“They are going to walk away scott free,” my friend said.
"Who?”
“The members of the Bush administration.”
“Not just that,” I said. “They will walk into cushy jobs while the rest of us wonder how the hell we’ll pay for heat this winter.”
My friend’s assumption – and mine – is that Bush and members of his cabal have engaged in criminal activity over the course of his presidency. If that is so, then some form of accountability should be brought to bear. But, as my friend suggests, that seems very unlikely.
Before our nation was “under God,” I recall saying “with liberty and justice for all.” That was not true then, in the north or the south, but it was “an aspirational goal,” as they say. I would suggest that “justice” does not just mean exoneration or freedom from prosecution. It also means punishment. I would also point out that our inability or unwillingness to prosecute those who break the law trickles downward, as the laissez faire economists like to say.
In Shakespeare, if a king like Henry IV steals the crown, his act is reflected in a robbery like that at Gad’s Hill. What does it mean to what we call “the rule of law” if it does not apply to those who administer the law? It means that we are raising a generation that is being told that if you are powerful enough and have enough money the rules do not apply to you. The biographical details suggest that that’s exactly how George Bush grew up. The final act of his public career will probably be his pardon of himself. Pardonne-moi!
We are aware of the many actions of the current administration that run counter to our laws – from the fabrication of a rationale for the invasion of Iraq, to illegal surveillance of our own citizens, to the subordination of an independent system of justice to a partisan agenda. But perhaps the most stark of this administration’s violations has been its policy on torture. The Yoo-Bybee Memo II claims that individuals can be accused of torture only when their “specific intent [is] not to inflict severe pain and suffering.” No! claims the torturer. My intent was to gain intelligence. No! says the bank robber who has just killed a guard. My intent was to steal money. The War Crimes Act of 1996 says that any violation of Common Article 3 of the 1949 Geneva agreements constitutes a war crime. The doctrine of “specific intent” is not part of Article 3.
But just as the telecom companies that knowingly broke the law at Bush’s behest have been granted retroactive immunity, the Military Commissions Act grants the same immunity for those who might have committed war crimes, retroactive to 26 November 1997. Why should they be punished, Bush asks, “just for doing their job?” Former Reagan Justice Department official, Victoria Toensing, says “If we don’t protect people who are acting in good faith, no one will ever take chances.” No! says the young woman who has just run a stop sign. I did not intend to kill anyone. And retroactive immunity, as Charlie Savage points out in the New York Times is “an implicit admission of guilt.”
Stuart Taylor claims in Newsweek that Bush “ought to pardon any official from Cabinet Secretary on down who might plausibly face prosecution for interrogation approved by administration lawyers.” No. Anyone who has ever served in the military knows that it is one’s duty to refuse to obey an unlawful order. Sure, there may be consequences, but Nuremberg and the Eichmann trial proved that “just following orders” is no defense for violating the higher moral authority that Justice Jackson posited as a basis for Nuremberg.
Nicholas Kristof proposes “truth and reconciliation” programs that will encourage “soul searching” and “national cleansing.” I can hear Republicans chortling in their gated communities and Gulfstreams at that one.
There is “nothing quite as cleansing to the soul as an indictment,” says Dahlia Lithwick.
Lithwick suggests that Jack Bauer and “24” have had more influence on our torture policy than the Constitution. For the cadaverous Michael Chertoff, the show “reflects real life.” Justice Scalia sneers, “Who’s going to convict Jack Bauer?” Our torture policy emerges from the same unreality that once prompted Dan Quayle to tout a weapons system because “it worked” in a Tom Clancy novel. In the real world, as Herman Schwartz of the American University Law School “excruciating pain even for thirty seconds will induce people to say anything.” And we are inflicting that pain on real people, not actors being paid to confess in time for a commercial break. But, of course, we are making ourselves more secure and that justifies any action.
One of the men tortured to supply the material that Powell used in that infamous UN speech of February 2003 has recently said that he lied about Saddam’s possession of chemical weapons. “I had to tell them something,” he says. “They were killing me.”
In reality, torture can be counterproductive, Jack Bauer notwithstanding.
The demand for accountability for war crimes does not just come from the lunatic left. Lawrence Wilkerson, Powell’s Chief of Staff, when asked whether VP Cheney’s rejection of Geneva Conventions constituted a war crime, said “it was certainly a domestic crime...and I would suspect that it is...an international crime as well.” General Antonio Taguba, the man charged with investigating Abu Ghraib and then cashiered for telling the truth about it, says that there’s no doubt “that the current administration has committed war crimes. The only doubt is whether those who ordered torture” will be punished.
The punishment may be just that George Bush, Richard Cheney, Douglas Feith, David Addington, John Yoo, Jay Bybee, Donald Rumsfeld et al will be unable to travel to foreign countries lest they be arrested for crimes against humanity. But they will be able to live comfortably enough without that glass of wine in a cafe along the Champs Elysees.
But what does it mean to be “free” within a system that consistently denies commonly accepted standards of due process to those deemed “against us”? That freedom is an illusion that could easily be denied any of us simply by presidential decree. We could then hope that perhaps Justice Kennedy would come down on the side of the Constitution in a 5-4 decision. “They hate us for our freedoms,” Bush said, in one of his more simple-minded moments. Bush has replaced freedom with fear. I don’t find that a satisfactory trade. A consistent threat to our freedom represents a diminution of that precious quality.
But what can we do about it? Tom Allen sides with Pelosi on impeachment. The White House defies Waxman and Conyers when they request documents. The CIA erases interrogation tapes. The White House loses all the e-mails for the period when it was outing Valerie Plame. Scooter Libby obstructs justice so that Fitzgerald’s investigation can go no further. Harriet Miers and Karl Rove ignore subpoenas. Snowe and Collins are Republicans.
As the criminals go off to lucrative lives, giving talks, as Bush says “to replenish the old coffers,” the rest of us are free to be outraged.
Monday, September 15, 2008
Torture - Part I "Commencement Speech"
Embry-Riddle BNAS
10 June 06
I walked into my class a few years ago in Building 20, when a student followed me.
“You ought to see the bumper stickers on that old Volvo out there!” Another student rolled his eyes and pointed at me.
I have a newer Volvo now – still an old Volvo – and if you were to look at the bumper stickers you would see “Defend America/Defeat Bush” and “War in Iraq? No!” Too late for those good intentions, of course.
You would see a Mexican flag on a rear window. What am I saying with that? That I have enjoyed Mexico and its people, of course. But more because I chose to be born in New Jersey, and even if you cannot see New Jersey as you drive through it, cartographers assure me that it is in the United States. And I chose to be born of parents who could afford to send me to college, whether I was ready or not. And I was not. I have a lively sense of my own good fortune, and recognize that 99% of the rest of the people of the world have not had that good fortune. That recognition of good fortune is one reason why a lot of people go into teaching.
You would also notice Veterans' plates on my car...
I tell my students here to get Veterans' plates when they are eligible. That bridge over in Topsham, for example, where the speed limit drops from 50 to 35 miles per hour and even a panic press of the brakes won’t bring you down to 35. I did not tell the cop that I had served most of my time in the military as an officer – I think the “Fines Doubled” sign would have come immediately into view – but I did not get a ticket. Those plates remind me of my good fortune at having escaped the Air Force relatively in one piece, and they reflect my pride in having served in uniform. That pride increases with time – not just because old men recall the war stories of their youth, but because we veterans are an exception these days. That was not always true. My best friend in college was a Navy Seal. My other good friend was a Marine platoon leader. My brother was a Marine platoon leader. My other brother was career Air Force. This was the generation that came of age just after World War Two and we shared an experience that is no longer the norm.
I don’t know whether you are a car reader. I am. It helps me cool the road rage as I attempt to navigate Cook’s Corner.
At any rate, someone reading my car might say, “There goes a liberal” (and that might in itself induce some road rage). I would agree with the label, though. I am happy that we have a parks system and a food and drug administration and that women can vote in this country and that we have a GI bill of rights and that the armed forces were integrated as of 1947 and that almost twenty years later the civil rights and voting rights initiatives became law in this country and that we have an Environmental Protection Agency. The preschool program, Headstart, is one of the two most successful programs in our history, as measured by the ratio between money spent and money returned to the ecomomy. The other is, of course, the GI Bill. I worked for five summers in Bowdoin’s Upward Bound Program, a great society program from the 1960s, now threatened, like a lot of worthwhile programs, by the budget ax. When I ask my conservative friends for their list of conservative accomplishments one or two may wince and remind me that the EPA was created during the Nixon presidency and someone with a good grasp of history will also tell me that the GI Bill was created at the urging of the American Legion, at a time when the military and civilian spheres seemed more interconnected than they are now. And it is that separation that I want to talk about this morning.
I notice them on the backs of SUVs as I try to peer around to see what lies ahead of the SUV. I have a wish to ask the driver of the SUV whether he or she knows anyone currently in uniform, whether he or she ever served in our military, and whether his or her children are currently serving in uniform. In law school, you say? Of course I might get an affirmative to one or more of my questions, but I doubt it.
A recent political cartoon showed a man reading a newspaper in a comfortable chair with a support our troops ribbon on the back of the chair and that, I think, depicts the way things are these days. The issue may not be as acute here at Brunswick NAS, primarily, I think, because the personnel here participate so effectively in the community outside these gates. But I am not going to debate the invasion of Iraq. I am going to raise an issue that civilians and future civilians should consider as a way of supporting our troops. And that is, our treatment of prisoners, whatever we are calling them these days, particularly in a world that dislikes the United States as much as the world does today, and I don’t just include the radical jihadists or the European left wing.
– we know about Malmady and the Bataan Death March and the Hanoi Hilton –
As you know our Declaration of Independence calls for “respect to the opinions of mankind.”
I have never known this country to have been as unpopular in other countries as it is today. That dislike may make no difference to the 86% of Americans who have no passport but it can make a difference to our men and women in uniform.
On my car you will find no yellow ribbon saying “Support Our Troops” Dr. Samuel Johnson said that “Patriotism is the last refuge of scoundrels.” That does not mean that all patriots are scoundrels, merely that it is easy enough to hide behind a flag, or a yellow ribbon.
The gap between the military and the civilian worlds is wide and widening, and I would wager that some of you have had the same perception. I point out, though, that leadership of the military is civilian, as outlined in Article two of our Constitution.
One problem is that so few of our current leaders, in government or in business have been in uniform. Any military unit is made up of individuals, no matter how unified, how like a single, disciplined component the unit performs in action. And those individuals have their hopes and their aspirations, as exemplified by the graduates here today. And those individuals are a resource that we put at risk only as a last resort. Rumsfeld, who served in the Navy as a pilot, should know better – he is the exception among our current leaders – but he calls members of the military “fungible”, that is as interchangeable as nickels or dimes.) The others – the Wolfowitzes, the Cheneys, the Richard Perles, the planners of war, have not worn the uniform. To put on the uniform of this country is to become a target. While we cannot expect that our abiding by the Geneva Conventions that guarantee humane treatment of prisoners will insure good treatment of our own prisoners, we must know that our failure to follow the international conventions denies us a stance from which to object if our own prisoners are in some way abused. And yet that is where we are.
When John McCain defended his anti-torture resolution, he said that one thing that sustained him during his six-year ordeal as a prisoner of the North Vietnamese was that we, the United States, were not like that. There is someone who speaks with authority. And President Bush signed the agreement, handing out pens to everyone standing around him. The President then said that he reserved the right to waive the resolution when he found it necessary. Another of those signing statements. Why exercise a veto, as called for in Article I Section 7 of the Constitution, when you can just say that you are not bound to administer the bill you have just signed into law?
When General Michael Haden was asked during his confirmation hearing about whether we still used “water-boarding” in our interrogation of prisoners, he said that he would deal with that question in closed session. Why could he not just say “no”? The answer I would have to assume is obvious. Because he could not say “no.” I suppose he could say that any information about how we deal with prisoners helps the enemy. I do wonder what he said about water-boarding in closed session. As I speak, our Departments of State and Defense are debating about whether the Geneva Conventions against humiliating treatment of prisoners will be incorporated into new guidelines for detainees. In other words, are we signaling our perceived enemies or are we signaling the rest of the world that we hope to enlist against that enemy? In either case, we define ourselves as a nation. Even Thomas Friedman, a neo-conservative advocate of our invasion of Iraq argues that we must “deal... honestly and decently with prisoners in this murky war.”
But one might ask – what is this concern about our personnel being taken prisoner?
Ask:
10 June 06
I walked into my class a few years ago in Building 20, when a student followed me.
“You ought to see the bumper stickers on that old Volvo out there!” Another student rolled his eyes and pointed at me.
I have a newer Volvo now – still an old Volvo – and if you were to look at the bumper stickers you would see “Defend America/Defeat Bush” and “War in Iraq? No!” Too late for those good intentions, of course.
You would see a Mexican flag on a rear window. What am I saying with that? That I have enjoyed Mexico and its people, of course. But more because I chose to be born in New Jersey, and even if you cannot see New Jersey as you drive through it, cartographers assure me that it is in the United States. And I chose to be born of parents who could afford to send me to college, whether I was ready or not. And I was not. I have a lively sense of my own good fortune, and recognize that 99% of the rest of the people of the world have not had that good fortune. That recognition of good fortune is one reason why a lot of people go into teaching.
You would also notice Veterans' plates on my car...
I tell my students here to get Veterans' plates when they are eligible. That bridge over in Topsham, for example, where the speed limit drops from 50 to 35 miles per hour and even a panic press of the brakes won’t bring you down to 35. I did not tell the cop that I had served most of my time in the military as an officer – I think the “Fines Doubled” sign would have come immediately into view – but I did not get a ticket. Those plates remind me of my good fortune at having escaped the Air Force relatively in one piece, and they reflect my pride in having served in uniform. That pride increases with time – not just because old men recall the war stories of their youth, but because we veterans are an exception these days. That was not always true. My best friend in college was a Navy Seal. My other good friend was a Marine platoon leader. My brother was a Marine platoon leader. My other brother was career Air Force. This was the generation that came of age just after World War Two and we shared an experience that is no longer the norm.
I don’t know whether you are a car reader. I am. It helps me cool the road rage as I attempt to navigate Cook’s Corner.
At any rate, someone reading my car might say, “There goes a liberal” (and that might in itself induce some road rage). I would agree with the label, though. I am happy that we have a parks system and a food and drug administration and that women can vote in this country and that we have a GI bill of rights and that the armed forces were integrated as of 1947 and that almost twenty years later the civil rights and voting rights initiatives became law in this country and that we have an Environmental Protection Agency. The preschool program, Headstart, is one of the two most successful programs in our history, as measured by the ratio between money spent and money returned to the ecomomy. The other is, of course, the GI Bill. I worked for five summers in Bowdoin’s Upward Bound Program, a great society program from the 1960s, now threatened, like a lot of worthwhile programs, by the budget ax. When I ask my conservative friends for their list of conservative accomplishments one or two may wince and remind me that the EPA was created during the Nixon presidency and someone with a good grasp of history will also tell me that the GI Bill was created at the urging of the American Legion, at a time when the military and civilian spheres seemed more interconnected than they are now. And it is that separation that I want to talk about this morning.
I notice them on the backs of SUVs as I try to peer around to see what lies ahead of the SUV. I have a wish to ask the driver of the SUV whether he or she knows anyone currently in uniform, whether he or she ever served in our military, and whether his or her children are currently serving in uniform. In law school, you say? Of course I might get an affirmative to one or more of my questions, but I doubt it.
A recent political cartoon showed a man reading a newspaper in a comfortable chair with a support our troops ribbon on the back of the chair and that, I think, depicts the way things are these days. The issue may not be as acute here at Brunswick NAS, primarily, I think, because the personnel here participate so effectively in the community outside these gates. But I am not going to debate the invasion of Iraq. I am going to raise an issue that civilians and future civilians should consider as a way of supporting our troops. And that is, our treatment of prisoners, whatever we are calling them these days, particularly in a world that dislikes the United States as much as the world does today, and I don’t just include the radical jihadists or the European left wing.
– we know about Malmady and the Bataan Death March and the Hanoi Hilton –
As you know our Declaration of Independence calls for “respect to the opinions of mankind.”
I have never known this country to have been as unpopular in other countries as it is today. That dislike may make no difference to the 86% of Americans who have no passport but it can make a difference to our men and women in uniform.
On my car you will find no yellow ribbon saying “Support Our Troops” Dr. Samuel Johnson said that “Patriotism is the last refuge of scoundrels.” That does not mean that all patriots are scoundrels, merely that it is easy enough to hide behind a flag, or a yellow ribbon.
The gap between the military and the civilian worlds is wide and widening, and I would wager that some of you have had the same perception. I point out, though, that leadership of the military is civilian, as outlined in Article two of our Constitution.
One problem is that so few of our current leaders, in government or in business have been in uniform. Any military unit is made up of individuals, no matter how unified, how like a single, disciplined component the unit performs in action. And those individuals have their hopes and their aspirations, as exemplified by the graduates here today. And those individuals are a resource that we put at risk only as a last resort. Rumsfeld, who served in the Navy as a pilot, should know better – he is the exception among our current leaders – but he calls members of the military “fungible”, that is as interchangeable as nickels or dimes.) The others – the Wolfowitzes, the Cheneys, the Richard Perles, the planners of war, have not worn the uniform. To put on the uniform of this country is to become a target. While we cannot expect that our abiding by the Geneva Conventions that guarantee humane treatment of prisoners will insure good treatment of our own prisoners, we must know that our failure to follow the international conventions denies us a stance from which to object if our own prisoners are in some way abused. And yet that is where we are.
When John McCain defended his anti-torture resolution, he said that one thing that sustained him during his six-year ordeal as a prisoner of the North Vietnamese was that we, the United States, were not like that. There is someone who speaks with authority. And President Bush signed the agreement, handing out pens to everyone standing around him. The President then said that he reserved the right to waive the resolution when he found it necessary. Another of those signing statements. Why exercise a veto, as called for in Article I Section 7 of the Constitution, when you can just say that you are not bound to administer the bill you have just signed into law?
When General Michael Haden was asked during his confirmation hearing about whether we still used “water-boarding” in our interrogation of prisoners, he said that he would deal with that question in closed session. Why could he not just say “no”? The answer I would have to assume is obvious. Because he could not say “no.” I suppose he could say that any information about how we deal with prisoners helps the enemy. I do wonder what he said about water-boarding in closed session. As I speak, our Departments of State and Defense are debating about whether the Geneva Conventions against humiliating treatment of prisoners will be incorporated into new guidelines for detainees. In other words, are we signaling our perceived enemies or are we signaling the rest of the world that we hope to enlist against that enemy? In either case, we define ourselves as a nation. Even Thomas Friedman, a neo-conservative advocate of our invasion of Iraq argues that we must “deal... honestly and decently with prisoners in this murky war.”
But one might ask – what is this concern about our personnel being taken prisoner?
Ask:
- the 82 survivors of the USS Pueblo, attacked by North Korea in 1968 and subsequently imprisoned.
- Air Force Captain Scott Erickson taken prisoner with his crew by Noriega’s police in Panama some years ago
- the Marine guards at the embassy in Terhan in 1979
- Navy pilot Shane Osborne and his P-3 crew of 23 after their mid-air collision and incarceration by the Chinese in 2001
In each instance, these people were released after a night, eleven days, or many months of captivity.
General Peter Pace spoke a week ago about “the values that separate us from our enemies.” But I am concerned when I hear the President say of the Guantanamo detainees: “They will get their day in court. One can’t say that of the people that they killed. They didn’t give those people the opportunity for a fair trial.”
That carries a clear presumption of guilt, a presumption contrary to our legal system going back many years to Roman Law and perhaps even the Book of Deuteronomy. In other words, if our people in harms way are presumed guilty by the enemy – and they are – the precedent has been set by our own President, who, in this case, has not emphasized a value that separates us from our enemies, but instead, has erased a vital distinction. In discussing recent allegations about civilians killed, Spanish judge Baltasar Garzon, well aware of the damage that Spain has suffered from terrorist attacks, called for the closing of the base at Guantanomo. Garzon pointed out that Spain has vivid experience with torture, in the instances of the Inquisition and the Civil War of the late 1930s.
“I have as much interest as you do in wanting the problem of terrorism to be resolved,” he said, “but if we continue along these lines we are on the road to committing crimes against humanity.” And recently Lord Goldsmith, Britain’s attorney general, said, “The historic tradition of the US as a beacon of freedom, liberty, and justice deserves the removal” of Guantanomo. I don’t ask that you agree with the moral or historical arguments against torture, indefinite detention of prisoners, rendition to secret sites or to countries that practice torture. Just that you consider the ways in which our own practices might endanger our own men and women in uniform. Article 3 of the Geneva Conventions says that prisoners should receive “the judicial guarantees which are recognized as indispensable by civilized peoples.” The government can argue that constitutional safeguards do not apply to prisoners at Guantanomo, because Guantanomo is not part of the United States, but that argument collides in the traffic pattern with the Geneva Conventions.
The graduates today will be civilians someday. Let them not be merely ex-military, or retired-military, but let them carry the specific memory of those years in uniform forward so that our civilian leaders are informed constantly not just of the society’s obligation to those who have served honorably but to those who are serving and who, by dint of their service, volunteer to step into harms way. We can all say “Support Our Troops.” Those who have been there, those who have proudly worn the uniform, will know what those words mean and will know how to provide that support with something more than just a yellow ribbon on the back of a car.
I recognize that members of the military are seldom in a position to affect policy. In theory, at least, civilians dictate policy. The graduates today will be civilians someday. And they will be that rare civilian nowadays, one with a military background. And I know that that background itself will be a value. When a potential employer sees that on a resume, that employer will know some things automatically. The person with a military background will have worked in jobs requiring skill. You can’t fake it when lives are on the line. Discipline. Maturity. Add a college degree, and a good one.
I visited classes at this center in my capacity of Center Academic Advisor – those of Charley Whitten, Charley Bridge, Erv Deck, Ron Reynolds, Jeff Peters, and others. They were well taught and insisted on student preparation. And the material was challenging. It challenged me, at least. I used the words discipline and maturity. That has been demonstrated by these graduates, already holding down demanding jobs, already participating in active family life, and still able to perform very well in the classroom. (And I should note what all of us know – that the support of the families, wives, husbands, children in this process has been essential). I should also take note of the superb support of our operation provided on a day to day basis by Tonya Dickson and Bill Shroeder, who made arrangements for the sun to shine today. I cannot say to these graduates, go out and do great things. Look around. They are already doing great things. I can say this: that if we assume that civilian leadership of the military is a good thing, and, further, that it is a good idea if our leaders have military experience – as I am suggesting – it follows that our graduates today do not forget their military experience. They won’t, of course. But let that experience carry forward into their leadership.
Someone suggested to me that I include a poem in my talk today, and I will close with one. This is in honor of Lt. JG Bill Drake, the brother of one of my oldest friends from New Jersey, who won the Navy Cross at Midway on 5 June 1942 while flying the F4F Wildcat from the Enterprise on that day when Spruance outfoxed the admiral who had lead the Pearl Harbor force, Admiral Nagumo.
I should explain that this poem emerges from Bruegel’s great painting of Icarus, which you can see at the Musee de Beaux Arts in Brussels. Icarus, you recall, flew too close to the sun and the wax holding his wings to his shoulders melted. Bruegel shows his white legs disappearing into the green Mediteranean as a ship sails by, as a shepherd pays attention to his flock, and as a plowman in the foreground concentrates on his furrows. Everyone turns away from the disaster.
South Pacific, 1942
Well, yes, everything does turn away,
but that does not remove the fighter pilot
from his death. From out of that blinding spot
known as the sun, a zero came, and day
and night and all time in between became
the same for him. But you must understand
that those of us who have to fly again
cannot dwell upon that cancellation.
The only power we have to countermand
lies in the left hand on the throttle, the sweep
of eyes across the green horizon, and
the touch of fifty calibers that keep
the air alive with tracers above the sand
and salt in which our comrades go to sleep.
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