(For previous posts on torture, see here.)

One of the best ways to ensure good government is to have as much transparency as possible. When people are allowed to work behind closed doors with the promise of secrecy, abuses inevitably occur. The Bush/Cheney administration was highly secretive and unfortunately, when it comes to things like torture, the “extraordinary renditions” of prisoners (i.e., sending them to other countries that practice torture), and illegal wiretapping, the Obama administration seems to be also trying to keep as many things secret as possible. In fact, on some matters such as illegal wiretapping, Obama is making even more sweeping claims of presidential authority to keep secrets than Bush/Cheney did.
[Read more…]

(For previous posts on torture, see here.)

It is not that torture never works but the history of torture suggests that in order to get a few bits of useful information, you have to throw a wide net for torture victims. In the cover story of the October 2006 issue of The Progressive magazine, Alfred W. McCoy, professor of history at the University of Wisconsin-Madison and author of A Question of Torture: CIA Interrogation, from the Cold War to the War on Terror dissects The Myth of the Ticking Time Bomb and points to a few cases in Vietnam and Algeria where mass torturing has worked. “Major success from limited, surgical torture is a fable, a fiction. But mass torture of thousands of suspects, some guilty, most innocent, can produce some useful intelligence.”

But indiscriminate and widespread torturing of people is presumably not where any civilized society wants to go, though given how easily Americans can be frightened by vague threats, it would not surprise me if people were willing to countenance even that.

Once torturers have brutally treated someone, they become reluctant to let the victims freely speak about their treatment since such revelations rebounds badly on them. You cannot bring them to an open trial where they can tell the judge and the public how they were treated. Torture inevitably leads to excessive secrecy or even the killing of victims so they can never speak about their treatment. So secrecy and torture practices go hand in hand and the promise of secrecy creates the temptation for perpetrating even greater abuses.

Glenn Greenwald points out how the Bush administration tried to make a deal with two Gunantanamo detainees (British resident Binyam Mohamed and Australian citizen David Hicks) that they would release them only if they kept secret about the treatment they had received. Mohamed refused the deal and his detention was continued. So the US government was essentially using torture and detention as weapons, not to gain information but to gag their prisoners to prevent them speaking about their torture and detention.

Binyam Mohammed’s story gets even worse. He was eventually sent back to England in February after the charge that he aided Jose Padilla fell apart. Mohammed had spent six years in US custody and claimed he was tortured at the hands of the US in Pakistan, Morocco, and Afghanistan, the countries being ones that he had been ‘renditioned” to. After his release, a British High Court initially ruled that there was sufficient evidence that he had been tortured and that he was entitled to seek documentary evidence that the British government had in its possession about his treatment. But it later reversed itself because the Obama administration had threatened to withhold security cooperation with the UK if the documents were released.

As Glenn Greenwald says:

Just think how despicable that threat is: if your court describes the torture to which one of your residents was subjected while in U.S. custody, we will withhold information from you that could enable you to break up terrorist plots aimed at your citizens.
…
The principal issue here is that the Obama administration is not merely failing to investigate (let alone prosecute) acts of high-level criminality by U.S. government officials. Far worse, ever since he was inaugurated, Obama has engaged in one extraordinary legal maneuver after the next to block American courts from ruling on the legality of those actions. He has now extended his Bush-protecting conduct to the international realm, as he re-iterates Bush’s threats that we will purposely leave British citizens more vulnerable to terrorist attacks if their courts rule that, under their laws, their citizens are entitled to know what was done to Binyam Mohamed.

Clive Stafford Smith, an attorney for Mr. Mohamed, said that he was disappointed with what Obama had done.

“What they are doing is twisting the arm of the British to keep evidence of torture committed by American officials secret,” said Mr. Smith, a U.S. citizen. “I had high hopes for the Obama administration. I voted for the guy, and one hopes the new administration would not continue to cover up evidence of criminal activity.”

The Metropolitan Police of London is investigating whether Mr. Mohamed was tortured when he was in American custody.

Mr. Smith said that by attempting to keep evidence of Mr. Mohamed’s “abuse” secret, the U.S. official who communicated the threats to the British Foreign Office was in breach of British law, specifically the International Criminal Court Act of 2001.

“The U.S. is committing a criminal offense in Britain by seeking to conceal this information. What the Obama administration did is not just ill-advised, it is illegal,” he said.

But despite these attempts at suppression of his torture, truly gruesome details are emerging about some of the methods used on Binyam Mohamed that make even waterboarding look tame by comparison, “very far down the list of things they did.” These include such things as the slicing of his genitals with a scalpel,

This is what allowing torture under any circumstances leads to. It is the slipperiest of slippery slopes. One step on it, and you rapidly end up in a cesspool, committing the most odious of acts.

POST SCRIPT: Gay marriage loophole

New Hampshire yesterday became the sixth and latest state to pass a law allowing gay marriage, continuing the inevitable march towards full equality. But from the Onion News Network we learn that gays are willing do anything to get married.

Conservatives Warn Quick Sex Change Only Barrier Between Gays, Marriage

(For previous posts on torture, see here.)

Let me finally address the question raised by the final excuse on the list put out by torture apologists, that if our own loved ones could only be saved by torture, wouldn’t we approve of it?

I have said that I oppose torture on the principle that I cannot condone any practice that I would not accept if it were to be applied to my own loved ones. But what if the tables were turned and my own loved ones were under threat of harm and the security forces had captured someone who might have information that might save them? Wouldn’t I want the security forces to do whatever it takes, even if it includes torture, if that might save their lives?

The answer is yes, I probably would want them to do whatever it takes to save my loved ones. I might even be willing to do it myself. There is no saying what we might do when we are placed in extreme situations far removed from our normal experience. But the fact that we might wish suspects to be tortured if it might save our own loved ones is not an argument for torture. It is instead a sign of our human weakness, an indication of how strong emotions can override our better nature. It is an argument for why people with a deep personal and emotional investment in a case should not be involved in any way with such investigations or interrogations, because their passions can cause them to commit atrocities that are beyond the pale of civilized behavior.

There is a reason why we do not allow vigilante justice. There is a reason why, if we report to the police that someone has killed or otherwise brutalized our loved ones, the police do not give us a gun and tell us to take care of it ourselves. There is a reason why in trials, any person who has any links to the case or has had a past involvement in a similar situation, is eliminated from the jury pool. It is because such people are too likely to be inflamed by our emotions to think rationally about evidence and proof and justice and law and principles.

The impersonal institutions of society, such as the police and the courts, are there to provide the dispassionate buffer that prevents us from committing atrocities arising out of our personal passions and grievances. The collective principles of morality and humanity and justice enshrined in those institutions are meant to save us from ourselves.

People are capable of advocating, let alone committing and condoning, all kinds of appalling acts when their own personal safety and well-being or that of their loved ones are at stake. A reliable staple of Hollywood films is where an enraged private individual takes the law into his or her own hands to avenge some personal wrong that the authorities cannot or do not want to deal with, and the audience invariably cheers the successful elimination of the evildoer at the end, however questionable the means used. Filmmakers are taking advantage of our natural empathetic feelings towards the victims of injustice. We are manipulated by the filmmakers into accepting torture and killing because they make sure that we, the audience, know for certain that the villain brutalized at the end is truly guilty, is really evil, and has no redeeming qualities. It would be interesting to see what would be the reaction if at the end of the film or in the pro-torture TV series 24, the righteous avenger finds that he or she has made a mistake and tortured an innocent person and we, the audience, find that we had been manipulated into cheering on a monstrous injustice.

This is what is being exploited by those who justify torture by asking us to imagine ourselves as the victims of a crime that might be prevented by torture. Notice that the people who are supporting torture repeatedly make the sweeping assumption that all the people in US custody at Guantanamo and elsewhere are horrible and dangerous people who are guilty of unspecified but presumably appalling crimes, the kind who would kill their own grandmothers for pleasure, even though this has not been established to be the case.

If we allow actions to be justified on the basis of the passions of the victims, then we are but a short step from barbarity. Take for example, Eugene Volokh, a professor of constitutional law. He cites a case where a criminal was publicly executed in Iran before a large crowd of spectators in a event that was made into a sordid spectacle, where he “was flogged 100 times before being hanged. A brother of one of his young victims stabbed him as he was being punished. The mother of another victim was asked to put the noose around his neck.”

Volokh puts himself in the position of the victims’ families and heartily approves of the barbaric way the execution was carried out, saying:

I particularly like the involvement of the victims’ relatives in the killing of the monster; I think that if he’d killed one of my relatives, I would have wanted to play a role in killing him. Also, though for many instances I would prefer less painful forms of execution, I am especially pleased that the killing – and, yes, I am happy to call it a killing, a perfectly proper term for a perfectly proper act – was a slow throttling, and was preceded by a flogging. The one thing that troubles me (besides the fact that the murderer could only be killed once) is that the accomplice was sentenced to only 15 years in prison, but perhaps there’s a good explanation.

I am being perfectly serious, by the way. I like civilization, but some forms of savagery deserve to be met not just with cold, bloodless justice but with the deliberate infliction of pain, with cruel vengeance rather than with supposed humaneness or squeamishness. I think it slights the burning injustice of the murders, and the pain of the families, to react in any other way.

The disturbing tone of Volokh’s comments (remember that he is a professor of constitutional law and is presumably well aware of why we have laws and constitutions) perfectly illustrates why we should keep victims of crimes out of the investigation and punishment of crimes.

Those with a strong personal and emotional stake in it are capable of the most appalling things, which is why the hypothetical of whether we might be willing to commit torture if we could save our own loved ones should not be used as a justification for the practice.

POST SCRIPT: Wretched excess

Stephen Colbert visits three restaurants where a single item on the menu costs $1,000.

The Colbert Report	Mon – Thurs 11:30pm / 10:30c
Colbert Platinum – $1,000 Dishes
colbertnation.com
Colbert Report Full Episodes Political Humor Gay Marriage

(For previous posts on torture, see here.)

Let me continue the look at the final excuse on the list put out by torture apologists, that if our own loved ones could only be saved by torture, wouldn’t we approve of it?
[Read more…]

(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:

(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?
[Read more…]

(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.

(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.

(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.”

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