Tortured logic, tortured justice

September 1, 2009 | By | 4 Replies More

Sometimes, I cannot comprehend how the United States of America has come to occupy the landscape that it has in the year 2009.  Growing up, I learned in school about all of the wonderful things that the United States had done for the world.   Out of the tyranny that the British Empire had become, our forefathers had the temerity and the moral fortitude to announce to the world that we would be building a new kind of nation– one in which the rights of the individual would trump government power.  People were inherently vested with natural rights, inalienable rights.  Our First Amendment- the right to speak freely, to worship (or not) as one pleases, free press, who could ask for a better check on governmental power?  Can the government force the citizenry to quarter soldiers? Not in America, we’ve got the Constitution!  Governments stopping people for no reason,  or on trumped-up charges? No way, we’ve got the 4th Amendment!   To be sure, there were some stark contradictions, but I didn’t realize those until I was a little older.  I mean, it’s a little hard to take seriously those that would lecture on the topic of liberty while being slave-owners, but the overall idea was pretty great.

We were the force for truth and justice and all that is right.  We proved it, too.  We fought tyranny in World War II, the most recent (winning) war.  We saw the evil that was done in the name of National Socialism, Fascism, or whatever label you want to use. We saw the evil in those Nazi bastards and we would have none of it– and rightly so.  The indescribable acts of torture and dehumanization were enough to turn anyone’s stomach.  I read Night, as well as some other works by holocaust survivor Elie Wiesel, and was moved to tears.  I looked at the photographs of the concentration camps and saw the shivering, starving groups of people blankly staring at the camera lens.  I saw the piles of bodies- massive piles of them! What kind of people could order (or commit?) these horrible, despicable acts?  What kind of person could so callously cause the suffering of their fellow human beings?  The Nazi experiment was a singular example of the brutality that one group could inflict on another.  There is no crime so heinous that it could compare to the atrocities committed by the Nazis. The scale of the suffering defies understanding– we named it The Holocaust.

I wondered how the German people could have let this happen.  I understood the climate of fear, of repression, that came with Hitler’s rise to power.  But I wondered if the individual people ever troubled themselves thinking about what was happening.  Did they know of the torture that was done in their name?  Would they have done anything differently if they had known?

Nothing that has been done before, or since, can rival the scale of Nazi brutality.  And I do not wish to minimize the import The Holocaust.   But I cannot help that I recognize a glimmer of a similar vein of evil in the current “debate” over torture.  And that is why I have a hard time recognizing my own country these days.  Those foundational principles of liberty, justice for all, and natural rights are no more than mere rhetoric when you live in a country that can label anyone an “enemy” based on no evidence whatsoever, strip them of any legal protections, spirit them around the world, and torture them.  The United States that I thought I knew would never do something like that.  But the fact remains, that it has done those things.  Not only has the government acted brutally and illegally, but it now shows no remorse, no sense of justice, no faith in the rule of law.

The repugnant former Vice-president, Dick Cheney, took to the airwaves again this weekend to proclaim the success of torture ordered by the Bush administration.  I refuse to use the various euphemisms that have been tossed around.  This is torture.  [WARNING: graphic images] Absolutely, unequivocally, it’s torture.  Although those photos were from Abu Ghraib, and supposedly the result of “a few bad apples”, the Obama administration is refusing to release photos of torture committed in other locations and by other bad apples who were ordered to commit torture, and did so, knowing full well that it was illegal and wrong.  Their own statements prove that they knew it was illegal and wrong- one official said, “Ten years from now we’re going to be sorry we’re doing this, (but) it has to be done”.  The CIA Inspector General’s report says “One officer expressed concern that, one day, agency officers will wind up on some ‘wanted list’ to appear before the World Court for war crimes.”  And so they should.  “I was only following orders” was never a permissible defense

Photographs are able to convey a compelling truth that mere words are inadequate to express.  The Geneva Conventions were adopted in the wake of the release of the shocking images of Nazi atrocities.   As Daphne Eviatar of the Washington Independent writes for Salon.com,

And it was the United States and General Dwight D. Eisenhower himself who insisted on distributing huge volumes of these photos to the media. The images of corpses, prisoner remains and emaciated survivors helped persuade nations around the world to develop and adopt new universal humanitarian norms.

And what are these new universal humanitarian norms put in place by the Geneva Conventions? Article 27 :

Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.

The US is a signatory to the Geneva Conventions, meaning that we are obligated to uphold it.  “Persons…shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof.” Can we pretend that we have done that?  Of course not, our government instead invented a special category for our prisoners, called “unlawful combatants”.  Nowhere does this term appear in international law.  The Bush administration created the term so they could torture.  It makes the people we have tortured seem deserving– after all, they’re “unlawful”, and those who are unlawful merit punishment, right?

Which leads me to an under-explored issue in  this debate: the question of innocence.  Lurking beneath the surface of the debate, there seems to be an attitude from those who support torture that it is acceptable to torture these detainees, because they’re terrorists.  The presumption of guilt underlies the whole debate.  Not only does this violate one of our most closely cherished legal protections, that one retains the presumption of innocence until proven to be guilty, but it’s unsupportable by the facts. Eviatar points out that “in 28 of 33 Gitmo detainee cases heard so far, federal judges have found insufficient evidence to support keeping them in prison.”  The most recent detainee to be released, Mohamed Jawad, garnered a fair amount of media attention, mostly because he was so young–possibly as young as 12 years old at the time he became a detainee. Jawad was subjected to a treatment known within the military as the “frequent-flyer program”.  That is a euphemism for moving detainees “repeatedly from cell to cell to cause sleep deprivation and disorientation as punishment and to soften detainees for subsequent interrogation, according to U.S. military documents”.  Jawad’s lawyer, Air Force Major David Frakt, has opined that “no one actually knows the full scope of the abuses at Guantanamo”, that “all of these allegedly comprehensive investigations were whitewashes”, and that “this is only the tip of the iceberg. This program was approved at the highest levels. . . . It suggests that people had simply lost their ability to distinguish right from wrong.”

In addition to the Geneva Conventions, under Reagan the U.S.  signed and ratified the U.N. Convention against torture. From Wikipedia (emphasis mine):

Article 2 of the convention prohibits torture, and requires parties to take effective measures to prevent it in any territory under its jurisdiction. This prohibition is absolute and non-derogable. “No exceptional circumstances whatsoever” may be invoked to justify torture, including war, threat of war, internal political instability, public emergency, terrorist acts, violent crime, or any form of armed conflict. Torture cannot be justified as a means to protect public safety or prevent emergencies. Neither can it be justified by orders from superior officers or public officials.  The prohibition on torture applies to all territories under a party’s effective jurisdiction, and protects all people under its effective control, regardless of citizenship or how that control is exercised.  Since the Conventions entry into force, this absolute prohibition has become accepted as a principle of customary international law.

Because it is often difficult to distinguish between cruel, inhuman or degrading treatment and torture, the Committee regards Article 16’s prohibition of such treatment as similarly absolute and non-derogable.

Article 3 of the Convention prohibits sending any person to a state “where there are substantial grounds for believing that he would be in danger of being subjected to torture”.  Instead of honoring that explicit prohibition, we developed a system known as “extreme rendition”– a euphemism for torture-by-proxy.  An unnamed intelligence official in 2004 said, “We don’t kick the shit out of them.  We send them to other countries so they can kick the shit out of them.”  One might ask, if we did not intend for them to be tortured when we sent them to Egypt, Syria, Saudi Arabia, Morocco, and Pakistan (all states known to habitually use torture in their prisons, according to the State Department), why did we send them there at all?  The U.S. already maintained facilities for housing detainees in Guantanamo, as well as at Bagram, in Afghanistan.  The sole justification from the Bush administration was that it would be cheaper and less manpower-intensive to outsource these detainees.  Even if that were true, it seems like a flimsy justification where the likelihood of torture is concerned–especially when we’re already spending close to a trillion dollars in prosecuting the conflicts in Iraq and Afghanistan.

Lurid stories have surfaced recently that in addition to physically torturing hundreds, and killing at least 3 detainees, agents acting on behalf of the US government also threatened use of a power drill on a detainee, threatened to rape a detainee’s mother, threatened to kill a detainee’s family, and performed mock executions of detainees.  And Dick Cheney brazenly says, “I’m very proud of what we did in terms of defending the nation for the last eight years successfully.”  How can he be possibly be proud of that?  Look at those pictures again, that’s what he’s proud of.  He’s proud of violating our treaty obligations, he’s proud of breaking settled international law, he’s proud of torture. His sole justification is that  it “worked”, that it’s the only thing that kept us safe for the last 8 years.  From Jacob Hornberger:

An August 29 Washington Post article entitled “How a Detainee Became an Asset” details how the CIA’s “harsh interrogation techniques” caused Khalid Sheik Mohammed to become a CIA “asset,” meaning that he sung like a canary, confessed his crimes, disclosed everything he knew, and cooperated with the CIA.

Well, there you have it. Torture really does work, probably even on the innocent. It converts terrorists and potential terrorists into allies and it saves lives. Hail torture!

But why stop at isolation, sensory deprivation, forced standing, waterboarding, walling, beating, and sex abuse? Why not the rack? Why not electricity on the genitals?

Why not indeed?  If that’s your standard, Mr. Cheney, why did you draw an arbitrary line about what torture you were willing to commit?  In any case, there’s a very real dispute about whether torture, in fact, produced actionable intelligence. (See also Glenn Greenwald’s media critique– apparently only “unnamed sources” assert that it works, not a single on-the-record source would verify that).

George Orwell’s prescient novel 1984 warned of the use of “newspeak“– the idea that through the conscious selection of words, governments assert power over their meaning.  Euphemisms are littered all around this debate, and they rob the true gravity from the situation.  If we refuse to call what has been done torture, then we help to legitimize its use.  It’s not “sprinkling some water”, or keeping some people awake a long time, or “enhanced interrogation”, or “unlawful combatant”, or “extreme rendition”.  All of those verbal evasions help to minimize the fact that we were causing intense suffering, and even death. Those that ordered the torture also chose the terminology in an effort to cast their evil deeds in a more benign light, or at least to sow confusion about what was done.  It is incumbent upon us to avoid rhetorical flourishes that provide cover for those who perpetrated these heinous actions.

The real point is not whether it works or not, or whether it’s kept us safe or not.  The fundamental point is that torture is wrong.  It’s inhumane, it has no place in a civilized society, and it is evil.  A nation that professes to honor the rule of law has a clear duty to prosecute both those that ordered the torture, as well as those who committed it.  If not because it’s simply the right thing to do, then let’s do it to uphold our treaty obligations.   If we no longer wish to abide by the terms of those treaties, then that’s a separate debate–the fact that we are signatories to them compels us to bring those accused of torture to justice.  As Hornberger points out, let those who would torture present their case.  Perhaps if they can make a persuasive argument that their torture saved lives, that may be taken into account during the sentencing phase.  As it stands now, the issue of whether it works or not is only an elaborate sideshow to distract from the violations of both US and international law that have clearly taken place.

Some part of the legacy of the Holocaust lies in the treaties that emerged from the wreckage of the war.  Those treaties are part of the lesson that we must learn from those horrible, despicable actions.  We must learn the lesson that torture is wrong.  It is always impermissible.  It is never OK, there are never any justifications for it.  Those who witnessed Nazi atrocities firsthand understood that, but it appears that we’ve forgotten it.  Torture is wrong whether those who perpetrate it are SS officers or CIA officers.  It’s wrong whether you call it torture or something else.  And the unequivocal statement must be made: those who torture must be held to account for their crimes.  It sickens me that these abominations were committed in our names, and it is disturbing that there is actually a question as to whether we ought to bring those who tortured to justice.  It’s obscene that we are considering sweeping all of these abuses under the rug, to avoid sabotaging the political calculus of health care reform, or cash for clunkers, or whatever momentary advantage the president may have in the shifting political landscape.  These crimes call out for justice, and if we refuse to provide it then we are only further weakening our already badly wounded moral standing throughout the world, not to mention encouraging more blowback.

I can’t answer what the German people thought about the crimes that were committed by the Nazis during the Holocaust.  But today, it’s clear that they stand on the side of the rule of law. Both quotations below come from Der Speigel:

The center-left Süddeutsche Zeitung writes:

“The public has a right to know the full truth about what happened in America’s torture chambers and about the attempts by George W. Bush’s government to cover this up. Attorney General Eric Holder has now appointed a special investigator to look into the worst excesses.”

“Nevertheless, there can be no alternative to shedding light on the events in the CIA jails. What happened there was simply wrong and not in tune with the American principles of the rule of law and with the country’s deeply rooted awareness of human dignity. The logical consequence of this investigation would be that those who allowed, justified or even ordered abuse and torture would be brought to justice. It was George W. Bush and Dick Cheney who are to blame for the fact that America lost its decency and its reputation.”

The left-wing Die Tageszeitung writes:

“The pressure on Obama is now growing. It is disillusioning to see that he only called on an independent investigator after the CIA’s gruesome deeds … became public. In the name of the United States, people were tortured and even threatened with the murder and rape of their relatives. ‘Unbelievable’ is the likely first reaction. Particularly when one hears how Dick Cheney coolly defends these excesses right up until today.”

“Upon calmer reflection, however, it is less surprising that something like this could happen in the privatized politics of the Bush administration. Set free from democratic controls and driven by a greed for profits, a system could establish itself in which the humanitarian principles played no role at all.”

“Whether Obama likes it or not as US president he carries the responsibility for his country not just today and tomorrow but also during its recent past. And that is why he must expose the CIA crimes rigorously. And he has to hold those responsible accountable even if they belong to his own political class. If Obama is serious about a new beginning then he must do everything to make sure that Cheney, who was after all the brains behind the horror, is brought to justice.”

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Category: American Culture, Civil Rights, Communication, Current Events, Good and Evil, History, Law, Media, Military, Politics, Psychology Cognition, Science, Uncategorized, War

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is a full-time wage slave and part-time philosopher, writing and living just outside Omaha with his lovely wife and two feline roommates.

Comments (4)

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  1. NIklaus Pfirsig says:

    Brynn,

    To get an understanding of the mindset of the German people that allowed them to follow the leadership of the Nationalist-Socialist (NAZI) party, I suggest you read Will Shirer's "Rise and Fall of the Third Reich".

    The Holocaust was not the first such attempt to exterminate an ethnic group, nor was it the last. It is, however, the one we are continually presented with as the debate killer when anyone critizes the on-goning "ethnic purification" of Palestine by the Israeli military.

    Ask any Armenian about Armenian history. Or read up on the ethnic cleansing campaigns in Bosnia, Croatia, Darfur, Sierra Leone, or consider the on again off again battles in Northern Ireland.

    In all cases, the aggressors portrayed themselves as being victimized, and rationalized their actions as defending their nation against subversives within their borders and abroad.

    For an interesting analysis of the subject check the wikipedia entry on genocide.

  2. Jeff B says:

    Excellent article Brynn…. the latest episode of Bill Maher on HBO was a great one. Bill Moyers was a guest and spoke about the moral obligations on which President Obama should take a stand. Health care was the main topic, but torture is a HUGE blemish on our recent past. According to Moyers, the President should not worry about re-election and just stand up and fight his detractors. Instead, it seems like President Obama is letting some things slide in fear of damaging his next term. According to Moyers, it's much better to go down fighting for the principles you believe in. This stand would draw support from the many groups who voted for him, hoping for change.

    If we want to live in a truly free society, we MUST experience some risk in regards to terrorists or other crimes. As you said, we cannot assume guilt until proven innocent, because that is backwards to the great philosophy. If we want to be exposed to less risk, then I guess the nation should move towards more of a police state that prohibits free speech, movement around the nation, and the right of habeas corpus. I, for one, do NOT want to sacrifice my rights or those of any other.

    Let's hope Eric Holder and his department can embody the national conscience regarding torture, disclosure, and the prosecution of criminal acts. Only by prosecuting the tortures can we prevent this from happening again.

  3. Erich Vieth says:

    Brynn: I agree entirely. The President AND Congress should immediately order a thorough investigation of the torture conducted by the United States.

    The vicious sadism that was apparently common in U.S. facilities is being tolerated by many Americans. I assume that many Americans tolerate torture because they buy into the lie that this horrible conduct somehow protects us. If true, this would be yet another example (there are many) that we are driven along much more by cognitive frames than by facts. How else could it be that we aren't getting to the bottom of this?

  4. Brynn Jacobs says:

    I missed this earlier, but Jeremy Scahill has a devastating 7-point critique of Dick Cheney's assertions vis-à-vis the torture program.

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