Sheridan: Con-Law

The justification some Americans offer in support of torturing prisoners in the war on terror is that considering the 9-11 hijackings and the suicide bombings by radical Islamists all over the world, it is critical to know where and when the next attack will occur.  It would be nice to know that, granted.

The problem is that it would be nice to know a lot of important things that are quite as real as those attacks.  The question is whether the United States, as a matter of national policy, should tolerate torture as a method of obtaining the information.

I'd thought we'd rejected that as a matter of official policy, which means that we condemn other nations which use torture for any reason and prosecute our own people, official and civilian, who commit the crime of torture.  In California where I practice criminal law, among other things we have the crime of Torture, penalty life in prison.  Over the past summer I represented a young man charged with it, and beat it.  He'd punched his girlfriend in a violent, drunken jealous rage.  The injuries were bad.  She lost five lower front teeth.  She had two broken fingers for a previous drunken, violent rampage involving another girlfriend.  His family loved him and saw that he was represented.  The skin on the back of her scalp showed a two inch gash down to the skull.  He'd been to prison before.  Torture, charged the DA.  Life.  It appeared to the DA that my client must have inflicted first one kind of wound, then another and then another, in order to extract information from the girlfriend, as the argument had to do with "Who was that man I saw you talking to?" which she wouldn't, or couldn't, answer.  She was intoxicated also and trying to sleep, when the words occurred.

Two other attorneys before me represented him on this without much success in dealing with the torture and mayhem, battery and prison prior alleged.   I went out to the scene of the crime, the bedroom in his house, where the defendant's father had patched a hole the size of a softball in the plasterboard in the wall, over the bed, resulting from the altercation.  I photographed it and turned it over to the DA along with this:  The defendant didn't torture the girlfriend.  He had hit her.  Once.  While she was seated on the bed, where the argument had occurred.  The force of the blow drove her head into the wall behind the bed, breaking the wall.  She'd put up her hand to defend against the blow.  Her fingers came between the the fist and her teeth, absorbing enough of the blow to break both and crush the bone in one.  When her head struck the plasterboard, the skin split.  Battery, yes.  Injuries, yes.  Prior record, yes.  but Torture, no.  The DA dropped the torture and we negotiated the case as per normal, Torture being anything but normal.

So we prosecute torture in the states and in the federal system.  It is a crime for which you can go to prison for life in California.  We reject torture as a crime.  Military people's worst nightmare is falling into the hands of an enemy who tortures.  Gary Francis Powers, our U-2 spy pilot shot down over the Soviet Union in 1960 just before the Paris summit, parachuted to safety.  He had been provided with a poison capsule that he was supposed to have taken to avoid being captured and tortured into revealing secrets of the spy program.  He was eventually repatriated in a prisoner exchange for the Russian spy Rudolf Abel.

Sen. John McCain, who ran for president, was shot down over Hanoi and tortured for years.

We fight torture.  We don't commit it.  Or so we thought.  Under the Bush Administration, leaving office in a week, we practiced torture, whether the president and his supporters admit it or not.  We've created more enemies and other people displeased with our example, than we can imagine.  I don't know whether we've forestalled any further attacks.  Probably we've extracted bits and pieces of intelligence on the order of who is related to whom, and how, in Islamist lands, and who works with whom, and who is friends with whom, so that we can target them for assassination, another of our difficult issues, where we take them out from the air using unmanned aerial vehicles, UAVs, among other techniques including sharing information with allies, if we have any.

Torture is bad business.  If we do it, so can the bad guys, our enemies.  When they do it, we can decry them in world forums.  When we do it, we reduce ourselves to their moral level.  This is not something you want to do when professing to lead the world, morally, democratically, and in terms of our "soft power," our cultural force.  Since 9-11, we've climbed down from our lofty perch into the mud of torture.  It will take a long time to remove the taint, I'm afraid.  Let's hope that sooon-to-be Pres. Obama sets a loftier tone, and means it.  Bush, Cheney, Rumsfeld and Rice don't seem to have meant it.

Here's another article showing we can't be trusted:

Posted on Thu, Jan. 15, 2009 Bush allies take aim at Guantánamo Bay detainee policies BY CAROL ROSENBERG GUANTANAMO BAY NAVY BASE, CUBA -- Bush administration supporters handed detention policy setbacks to the lameduck White House Wednesday with a series of actions: from a trusted appointee who ruled a Guantánamo detainee was tortured beyond prosecution to a judge who ordered the release of a detainee, held since age 14, on grounds of false imprisonment. In between, the Pentagon arraigned an alleged terrorist trainer here and announced fresh war crimes charges against three more Guantánamo captives. That meant 21 of the 250 detainees were in pretrial proceedings, including Toronto-born former teen captive Omar Khadr -- scheduled to go to trial Jan. 26, unless the new Obama administration stops it. The fast-paced new events came with less than a week left in the Bush administration. President-elect Barack Obama has pledged to close the prison camps here, deliberatively, but has not said whether he will stop war court proceedings. CRAWFORD ON RECORD The setbacks started in the morning with The Washington Post's Bob Woodward quoting Susan J. Crawford, the Bush appointee entrusted with overseeing military commissions, as saying captive Mohammed Qahtani's treatment in interrogation meant he could never be prosecuted by a U.S. court. ''We tortured Qahtani,'' said Crawford, a retired judge and lawyer who has served in several Republican administrations. Qahtani was subjected to lurid interrogation techniques, including being dressed in women's underwear and ordered to bark like a dog. He also was exposed to loud music, strobe lights, deprived of sleep and dehydrated -- while military medical staff monitored his health. Late Wednesday, U.S District Judge Richard J. Leon ordered the Pentagon to free Mohammed Gharani, 21, a native of Chad who was raised in Saudi Arabia and captured in Pakistan at age 14. Gharani had been held since early 2002. Leon, appointed to the bench by President Bush, had earlier agreed with the Bush administration that its presidential war powers forbade federal habeas corpus review. He was overruled by the U.S. Supreme Court, and has been reviewing Guantánamo cases for months. Reaction to the Washington Post story was swift: • White House press secretary Dana Perino defended the president's policy. ''It has never been the policy of this president or this administration to torture,'' she said. • Qahtani's Pentagon defense attorney, Army Lt. Col. Bryan Broyles, said the new government should repatriate the man to his native Saudi Arabia. `WE CAN'T BE TRUSTED' ''I think he should be released to the custody of the Saudis. We've proven fairly certainly that we cannot be trustedwith his custody,'' Broyles told visiting media . • Lawyers for Abd al-Rahim al-Nashiri, accused of helping orchestrate the October 2000 suicide bombing of the USS Cole, asked Crawford in an urgent letter to dismiss his capital criminal charges based on his treatment in CIA custody before President Bush ordered his transfer here 30 months ago. ''The government has admitted to waterboarding Mr. al-Nashiri,'' he said. ``By itself, waterboarding amounts to torture: The State Department has criticized other countries for engaging in techniques of torture, such as near-drowning.''

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WATERBOARDING & OTHER TORTURE

Eighty-one percent of the country feels that we're headed in the wrong direction, according to to the headline over a report on a poll in yersterday's San Francisco Chronicle at www.sfgate.com. 

After all, we have the war in Iraq, which we entered on false premises and where we've lost 4,000 soldiers, most since the president stood under the now famous "Mission Accomplished" banner on the aircraft carrier Lincoln.  Sure, the banner was for the sailors, who had completed a strenuous and dangerous deployment to the Persian Gulf region, but he president was basking in reflected glory, since he'd sent them there.

The nation-building phase is going poorly, having required a surge of troops to dampen the insurgency and a commitment to remain that will be years, with additional losses.

Abu Ghraib and Guantanamo have shown us to be lawless when it comes to advancing our own interests while continuing to hold the world to high standards we don't want to meet ourselves.  We wriggle away from, and out from under, treaties we're offered or have signed on global warming and treatment of prisoners.  We avoid signing treaties outlawing land mines and hand-grenades attractive to children.  We're hypocrites the way NY Gov. Spitzer was forced to resign for his hypocrisy, pretending to be morally pure but demonstrating a flair for moral impurity that not even he could withstand when revealed.

The economy is imploding, as exemplified by the run on Bear Stearns which destroyed it almost literally overnight, causing the Treasury and the Fed to plug the dike.

Eighty-thousand more jobs were lost in the last period, according to the U.S. Department of Labor, the New York Times reported, today.

Unless the Democrats really screw things up, the nation seems ripe for one of its periodic swings which ousts the incumbent majority party, once seen as nearly invincible, in favor ot the other, which typically seems like the gang that can't shoot straight.  The latter controls the House and Senate, but hasn't the votes to override a veto from Pres. Bush, so we're stuck on "Go" in Iraq and the abuses associated with the war effort.

Meanwhile, the richest farmers enjoy the richest subsidies, created to bail out the family farm sector back in the 1930s when we had the Great Depression and the Great Drought, overlapping, where farmers were destroying livestock and crops because the prices they could get for their investment in time, land, and money were less than it cost to harvest the produce and haul it to market.  And, of course, Congress is unable to shut off the money tap because by now those family farms have been sold out to corporate farming interests in large part.  These become political power centers of their own which farm state politicians cannot touch in any meaningful way.  Speaker Pelosi tries to water down their influence by bringing in even more beneficiaries, such as fruit and vegetable growers in California who don't receive subsidies, but there's no money to pay for it, what with the economy going south.

So, while the nation needs change, it is quite unclear as to who it is going to lead the effort to bring it, Sen. John McCain, the GOP nominee presumptive, or either Sen. Barack Obama or Sen. Hillary Clinton, contending for the Democratic Party nomination for president, election next November.

On the question of torture of captives held by America, see the NY Times editorial of yesterday, below, and see what you think.

Not the least of its points is that "You can often tell if someone understands how wrong their actions are by the lengths to which they go to rationalize them."  It reminded me of a murder case in which I'd been appointed to represent  a man charged on the say-so of his alleged crime partner.  In other words, X, a murderer, said that my client was the real murderer.  It's sort of a get-out-of-jail-free pass, to say this when you've committed a crime; just point to someone and claim that he is equally or more responsible than you.  If the prosecution wants him more than you, you get a deal and are home free. 

The rule on obtaining convictions based on the testimony of someone also liable to be charged with the same crime is that the prosecution cannot succeed absent supporting evidence to remove the stink of the source.  Corroboration, it's called.

The problem was that the prosecuting attorney who wrote the declaration went on and on about how wonderfully detailed, and thus how presumably reliable was his star witness, the accuser of my client. 

But I knew this attorney, having worked with him for years as a fellow prosecutor.  I helped train him. 

I knew that if he had any corroboration he would have detailed it in the affidavit supporting the arrest warrant.  But there was none.  The longer he wrote on about how detailed was the statement of the accuser, the clearer it became that the prosecutor had no corroboration and no case.

That of course, was where I focused my attention and succeeded in having the case dismissed. 

Another triumph of justice, of course.  Mr. DA went on to become Your Honor, now retired to the fertile field of private judging where he doesn't have to give the case away by writing too much to too little effect.

And you thought that law was something they taught you in law school...

WATERBOARDING, TORTURE, WAR CRIME, PRESIDENT, A-G

There, we have it.

The United States prosecutes people for torturing our service people who fall into enemy hands.

This includes the water-torture, also called water-boarding.

If U.S. people commit this crime, we prosecute them criminally.

What about committing and prosecuting crime does Michael Mukasey, former federal prosecutor and federal judge, now GWB's candidate for U.S. Attorney-General, the chief law enforcement officer and setter of the moral tone for U.S. justice here and abroad, civilian and military, fail to understand.

He is unwilling to say that waterboarding is a crime.

Wny?

Perhaps because he'd have to investigate the president who appointed him and he fears what he might find as he went from CIA operative to Defense Secretary (Rumsfeld) to Cheney to Bush.

Bush is appointing this man because he knows he'll be protected.

Mukasey is unwilling to remove the protection.  He seems more willing to protect a potential law-breaker than to vindicate the rule of law.

This is why his confirmation by the Senate should be rejected.

See the article by Evan Wallach, a former JAG officer and current judge and professor of law, below, in the Washington Post, 11/04/07, entitled "Waterboarding Used to be a Crime."  I guess he thinks that Judge Mukasey has cast doubt on that given his view that the president can write his own laws, even those that supersede those written by Congress prohibiting degrading treatment of prisoners.

Senators Chuck Schumer of New York, who proposed Mukasey, a fellow New Yorker, and Diane Feinstein of California, both democrats, have announced that they will support the nomination.  Diane's excuse is that Mukasey is not Gonzales.  No, he's worse, because until now he enjoyed some credibility.  What are these senators thinking, voting to confirm Mukasey?  That there's one law for us and another for President Bush?  Remember, it's not just President Bush as an individual that we're talking about, but his entire chain of command down to the soldier in the field who captures an enemy soldier, combatant, or supporter in or near the field of conflict, which may be a battlefield or, in the new war on terror, in a city, i.e. anywhere.

So, to say that the president has immunity because of his alleged constitutional power to override anti-crime laws passed by Congress (something we haven't heard of before) gives not only him a license to commit crimes because he thinks it find and dandy, but all who take under him.  That's a lot of lawbreakers to wrap in the Constitution and permit to break the law.  Congress represents the people, mind you, us, in order to make our laws.  The president gets to carry them out, faithfully, not break them or invent his own, or make exceptions for his convenience.

The leading case on presidential duty to conform to the law as set forth by the people he serves, meaning as established by statute enacted by Congress, remains the Youngstown Steel (1952) case where Pres. Harry S Truman found to his chagrin that he could not take-over a steel company that locked out its workers to prevent a strike, as a war measure to keep the tanks and guns flowing during the Korean conflict when we had men dying in the field. 

Those who weren't around then may recall this war from the TV program MASH, located there. 

Congress had already denied the president take-over power to deal with labor disputes when it passed the Taft-Hartley Act in 1947.  The president was held not to have the power independently to act in derogation of Congressional act. 

Justice Jackson, in Youngstown, explained that the president's power was at its maximum when acting in accord with Congressional statute, and at its least when in opposition, and at its mid-level where Congress has not spoken to the point, statutorily.

Pres. Bush, in his treatment of captives policy, assuming that the reports of extraordinary rendition, failure to bring captives to court, and mistreatment of prisoners is true, as in Abu Ghraib and Guantanamo, is acting against statute and treaties of the United States.

It's a terrible thing to have a rogue president.

Given the make-up of the Court, now, with two arch-conservatives (Roberts and Alito) added by Bush to the other two, Scalia and Thomas) it is likely that if the question came up as to whether the president had the power under the Constitution to override acts of Congress making certain conduct a crime, that there might be another 4:4 split, with Stevens, Souter, Ginsberg, and Breyer in opposition.

Anthony M. Kennedy, is likely to be the tip-weight, the decider as to the Decider GWB, as usual.  He's an avowed conservative that will pull him one way, but he has a humane streak that may tend to favor the rule of law in a case like this.

TORTURE A PRISONER, COMMIT A WAR CRIME

The impression I'm getting is that we torture prisoners in the war on terror but we can't call it that because if we do, our leaders will be war criminals, subject to international courts of justice, not to mention our own.

The NYT article of Oct. 4, 2007, below by SCOTT SHANE, DAVID JOHNSTON and JAMES RISEN, recounts the conflict in our own Justice Department over the use of interrogation practices that no American court would condone if used to obtain a confession from an alleged murderer or child molester.  No cop could stand before the American public and admit that he used a combination of water-boarding, sleep deprivation, and cold cells for days to extract the information needed to find the victim alive and to convict the perpetrator without fear of being prosecuted successfully for mistreatment of a prisoner.  The third degree went out, as a formal matter, in this country decades ago, although I wouldn't want to be suspected of having committed a heinous crime while being questioned in isolation by a team of  dedicated homicide cops hellbent on making me confess.

We now know the real reason Bush appointed that twerp, Alberto Gonzales, as his Attorney-General.  Alberto had been working on the president's law staff (the Office of Legal Counsel, run by the Justice Department) which is supposed to keep the president legal and advise him not to commit any crimes, thank you.

But Bush wanted to torture prisoners in the sense that he thought it all right for the agencies under his control, such as the CIA and the military, to torture the people who had information on 9-11, a large crime indeed.  His Justice Department said he could not allow that.  The Office of Legal Counsel said he could.  There was a fight.  The bad guys won.  We continued to torture.  Now the president is at risk for being regarded legally as a war criminal.  But his attorney general couldn't allow this to happen, could he?  A-G John Ashcroft refused to sign on to the pro-torture program, even from a hospital bed where Gonzales visited him to persuade him to overrule the acting A-G, James Cromey. Cromey and the FBI Director, Robert Mueller rushed to the hospital to prevent Gonzales and Co. from overbearing the weakened Ashcroft.  They succeeded in blocking this attempted abuse of the disabled in his hospital bed.

But when Ashcroft retired, guess what, Bush appointed Gonzales who then approved of all past acts of torture.  This is protecting your boss, indeed, and explains why Bush appointed him.  This is like the Godfather appointing the Consigliere to issue a ruling approving of all past hits.

If Bush is ever prosecuted as a war criminal, his first defense is apt to be that he broke no U.S. law because, lookie here, the the A-G signed off on it.  They should both be prosecuted as war criminals and we'll see whether that flies.

Check the report below and make up your own mind.

How does this relate to Constitutional Law?  The president claims that Article II of the Constitution grants him power as Commander-in-Chief during war to act independently of Acts of Congress, i.e. the law as the people make it.  If he gets away with this, then he is the equivalent of the king of England before the Revolution of 1688 which put the king under the control of Parliament by stripping him of his prerogatives.  This is what makes all British monarchs since then legal figureheads.  George III, who reigned at the time of our revolution, enjoyed a thoroughly corrupted Parliament which bowed to his every wish.  Later that changed, as well, with the Reform Bill of 1832, which eliminated the rotten boroughs, electoral districts controlled by nobles who were controlled by the king.  After that, Britain became more like a democracy in fact, if not name.

Does our president have power to ignore an act of Congress?  It's news to me if he does.  When the president's agents kick in a door to find contraband and the suspect hollers "illegal search," don't our courts have the power to declare the search illegal?  Yes, they do, and such objections are made and ruled on daily in our courts on the federal and state levels.  If we're to be a nation of laws, not men, then this is the way it has to be.  We cannot allow any player in the system to function outside of the law, whether his name is James Bond, the Lone Ranger, or George W and his sidekick, Alberto G.

Alberto resigned under fire recently, his credibility shot, and a retired federal judge, Mukasey, is expected to replace him.  If I were George W, I sign myself a full pardon, and an extra for Alberto, so we can ride off into the sunset together next year when they're both out of office.  Then all I'd have to worry about was the World Police coming after me the way we went after the Pineapple in Panama, Noriega, and Israel went after Eichmann, and someone else went after Slobodan Milosevich in Belgrade, who died in custody, as I recall.

WE DON'T ADMIT IT, BUT WE TORTURE PRISONERS

The president outlawed torture the other day but permitted mistreatment of prisoners as long as we don't call it torture, at least by the CIA.  That's what I got out of the news reports.

Phillip Carter, writing in Slate, shows how we do it, without really admitting we're doing it.  You wouldn't want to be a prisoner of ours, held incommunicado, and asked a few questions.

The article is below.

TORTURE

Americans who favor the use of torture to interrogate prisoners will argue, to those who object, as follows:

"Suppose you had a prisoner who you knew had the information as to the next 9-11 attack. Would you agree that it's okay to torture him in order to prevent the attack?"

What do you say to that?

Torture one person to save 3,000? It sounds like a deal.

Of course, there goes your principle, if you have a principle against torture. And why not? After all we have a principle against murder, but we allow the premeditated killing of humans by the state, don't we? We must've made an exception.

Suppose we replied, to the torture proponent:

"Show me this prisoner and maybe I'll agree, after I see your evidence proving that he knows when the next Pearl Harbor or Trade Center attack will be.

The problem is that the prisoners at Guantanamo and Abu Ghraib, while they may have been attackers in the past, and planning attacks in the future, were useless as informants for the following reasons:

1. As soon as picked up and detained, their pals were probably not going to carry out the planned attack, if there was a planned attack, because he probably gave it away and they'd get killed.

2. By the time we cracked him, enough time would have gone by to make the news stale.

3. Prisoners will lie about anything to stop being tortured, so a lot of what you get is lies which you cannot rely on anyway.

4. Is President Bush really going to take the country to war after explaining to you and me that the basis for the decision is that we tortured this guy, see, an' here's what he said,

"So we're gonna, y'know, like attack this here other country because of what he said through his broken teeth and swollen lips and no, you can't see him or interview him and we're not going to give him a soapbox in court, so there."

Next time someone asks you this question, you'd better be ready to answer it, otherwise you might find yourself agreeing to torture in principle. Then you've lost the moral high ground, haven't you?

PRES. BUSH PROTECTS AMERICAN LIVES BY TORTURING UNAMERICAN LIVES

Pres. Bush said at a bill signing ceremony today that it is a great pleasure indeed to sign a bill that protects American lives.  The bill was the Administration-drafted torture bill that allows Bush to interpret the anti-torture Geneva Conventions to permit torture so long as you don't call it torture. 

A rose by another name smells as sweet, said the Bard.

By implication, so can the head of any other state, or enemy, interpret the GCs any way they like to the disadvantage of American POWs in their brutal hands.

According to NPR reporters, civil rights groups are unhappy and plan to sue. 

Civil rights groups?

What about me?

Am I a civil rights group?

No.  I'm just me, and I think this is terrible.

The greatest civil rights enforcer the world has ever seen, the U.S. Military, joking aside, is opposed to anything that opens the door to the torture of, let's call it the mistreatment of prisoners.

Why?

Because who do you think gets captured by the enemy in times of war and conflict, members of the ACLU? 

No.

Members of the military, the best example being Sen. John McCain, the American pilot shot down over Hanoi during the Vietnam War.  Or the American War, as the Vietnamese call it, which ought to make us pause to reflect.  In the Hanoi Hilton, as the prison-torture camp was called, he was repeatedly beaten, as were other American POWs, to within a short hair of his life.

Pres. Bush is bringing this country down.

To protect American lives.

American lives are important.  But that doesn't make other lives worth less.  Or worthless.

We don't torture prisoners.  That included Nazi soldiers fighting for Hitler and Germany, and Japanese soldiers fighting for the Emperor of Japan during World War Two, despite the provocation and fear aroused over the attack on Pearl Harbor which left the west flank of America virtually defenseless, our battleships having been sunk by the sneak attack.

We don't torture murderers, rapists, robbers, rapists, and drug lords.  We haven't allowed this since before we became an independent country.  Britain abolished torture of prisoners of all types before their civil war in the 17th century.  There method of execution was a terrible exception, I must say:  hanging, drawing, and quartering while still alive.

If Pres. Bush signed a bill passed by Congress authorizing him to order his law enforcement officers to torture these criminal enemies of the people, there would be an outcry.  At least I think there would be an outcry.  I certainly think there ought to be an outcry.

Dr. Mengele, who performed medical experiments on Jewish and other prisoners in concentration camps, could truthfully say that he was only trying to protect German lives.

Protecting your own by torturing others is the antithesis of civilized behavior, and we have no business turning the clock back to the time of Dr. Mengele or the time of the Star Chamber, the British "court" which used torture to extract confessions before the Civil War.

Bush is no student of history, nor are his advisers.  Either that or they don't give a damn.

Nazi lives, American lives, what's the difference if we both behave as badly when provoked?

The Geneva Conventions are designed (circa 1924, following WWI and poison gas) to prevent us from listening, not to our better angels, as Lincoln put it, but to our worst angels.

Bush is listening to our worst angels, and he's doing no favors to American soldiers, or to America, or to you, as now you and I are mixed up in it if we don't speak up.  We don't have the alleged defense of the civilians who lived near Auschwitz who claimed, "We didn't know."  Allied forces forced them to march through the camps to see what they had wrought.

I don't want to imagine the prospect of having some conqueror march Americans past what we have wrought when we resort to torture, regardless of the words used to dress it up into something it pretends not to be.

Maybe you have a better idea, in which case, do let me know.

I'd really thought we were better than this.  Torture was something done by the Nazis and Japanese, not us.  Now it's official American policy, done in your name and mine.

I can't wait for the next election.

Meantime we're stuck with a president who advocates in favor of torture despite the advice of the military and a large portion of the country.  This is really going to protect us in the eyes of the rest of the world.  They're going to love us for this.  We'll be safer, now, won't we.

More likely we're going to have to face the world's wrath, and deservedly so.

We are dangerous, and we are arrogant.  We are heading for a big fall unless we shape up, and fast.

We ought to be apologizing for this bill, signed by Pres. Bush today.

The Washington Post report on the bill is below.

WHY RETIRED MILITARY BRASS DON'T WANT TORTURE

The article from the L.A. Times is reprinted below:

TORTURED YOU BY MISTAKE? MY BAD, SORR-EE! WE'LL TRY NOT TO LET IT HAPPEN AGAIN...

One of the things we don't like to see down at the Hall of Justice is when they bring out a prisoner and the judge starts talking about the murder charges he's facing.

"Murder?" says the prisoner?  The cops arrested me for possession of a baggie of marijuana."

"Isn't your name so-and-so?"

"Yes, but that still isn't me.  I don't know nothing about no murder."

That's when judge looks at the the bailiff, who works for the Sheriff's Department, and he starts shuffling through the names of the prisoners brought down from the jail, and the DA starts looking at the defendant's rap sheet for identifying data such as race, height, weight, date of birth, aliases, etc.

If they can't sort it out then and there, the DA says he'll have the detective re-fingerprint the defendant and have the fingerprints re-checked with the Crime Lab until the confusion is sorted out, which may take a day or two since the detective is out of the office today. 

The case is put over for a few days while the prisoner cools his heels upstairs in the cells and fumes at the authorities for their apparent incompetence.  By his lights, he could be out walking around, but instead he's being held on a no-bail murder warrant, perhaps for another jurisdiction, which just adds to the delay.

This is in a system that uses the due process model.  Whatever our shortcomings, we usually manage to imprison only the person who was convicted, although we sometimes convict the wrong person.  You read about cases of 'they got the wrong guy' all the time. 

A man who served twenty years for rape is found to be innocent after DNA testing shows that some other dude done it (SODDI, we call this).

Or the governor of Illinois declares a moratorium and then suspends the execution of over a hundred prisoners on death row because too many of them turn out to be the wrong guy. 

College journalism students re-investigating capital cases are making monkeys of the cops, DAs, and judges who got the convictions, and the promotions.  No, they never get demoted for nailing the wrong guy.  That's against the rules of the system.

The only exception I can call to mind is a prosecutor in California who was recommended for a three-year suspension by a State Bar judge several weeks ago for suppressing exculpatory evidence (allegedly dummying up the preparation of a witness for the prosecution and failing to disclose it to the defense, and the judge, when asked), in the murder prosecution of a doctor (Peo. v. Pelfini) that collapsed (Brooke P. Halsey, Jr., # 142330, a former Sonoma County deputy district attorney, as reported in the California Bar Journal, September, 2006).

If this sort of thing happens with some frequency in the due process model of criminal justice that we use for domestic consumption, imagine what it's like in the Global War on Terror when the investigators hear that Ali is a bin Laden sympathizer and why don't we pick him up and find out what he knows.

There are lots of Alis and the methods for finding out what he knows are torture, torture, and torture, in that order, under Pres. Bush.

When Ali says "You've got the wrong Ali," do you think the torturers and the torturers' apprentices care?

You're right, they don't.

This is how the entire nation of Canada, not to mention the United States, has received a black-eye for accepting a guy that we caught and turning him over to Syrian police for a working over, despite his protests that they had the wrong guy. 

This did not occur in a public courtroom with a judge, a bailiff, a DA, a court reporter, members of the public, and a newspaper reporter present to inform the world.

No, this takes place in a secret holding cell on the order of the Lubyanka, the dreaded prison in Moscow where the KGB would just as soon shoot you as look at you.

Remember, the reasons for not torturing prisoners are that it is bad, wrong, immoral, and unjust.

Next, it is unreliable.  See the Spanish Inquisition and the Star Chamber.  Spain has told us not to do this.  They already tried it, and regret it, now.

Third, we don't want them to do the same to us when it's their turn and we fall into their hands.

Fourth, but perhaps this should be higher in the list, torturing prisoners is bad for the torturer, his employer, and the nation and its public who employ them.  It brutalizes them and makes them ogres.  We want to be the good guys, not the bad guys.

And finally, the least of the reasons:  sometimes you get the wrong guy, you torture him, you find out he knows nothing of any use, and then where are you?  You've got to torture the next guy, or gal.  Their families don't like it.  They may come after you.  That's what I would do, wouldn't you?

Do you think that the officials of Canada, the U.S., and Syria who advocate "harsh questioning methods" or Pres. Bush's "alternative questioning techniques" (euphemisms for torture) could be brought up on war crimes trials some day? 

Why not?

How else are we going to show the world we're serious about stamping out evil practices.

We do wish to stamp out evil practices, don't we?

Why not?

The Christian Science Monitor reports on the Canadian (and U.S.) story below:

TORTURE PROTECTS AMERICA - THE LOGIC

Pres. George W. Bush defended his pro-torture-to-protect-America policy yesterday in the Rose Garden after provoking a rebellion among his own party.  Senators McCain, Warner, Graham have all joined to oppose his advocacy of harsh questioning of prisoners in order to "protect" America.

Colin Powell, former chair, Joint Chiefs, and Secretary of State under Bush, issued a letter stating that we have lost the moral basis for the war on terror and are putting the troops at greater risk.

This caused the president to blow his stack.  He doesn't like the thought that our own misdeeds, such as torturing prisoners is morally comparable to suicide bombers.  Here is what he says:

"If there's any comparison between the compassion and decency of the American people and the terrorist tactics of extremists, it's flawed logic," Bush said. "It's just - I simply can't accept that."

Growing animated, he said, "It's unacceptable to think that there's any kind of comparison between the behavior of the United States of America and the action of Islamic extremists who kill innocent women and children to achieve an objective."

Bush said the Geneva Convention's ban was "very vague" and required clarification. "What does that mean, 'outrages upon human dignity?' That's a statement that is wide open to interpretation."

He said that unless Congress acts, the CIA will end its program of tough interrogation methods that the administration says has prevented attacks.

"So Congress has got a decision to make," Bush said. "You want the program to go forward or not? I strongly recommend that this program go forward in order for us to be able to protect America."

Let's look at that logic.

"If there's any comparison between the compassion and decency of the American people and the terrorist tactics of extremists, it's flawed logic," he says.

We torture people to achieve objectives, to forestall the next terror attack on American interests.

"Suiciders," in another Bushism, blow up innocent civilians to achieve objectives.

There's no comparison, he says.

Okay, why not?

He doesn't say.

I'm a little dense.  Please explain the difference.

The difference must be that the bad guys use "terrorist tactics" (because they are terrorists) and are "extremists."  Like we're not when we torture, although we don't admit that abusing prisoners while fishing for information is torture.  It is torture.  We are extremists.  We are using tactics.  To achieve objectives.  Ours.  This is the whole point of the Geneva Conventions and our own morality prohibiting mistreatment of prisoners by civil or military authorities such as Pres. Bush.

The GC's ban on "outrages upon human dignity" is "very vague" and "wide open to interpretation."  Therefore we can ignore it.

Why not err on the side of human dignity and forgo interpreting it to mean "anything goes?"  All is not fair in love and war.

The president asserts, without offering evidence, that his torture policy has prevented future attacks, and unless Congress supports his methods, the torture program will cease.  Result:  Congress will be to blame for the next attack, not him.  America's bulwark against terror is torture.  This protects America.

I think I understand that.  In order to save America we need to destroy it.  We need to give up human rights of others in order to save our own, which we will do because we are, well, special.  Ordinary rules of human decency, morality, and law don't apply to us because we're, well, exceptional.  We live outside the rules.  Rules apply to lesser beings who do wrong, not Americans who are incapable of doing wrong because, we're, well, American.

There's that disease again, called American exceptionalism.  We're outside the world, in it, but not of it.

This is a mental disorder.  We should be taking inoculations against American exceptionalism.  It leads to a president advocating, to the world, torture, against the advice of his party and the world, which would be shaking its head, if the world had a head.  All it, and we, have is experience and reason.  Pres. Bush is way ahead of us.  He has feelings, and his gut tells him that America is always right, even when it is wrong.  But far be it from me to criticize a president of the United States.  After all, this is America and neither he, nor we, can do wrong.  Only critics are wrong.  Gott mit uns.  God is on our side.  This was the legend embossed on the belt buckles of Nazi soldiers.  We could put that on our belt buckles, too, and it would be just as correct.

If I were President Bush, the last thing I think I'd do was to argue logic on the national stage.  I don't think Pres. Bush has demonstrated any ability in logic other than to repeat the stock phrase that one of his speech writers must have provided as a "talking point." 

"Just tell them it's flawed logic to equate terrorist tactics with our own," someone must've told him. "All Americans assume that we're better than the terrorists because they are extremists.  Just don't admit that torture produces terror and the use of it is extreme, and you'll win the debate.  Plus you'll be speaking from the Rose Garden and there'll be no one there debating the other side.  You can be one sided."