Torture's Poisoned Chalice

By Steve Hynd.

The elite Establishment's spin to suggest that no-one should face justice for crimes against humanity is certainly picking up pace. Even a minor hint by Obama or Holder that no-one is above the law has them scurrying like the rats they are to protect their privilege.

Cheney and others are busily reframing the debate as whether or not torture made Americans safer in a very narrow sense, citing alleged reports - that they're sure will remain classified if they exist at all - which purportedly "prove" torturing detainees led to the defusing of planned attacks. Left unmentioned is the possibility that those same plans could have been stymied by normal interrogations, without using torture. Trying that was never an option for these criminals. Left unmentioned too is "whether it’s moral, or detrimental to America’s global image, or a boon to Al Qaeda recruitment, or whether the architects of the policy broke the law and should be prosecuted." The obvious answer - and the correct legal one to boot - is that of Shepherd Smith. "I don't give a rat's ass if it helps. We are AMERICA! We do not fucking torture!!"

Other members of the elite - conservative lawyers - are meanwhile happy to tell the press that prosecutions for torture would be problemmatic, although their claims are short on detail. The New York Times and the Wall Street Journal both have articles of this kind today. Many other legal experts disagree and point to the way in which Bush-era lawyers ignored any contrary precedents as evidence of bad faith. They make a compelling case for any prosecutor to start from. Relevant case law includes two Nuremberg war crimes trials: the Reich Ministry Justice case and the Ministries case.

Even some of those who argue it would be difficult to prove that Bush's lawyers wrote their legal opinions deliberately and knowingly to justify what they knew was wrong say that Bush and his officials should still have ignored those legal opinions, and committed crimes under legalistic cover.

Saltzburg and others said Americans would probably be inclined to bring war crimes charges against a former official who authorized the waterboarding of a U.S. agent.

"I admit I feel hypocritical about that," he said. "If one of our soldiers or CIA agents had been captured by Saddam [Hussein], waterboarded and put in box, and we found out who authorized it, we would insist on prosecuting that person for war crimes."

Malinowski said there would be a legal consensus in favor of a war crimes prosecution if a American had been waterboarded by Iran, Iraq or North Korea.

"There would be no controversy, no debate," he said. "We would seek to prosecute any foreign official who authorized the commission of those acts on an American. And no one would buy the excuse that one of those dictators was relying on the advice of his legal counsel."

That there were criminal acts committed, under both international and domestic law, seems clear enough. Lawyers who argue that those who acted based on legal opinions should face trial but that lawyers who knowingly bent and broke the law to enable their masters shouldn't might seem rather self-serving to the cynic. There's really only one correct solution - all those who are culpable should face justice.

That includes any lawmaker who also knowingly turned away from the Bush administration's illegal acts and Obama administration officials too if they become accessories after the fact by refusing to let justice rule. Glenn Greenwald cautions defenders of Obama's wish to "move forward":

those who spent the last eight years criticizing the Bush administration for ignoring international conventions and legal obligations -- yet who now want to refrain from investigating Bush crimes -- should at least try to reconcile those past criticisms with their current unilateralist, exceptionalism-based arguments against holding our own criminals accountable (it's different when we do it).  And if this is the mentality we're going to adopt -- that we're not bound by our own treaty obligations and need not pay any heed to U.N. positions -- then we probably shouldn't expect that we'll be taken very seriously when we point to international obligations and U.N. pronouncements as a means for claiming that other countries are acting wrongfully.  Most people around the world do not accept the overarching belief of our political class that America can and should be exempted from the laws and standards imposed on everyone else.

But I'll leave the last word to a Nuremberg judge, as quoted by Scott Horton:

At Nuremberg, Justice Jackson promised that this process would not be "victor's justice." He said "We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well."

I don't give a rat's ass about political negatives, poisoned wells or any other distraction from the notion that justice applies equally to poor and powerful. Prosecute them all.

However, I continue to believe we'll see no prosecutions for Bush-era torture - not of those who tortured, those who ordered torture or those who knowingly bent the law out of shape to provide a thin veneer of cover for torture. America, I believe, will drink deep from torture's poisoned chalice. But I continue to be prepared to eat crow happily if proven wrong by events.

Comments

[Peter G.]

When I began reading this post and got to the description about the president and Holder scurrying like rats I thought that you were going completely over the top. As far as that particular usage goes I still do but you then proceed to lay out a case I would have been proud to have written myself. Well done Mr Hynd.

[scott]

Great post. The thing I find disheartening is the degree to which professed liberals are so invested in defending Obama that they'll defend his timidity on this issue. On Left Coaster the other day some of the comments suggested (mostly to approving reactions) that Obama couldn't do anything until the culture changed. When I asked how long that would take or suggested that Obama might want to exercise some personal agency in changing the culture, these "liberals" essentially told me to put a sock in it. There seems to be a real "our team" herd mentality developing that I don't want any part of, especially if it means turning a blind eye on war crimes.

[Peter G.]

While I agree with you Scott that this was a great post (with but one reservation cited above) I think you are over-simplifying the situation. This issue is one of those fundamentally divisive ones that will be debated for generations no matter what happens. It reminds me of My Lai or the Nixon pardon. Those are still matters of debate as to how they were handled. To people who consider respect for human rights an essential measure of the decency of any society there is no more important issue. That is, in fact, where I stand. Some people to their discredit have become apologists for torture and have even managed to steer the debate somewhat towards the utility of torture as if that were any excuse for it. I suspect, however, that the vast majority of Americans are shamed by it as I was when Canadian soldiers were convicted of it in Ethiopia. Most would probably just not know the full sordidness of it all. (Let's call them Noonans) I further suspect that the president is being over cautious because of the extreme sensitivity of the subject. His current high poll standings represent political capital for which he has many demands and it could all too easily be squandered if he, himself, takes the lead in what will inevitably be portrayed as politically motivated payback. I would characterize his behaviour as dithering rather than any type of rodent based motion. Personally I wouldn't give a rodent's rectum if none of the people responsible for the actual acts of torture went to jail. Complete exposure of the people responsible for allowing and encouraging it to happen is required. It is so shameful that that alone should finish more than a few careers and forever prevent a recurrence. Jail time for those people would be a bonus. In any event the impetus for such an investigation must come from congress with as much encouragement as we can muster.

[Steve Hynd]

Peter, I think you misunderstood me. My fault for not being grammatically crystal clear.

"Even a minor hint by Obama or Holder that no-one is above the law has them scurrying like the rats they are to protect their privilege."

"They" refers to the elite of the preceeding sentence

"The elite Establishment's spin to suggest that no-one should face justice for crimes against humanity is certainly picking up pace."

Rather than to Obama and Holder.

Regards, Steve