Monday, April 27, 2009

More on Obama's reducing Torture to merely bad judgment, certainly not a crime (Updated above and corrected)





Indeed, serious circumvention of statutes should always result in legal proceedings and usually does so unless some affair is settled, to the satisfaction of all parties involved, outside of judicial processes. At the same time, refusal to obey illicit orders, even when commanded to conduct them by superiors, does stand as defense in courts as events related to the My Lai slaughter and similar incidents verify. As such, any claim that one is forced to obey wrongful orders has no weight any more than it did during Stanley Milgram's experiments wherein subjects assumed that they were electrically shocking others and carried out the action merely because they were told to do so.

Therefore, it seems easy to conclude that anyone either authorizing or implementing illicit and agonizing practices on captives, prisoners legally deemed innocent until proven guilty, needs to be publicly investigated and brought to justice when found culpable. That it is not expedient due to extrajudicial complications, such as pertain to future behaviors of CIA agents and as President Obama alleges, should have no bearing. In the end, the whole matter is this simple. ...

On account of such a viewpoint, Major Edwin Glenn was sentenced to ten years of hard labor for inflicting simulated drowning upon a Filipino prisoner at the turn of the century and a US military tribunal found at least one Japanese officer, Yukio Asano, guilty of war crimes after W. W. II for his use of the "water cure" and other acts of cruelty upon Americans and for which he was sentenced to fifteen years of hard labor. In a similar vein, a US army officer was court-martialed in 1968 after assisting in a water boarding exercise executed upon a Vietnamese insurgent.


Just how could the memos' authors and the prison torturers have missed the implications of these prior judgements? If appropriate rulings are not applied to law breakers in the event that they are given undeserved dispensations or pardons, what will serve as impediments to these laws being broken again in the future? Moreover, does the military ban on water boarding and other horrors need to be more defined than these prior happenings irrevocably prove?

The report from the Senate armed services committee, written at the end of 2008, hints at the answer: "The abuse of detainees in US custody cannot simply be attributed to the actions of 'a few bad apples' acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees."

In a similar vein, water boarding and other forms of severe torment are condemned by Geneva Conventions, the Torture Act, the Detainee Treatment Act and United Nations protocol, as Manfred Nowak, U.N. special rapporteur, makes clear, "The United States, like all other states that are part of the U.N. convention against torture, is committed to conducting criminal investigations of torture and to bringing all persons against whom there is sound evidence to court."

Lies and Torture: When Policies and Words Diverge,
by Emily Spence, Countercurrents.org, 4/22/09



Even if experts have differing views about torture’s effectiveness, there is one point on which they cannot disagree: It violates U.S. and international law. ...

It will be hard to stop this train, though. The rule of law is one of this nation’s founding principles. It’s not optional. Our laws against torture demand to be obeyed—and demand to be enforced.

by Eugene Robinson, Washington Post, 4/23/09


"Nothing will be gained by spending our time and energy laying blame for the past." So declared President Obama, after his commendable decision to release the legal memos that his predecessor used to justify torture. Some people in the political and media establishments have echoed his position. We need to look forward, not backward, they say. No prosecutions, please; no investigations; we're just too busy.

And there are indeed immense challenges out there: an economic crisis, a health care crisis, an environmental crisis. Isn't revisiting the abuses of the last eight years, no matter how bad they were, a luxury we can't afford?

No, it isn't, because America is more than a collection of policies. We are, or at least we used to be, a nation of moral ideals. In the past, our government has sometimes done an imperfect job of upholding those ideals. But never before have our leaders so utterly betrayed everything our nation stands for. "This government does not torture people," declared former President Bush, but it did, and all the world knows it.

And the only way we can regain our moral compass, not just for the sake of our position in the world, but for the sake of our own national conscience, is to investigate how that happened, and, if necessary, to prosecute those responsible. ...

Some of them probably just don't want an ugly scene; my guess is that the president, who clearly prefers visions of uplift to confrontation, is in that group. But the ugliness is already there, and pretending it isn't won't make it go away. ...

For the fact is that officials in the Bush administration instituted torture as a policy, misled the nation into a war they wanted to fight and, probably, tortured people in the attempt to extract "confessions" that would justify that war. And during the march to war, most of the political and media establishment looked the other way.

It's hard, then, not to be cynical when some of the people who should have spoken out against what was happening, but didn't, now declare that we should forget the whole era - for the sake of the country, of course. ...

We need to do this for the sake of our future. For this isn't about looking backward, it's about looking forward - because it's about reclaiming America's soul.

Reclaiming America’s Soul, by Paul Krugman, NY Times, 4/34/09


Bush-defending opponents of investigations and prosecutions think they've discovered a trump card: the claim that Democratic leaders such as Nancy Pelosi, Jay Rockefeller and Jane Harman were briefed on the torture programs and assented to them. The core assumption here -- shared by most establishment pundits -- is that the call for criminal investigations is nothing more than a partisan-driven desire to harm Republicans and Bush officials ("retribution"), and if they can show that some Democratic officials might be swept up in the inquiry, then, they assume, that will motivate investigation proponents to think twice. ...

The reality is exactly the opposite (as usual) of what is being depicted in our media discussions. The call for criminal investigations of torture and other forms of government criminality is the most apolitical and non-partisan argument one can make. The ones who are trying to politicize the justice system and exploit the rule of law for partisan gain are those who are arguing against criminal investigations. John Cole explained this point perfectly yesterday:

>>>At some point they are going to figure out that for most of us, we don’t care if the person has a (R) or (D) behind their name when they were instituting a policy of torture. That is what is so depressing (to me, at least) about the Ari Fleischer’s and the Thiessen’s of the world. They honestly seem to think this is nothing more than a partisan witch-hunt, the same old Washington gotcha politics. It isn’t. When you torture people, you have crossed a really clear line. Innocent people are dead. Lives have been ruined. Our international reputation has been destroyed. Yes, the Bush administration will get most of the blame, but that is because they were in charge and they did this, not because of what party they happen to belong to. If Jane Harman and Nancy Pelosi knew about this and ok’d it, they are just as culpable.<<<

Precisely. To be fair, there are disputes about what exactly Democratic leaders were and were not told, and there are disputes about what they said or did not say. That's what happens when a government operates in virtually total secrecy and does everything possible to stonewall public disclosure. The dispute over the role of Democratic leaders further bolsters the need for full-scale investigations: we ought to know everything that led to these crimes, including the true extent to which the "opposition party" was informed about what was being done and approved of it. The failure of the Democratic Party to meaningfully oppose what was done over the last eight years is a crucial part of the story here and light needs to be shined on that as much as anything else. I don't know of a single person who has devoted themselves to arguing for investigations who contests that fact.

The inability of so many people (both Republicans and Obama-loyal Democrats) to view the need for prosecutions independent of political considerations is a potent sign of how sick our political culture has become. The need for criminal investigations is motivated by one simple, consummately apolitical fact: serious and brutal crimes were committed at the highest levels of the government, ones that left a trail of many victims. A country that purports to live under the rule of law has no choice but to treat its most powerful members who commit serious crimes exactly the same as ordinary citizens who do so. That has nothing to do with Republicans or Democrats.

It has to do with the most central premise of the American system of government: that we are a nation of laws, not men, and all are equal before the law. People like John McCain argue that only "banana republics" prosecute former political leaders, but the reality is exactly the opposite. As the Western world has spent decades pointing out, the hallmark of an under-developed, tyrannical society is the very same premise we have embraced: that political elites are free to break the law with impunity and never suffer the consequences that ordinary citizens do.

President Obama and several of his senior advisors are now plainly concerned about the torture issue and the momentum it has achieved. They are troubled that it will seize center stage in Washington and disrupt the president’s ability to implement his agenda. These concerns are reasonable to some extent, but in fact that very concern provides a very good reason to remove the next steps in this crisis from the political process. Unlike the Beltway chatterboxes who fill our airwaves, most Americans appreciate the importance of the torture question. It is not a matter of partisan intrigue. It is a fundamental question of national identity and principle. ... The second prong will be a prosecutor who can take a look at all the facts and decide who should be charged for criminal wrongdoing. We know now that the White House considers it politically “inconvenient” to do this. So the big open question is whether we have an attorney general who enforces the law, or a Democratic version of Alberto Gonzales. That will become apparent soon enough.

Straight to the Top, by Scott Horton, Harpers.com, 4/25/09


"Time, you left me standing there
like a tree growing all alone
the wind just stripped me bare
stripped me bare

Time, the past has come and gone
the future's far away,
it all only lasts for one second, one second

Can you teach me about tomorrow
an' all the pain and sorrow running free
'cause tomorrow's just another day
and I don't believe in time,
you ain't no friend of mine"


Excerpt from lyrics of "Time" by Hootie and the Blowfish

        I said it yesterday and I will say it again and as often as I think necessary. It is not the Fox News pundits, the Republicans, the Dick Cheney type politicians, the Sean Hannitys or the Glenn Becks that are cementing or making 'reasonable' torture. No person bears more responsibility today that torture is becoming a 'legitimate policy difference' than President Barack Obama himself. Glenn Greenwald and others were on the right track in mentioning a short while ago that it looked like Obama was accepting the logical and reasonable, not to mention the only LEGAL course, that it is not even up to him, if the law is followed, whether there are investigations or not investigations. As he said on the campaign trail, if there is evidence of wrongdoing, that if crimes were committed, it must be looked into. Backing away from that, acting like he has the power to tell the Justice Department to ignore that crimes were blatantly committed is to do exactly what the Bush Administration did illegally, not only in the same way, but by an order of magnitude many times greater. It is to ultimately covey upon such a crime of obstruction of justice as well as the crimes that obstruction covers up as well, legitimacy and legality. And it is 100% being done in the open in defiance of both American law, and for those fewer Americans who accept there is such a thing, international laws against torture, the UN Charter, and crimes against humanity.

        I broke off my criticism and toned it down many times over years ago now, not only because such a course was ill advised or possibly counter-productive, but because I bowed to the inevitably inescapable conclusion I was the wrong person to be pushing such things. I leave aside the notion that such things going on illegally are 'classifiable' and 'nobody's business' when a government is operating outside of the law, that it is every single one of its citizens right, and even duty, to expose such things because a government which does not follow its own laws is an illegal and criminal organization, period. But I also understand the efficacy of an argument is determined not only by the choice of words, as well as timing being optimal for being heard, but due to a large measure by the person saying it. What is their status in society? What is the position they are in? How did they come into the picture?

        Such things were a concern but were a concern from the start. I broke off, lowered my criticisms greatly and took a longer road because inescapably to me, the environment had significantly shifted by that time. Even within the previous Bush Administration, movement was clearly heading in a different direction. That movement toward a greater openness and honesty was undeniable but the events of this week capping of a general trend during Obama's presidency has meant that things have taken an enormous turn toward the exact opposite of Obama's words. The words and the actions are not only not matching, but the actions show clearly the words have become meaningless.

        Bush said famously 'America does not torture.' Obama says 'Ok, that was not the case, but we will not do that anymore' (for awhile at least while he is in charge). Bush said “The secret prisons that never existed, well they really don't exist now.” Obama improved that to, “Well they did exist, but now we are really closing them down for good.” It is not the rhetoric though but the actions. An executive order is a meaningless self-restraint. Even a specific hard fought bill outlawing (fought because we were told it already was illegal and unnecessary) waterboarding and other such methods too secret to until recently even legally mention were overturned instantly via a presidential signing statement mentioning that the prohibitions against torture which were signed in from of the cameras could simply be ignored at will. And NOTHING which Obama has done cannot be undone just as easily 10 seconds into a new administration, or if he were to decide to simply change his mind.

        The ideal way for this to play out, I acknowledged, was for those in a position to approve such things, ideally those who carried them out, to be the ones to call for an inquiry. In my notes at the time I put it as “2nd Church- ask for”. Later I expanded that a bit because if I abbreviate something a bit too much, I can forget what it was supposed to mean. More fully to remember it later, it became “2nd Church (Commission, who should) ask for”. I chose at the time to believe, as many I think did, that given the chance those who did the worst most illegal things under the Bush Administration, would when the time came, be willing to go public themselves. To think otherwise might have been more accurate, but who would wish to more accurate at the expense of giving people the benefit of the doubt to be so less human as to feel no guilt, no remorse, and be content not to come forward if given the chance, but to instead to choose to keep such things buried forever?

        Little by little, the Obama Administration began closing off those doors, eliminating such potentials one by one. Then more and more, and now to shut everything down completely. The release of the torture memos is clear to many it was the exact opposite of shedding light on the subject. Obama himself stated that the contents were already for the most part publicly known, and that he was legally required to. That part did not keep him from having to 'agonize' over the decision for many months. The term 'legally required to' when pertaining to the President of the United States has been watered down to having little meaning if any. Everything, all laws, treaties, commitments, are merely guidelines if even that.

        The release of the memos was more notable for the cover it gave to go in the other direction. He immediately promised there would be no criminal charges brought for blatantly illegal acts, the highest possible crimes, and all done and admitted to publicly. That he has no authority to shut down such inquiries matters not to the 'unitary executives' like the presidency has become even to the 'good' ones. After all of the criminal wrongdoing of the last administration, what is a little more if done 'for the good of the country' and for 'moving on'. I am not talking about the pardon or even preemptive pardoning, which is within his right, though that right has been abused politically in the past in would be abusive in this case as well. I am talking about a wholesale using the Justice Department in the same way as the previous administration did, for political ends, whether to protect his own party and politicians (and inevitably some of them are culpable) or of wrongdoing by the 'opposite' party. One may think, and unfortunately many do, that "if the president does it, it can't be illegal.” Obama has clearly decided upon doing things that if anyone else did it, it would most certainly be illegal. The freedom to act outside the law, to make criminal investigations of politicians, lawyers, required both by domestic and international laws, subject to the whim of the leader alone. I believe it used to be called, the King's prerogative.

        As I said before, when Bush came out in front of TV camera's and admitted to illegally wiretapping phones against federal laws against it, no matter the fig leaf explanations, basically daring anyone to call him on it, I was completely caught off-guard as I am sure many were. However, as on one hand commendable it was for him to admit that he personally authorized waterboarding upon leaving office, it setup the circumstances of today. Though American's honestly think, contrary to all legal precedents, that because people were ordered to break the law, they ought not to be punished for it. This of course is an excuse we reserve for ourselves because we never have allowed it before and certainly would never allow any other country to use it in defense of protecting those who tortured Americans because they were 'simply following orders'.

        Thus the second front to holding someone, anyone else accountable. Go after those whose completely criminal rendering of the law, done in full knowledge of what the law most obviously and unequivocally states, making the most serious tortures declared 'legal'. But now the cover is over them as well by suggesting that they were only following orders as well. By suggesting that they were told to illegally give invalid justifications for torture from the former president or vice-president, that somehow gives a pass to them as well. If the president or vice-president can do no wrong or anything that they do cannot be illegal, why then the whole mess is exactly what Obama by action if not in words says it is, a legitimate policy difference, albeit a 'stupid' policy. But hardly criminal.

        What surprised me about the article mentioned in the previous post was that it had all the elements I could have hoped for in the 'torture debate'. Unlike criticism from someone 'who was not there so how could you judge?' it was confessions from someone equally guilty. And it nailed it by saying those going out on limbs on similar issues were doing so knowing that such things were criminal when done by others, and that they did so without legal cover and at great risk to themselves for doing so. And even more than all of that, the bravery of addressing the mentality behind it all which is never discussed, that makes it all beyond question no matter how insane or inhuman.

        Obama has seen fit to make sure no Americans will ever be bothered by seeing them testify to how they tortured or whom they tortured while doing so without any legal cover whatsoever. He has gone so far as not only to preemptively put their actions beyond question, but to label them as 'heroes' despite what they may know about it themselves but now never will have to tell. And he even gave their egos a good stroking in case they have second thoughts they might have done anything wrong by torturing people, often innocent, and sometimes to death. Nothing but bad judgment there. No, not even that. Heroic behavior deserving of emulation and praise.

        As I said above, I am not in a position to be the one to condemn this as I was not in their shoes, not in possession of the facts that they were. However, Obama, despite all promises about 'open government' has made the worst crimes America has ever committed now not even crimes in a legal or technical sense. Thank god we did not have similar 'pragmatists' as that when the original Church Commission did manage to bring the US into some semblance of a nation abiding by laws. Ironically their courage allowed people like Obama to reach the point and become president to be able to flush all of that down the drain today. Similar inquiries and truth-outtings are 'mistakes' he at least will not let happen again. Abuses of and by the system are inevitable. Learning of them and correcting of them has become optional no matter how much the corruption destroys us all.

        What I can condemn is that Obama has said those who committed crimes because they were told to, they were heroes. But as others have rightly pointed out, what does that make those who refused to follow illegal orders? Obama has thus far to my knowledge upheld that those who exposed criminal wrongdoing by the government were the criminals, and not those higher ups they reported on. Not the illegal programs because there is no such thing anymore, an illegal program, if it is authorized by the president in violiation of US law, international law, human rights treaties, the UN charter, and even in direct violation of the US Constitution itself.

        These people who have revealed such crimes, who have actually when taken an oath, have been punished for upholding that oath for their noble deeds at grave personal risks, and those that did the blatantly illegal things Obama may as well have given medals to them for their crimes. It is impossible for anyone to be impeached when the only law remaining left is that it is whatever the president, whoever it may be, says it is. One president ignored the Constitution, the present one simply, and completely, made it retroactively legal to do so.

        If he thinks it is not the Justice Departments place to look into such things, if making sure politicians and Justice Department officials must actually follow the law on little things such as torturing human beings, breaking the most serious international laws on human rights possible, if this is not the job of the police, the FBI, or the Justice department to look into, just whose job does Obama think it is? The press, some reporters, left-wing ACLU types, some right-wing get-government-off-our-backs types, bloggers, whom?

        As if they have the power or even the right anymore to expose crimes the government itself is committing expecially since 'President' Obama, unlike 'candidate' Obama or 'Senator' Obama, has stated exposing criminal acts and programs by the government is itself again a higher more punishable crime than the criminal programs themselves, even and especially when those crimes are the most indefensible acts one person can do to another, and the exposure, letting the public know, is actually as required by law to be told as the memos he was so 'tortured' about whether or not he would follow the law in revealing?