say that killing someone is bad but we do excuse some people who do it. The mitigating factors may be self-defense or insanity. But such a judgment is always made on a case-by-case basis AFTER the fact of the killing. We should not specify in advance the conditions under which murder will be excused by saying, for example, that you can kill with impunity someone who enters your house. To do so would be to invite people to escape a murder conviction by creating the conditions under which he/she knows it will be excused. We want the system to be such that any person who kills another is never sure if they will be found guilty of murder and will thus hesitate before taking such an extreme step. Of course, psychopaths will kill anyway, as will those who cannot control their raging impulses, and such people will not be deterred by any laws from doing damage. But what we seek to do is to deter cold-blooded killers who try to calculate what they can get away with.

The danger of specifying the conditions under which you are allowed to kill someone leads to things like the tragedy in Texas where a couple shot and killed a seven-year old child who had apparently unwittingly trespassed on their property, though even the fact of trespassing is in doubt. Apparently Texas has a so-called ‘Castle Doctrine‘ law that provides “civil immunity for a person who lawfully uses deadly force in any of the circumstances spelled out in the bill.”. The couple seemed to take delight in using that license to shoot and kill the child even though they had to know that the child was not a threat to them in any way.

The only time we issue an almost blanket advance immunity for killing is for soldiers during wars (which can be argued are a form of collective insanity). But since we know that even this license can open the door to the committing of atrocities, we have instituted conventions that regulate even war time killings, setting out limits in conventions and treaties, so that stepping over those boundaries can result in charges of war crimes, though in practice only the losers get charged with those crimes. In World War II, Germans and Japanese were tried and executed for war crimes but not the Allied forces, although the dropping of atom bombs on Hiroshima and Nagasaki and the blanket bombing of Dresden should have been tried as war crimes too.

It is the same thing with corporal punishment. I am opposed to it under every circumstance. Under extreme circumstances some parents will do extreme things like hitting a child. We may judge that such an action was excusable under the circumstances, but only after the fact. But we should never give categories of people (whether parents or teachers or priests or school administrators) advance blanket immunity to administer such punishment or let them know in advance the conditions under which they will escape punishment, by specifying which acts are justifiable and which are not. Doing so inevitably leads to abuse as sadistic people invoke their ‘rights’ to viciously attack helpless children.

The revelations of the long-term and systematic severe abuse of children by Catholic institutions in Ireland is an example of what happens when people think they have the right to discipline children using force, because they are parents or clergy or teachers. Another example is where people think it is allowed to subject others to humiliation during the process of ritualized hazing, and where some take this license to resort to cruelty.

There should always be a blanket prohibition against corporal punishment and hazing, like there is against killing. People who commit such acts must always have to justify their actions after the fact, aware that they may be found guilty of abuse. Without that restraint, we let loose those sadists who will exploit the conditions.

Next: What if my own child could be saved using only torture?

POST SCRIPT: Lewis Black on politics and religion and torture

From February 2008:

On torture-10: Christians and torture

(For previous posts on torture, see here.)

Before I get to the last of the excuses for torture on the list put out by apologists, I want to make a slight digression and comment on the curious reaction of Christians to torture.

As this series of posts has, I hope made clear, torture is a barbaric practice irrespective of who does it for whatever reason. So what does one make of recent poll results that says that the more you go to church, the more likely you are to approve of torture, while the less religious you are, the more you disapprove?

White evangelical Protestants were the religious group most likely to say torture is often or sometimes justified — more than six in 10 supported it. People unaffiliated with any religious organization were least likely to back it. Only four in 10 of them did.

The religious group most likely to say torture is never justified was Protestant denominations — such as Episcopalians, Lutherans and Presbyterians — categorized as “mainline” Protestants, in contrast to evangelicals. Just over three in 10 of them said torture is never justified. A quarter of the religiously unaffiliated said the same, compared with two in 10 white non-Hispanic Catholics and one in eight evangelicals.

In a way, I can understand this result, based on the story of Jesus’s crucifixion, an intrinsically barbaric form of death penalty. In my experience, those who are the most fervent in their Christian beliefs are the ones who seem to take the most delight in wallowing in the most gruesome imaginings of this story, adding on layers and layers of blood and gore and violence as Jesus makes his way to the cross. The so-called passion of Christ is spelled out and dragged out in the most sickening way, as can be seen in the re-enactments of the event every Easter. Mainline Protestants, on the other hand, tend to not dwell so much on the gory aspects of the death, skipping pretty quickly to the happy ending of the resurrection.

I refused to go and see Mel Gibson’s hit film The Passion of the Christ because of its reportedly relentless gruesomeness but a colleague of mine, a professor of religious studies, went to see it out of a sense of professional obligation and he told me that the reports I had heard were true, that the film consisted mostly of Jesus being repeatedly tortured in novel ways in sickening and graphic detail. And evangelical Christians loved the film, making it box office smash. In the film Religuous (see POST SCRIPT below), Bill Maher goes to a holy land theme park in (where else?) Orlando, Florida and we see a reenactment of the passion and the audience actually applauds as the Jesus actor, covered in fake blood and staggering under the weight of the cross, is assaulted by the guards.

Even the whole idea of the communion representing the eating of Jesus’s flesh and the drinking of his blood must be contributing to the coarsening of one’s natural revulsion against mutilation.

Surely there must be some relationship between evangelical Christians glorifying the torturing of Christ and seeing it as a good thing, and their thinking that torturing people in general cannot be that bad if Jesus chose to experience it?

The conservative website Red State, using some truly weird logic, argues that torture is completely consistent with Christian values. It first tries to argue that the actions that the US indulged in, such as waterboarding, was not torture, saying “Torture involves extreme physical pain or even death, such as the cutting off of appendages, gouging of eyes, use of shredders to the body, electrical shock—you name it. Blood is usually involved.” As we have seen, this claim is impossible to sustain and is counter to all treaty and consensus judgments of what constitutes torture. It then goes on, “It’s likely even Jesus would have OK’d water boarding if it would have saved his Mom. He would’ve done the same to save his Dad, or any one of His disciples. For that matter, He even died to save all humans.”

This does not even make sense since why would Jesus, being god and omniscient and all, need to torture anyone to get information? He would simply know everything, no? After all, he can hear millions of simultaneous silent prayers, which must mean that he can read minds. And why would he need to save his “Dad”, since his “Dad” was also god and could probably take care of himself perfectly well, thank you very much?

Perhaps the explanation for this casual acceptance of such barbaric practices by those who undoubtedly consider themselves to be good Christians lies in the words of Clarence Darrow, the defense lawyer in the Scope evolution trial of 1925. Darrow had contempt for religion and once told a group of convicts, “It is not the bad people I fear so much as the good people. When a person is sure that he is good, he is nearly hopeless; he gets cruel – he believes in punishment.”

POST SCRIPT: Religulous

I recently saw the Bill Maher film Religulous and it was a riot. He looks at the religious practices of the major western religions, talks to religious people, and shows how idiotic their beliefs are. Religious sophisticates will complain, as they usually do, that he has not engaged with religion on a sophisticated plane and talked with theologians about Thomas Aquinas and Saint Augustine or discussed the anthropic principle and the like. Instead he spoke with preachers and believers. They made the same kind of criticism of Richard Dawkins and his book The God Delusion. (In interviews, Maher and the film’s director say they tried to interview the heads of major religions but were turned down.)

But that is the point. He, like Dawkins, is dealing with the kinds of beliefs that religion gives most people, and showing that they are preposterous. What a few academic theologians believe has almost no resemblance to what almost all religious people believe, serving only as intellectual cover for gross superstitions. Maher asks people concrete questions, the kind that should be asked. Basically he asks people what they believe and why which results in hilarious, if sometimes mind-boggling, results.

The film is available on DVD. Here’s the trailer:

The DVD has the usual bonus features that include scenes that were cut out and one of them was an interview with Rael himself, one of the latest in the line of prophets who say they were told in secret by a higher power that they are to be special messengers to humanity. And, of course, people believe them. (I have written about the Raelians and their founder before here, here, and here.)

On torture-9: The “everybody knew about it” excuse

(For previous posts on torture, see here.)

Let’s continue with our look at the other excuses on the list put out by apologists.

Excuse 9: Top Democrats were told what was going on and approved of it so that makes it ok.

This is a truly curious argument, evidenced in the absurd fuss over what Nancy Pelosi was told about torture and when she was told it. Some Republican politicians are putting the Attorney General on notice that if he takes actions against the Bush torturers, they will force him to widen the investigation to take into account the fact that the illegal practice of the “rendition” of prisoners to countries that torture also took place during the Clinton administration.

Some opponents of torture investigations advance this argument as if it were a checkmate move, as if the possibility of involvement of Democrats in torture will shut up those seeking action against torturers. They don’t seem to realize that there are many of us who don’t give a damn if the people prosecuted for torture are Democrats or Republicans. This is why we want a full investigation and prosecution of torture practices wherever it may lead and whomever it may lead to. If it turns out that top figures in the Democratic Party were complicit, they should also be prosecuted to the full extent of the law. I myself strongly suspect that key Democratic leaders in both the House and the Senate were complicit in at least condoning torture policies and they should be exposed and tried as well.

Eric Posner, whom we saw yesterday argues that the Attorney General has the discretion not to prosecute torture (a claim that Glenn Greenwald dismisses as both ‘frivolous’ and ‘lawless’), also argues that the bipartisan complicity on torture will be sufficient to prevent prosecution. In other words, that the Obama administration would be well-advised not to prosecute those who committed torture since it might embarrass members of his own party.

One can easily imagine the defense strategy, which will start by calling to the stand various Democratic senators and representatives who had been informed of the interrogation tactics and did not publicly object to them at the time. The testimony would surely be entertaining, as the politicians would be put in the impossible position of either admitting their moral complicity, which would make the entire trial look like a political show trial designed to punish Republicans but not Democrats, or looking like cowards who knew that the government was breaking the law but despite their oath to the Constitution were unwilling to do anything about it. Do Obama and Holder really want to put leaders of their own party in Congress in this position?

They obviously don’t but they should. In any event, this is an irrelevant point to anyone who cares about the rule of law. Let us never lose sight of the fact that crimes against humanity, and torture is one, does not allow countries the discretion to not prosecute those suspected of committing them.

The Bush administration clearly took advantage of their ability to selectively brief Congressional leaders in secret about things like torture, knowing that this would make them complicit. What I don’t understand is why people agree to be given classified briefings if they cannot do anything about things they hear that they find objectionable. The only reason I can think is that people, especially political leaders, seem to love to be told secrets, to feel that they are the holders of privileged information that the general public is not privy to. It gives them a sense of self-importance.

This underscores the pernicious effect of secrecy which is why the widespread use of background briefings and off-the-record interviews between politicians and journalists should be condemned, and why even politicians should never agree to be confidentially briefed on policies that they have no power to change. While agreeing to listen may make them feel important, they should realize that they are also being co-opted to tacitly support things they may not agree with.

Excuse 10: We need to focus on solving urgent problems like the financial and housing crisis and torture investigations will be divisive and distract us.

Does this excuse really need to be dignified by a response? Have we sunk so low, become so crass, that we trivialize and shunt aside deeply moral issues like torture that truly identify us as people, to focus only on money issues? Apart from the immorality of even making such a comparison, it is absurd to think that a nation as big as the US cannot handle more than one thing at a time.

POST SCRIPT: Obama’s hypocrisy

While Obama gives uplifting speeches and says many of the right things about human rights and the rule of law, the fact is that his actions often don’t match up to the rhetoric.

The Daily Show With Jon Stewart M – Th 11p / 10c
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On torture-8: The ‘partisan politics’ excuse

(For previous posts on torture, see here.)

Let’s continue with our look at the other excuses on the list put out by apologists.

Excuse 8: If we prosecute those who authorized torture, then this would be for purely partisan reasons for retribution by Democrats against Republicans.

The fundamental principle that is involved is that nobody is above the law. If this requires the prosecution of the officials of one party by the occupants of another party, that is just incidental. In fact, it is the very fact that the ruling party tends not to prosecute their own people that makes such cross-party prosecutions necessary. Of course, in a pro-war/pro-business oligarchy like the US, both parties are really one on issues like this, as can be seen in the way that the Obama administration is desperately trying to get out of its treaty obligations to take action against torturers. As is characteristic of oligarchies, each party protects the other when it comes to major issues, which is why other countries might step in to prosecute top US officials for torture if the US does not do so.

The idea that laws and treaties do not apply to actions by the US and its leaders is widely promoted by the oligarchy. Condoleeza Rice recently said that “by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture”. John Dean says that Obama is also guilty if his Justice Department does not prosecute because Geneva Conventions and the torture treaty require actions be taken against those who both torture and authorize torture. There is an affirmative obligation for governments to take action against those who commit torture. It does not give countries the choice, as some people think, to “let bygones be bygones”, to “look forward and not backward” and let torturers avoid prosecution and punishment. They do not have discretion in this matter. Since Attorney General Eric Holder has already conceded that waterboarding is torture, he is obliged to pursue prosecutions of those who committed torture.

Glenn Greenwald lays out the case for prosecutions clearly:

The U.S., under Ronald Reagan, legally obligated itself to investigate and prosecute any acts of torture committed by Americans (which includes authorization of torture by high level officials and also includes, under Article 3 of the Convention [against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment], acts of “rendering” detainees to countries likely to torture, as the Bush administration unquestionably did).

All of the standard excuses being offered by Bush apologists and our political class (a virtual redundancy) — namely: our leaders meant well; we were facing a dangerous enemy; government lawyers said this could be done; Congress immunized the torturers; it would be too divisive to prosecute — are explicitly barred by this treaty (i.e., binding law) as a ground for refusing to investigate and prosecute acts of torture.

This is also why the standard argument now being offered by Bush apologists (such as University of Chicago Law Professor Eric Posner, echoing his dad, Court of Appeals Judge Richard Posner in Chicago) as to why prosecutions are unnecessary — namely: there is “prosecutorial discretion” that should take political factors into account in order not to prosecute — are both frivolous and lawless. The Convention explicitly bars any such “discretion”: “The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall . . . submit the case to its competent authorities for the purpose of prosecution.” The principal purpose of the Convention is to remove the discretion involved in prosecuting acts of torture and to bar the very excuses which every torturing society proffers and which our own torturing society is now attempting to invoke (“we were dealing with real threats; there were ‘exceptional circumstances’ that justified it; we enacted laws legalizing the torture; our leaders meant well; we need to move on”)

By deciding not to pursue actions against torturers, Obama himself is violating international law, in addition to politically interfering with the actions of the Justice Department. Although people seem to have become accustomed to the Justice Department being seen as a political arm of the White House (thanks to the post of Attorney General being filled with political hacks like Alberto Gonzalez), we must not forget that it is supposed to be an independent agency, free of political control and obliged to take actions purely on the legal merits of the cases that come before it. To take direction from the political leadership, as is happening now with Obama trying to quash prosecutions of torture and illegal wiretapping, is itself wrong.

The fundamental principles involved here are really quite simple. There are certain things that civilized societies should not do, and torture is one of them. Anyone who tortures or authorizes torture has violated the law and committed a crime against humanity and can be prosecuted in any country. Nobody is above the law. Nobody.

POST SCRIPT: Bipartisan whitewash on torture

Cartoonist Tom Tomorrow on how Obama is morphing into Bush/Cheney when it comes to torture, warrantless wiretapping, and other illegal activities.

Language and Evolution

(Due to the Memorial Day holiday, I am reposting an old item.)

I have always been fascinated by language. This is somewhat ironic since I have a really hard time learning a new language and almost did not make it into college in Sri Lanka because of extreme difficulty in passing the 10th-grade language requirement in my own mother tongue of Tamil! (How that happened is a long and not very interesting story.)
[Read more...]

On torture-7: The ‘acting in good faith’ excuses

(For previous posts on torture, see here.)

Let’s continue with our look at the other excuses on the list put out by apologists.

Excuse 4: Even if it did violate binding laws and treaties, it was justified because it worked to prevent another attack and thus saved lives.

See the response to excuse #2 (“Even if it was torture, it was justified because it worked to prevent another attack and thus saved lives.”)

Excuse 5: The people who committed torture should not be prosecuted because they were told it was legal and they were merely following orders.

People who bring up this argument are either extremely ignorant, being willfully obtuse, or lying. Is there anyone in this day and age who does not know that this so-called “Nuremberg defense” is not valid? The defense that people should not be punished for obeying orders was not allowed during the Nuremberg trials of Nazi war crimes after World War II and which has set the modern standard for how such crimes should be treated. Neither was the defense that the accusing parties were also guilty of the same crimes as the accused. “Just following orders” and “Others did it too” cannot be used to justify war crimes.

This principle was further reinforced in article 2, section 3 of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which states that: “An order from a superior officer or a public authority may not be invoked as a justification of torture.”

Excuse 6: If we prosecute those who committed torture, then in future they will be “always looking over their shoulders” when conducting interrogations and be hesitant to take strong actions for fear of prosecution.

That is the whole point. People with the power of life or death over others should always be concerned about stepping over the line. They should always be looking over their shoulders, and take into account that if they commit excesses, they might face prosecution. This is what keeps atrocities in check. We want police and other security personnel to be keenly aware that there are lines that must not be crossed and that if they do, they will face the consequences. They may go ahead and do it anyway, but they should not assume while doing so that they have immunity for any and all actions. That have to be conscious of the fact that they will be called to justify why they chose the actions they did. And if they cannot justify it, they should expect to be prosecuted.

Excuse 7: The people who told the torturers that it was acceptable to torture were acting in good faith and trying to protect the country, so they should not be prosecuted.

This is the same kind of argument given by any dictator, autocrat, tyrant, or sadist, that they were doing it for the “greater good”, to “defend the country against its enemies”, to “save lives”. This argument was again rejected at the Nuremberg trials where the top leadership of Nazi Germany was found guilty of war crimes for just setting policy and issuing orders. Hermann Goering said that the concentration camps were necessary to preserve order: “It was a question of removing danger.” This argument was rejected, and even those who merely gave the orders were sentenced to death. It can well be argued that the people who are in command positions and give such orders are more culpable than the lower ranks that carried them out, though the latter are not excused from culpability.

Noam Chomsky and Tom Englehardt point out that the people who excuse US torture practices on the grounds of ‘saving the country from attacks’ never seem to consider the logical extensions of that argument.

There is still much debate about whether torture has been effective in eliciting information – the assumption being, apparently, that if it is effective, then it may be justified. By the same argument, when Nicaragua captured U.S. pilot Eugene Hasenfuss in 1986, after shooting down his plane delivering aid to U.S.-supported Contra forces, they should not have tried him, found him guilty, and then sent him back to the U.S., as they did. Instead, they should have applied the CIA torture paradigm to try to extract information about other terrorist atrocities being planned and implemented in Washington, no small matter for a tiny, impoverished country under terrorist attack by the global superpower.

By the same standards, if the Nicaraguans had been able to capture the chief terrorism coordinator, John Negroponte, then U.S. ambassador in Honduras (later appointed as the first director of national intelligence, essentially counterterrorism czar, without eliciting a murmur), they should have done the same. Cuba would have been justified in acting similarly, had the Castro government been able to lay hands on the Kennedy brothers. There is no need to bring up what their victims should have done to Henry Kissinger, Ronald Reagan, and other leading terrorist commanders, whose exploits leave al-Qaeda in the dust, and who doubtless had ample information that could have prevented further “ticking bomb” attacks.

Such considerations never seem to arise in public discussion.

The documentary Standard Operating Procedure (which I have not been able to see as yet) apparently argues that the low-level soldiers who carried out the atrocities at Abu Ghraib were merely scapegoats for the higher ups, cynically blamed for every wrong that happened while those who set the policy and encouraged these acts escaped. All the Bush administration principals discussed torture in detail so that they cannot now claim ignorance and conveniently put the blame on lower ranking ‘bad apples’.

The Nuremberg principle that leaders ‘acting in good faith’ should not escape punishment for the acts that result from their orders was further reinforced in article 2, section 2 of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which states that “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” This is about as unequivocal a rejection of the ‘good faith’ or ‘extreme circumstances’ excuses as one is likely to find.

We did not accept this argument of imminent danger to justify the authorization of torture by Nazi leaders, we would not accept such a defense from (say) North Korean leaders, and we should not accept it from US leaders.

POST SCRIPT: The frightened and dangerous clown

I have been bemused by the media paying such respectful attention to the ravings of Dick “Vice President for Torture” Cheney. Josh Marshall gives an excellent evaluation of him and why his utterances should be mercilessly mocked.

This is an extremely gullible man who has just come off being the driving ideological force in an administration that most people can already see produced more fiascos and titanic, self-inflicted goofs than possibly any in our entire history. By any standard the guy is a monumental failure — and not one whose mistakes stem in some Lyndon Johnson fashion from tragic overreach, but just a fool who damaged his country through his own gullibility, paranoia and bad judgment. Whatever else you can say about the Cheney story it ain’t Shakespearean.

So as we see the big reporters trying to put him on some sort of equal footing with President Obama today, let’s remember that the great majority of Americans see Dick Cheney, accurately, as a clown. And mockery isn’t just the most effective but also the most morally apt response to the man.

I have always thought that Cheney is a very frightened man, something that Marshall and other commentators miss, perhaps because they have been taken in by Cheney’s tough guy talk. His entire life history, from dodging fighting in Vietnam by getting five deferments to building a secure and secret underground bunker to hide in, are all clear signs of someone who lives in fear. It is the combination of fear and power that made him so dangerous.

The words that William Shakespeare put in the mouth of Julius Caesar (Julius Caesar, Act 2, Scene II) describe Cheney perfectly:

Cowards die many times before their deaths;
The valiant never taste of death but once.

On torture-6: The legal excuse

(For previous posts on torture, see here.)

Let’s continue with our look at the other excuses on the list put out by apologists.

Excuse 3: These actions did not violate any laws or treaties binding on the US.

Yes they do. That crazy, soft-on-terror ideologue Ronald Reagan signed the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1984, and such international treaties have the power of law. In a signing statement, Reagan said the following: “Ratification of the Convention by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today. The core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called “universal jurisdiction.” Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.”

Some have argued that these treaties only apply to prisoners of war, uniformed soldiers of another country captured on the battlefield, and that the so-called ‘enemy combatants’ do not warrant such protections. Charles Krauthammer who, like fellow-torture advocate Alan Dershowitz, starts from the ends he wants (the freedom for the US to torture others but not allow others to torture US citizens) and argues back to the premises, says that a captured terrorist “is by profession, indeed by definition, an unlawful combatant: He lives outside the laws of war because he does not wear a uniform, he hides among civilians, and he deliberately targets innocents. He is entitled to no protections whatsoever.” (my italics)

Apart from the incredibly barbaric nature of the assertion that anyone who is detained by security forces for whatever reason has no protection whatsoever against any brutality inflicted on them merely because someone claims that he is a terrorist, this argument is not even legally sustainable. The above-mentioned Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment says that protection against torture applies to all persons, not just those formally designated as prisoners of war.

We also need to distinguish between the third Geneva Convention which refers to prisoners of war and the fourth Geneva Convention which deals with other people involved in conflicts. Article 3 of Geneva Convention IV says:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat [i.e., out of the battle] by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (my italics)

This idea that there can be a whole class of people who have no rights whatsoever and to whom we can freely apply torture is a bizarre new invention, created for the purpose of excusing the acts of torture authorized and condoned by the US government.

[Retired Brigadier General John Adams] made clear that during all his years of service and training, including his tenure as a professor at West Point, what he learned and what he taught was consistent: the United States military always acts under the rule of law, in accordance with the Geneva Convention, and upholds the Constitution. What was not taught, or even discussed, were terms like harsh or enhanced interrogation techniques (“I never heard those terms used”), or arguments concerning what constitutes a so-called unique enemy (“In all my training, the current discussions are the first time I ever heard that argument used”). Said Adams: “I have never known anyone in a leadership position in the military who would condone torture. They would never do it. It would go against all the training we had, and against what we were trained to do, which is to uphold the Constitution and the rule of law.”

It may be possible that legal ‘brains’ similar to the infamous John Yoo and Jay Bybee in the Bush Justice administration may be able to find some tortured interpretation of the law and treaties that allow a tiny legal loophole in these treaty obligations. But it is truly disgusting to watch people who do not hesitate to apply broad sweeping moral judgments when torture is done by others suddenly retreat into nitpicking legalistic defenses when torture is done by the US. They seem to then think that if everything is ‘legal’ then it is acceptable. Some people argue that the real ‘mistake’ that the Bush administration made was in not going to Congress and getting a law passed that would have made all these practices legal, rather than depend on internal memos by the Office of Legal Counsel in the Justice Department.

That misses the point. A country cannot make torture legal by changing its internal laws. Torture is considered a crime so vile and inexcusable that it is beyond the pale of civilized behavior and thus cannot take refuge within national boundaries or jurisdictions. It is a crime against humanity and anyone anywhere can take action against any suspected perpetrators.

POST SCRIPT: Ventura ventures into the torture debate

Former Minnesota governor Jesse Ventura was once a Navy SEAL and underwent waterboarding as part of the SERE training. He says that waterboarding is undoubtedly torture and that torture produces worthless information. He tells Larry King, “I’ll put it to you this way, you give me a waterboard, Dick Cheney and one hour, and I’ll have him confess to the Sharon Tate murders.”

He further says, “I will criticize President Obama on this level; it’s a good thing I’m not president because I would prosecute every person that was involved in that torture. I would prosecute the people that did it. I would prosecute the people that ordered it. Because torture is against the law.”

Watch:

On torture-5: The effectiveness argument

(For previous posts on torture, see here.)

Let’s continue with our look at the other excuses on the list put out by apologists.

Excuse 2: Even if it was torture, it was justified because it worked to prevent another attack and thus saved lives.

Once you accept this argument, then you are truly a barbarian, because you can use it to justify any action at all. If torture is justified to save the lives of others, why have any limits at all? Why not drive hot spikes through people? Why not cut off their limbs? Why not bring back the rack and other devices of the Inquisition? Why not torture the families and children of detainees? Why not torture and terrorize entire communities?

And why stop with alleged terror suspects? Why not allow police to solve crimes by routinely torturing suspects to get information and confessions? It would save a lot of time and money too.
Furthermore, the argument that torture was successful because no further attack occurred after 9/11 (ignoring the anthrax attacks for the moment) is meaningless.
“My magic baseball cap keeps lions away from the city.”
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These kinds of arguments are mainly advanced by torture-lovers like the former vice president for torture Dick Cheney (a label given to him by the former director of the CIA Admiral Stansfield Turner) and have two self-serving purposes: they provide a justification for criminal acts and so that any new attack that might ever occur in the future can be blamed on the stopping of the torture practices. To substantiate such assertions, you need to provide specific evidence of an action that has been thwarted because of information gained that could only have been achieved by torture.

But an interrogator for the FBI Ali Soufan puts the lie to even the claim that torture garnered useful information that would not have been obtained otherwise.

Along with another F.B.I. agent, and with several C.I.A. officers present, I questioned [Abu Zubaydah] from March to June 2002, before the harsh techniques were introduced later in August. Under traditional interrogation methods, he provided us with important actionable intelligence.

We discovered, for example, that Khalid Shaikh Mohammed was the mastermind of the 9/11 attacks. Abu Zubaydah also told us about Jose Padilla, the so-called dirty bomber. This experience fit what I had found throughout my counterterrorism career: traditional interrogation techniques are successful in identifying operatives, uncovering plots and saving lives.

There was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn’t, or couldn’t have been, gained from regular tactics. In addition, I saw that using these alternative methods on other terrorists backfired on more than a few occasions — all of which are still classified. The short sightedness behind the use of these techniques ignored the unreliability of the methods, the nature of the threat, the mentality and modus operandi of the terrorists, and due process.

Defenders of these techniques have claimed that they got Abu Zubaydah to give up information leading to the capture of Ramzi bin al-Shibh, a top aide to Khalid Shaikh Mohammed, and Mr. Padilla. This is false. The information that led to Mr. Shibh’s capture came primarily from a different terrorist operative who was interviewed using traditional methods. As for Mr. Padilla, the dates just don’t add up: the harsh techniques were approved in the memo of August 2002, Mr. Padilla had been arrested that May.

As George Washington University law professor Jonathan Turley says, the torturing of Abu Zubayda provided nothing of value, and the Bush administration lied about the effectiveness of torturing him in order to excuse its actions.

The Bush torture program is a wonderful example of not just the time-proven junk that comes from torture, but also the value of legal process as a way to acquiring legitimate information in legitimate ways. Putting aside the obvious immorality of the program, the reports show how we tortured people for little more advantage than the visceral and political benefits of “getting tough on terrorism.”

It is becoming clear that torture was used for more than just to show toughness. The Bush administration was desperately seeking to justify the attack on Iraq and was using torture to try get confessions to “prove” that a link existed between Saddam Hussein and al Qaida.

A former senior U.S. intelligence official familiar with the interrogation issue said that Cheney and former Defense Secretary Donald H. Rumsfeld demanded that the interrogators find evidence of al Qaida-Iraq collaboration.

“There were two reasons why these interrogations were so persistent, and why extreme methods were used,” the former senior intelligence official said on condition of anonymity because of the issue’s sensitivity.

“The main one is that everyone was worried about some kind of follow-up attack (after 9/11). But for most of 2002 and into 2003, Cheney and Rumsfeld, especially, were also demanding proof of the links between al Qaida and Iraq that (former Iraqi exile leader Ahmed) Chalabi and others had told them were there.”

Similar reports are coming out elsewhere.

Khalid Shekh Mohammed was waterboarded 183 times in one month, an average of six time per day! If this most extreme form of torture is effective, why was it necessary to do it so many times? What made the torturers think that the 150th time would work better than the 149th time? Surely we can see that other motives must be at play. Either the torturers were seeking a false confession or anger, frustration, and sheer sadism had taken over from any intelligence gathering needs. What torture does best is produce false confessions and false information as the tortured person says anything at all just in order to make the torture stop.

As US airman Harold Fischer said about his experience at the hands of a Chinese torturer during the Korean war:

“[The torturer Chong] wanted me to admit that I had been ordered to cross the Manchurian border,” Captain Fischer told Life magazine. “I was grilled day and night, over and over, week in and week out, and in the end, to get Chong and his gang off my back, I confessed to both charges. The charges, of course, were ridiculous. I never participated in germ warfare and neither did anyone else. I was never ordered to cross the Yalu. We had strict Air Force orders not to cross the border.”

“I will regret what I did in that cell the rest of my life,” the captain continued. “But let me say this: it was not really me — not Harold E. Fischer Jr. — who signed that paper. It was a mentality reduced to putty.”

What torture does is produce “mentalities reduced to putty”, people willing to say anything to escape the torment, hardly the source of good information. But even in the extremely unlikely event that proof were offered that torture produced useful information that could have been obtained no other way, I would still reject this utilitarian argument on moral grounds.

There are some things a civilized society should not do merely to save some lives. We cannot live in a risk-free world. We are all going to die someday. We have no choice in that matter. The only choice we have is whether we live with dignity and honor by upholding principles of civilized behavior or we become barbarians. Bush, Cheney, and all those who support and excuse torture have chosen barbarism.

POST SCRIPT: The bogus ‘ticking time bomb’ issue

The ‘ticking time bomb’ scenario so beloved by torture apologists and based on little more than fictional TV shows and films can hardly be used for torture that extends over a month as was the case of Khalid Shekh Mohammed. See Tom Tomorrow’s cartoon parodying the absurdity of this argument.

On torture-4: Trying to excuse the inexcusable

(For previous posts on torture, see here.)

These arguments that have been made to excuse the torture practices of the US have taken many shifting forms. In the next few posts, I list the top excuses for torture practices, followed by my responses.

Excuse 1: What was done by the US is not torture.

Excuse 2: Even if it was torture, it was justified because it worked to prevent another attack and thus saved lives.

Excuse 3: These actions did not violate any laws.

Excuse 4: Even if it did violate binding laws, it was justified because it worked to prevent another attack and thus saved lives.

Excuse 5: The people who committed torture should not be prosecuted because they were told it was legal and thus they were merely following orders.

Excuse 6: If we prosecute those who committed torture, then in future they will be “always looking over their shoulders” when conducting interrogations and hesitant to take strong actions for fear of prosecution.

Excuse 7: The people who told the torturers that it was acceptable to torture were acting in good faith and trying to protect the country, so they should not be prosecuted.

Excuse 8: If we prosecute those who authorized torture, then this would be for purely partisan reasons for retribution by Democrats against Republicans.

Excuse 9: Top Democrats were told what was going on and approved of it so that makes it ok.

Excuse 10: We need to focus on solving urgent problems like the financial and housing crisis and torture investigations will be divisive and distract us.

Excuse 11: Finally, the emotional appeal that takes various forms but one of the strongest is to invoke the extreme hypothetical: If your child was being held hostage by terrorists, wouldn’t you want any suspects to be tortured if they had information that could save your child?

Excuse 1: What was done by the US is not torture.

This argument has been put forward in two ways. One is to suggest that what was done to the detainees was mild, even routine. Sleep deprivation? Who of us haven’t had sleepless nights? Forced to stand for hours one end? Donald Rumsfeld used to wonder why the detainees were getting off so easy by being made to stand for only four hours when he often stands for 8-10 hours per day. And so on. The other is to suggest that since these torture techniques were used as part of the SERE program to train US personnel to resist torture, they cannot be torture since we wouldn’t torture our own people, would we?

Do I really need to point out why these arguments cannot be taken seriously? There is a world of difference between experiencing something voluntarily or at the hands of people you know are on your side and do not want to harm you, and having the same thing done to you by your enemies who may want to kill you. To argue otherwise is like saying that since some people voluntarily participate in S&M sexual practices, then assault or rape cannot be crimes.

Torture apologist Charles Krauthammer actually put forward the argument that the above practices could not be torture because they were used to train US troops, to which an officer in the National Guard replied:

I have friends who have been to SERE and instructed SERE students and acted as interrogators. All agree that waterboarding and other such ‘enhanced’ techniques are good for training (in a strictly controlled environment) our soldiers, sailors, airmen and Marines on what to expect in captivity. They also agree that it is torture to anyone outside that training environment. Finally, they all agree that torture rarely results in actionable intelligence, as the victim is willing to say most anything to end the torture.

But even beyond that, many people have been quite unequivocal about calling these practices torture. As John McCain asserted during the election campaign, the US executed Japanese soldiers in World War II for the same kinds of things that were done by the US interrogators, because they were considered torture and thus war crimes. McCain said “[F]ollowing World War II war crime trials were convened. The Japanese were tried and convicted and hung for war crimes committed against American POWs. Among those charges for which they were convicted was waterboarding,”

Gen. Barry McCaffrey has called what was done by the US torture.

Gen Antonio Taguba, who was assigned to investigate the activities following the revelations at Abu Ghraib, has said that what was done by the Bush administrations in Iraq, Afghanistan, and Guantanmo constituted war crimes “when the Commander-in-Chief and those under him authorized a systematic regime of torture.”

Brigadier General James Cullen (Ret.), former chief judge of the U.S. Army Court of Criminal Appeals said that giving these practices euphemisms such as “enhanced interrogation techniques” does not make it not torture. What was done was unequivocally torture. “We hear a lot of arguments to try to justify ‘enhanced interrogation techniques,’ but we know exactly what we’re talking about. It’s torture in different packaging.”

In fact, the Senate Armed Services Committee said that the whole point of the SERE training that led to the abuses was to resist what was clearly identified as torture.

During the resistance phase of SERE training, US military personnel are exposed to physical and psychological pressures…designed to simulate conditions to which they might be subject if taken prisoner by enemies that did not abide by the Geneva Conventions. As one JPRA instructor explained, SERE training is “based on illegal exploitation (under the rules listed in the 1949 Geneva Convention Relative to the Treatment of Prisoners of War) of prisoners over the last 50 years.”

It is really quite simple. At the very minimum, if something is torture when done by others to you involuntarily, then it is still torture when done by you to others.

Next: More excuses

POST SCRIPT: Jon Stewart talks with a torture apologist

Clifford May comes out with the usual pathetic excuses for why torture is ok if done by the US. May is the president of something called the Foundation for Defense of Democracies, and nothing says that you love democracy more than advocating torture practices.

The full and unedited interview is shown below in three parts.

Part 1:

The Daily Show With Jon Stewart M – Th 11p / 10c
Cliff May Unedited Interview Pt. 1
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Part 2

The Daily Show With Jon Stewart M – Th 11p / 10c
Cliff May Unedited Interview Pt. 2
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Part 3:

The Daily Show With Jon Stewart M – Th 11p / 10c
Cliff May Unedited Interview Pt. 3
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On torture-3: What was actually done to detainees by the US

(For previous posts on torture, see here.)

An article by Mark Danner in the April 30, 2009 issue of the New York Review of Books accompanied his release of the February 2007 confidential report of the International Committee of the Red Cross on what was done to detainees in US custody. It is truly horrifying. These are the methods that were used by the US on its detainees:

  • Suffocation by water poured over a cloth placed over the nose and mouth…[i.e., 'waterboarding']
  • Prolonged stress standing position, naked, held with the arms extended and chained above the head…
  • Beatings by use of a collar held around the detainees’ neck and used to forcefully bang the head and body against the wall…
  • Beating and kicking, including slapping, punching, kicking to the body and face…
  • Confinement in a box to severely restrict movement…
  • Prolonged nudity…this enforced nudity lasted for periods ranging from several weeks to several months…
  • Sleep deprivation…through use of forced stress positions (standing or sitting), cold water and use of repetitive loud noises or music…
  • Exposure to cold temperature…especially via cold cells and interrogation rooms, and…use of cold water poured over the body or…held around the body by means of a plastic sheet to create an immersion bath with just the head out of water.
  • Prolonged shackling of hands and/or feet…
  • Threats of ill-treatment, to the detainee and/or his family…
  • Forced shaving of the head and beard…
  • Deprivation/restricted provision of solid food from 3 days to 1 month after arrest…

How did the US torturers even come up with the ideas for these methods? They were developed as part of the SERE (“Survival Evasion Resistance and Escape”) counter-resistance program developed by the US military, to train their own people to resist what they themselves called torture when it was done to them by others. Danner quotes a Senate Armed Services Committee report that says:

The techniques used in SERE school, based, in part, on Chinese Communist techniques used during the Korean war to elicit false confessions, include stripping students of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures. It can also include face and body slaps and until recently, for some who attended the Navy’s SERE school, it included waterboarding.

The progression is chilling. When done by the Chinese against US prisoners, these actions were unequivocally condemned as torture. These torture techniques were then used to train US personnel to resist torture in the event they were captured by countries that did not abide by the Third and Fourth Geneva Conventions or the Treaty Against Torture. And then they were used as a how-to manual by the US to torture others.

There is no doubt that the US has tortured people in violation of the law. The question now is what should be done about it.

As Danner says:

One fact, seemingly incontrovertible, after the descriptions contained and the judgments made in the ICRC report, is that officials of the United States, in interrogating prisoners in the “War on Terror,” have tortured and done so systematically. From many other sources, including the former president himself, we know that the decision to do so was taken at the highest level of the American government and carried out with the full knowledge and support of its most senior officials.

Once this is accepted as a fact, certain consequences might be expected to follow. First, that these policies, violating as they do domestic and international law, must be changed—which, as noted, President Obama began to accomplish on his first full day in office. Second, that they should be explicitly repudiated—a more complicated political process, which has, perhaps, begun, but only begun. Third, that those who ordered, designed, and applied them must be brought before the public in some societally sanctioned proceeding, made to explain what they did and how, and suffer some appropriate consequence.

And fourth, and crucially, that some judgment must be made, based on the most credible of information compiled and analyzed and weighed by the most credible of bodies, about what these policies actually accomplished: how they advanced the interests of the country, if indeed they did advance them, and how they hurt them.

But rather than following through on the logic that those who commit torture should face investigation and prosecution, what has been disgusting are the efforts to excuse and justify these actions in response to these revelations, simply because they were done by ‘our’ side.

Next: The parade of excuses for the torture committed by the US

POST SCRIPT: Hypocrisy

The Daily Show on the difference between the way Japanese torturers were treated compared to the US torturers for doing the same things.

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A Brief History of Torture
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