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Look to the Law—Not to Whether Torture ‘Works’Posted on Apr 28, 2009The calls currently heard for an independent commission to investigate America’s use of torture in George Bush’s war on terror usually argue that a congressional investigation, or a straightforward criminal investigation under the authority of the Department of Justice, would become so politicized, or be so widely subjected to partisan attack, as to be hopelessly compromised. I am not sure this is true, especially if it is a criminal investigation dealing strictly with existing law. What laws were broken? This can be ascertained in a straightforward way. Who broke them? Who can be charged with criminal responsibility? Such an investigation is already under way, but may fail when it runs into the defense already generally offered by those who led and executed the torture: “I was only obeying orders.” Since the Nuremberg trials, that is not in law a valid defense. Individual officials or soldiers are considered responsible for their acts. But it is probably a persuasive defense to a majority of the public, certainly in a situation, like this one, where the person charged with the crime usually had reason to think that the orders came ultimately from the White House. The orders, presumably having passed down a chain of command, were in that respect legitimate, against which the moral scruples or legal opinions of the subordinates counted for nothing. To refuse was a career-ender. The military lawyers who challenged the system usually found that out, even though they were theoretically protected by their professional responsibility to defend the law as it exists. Advertisement Against the objectors was also the argument that torture works. Virtually no one of those involved in this argument was in a position conclusively to prove or disprove a claim that the president and vice president wanted mightily to believe was true. Their view was backed up by the mass media and popular opinion. The pro-torture television program “24 Hours” was for a time the most popular entertainment on American television. There were plenty of unofficial or quasi-official “expert” opinions to defend torture. The New York Times has just published a report on ABC’s broadcast in December 2007 of a claim by a former CIA officer, John Kiriakou, that waterboarding caused the suspected terrorist Abu Zubaydah to crack after “probably 30, 35 seconds” and to tell all. Kiriakou claimed that “maybe dozens of attacks” were thereby disrupted. His claim was repeated in every major newspaper or broadcast medium in the United States, and by dozens of commentators. It’s reported that just last week the conservative Fox commentator Sean Hannity offered to be water-boarded for charity. (He didn’t say how many times.) It turns out that Kiriakou had no firsthand knowledge of the matter, was repeating hearsay and, according to the Justice Department, Zubaydah actually was subjected to the torture “at least 83 times.” The torture issue now has largely been turned into one of whether it “works.” The question of law was dealt with by the Bush administration by saying that existing law is outmoded and yields to presidential prerogatives and national security interests. The argument cited against torture is that the damage it did to America’s reputation, and the aid and comfort it gave the enemy, outweighed its claimed advantages. You can say that the Bush-Cheney position reflects the situation in much contemporary philosophy, which has renounced classical, religious and other appeals to natural law or “eternal” or innate principles, in its attempt to establish a modern theory of justice. Bush-Cheney-CIA empiricism asserts that torture “works.” The Bush opponent, who shares this philosophical position, must claim that torture doesn’t work, or that the costs are too high. I am reminded of a cruel joke. A man asks a woman seated next to him at a dinner if she would sleep with him for a million dollars. With whatever hesitation or flirtatiousness, she ends saying yes she would. He then asks if she would do so for five dollars. She angrily asks if he thinks she is a prostitute. He replies, “We have established what you are; we are now dickering over the price.” Visit William Pfaff’s Web site at www.williampfaff.com. © 2009 Tribune Media Services Inc. Elsewhere: . CommentsAre you a Truthdig member yet? Login now, or register with Truthdig. Add Your Comment
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By Sepharad, May 2 at 4:15 pm #
Night Gaunt, the Inquisitors had stated agenda—to save the souls of infidel Jews, which allowed them to torture the bodies and even burn them at the stake because better they should be dead than allowed to damn themselves through living as non-Christians—and a real agenda. The real agenda was to appropriate the wealth and holdings of the Jews, largely to pay Ferdinand’s gambling debts—just as the Reconquista driving out and sometimes murdering Moslems was allegedly to create a wholly and holy Christian kingdom, but in fact was intended to take everything the Moslems had developed in Spain and put it into the Spanish monarchs’ hands. (The Spanish Inquisition was so brutal and venal that even the Pope was unable to halt it, though he tried.) Certainly religious zealotry was an element in all Inquisitions, but the underlying desire in most cases was very plain: simple greed.
Though Israelis are determined to survive, they have learned early on that fighting fire with fire (beating up militants who supposedly knew where the imminent ticking bomb was to go off, similar to early British treatment of IRA captives) did not elicit the information they wanted. Skilled interrogators talking to people works better. Considering the enormous pressure they are under, I think they generally do much better than most other countries would, including our own, faced with constant and growing existential threats. In the Gaza invasion something went terribly wrong—the incidents of soldiers shooting civilians and the use of cluster bombs. Not all of the IDF was involved but the fact that these things were done by some IDF members has to be investigated further than the army’s own investigation. And it will be. There is never, never, any excuse for anti-personnel bombs which is what cluster bombs are. No way to justify that.
Report thisBy Night-Gaunt, May 2 at 1:59 pm #
“And let’s not forget Saddam. Didn’t we attack and invade his country to free its people from him, a torturer, a man who would inflict untold suffering on those whom he deemed ‘enemies of the state?’”—Felicity
No, we invaded because of “WMD” and the threat of a “mushroom cloud” which were both bogus and faked for their amusement and our gullibility. Like Iran with Shaw Reza Palavi installed over a democratically elected president from (1953-1979) Iraq too was a client state, very Western in dress and even more freedom for women, but they both had tyrants that the USA approved of. For Iraq it was in 1990 when President #41 Bush inexplicably decided that Saddam wasn’t ‘our boy’ anymore and wanted him replaced with another despot of equal character.
Tell me Sheparad, why did the Inquisition use it for over 400 years? Because it wasn’t to illicit true information just what they wanted to hear to get what they wanted in fear and loathing of others who wouldn’t argue with them and even turn people they sought for without prompt. A very good terror weapon and keeps the sadists in their employ happy.
Our own police use varying degrees of torture to wear their prisoners down to accede to whatever they want like confessions which save time, money and the true condition of the victim of the police system.
Report thisBy Sepharad, May 1 at 9:19 pm #
Folktruther, you’re partly right in that torture works to discourage dissent and frighten people. But I don’t think it “works” to elicit accurate information. Even if it did work, it would still be wrong—unless you believe that degenerate barbarism is OK, should be codified as OK in the society we live in, and are not worried about encouraging the spread of such behavior in the world.
NightGaunt—why do you think that torture is routine procedure in Israel? It’s illegal*, and widely held as ineffective by their expert interrogators. The downside for Israel has been that captured militants have no fear of what will happen to them, and therefore have no motive to provide any information at all. This is why Israel relies so heavily on information from collaborators—which itself has the downside of exposing all Palestinians who engage with Israelis, Arab or Jew, in economic or cultural enterprises, to charges of political collaboration and harsh punishment by other Palestinians. (Re*—I realize there are religious fundamentalists in Israel who would probably disregard mere man’s law, fanatic enough to try to find some grounds for misinterpreting the Torah’s judgment, even willing to act without sanction of man or God. The late Meier Kahane and those of his ilk come to mind.)
Report thisBy Folktruther, April 30 at 7:12 pm #
There is no point in saying torture doesn’t work- it DOES work, that’s why despotic power systems use it. It discourages people from opposing despontic power by making them afraid.
And law is not a fundamental objection- one can change the law or judges can simple avoid ruling on it.
The fundamental objection to torture is moral and spiritual. It’s barbaric, and its use by the US openly and secretly is a return to the barbarism of religous terrorism, like the brutality that Trith supports, he being a highly religous man. The stand that one must take is a moral stand, a stand for social justice. Which should be applied to Obama as well as Bush.
Report thisBy felicity, April 30 at 2:10 pm #
Debra I-S - I was ages 11 to 15 when your father was fighting in WWII and I, like he, have been so saddened, disgusted (and shocked) by “these practices.”
I remember the shock and horror that my parents expressed on reading of the torture being inflicted on our servicemen and other captives, and I remember seeing the endless stills and newsreels of the victims.
There are really no words to convey how I feel today when my own country is engaging in “these practices.” How are we different than Hitler who proclaimed that ridding the world of Jews was for the good of the world, or the Japanese who tortured captured Americans as necessary to winning a war, or Stalin who tortured and killed millions of self-employed Russian farmers - to quote Stalin, for the ultimate benefit of the State and all the Russian people.
And let’s not forget Saddam. Didn’t we attack and invade his country to free its people from him, a torturer, a man who would inflict untold suffering on those whom he deemed ‘enemies of the state?’
Report thisBy drklassen, April 30 at 1:26 pm #
(Unregistered commenter)
Trithoverlies: When you consider that the entire scheme of information classification was created and is maintained through executive order, the president can legally declassify ANYTHING. Ergo, Obama broke no laws.
Also, of you are going to judge America only in relation to its worst enemies, well, that’s a pretty low bar to set and a sad commentary on conservative ideology.
Report thisBy Earnric, April 29 at 6:27 pm #
Trithoverlies—“IS Amerca Safer today than before Jan 2009?”
No where does the president swear to “keep us safe” ... he swears to uphold the constitution and the rule of law.
Franklin: He who would give up essential liberty for security, deserves neither.
Grow a pair: if we do not stick to our values in the face of adversity there were never “values” to start with.
Report thisBy Spiritgirl, April 29 at 4:32 pm #
Can you repeat after me - Torture no matter the reasoning is unlawful! And the Uniformed Code of Military Justice - “..allows for dissent of unlawful orders…”!
It does not matter that we were supposedly in a “war on terra”! What matters is that torture is against the law! The very act dehumanizes both the tortured and the one who inflicts it! This nation is very good at pointing out the lawlessness of other nations! Maybe we should heed those same criticisms at ourselves. Nothing has ever been proven to be gained by the acts, far from it - people will say anything to stop the pain!
The hubris & Imperialist ideals that were present in the last mis-Administration need to be thoroughly aired out, and future generations need to be able to look back and know that we did the right and just thing! Let the chips fall where they may - if they broke no laws than there is nothing to be afraid of, if on the other hand they’ve broken the law - then they need to be under the jail!!!!
Report thisBy Trithoverlies, April 29 at 2:57 pm #
The only Law broken is the law on releasing top secret documents. The promise of Bypartazinship being destroyed that Our Good president knew would happen when he released those documents. The Only Questions that should be asked today,” IS Amerca Safer today than before Jan 2009?” the answer is NO and “What was done to stop the murder of thousands by these animals of Al Qaeda?” No Obama should have never released those documents. The ACLU (The American Crimanal Liberties Union) has a long history of trying to bring down the Government of America as the wolves do with an elk. Torture is watching as two building are hit by hijacked Airplans collaps, torture is the acts of Beheadings, and murders done by the Shiek Mahommids of the world, torture is sending mentally retard people into a crowded market and remotely detinating the suicide belts that they were wearing, torture is Sharia Law. Go ahead condemn us for waterboarding two terrorist Kingpins, condemn us for putting them in hot rooms, condemn us for forcing them to listen to heavy metal music. Condemn us for allowing them to Worship in their cells allowing them Qurons, and even Military Immams. condemn us for cooking practice of their dietary laws for them. If loud music is torture than 90% of America is daily assualted by torture, if living in a hot room is torture than 50% or more of or elderly are being tortured in the summer, and the same with cold rooms. Our soldiers are tortued our police are tortured during their basic training, so lets stop it. What I am saying is that the left has driven this topic overboard and forgets their leftist Ideologs use of far worse under Joseph Stalin, Aldoph Hitler, Chairman Mao, Pal Pot, and Che. IOt is time to move forward not backward it is time to attempt to heal the growing rift in this nation before it becomes so wide that it leads to the rinding of America.
Report thisTrithoverlies/Truthoverlies.
John R. Bloxson Jr.
P.S. the majority of Americans want it left aloneso that the scab will heal rather than the continued picking at it by the leftist News Media. They left liberal along time ago under Ideologs like Conkrite, Jennings, and Rather. We are tortured every night by MSNBC, CNBC,ABC, CBS,The BBC, and CNN that spreads leftist propaganda. Terorist are not militants but terrorist, terrorism is not man made desasters, but Terrorism Political Corectness is running amuck. It’s time to grade our children according to proformance rather than make them feel good we are not preparing or children for the future and This is also a form of torture because it sets them up for major failure later in life. LIFE IS NOT FAIR its High time we truly taught that in our schools, truth is truth, relatevism is a doctrine thats destroying Western Civilization.
By Night-Gaunt, April 29 at 12:26 pm #
Civilized humanist based societies to not even indulge in the hypothesis of torture. Even the Talmud councils against using it for moral and because the information it gives isn’t correct. Not that Israel follows that particular dictum. [Torture is used by their police as a matter of procedure.]
The fascists can only say that “it works” and “in war we must not be restrained” (their fantasy) and “if it is a ticking time bomb and we know he knows the answer to save people” are all that they have. They do point to a supposed use of it in real life (on the Pacific coast in 2002)but that falls apart on scrutiny concerning the particulars. Only in “24” which is based on the ticking time bomb scenario for every episode is the only place they can go and it is fiction.
Report thisBy Paul_GA, April 29 at 11:50 am #
Begging the author’s pardon, but that pro-torture show on Fox is entitled “24”, not “24 Hours”.
Report thisBy everynobody, April 29 at 8:54 am #
(Unregistered commenter)
Bruce Fein, interviewed on The Real News; asked a very good question: If torture worked so well, why didn’t Prick Cheney use it until January 19, 2009? America is on the path to hell and will destroy itself from within, which is the only way it could ever be brought down. Oh, here’s a link;
http://therealnews.com/t/index.php?option=com_content&task=view&id=31&Itemid=74&jumival=3613&updaterx=2009-04-28+09:57:21
Report thisBy Purple Girl, April 29 at 8:40 am #
Defendants (nor their family) do not get to name their own charges.
Report thisThe Determination of that is by an independent,Objective set of people and standards.
Thus the claim that waterboarding is not Torture by those who are subject to prosecution, or even US as a nation is invalid. The International Red Cross called it torture- Therefore it is torture.
In fact we should not be allowed to prosecute these crimes, but the international courts should have jurisdiction and prosecutorial rights.
Congress lost their right to investigate when they failed in their duty to block such methods. The DOJ lost it’s right when the office was at the heart of the crime.regardless who sits in that office now- the insitution of american Law is now a Co defendant.
In fact since the crimes were mostly committed against those of the Middle East- it should be their courts who have jurisdiction.
Of course if these high crimes criminals were to just come forward and confess to Our high court- well then we would have to address this internally, since it would be our laws they would confessing to have broken “Cruel and Unusual”- Essentially granting US ‘the first bite at the apple’.Then pray we sentence you to prison until your last dying breath- negating fulfilling the sentences imposed by other courts.Besides if we content ourselves with prosecuting you for these crimes- we may not bother develing into the others (Renditon, Hit squads), including past crimes (treason)that have been committted over the last 4 decades, ah Cheney,Rummy & Wolfie.
By Debra Istvanik-Strotman, April 29 at 12:25 am #
Torture is wrong, it doesn’t work, and all the fancy words in the world will not change the shame our country has brought us by embracing such disgusting practices.
My father a WWII veteran has been so saddened and disgusted by these practices.
Saddened that he fought, was wounded, lost a beloved brother, other family members, and friends, yet considered us, the United States above reproach when it came to immoral practices of torture, and for the most part treated prisoners with dignity. These veterans spent the majority of their lives proud of their country up until Bush invoked his so called right to have prisoners tortured.
Not to many years left for our WWII veterans and for them to see us sink to such a low is beyond words.
You hold those at the very top of government, Bush, Cheney, Rumsfeld, and the rest of those at the top responisble, not the poor fools taking orders and having to do something they didn’t believe in and knew didn’t work, or be court martialed.
The president of the United States and all politicians should never be above the laws that the citizens of our country must live by.
Report thisBy freepressmyass, April 28 at 9:16 pm #
(Unregistered commenter)
The blow by blow horrific details of an innocent man at Abu Ghirab, the man in the hood with electrical cables tells his story. http://www.globalresearch.ca/index.php?context=va&aid=13379
Report thisBy NYCartist, April 28 at 6:29 pm #
Time to make jokes about men not women and sexual payment…or just drop them.
Swine flu gives new meaning to the old “male chauvinist pig” label.
On torture, legal way to go, I leave suggestions to Marjorie Cohn http://www.marjoriecohn.com and Michael Ratner of the Center for Constitutional Rights.
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