Torture - Part II "We Don't Torture"

“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.