
There
is an ongoing debate over the closing of America's most notorious
detainment/torture center at Guantanamo and the legality and efficacy
of using torture to extract "information" from detainees in that and
other facilities.
In a piece in this morning's Washington Post titled Torture? Prosecute Us, Too Richard Cohen leads with this:
"The past is a foreign country; they do things
differently there." So goes an aphorism that needs to be applied to the
current debate over whether those who authorized and used torture
should be prosecuted. In the very different country called Sept. 11,
2001, the answer would be a resounding no.
Contrary to what has become the accepted noise, "the world" did not
"change" on 9/11. Our laws, our treaties and international agreements
as well as our values remained. We did not become a "very different
country" on September 12, 2001 despite Mr. Cohen's (and others) claim.
In many ways it is our body of law that binds the past, present
and future. The rule of law gives constancy to our "values." Laws may
change but the process of change is, and should be reasoned and
deliberate, not an impassioned reaction to the events of the day. That
kind of reaction to the passions of the moment is the path of the lynch
mob.
If, as is said in legal circles, "big cases make for bad law,"
the events of 9/11 and the rapid changes in our laws and public policy
that resulted from the reaction to those events gives us the mother of
all examples of the aphorism. An extremely big case led to a series of
terrible revisions of our laws.
Among the legion of egregious errors committed by the last Republican administration was the naming
of the war that it proposed to fight following the criminal destruction
of the World Trade Center, the attack on the Pentagon and the downing
of a fourth commercial airliner in a Pennsylvania pasture.
As has been pointed out numerous times "War on Terror" is an unfortunate term which calls for a war on a tactic:
terror. You can no more fight a war against "terror" than you can fight
a war against "covering fire," "encirclement" "camouflage" or
"surprise."
Bush, Rumsfeld, Cheney and the Goebbelian PR squad in the White
House basement used the term "terror" more for its perceived
effectiveness in arousing the public than for any accuracy in
describing their strategy, or as Bush put it, "strategery." It was in
the Bush White House that the ad boys gave the word a capital "T" and
used it as their "brand" for instilling public fear and acquiescence in
nearly any act that they chose to carry out over the ensuing seven
years.
The attacks on September 11, 2001 involved specific criminal
acts, all of which are spelled out in federal and state law and
punishable by lengthy prison terms up to and including life in prison.
Under federal law, death penalty statutes would apply for the murder of
the thousands of victims of the crimes.
When the World trade center was bombed the first time in 1993
the crime was investigated by the NYPD, the ATF and the FBI with the
help, no doubt, of other agencies both here and abroad. A thorough
investigation by law enforcement professionals resulted in the arrest,
conviction and life sentences for the criminals involved.
The Marines were not sent in, nor were the Army and Navy
deployed in force and the country did not go to war. Rather than
launching a full scale campaign of "shock and awe," the Clinton
administration, in its wisdom, effectively, sent in "Columbo."
Following the crimes of 9/11 the mindset of our "leadership"
was very different; actually, it now seems that the minds were made up
before the event, made up in fact even before the 2000 election.
An investigation quickly confirmed the involvement of Osama
bin Laden and al Qaeda and it was quickly decided to take on the
Taliban and al Qaeda, Afghanistan was never intended to be the main
thrust, nor was bin Laden to be the main target.
The public was, quite rightly, afraid after the attacks; I
was. (I watched it on TV too) It was a time of fear and uncertainty
that called for calm leadership and thoughtful action.
That is not what we got. We got a strutting cowboy alternately
threatening the world, boasting of American might, and daring potential
adversaries to "bring it on." He sounded like a drunken Saturday night
drugstore cowpoke, cranked up on Jack Daniels, inviting any and all to
a session of parking lot gravel dancing. "Mano a mano?"
Afghanistan and the Taliban were bottled up quickly, bin Laden
isolated and rendered ineffective (at least temporarily) and the public
roared its approval. (Cohen cites Bush's 92% approval ratings)
But our leadership kept feeding the collective fear and
fanning the flames of public passion with manufactured intelligence,
imagined alliances, an "axis of evil" cut from whole cloth and mythical
"weapons of mass destruction."
Afghanistan and bin Laden was not enough, it would not serve as
the entree to the Middle East that our "leadership" required, and in
fact, his capture or death would retard the main goal of this posse.
Saddam Hussein was to be the quarry, Iraqi oil the tool, American
hegemony in the Middle East the ultimate prize.
Proof, (at least the appearance of proof) was needed to bind
Iraq and Hussein with al Qaeda and bin Laden. Proof was needed to tie
bin Laden's ability to acquire WMD to Hussein, to Iran, to anywhere
they wanted to make a move.
They spread cash all over Afghanistan, all over Pakistan and
all over the Middle East. Wads of hundred dollar bills, five grand
here, ten there, were offered for information about al Qaeda members in
some of the world's most impoverished countries, places where the
annual per capita income is less than I spend on rum, and they got
results.
People turned in cab drivers, personal rivals, enemies,
tourists, their wife's divorce lawyer, you get the picture. Lots of
suspects, never mind that they were often told by locals, by advisers,
by interpreters that they were collaring the wrong guys, that many of
these people were just hapless bystanders who had wandered into the
net. It didn't matter.
It didn't matter because they weren't looking for facts; they
were looking for "information." "Information" was necessary to tie
Saddam to the "war on terror," so electrodes were attached, thumbs were
screwed, genitals mistreated, people were "extraordinarily hydrated,"
and they got lots of "information."
Hook me up to the Toquemada machine and I'll confess to
anything, any crime, any degradation to make the pain stop, and so will
you. In a few days any of us will confess to being responsible for
original sin, to make the pain stop.
Did they get facts, sure, cast a net that wide and you're bound
to catch something edible, but I expect that the ratio of facts to
"information" is, as they say, "highly classified."
At what cost did they gather these facts? We'll probably never
know how many average Joes were destroyed, how many families ruined,
how many people were murdered as a result of these "enhanced
interrogation techniques," or how many minds were destroyed in the
process.
And that is why we cannot "look forward," we cannot ignore
these terrible, willful crimes, these war crimes, these crimes against
humanity.
We must answer as a society for the criminality of our
leadership by prosecuting them for what they purported to do in our
name.
Cohen adds this:
At the same time, we have to be respectful of those
who were in that Sept. 11 frame of mind, who thought they were saving
lives -- and maybe were -- and who, in any case, were doing what the
nation and its leaders wanted. It is imperative that our intelligence
agents not have to fear that a sincere effort will result in their
being hauled before some congressional committee or a grand jury. We
want the finest people in these jobs -- not time-stampers who take no
chances.
Is the cop on the street who beats a false confession out of a
teenage suspect making a "sincere effort" to enforce the law? Is he
saving lives?
Are the "finest people" those who can be persuaded to violate all norms of human decency?
Are those who resist power and insist on following the rule of law, now to be called "time stampers," "who take no chances?"
Cohen writes:
The best suggestion for how to proceed comes from
David Cole of Georgetown Law School. Writing in the Jan. 15 New York
Review of Books, he proposed that either the president or Congress
appoint a blue-ribbon commission, arm it with subpoena power, and turn
it loose to find out what went wrong, what (if anything) went right and
to report not only to Congress but to us. We were the ones, remember,
who just wanted to be kept safe. So, it is important, as well as fair,
not to punish those who did what we wanted done -- back when we lived,
scared to death, in a place called the Past.
I suggest that blue ribbon commissions are usually hired when
whitewashing is felt to be the solution. I think that this is a job for
the Justice department and perhaps a special prosecutor.
We don't need to find out what went wrong, there is a world
full of opprobrium focused on our country as a result of these crimes,
there is a sea of blood and body parts to attest to what went wrong.
There is a universe filled with screams of torment to testify to what
went wrong; it is time to find out whom, to what degree and to punish
accordingly.
Yes we were scared, I too wanted to be secure but I have never
been willing to give up my rights or the human rights of others for my
personal safety; so don't, Mr. Cohen, try to blame this on me or the
American people. We didn't sign on for crimes against humanity.
I'll leave you with this; I am a Marine veteran of Vietnam;
twice a year (as I remember) we were instructed in the Military "Code
of Conduct."
Here is a relevant excerpt:
"It is a violation of the Geneva Convention to
place a prisoner under physical or mental duress, torture or any other
form of coercion in an effort to secure information."
US Military Code of Conduct
Fact: Torture is illegal under US and international law.
Fact: We hung German officers and civilians for ordering others to commit war crimes and crimes against humanity.
Fact: We executed Japanese soldiers in WW2 for water boarding allied prisoners.
Fact: We punished our troops in Vietnam for the same offenses.
Leadership must be prosecuted for issuing unlawful orders to
their troops which require them to violate our laws, treaties and
conventions and the troops they lead are required to differentiate
between lawful and unlawful orders whether from superior officers, from
a frightened populace or... from a lynch mob.
Bob Higgins
Worldwide Sawdust