The Fate of the Torture Architects

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Rags, your picking apart my post. It is a collective post about the perception of how we see/feel about/view the situation here. All IMO of course, i'm not speaking for the other Americans on these boards. And I'm not refuting the law. But, if the majority will ignore a law, you can't really expect it to be enforced. You may want Cheney and others prosecuted by the USA, but that is just wishful thinking, it will never happen. In a perfect world, yes, but not is this one.

 

Actually, I took the time to find out how valid that claim would be, by people declining to take the poll:

http://people-press.org/methodology/collecting/#3

 

If people are not taking surveys more and more these days, how does that validate the polls results? Polls in themselves are a faulty source. Only certain types will even take a survey. Would it be a stretch to say that group of survey takers would probably be like-minded? I don't think so. Then going forward, I would think that most who won't take the survey have a different thought process then the takers. How can the polls accurately gauge what non-survey takers are thinking? All their data is from a different type of person. Polls are like Human Resource departments of a company, very rarely are they useful, usually a headache for the majority and mostly a complete waste of time.

 

I didn't single out the US to vent my criticism. I did it because the US do represent the only major superpower in the world today. If we were talking about the 19th century I would have considered the British and the French empires (and certainly not the US).

All countries have a responsibility, but with greater power comes greater responsibility. As a superpower the US can set an example for other nations. How can we expect China (for instance) to acknowledge and work on its human rights issues if it is ok for the US to get away with torture?

 

This law isn't ignored by a majority, it was ignored by the administration itself. Torture is a grave crime that mandates punishment - and indeed, if the US is to live up to its claim to be the first under the nations under the rule of law it must punish those miscreants who were responsible. Torture and the rule of law are irreconcilably at odds. That being said, your real point here is the sweeping support the US right and parts of the US public lend to torture and that is another issue.

Normal people don't spend their time thinking about torture. So how come average right wing Joe got so passionate about torture? Because the issue was brought to his attention, in part in the dramatised ways of a tv series named '24'. The primary reason why the right wingers and your asserted majority don't appear to care is that they have been thoroughly propagandised into believing that torture will make them safe, which is a delusion. Americans are more likely to be hit by lightning than to be killed by a terrorist. But they want to torture terrorist suspects to 'be safe'. Sure thing.

A nice bit about vilification that comes to my mind:

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What I am talking of is rain making. Just think of the various attack ads (a wonderful take on the matter can be found here) that ran on US tv or the talk about torture at FOX. That is why I find it disingenuous to hear people (not you) on the right piously say that they only give voice to 'legitimate fears of the population' over terrorism, torture, Guantanamo Bay and the like - after all the American public was constantly (and looking at FOX still is) fed disinformation about the matter, first by the Bush administration and now by their apologists. And that is why I am so utterly unimpressed by the views the US public opinion holds on torture or Guantanamo.

 

Yes, because it was his sex life. While that makes for interesting press and fun to gossip about, most people want the govenment to stay out of their bedrooms. Really, to compare Clinton's denial and his affairs to the use of torture is a quite extraodinary leap, not only legally but morally as well.

Snook - And don't think I failed to notice the Bob Barr connection in your example. I applaud your intellectual acuity in using him, but the whole Clinton impeachment was still largely political in nature. Despite that Barr sought to make an issue out of the finer points of law regarding Clinton, torture is in a whole other realm - both morally and legally, not only here but in the opinion of the international community (which means the rest of the world).

 

I think, president or not, everybody has the right to lie about his sex life because it is a private matter and nobody else's business anyway. It only becomes a problem under oath when the question is directly relevant to a particular accusation with bearing to professional conduct. In face of Clinton it arguably wasn't. It's like asking Tifger woods under oath with how many women he had slept with, and if he replied with 11, when it have been 12, that's perjury! Crime! Outrageous! It's a private matter, and not criminal, so it is nobody's business to enquire about it, much less under oath. To do so is sleazy abuse of a legal instrument. Perjury laws were invented to prevent the obstruction of justice in criminal proceedings (and last I looked, except for some backwater states, philandering is still not a crime in the US), not to generate ways to criminalise intentional false testimony about irrelevant private matters that are neither a courts nor anybody else's business.

What Starr did here was to dig up a private matter, in an ultimately successful attempt to goad Clinton to lie about his human weakness, and that was then technically perjury. When someone like Starr digs up some dirt up on someone, in particular embarrassing details about his sex life, and then puts him under oath and ask him a series of question only to catch him in a lie to not lose face that is fishing for technicalities because he doesn't have anything substantial.

What Starr was after was simply to embarrass and damage Clinton, and that he did. Originally the impeachment proceedings, according to Bob Barr, were about questions of foreign influence, i.e. apparently Clinton got campaign contribution from a Chinese businessman. That was killed by the other R's because they were taking money from foreigners, too, and didn't want to see that being made an issue. To proceed with impeachment anyway, they settled for the frivolity that was the Lewinsky affair. Starr's (ab)use of the office of a Special Prosecutor was a travesty, and discredited the instrument for the time being, and potentially for good (which, so I presume, was a secondary goal of his conduct).

Considering how many Republican pols philander and lie about it, last spectacular example was Stanford's pilgrimage to Mount Mistress, it is really ludicrous that Clinton's affair with Lewinsky got the coverage it got, and can only be explained with media circus in D.C. and the ruthless exploitation of the issue by the R's.

As I have suggested before, perjury a la Clinton (as opposed to the Libby variant - that was to obstruct a real criminal investigation into a real crime - disclosing the identity of a CIA agent) is indeed in a different league entirely than a crime that is under threat of death penalty. Clinton didn't even come close to developing the amount of criminal energy Cheney and his cohorts possessed.

 

I have fond memories of the Lewinski affair and the Clinton Impeachment. At that time it seemed that there was no limit to the number of jokes that could be made about oral sex. It was a perfect ice breaker in parties too. All a guy needed was a cigar. Those were the days.

 

You give me too much credit. I never intended a Barr connection. Although I did pick the Clinton aspect to go 180 degrees from Bush to show how this is entirely political. I was more responding to Ragusa's point about a law being a law. If he wants to get all upset about this, there are a whole lot of other broken laws that he appears to be willing to overlook.

I personally disagree as to my point of view a President lying under oath (committing perjury) is worse then a President authorizing enhanced interrogation. People may disagree with me, and I'm O.K. with that. I'm just explaining why there are plenty of people who just can't get worked up about this issue.

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Oh, I get it. Some perjury is a crime, and other perjury isn't . Thanks for the clarification. For the record perjury is a felony and while it may not be subject to the death penalty it can lead to a lengthy prison term.

 

Snook,
read carefully: I said that Clinton met a highly partisan and unethical special prosecutor who abused his authority by applying the law beyond its intended scope. Of course Clinton is technically a perjurer. Point remains: Would Clinton have committed perjury hadn't Starr involved himself and his investigation with Clinton's sex life - things that are no prosecutor's business? No.
You know what entrapment is? That's when a culprit walks free because the authorities goaded him into committing a crime he wouldn't have committed without their instigation.

To get back to your example - the reckless driver, jaywalker, sodomite and perjurer are not considered as evil under the law as a torturer or murderer, and that is why they get far lesser sentences.

The point, and perhaps I should have formulated that clearer right from the start, is that you frivolously put misdemeanours and lesser felonies in the same category as torture. Torture is in a different league than all of them, including perjury. What you do is to try to trivialise torture through your comparison, and likely not so much out of flawed thinking but intentionally so.

 

And there is the crux of the problem. I (and many others) have different levels of what we consider torture and therefore different levels of concern. Making people perform a naked pyramid (Abu Gharib) is the jaywalking of torture. Pulling out someone's teeth, poking out their eyes, cutting off fingers, and genitals is the murder of torture. Now the law may not make such distinctions, but people and prosecutors do.

You state "Clinton met a highly partisan and unethical special prosecutor who abused his authority by applying the law beyond its intended scope". To me this issue is just as highly partisan and I'm sure you will find out that anyone who is bringing this up in non-U.S. courts isn't doing it out of some sense of universal justice, but instead is doing it because they have an issue with either the U.S., Bush, Cheney, Neo-Cons or all of the above.

 

Snook,
the grades of torture you perceive as harmless don't matter, as in other penal norms 'mere abuse', 'whacking around somewhat', humiliation and the like are prohibited as well. You kid yourself when you cling to your distorted ideas (not necessarily your own) about that it is acceptable as long as there's no blood, as it leaves no bruises or whatnot.

In US courts people are innocent until proven guilty. That is a tenet of common law, that finds expression in the constitutional right to remain silent. Amendment 5 is relevant here:

Torture is incompatible with that. If you want to apply torture to terrorism suspects you violate that rule. Pre-emptively: I expect the response that that only applies to Americans. That is implausible. But someone more familiar with American constitutional law may help us out here.

And you underestimate the motivation of international jurists. I have met such types. They are serious about it, without hating America, Bush, Cheney or whoever else. It's a matter of principle.

 

I believe this, but my question remains -- why aren't they spending more time going after people who commit far more heinous crimes? I'm sure they do, but I would think that in the grand scheme of things they should be going after crimes of much greater magnitude. A part of me thinks that going after the US is just a case of going after the easiest target, as the truly heinous war criminals merely ignore international courts and public opinion.

As for the fate of the torture architects, the size and influence of the US makes me think that any prosecutions are extremely unlikely.

 

I am not currently aware of another first or second world nation with a former ruling party and former officials saying that water boarding is not torture, or that torture ought to be allowed. In claiming that, the US is breaking with legal precedent as much as they violate with their unambiguous treaty obligations (and as congress ratified the Convention Against Torture (CAT) and the Geneva Conventions, which means they have been transformed from a 'mere treaty' into American law of the land - but treaty, schmeaty - who would let such trifles get into the way of expediency) just as much as their own domestic laws.

In going after the US, international jurists reaffirm that even when the US does it it still remains illegal. Might doesn't make right. If the US claims remain undisputed all a torturing junta will have to do is to dig up the Bybee, Gonzales and Yoo memos for a free collection of silver tongued excuses. In torturing and by not prosecuting torture the US show that they don't respect their treaty obligations, worse, not even their own domestic laws, and prove themselves unreliable internationally. The US did great damage to the ban against torture, and going after the US actors is a way to do damage control.

Torture is a heinous crime, even used to be in American public consciousness. Torture is tyranny. Just to say that again: The US are a member to the CAT that does not allow torture under any special circumstances whatsoever (including expediency or the populace being whipped into an approving state of fearfulness).

I start to believe that the US right will only start to oppose torture again when, with or without the Bush administration's excuses, it is being applied to Americans just like them, probably while in insisting that despite their protest, they preserve the right to torture 'others' anyway. Aah, principle.

The US problem with regard to torture is that they did the deed, and now complain that they carry the stigma. After it has become ludicrous to deny the deed, the current and no less ludicrous conservative approach to that dilemma is to embrace the stigma as a badge of honour, in a 'flight forward'.

I don't expect the US work up this mess any faster than, say, Chile. The Chileans are still working up crimes, including especially torture, committed under Pinochet more than twenty years ago. In that sense, probably US power and the high skill of PR in the US allows for stalling the matter even longer. That appears all the more plausible considering the extent to which the GOP leadership has chosen to make the issue of torture one of partisan identity (and the stance on which will then predictably be the subject of 'litmus tests'). Well, Pinochet also had a party fighting rear guard actions on his behalf for more than two decades. What else does the GOP for Cheney today? So I am taking a long term view.

 

I would disagree. The people who are firmly entrenched in the 'any means necessary' camp would use torture of our troops as an excuse to increase torture of our enemies -- they are seriously far on the "eye of an eye" side of things. Those people will never oppose the use of torture to gain information (no matter how inconsequential) from our enemies. No amount of logic or pleas of compassion will sway their opinion.

 

To get back to the original topic, I saw on a news program a few nights ago (sorry, I don't remember who was doing the talking, or what program, or anything other than it was CNN) where they were discussing Cheney, and his open admission to using waterboarding.

The problem seems to be that when dealing with the executive office (of which Cheney is certainly a member), when the legal team advises that office that something is perfectly legal (which they did), it is considered an iron-clad defense in a court of law. I find this a bit odd, as it doesn't work that way for the average Joe Citizen, but evidently it does for the executive branch of government. There is legal precedent that if the lawyers but something in writing that says something is OK, then that something essentially becomes OK, and the executive branch cannot be held responsible for acting on that information.

What this means in practice is that even if this ever went to trial, Cheney could pull out the memos written by John Yoo and company, and say the lawyers said it was OK, and would likely be acquitted. Furthermore, the lawyers themselves could not be held accountable for torture either, as they didn't authorize the torture, they only said that it would be legal. The worst that could happen to them is being charged with professional misconduct, which could get the de-barred, but won't send them to prison.

So regardless of what you think about laws, torture, Bush, Cheney, et. al., chances are no one is going to jail over this, because even if the current administration acted on it, they would not be found guilty.

 

Yet. But if Cheney keeps spewing out like he has, he could incriminate himself and others. He just can't shut up. I don't think it will happen, but I wouldn't rule it out completely. You never know what blunders people will make and if anyone would make that blunder, something tells me he could be the one. I seriously hope not, it's the last thing we need here in the States, we have enough problems to solve.

 

If you felt I put you in with THAT right, I apologise. And you are right.

Aldeth,
I agree, to an extent. There is a point after which legal advice becomes frivolous. From my opriginal post.

It is interesting to read Scott Horton's blog post on the Margolis Memo. Apparently the only reason Yoo and Bybee got away is because the R's threatened internecine strife at the Justice Department if the two were to be sanctioned, and the guy who reviewed the OLC report, Mr. Margolis, was determined to not let that happen to keep the Justice Department functional. That Yoo got away is a result of hard ball politics, and doesn't give testimony to the quality or correctness of his (outlandish and outrageous) legal theories.

 

Oh, I completely agree with that. However, the take home point I got from the news analyst was that no matter how F'ed up Yoo's legal advice was, it would still likely be deemed an acceptable defense in court. It just seems crazy that it works that way. They seemed to be saying that if a lawyer working as a legal advisor to the president and staff puts in writing that something is legal (no matter if there are already laws on the books that say it is illegal), it essentially becomes legal. It doesn't change US law, but the president and the staff can act on it and not be held legally culpable for their actions. I can envision scenarios where such would be a good thing, but when it is applied to something like this, it seems absurd.

 

From what I read it isn't all that rare in the US that attorneys are being put in the dock for the advice they gave to their clients justifying whatever crime they were up to. Most common in cases of tax evasion, money laundering, organised crime and drug related crimes. I could search a link, but don't want to invest the time right now.

Why not apply that approach to helping to conspire to torture as well?