This is an example of how Constitutional Law is made, if you consider the United States's authorization and practice of torturing enemy prisoners to be legal and consistent with not only due process of law but of the prohibition against cruel and unusual punishment.
Or more fundamental still, the idea the we're supposed to be the good guys in a world filled with, since I trod the boards:
- the genocidal Hitler,
- the war criminals Tojo and Hirohito,
- the fascist Mussolini, the Communist dictator Stalin (25 million kulak deaths, for example),
- the Communist dictator Mao Tse-tung (25 million of his fellow Chinese civilians through his disastrous Great Leap Forward followed by his Cultural Revolution), and lest we forget,
- the late Saddam Hussein, our (when he fought Iran, which had taken our diplomatic mission hostage) former Iraqi bad guy, now everyone's former bad guy.
They tortured. We didn't. At least not as a matter of national policy. We condemned it. We prosecuted and hanged them (Tojo, for instance, and Yamashita) for that. See the Nuremburg Trials after the war.
For a certain diminishing number of people, the war ("World War Two, or WWII" as it is called) means only one thing, that war. The rest have been less climactic, it seems, after that one. That was the war for the world. The rest have been for more limited stakes, it seems.
In that war, we were the good guys. We saved the world for goodness and decency. Torturing prisoners is what they did to us, not what we did to them.
This may be the fairy tale version, but that's what we understood, believed, and talked about as kids. We were the good guys.
So when a guy like Dick Cheney takes over the White House because we had a president not clever enough by half to stand up to him, we get torture, justified on the ground that these are bad guys who have it coming, look at the Trade Center, look at what a bad guy Saddam is.
And lawyers on the White House, American lawyers who are supposed to know better, sign off on the torture policy. Some hold their nose, say we're gonna regret this some day, and others, seeing visions of those judgeships dangling before their eyes, sign off without apology. Indefinite detentions under some cockamamie theory of relabeling: well, these terrorists are not just criminals (they are) entitled to trial in American courts (they are) and not real warriors such as the Germans and Japanese of WWII who wore uniforms and fought in designated units commanded by generals and admirals as agents of a recognized nation, since the Al Qaeda types are working for an NGO, a non-governmental organization, not a nation. Thus they are something else, not entitled to the rights and protections against mistreatment that these other people who kill us are.
True, they're not in either of those categories as we usually conceive them. The could be relabeled.
But they're still human beings, however misguided, and thus entitled to be treated the way we treat human beings trying to kill us. We either shoot them on the battlefield or hold them prisoner for the duration (another of Cheney's problems because his war on terror endured forever, so long as someone doesn't like us, and that should be for quite awhile), or, as criminals, bring them to trial, convict, and punish, assuming the evidence is there. This is Cheney's problem. Neither nor his army is in the business of collecting evidence while the shooting is going on around our troops, and I don't blame them for that. War is not a domestic lawsuit. But if we don't allow soldiers to torture captives, neither should we allow their civilian and military rear-echelon types do the job for them, even under the pretext that the person being tortured has information about the next attack. As soon as he was tortured, that plan was changed to account for his giving up the information under torture.
But the president, and the vice-president, maintain that their power as commander-in-chief, permit them to assert powers not granted by the Constitution, powers claimed to be 'inherent' in the office of the president as commander in chief in time of war. Yeah, right. And under that pretext we might as well declare a military dictatorship lest we lose the next war.
The Constitution was designed to be our sea-anchor, to keep us pointed into the wind, no matter how strong the gale or the cyclone. For without holding fast to our values, we're not the same country. Whatever we were in the past, we risk being changed when we tear up the Constitution and turning ourselves into Hitler Germany or Stalinist Russia. It's not as though we're immune from the same diseases of the spirit, the fears, that prompted them to do what they did. We are entirely capable of doing the same once the passions are unleashed.
Here's how this happens in real life, domestically, in the White House. As an attorney who practices criminal law, I observe ruefully that the White House is the one place with a greater need for the services of a criminal defense lawyer than any other office in Washington.
The article below shows how you coopt lawyers into approving anything:
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07 Jun 2009 08:54 pm
The NYT's Continuing Slide On Torture
The Bush administration torture team, with Cheney chief among them, has obviously rolled out a major public relations campaign these past two months. One of their enablers in all this has been - surprise! - the New York Times. The NYT - which changed its own prose style (they stopped using the t-word to describe what they had long always called torture to comport with Bush policy) - followed up its recent Bumiller belly-flop on Jihadist recidivism with another surreal spin of the facts in front of it. Leaked memos reveal that even those who objected to the moral and constitutional bases for the Bush-Cheney torture policy nonetheless rubber-stamped the Abu Ghraib and Bagram and Gitmo techniques as somehow fitting the "legal" standard (although even they got queasy about the idea of them being used in combination as they routinely were). But this piece of news is nothing compared with the real story buried beneath the spin. (The best summaries of the latest piece of Bush administration stenography are from Marcy Wheeler and Glenn Greenwald. Read them both in full.)
The gist: if you actually read the leaked memos, and absorb the details of the NYT piece, you find the actual story: that the OLC lawyers were under enormous pressure to approve whatever Cheney wanted, were denied time to get the whole thing right, (Bradbury was even kept on probation until he spat out the "legal" approvals they wanted), were told that the president himself was pushing hard, and that a couple of them, Comey and Goldsmith, believed that the torture techniques, although technically "legal" in their judgment, were "simply awful" and would come back to haunt them. Among the political interference in the OLC process (eerily reminiscent of the pressure on the CIA with respect to Saddam's WMDs), we learn the following:
This was the kind of political pressure applied to lawyers who were supposed to be interpreting the law, regardless of policy positions by their superiors, free of political pressure or duress. And this was long, long after the initial period of terror after 9/11 and in Bush's second term. Moreover, the lawyers' belief that combining all these torture techniques was extremely dangerous was completely ignored. Here's Comey desperately trying to get them to realize the Rubicon they were crossing:
Notice how Rice was demonstrating the moral courage she recently showed in front of some amateur (i.e. not supine MSM) questioners on the question. She wanted to give the president anything he wanted while remaining in total denial - and deniability - on the torture question. In some ways, her position is more contemptible than Cheney's. At least he knew what he wanted to do, and is now proud of his record of torture and abuse of prisoners. Rice simply facilitated everything, while closing her eyes to reality, and abandoning any moral responsibilty.
Glenn homes in on the critical revelation:
Comey described exactly what was happening with this process: that the White House was demanding and pressuring the issuance of these memos, but that once the torture regime became public -- as Comey warned that it would -- White House officials would defend themselves by heaping the blame on Gonzales and other DOJ lawyers, deceitfully pretending that they were merely following in good faith DOJ advice about what was and was not legal.
This is their shell-game now. And it's working! The lawyers were at the heart of the golden legal shield, and were willing to go through any legal hoops and shenanigans to call what is illegal "legal" because their political masters demanded it. (Notice that Comey even uses quotation marks around "legal" in a memo to Gonzales). He knows what's going on, and while too cowed to actually call unlawful acts unlawful, he nonetheless tries to stop them - because he knew that if people actually knew what Cheney authorized, behind the euphemisms and legal shenanigans, then the Bush administration would go down in history as torturers and pariahs. As they should.
So they destroyed the evidence - the CIA tapes, the last interrogation tape of Padilla, the records at Camp Nama (overseen by McChrystal), and suppressed as many photographs from Abu Ghraib and elsewhere that they could. Without the Abu Ghraib photographs, they would have gotten away with all of it.
Actually, of course, they have gotten away with all of it, subjecting the reservists at the very bottom of the heap to take the fall, as they continue to spin and lie and dissemble and reinvent the past. All with the help, of course, of the New York Times. But Comey was right. This will all come out. And we must not flinch or falter in exposing every single aspect of it.
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