The raging question of the moment is whether it is a good idea to prosecute members of the Bush administration for war crimes, crimes against humanity or just for some simple crime because they condoned the torture of three well known terrorists and in the process discovered and prevented a "second 9/11" attack on the United States.
Some have argued that wrong is wrong and must be punished. Others argue that the ends justify the means. In a nutshell, this is is the eternal conflict between the lesser and greater evil. Is it excusable to do something which is morally wrong if it prevents something much more heinous? One of the perils of being in a position of authority in government is that part of that job is to make the unpleasant decision to occasionally do something immoral in order to prevent a greater evil.
When our leaders do this they run the risk of being held accountable in the judgment of their successors or in the judgment of history. What happens, quite often, is that they are held accountable in the immediate aftermath and then exonerated by the court of history, which tends to be more dispassionate. When Harry Truman authorized the murder of thousands of innocent civilians with the atomic bomb to save the lives of even more soldiers and end World War II, he was not held accountable under the law and the debate over his culpability still rages among historians.
There are many who would like to single out top members of the Bush administration for punishment because they approved the waterboarding of three known terrorists, but the main stumbling block to doing this is that the US did not have a clear law on torture of foreign spies or terrorists and the Geneva Convention does not apply to prisoners who are not identifiable, legitimate military combatants. In fact, the Geneva Convention was specifically worded to exclude spies and saboteurs and terrorists and fifth-columnists from its protections. The US Criminal Code makes the same assumptions as the Geneva Convention about to whom restrictions on torture apply. There's a giant loophole where the Geneva Convention assumes that terrorists will be treated as criminals, not prisoners of war, but where US law and the rights guarantees of the Constitution do not apply to foreign nationals. Ultimately the problem here is not the actions of the Bush administration, which some would like to punish out of spite rather than legal justification in some sort of McCarthyesque witch hunt. The real failure is not having clear and applicable law prohibiting agents of our government from torturing those not protected by the Constitution.
Article comments
— go to most recent comments1 - M ark
...the Geneva Convention was specifically worded to exclude spies and saboteurs and terrorists and fifth-columnists from its protections. The US Criminal Code makes the same assumptions as the Geneva Convention about to whom restrictions on torture apply.
Dave, what wording in the US Code gives you this impression? From TITLE 18; PART I; CHAPTER 113C; § 2340 the restriction apparently applies to any person within the alleged offender's custody or physical control. I can find no exception for spies, terrorists, etc.
2 - Lumpy
Let's start by trying FDR for crimes aainst humanity for interning the japanese americans.
3 - El Bicho
Lumpy, you still haven't backed up your claims of two million in attendance at the 4/15 tea party demonstrations. Why don't you start with that?
4 - Bliffle
It's amazing that so many people leap to the defense of torture. What purpose can torture serve? The experts at interrogation say that it does not work for eliciting information, as in the "Ticking Bomb" fantasy. Indeed, it may be counter-productive, as appears to be the case in the torture of some terrorists. Torture seems only to be good at eliciting fake confessions for show trials, such as the Soviet Moscow trials.
Defenders of torture seem to be Nice People who wouldn't hurt a fly, under other circumstances.
I suspect that they simply want to project an image of toughness, meanness, and vengeance-capability that they hope will scare their enemies.
Perhaps they believe that by projecting an appearance of bristling belligerence they will discourage malefactors from acting. But it appears not to work.
5 - Lumpy
break free of the media programming blicho. learn the code words and lern to do the math. the clampdown is here and you're wither with the oppressors or the resistence.
6 - Cindy
Well I can see why he'd have some trouble with the code words. Apparently spelling is subject to the same creative guidelines as both math and facts.
7 - Lumpy
keep being a patsy for the statists cindy. your poseur coffee shop anarchism gives them the pretext they need to take away our rights.
8 - El Bicho
Media programming? I just asked you to offer proof to the claims you made, lupniuy, which you have been unable to do. I could barely understand your response, which appears fueled by cough-syrup binges, but feel free to distract with all the nonsense and jibber jabber you like. It's a common tactic among those who lack proof as well as the integrity to admit when they are wrong.
9 - Cindy
Lumpy, think about it this way.
The country was founded by property owners, who needed the state to protect their interests and make sure they kept the power.
It led to a giant state (despite the constitution).
There will always be people who realize that this system is flawed (you know, the one's with consciences left)...they'll create an even a bigger state to try to combat the negative effects of the original imbalance in power.
Your revolution is doomed to failure every time.
(Concerning rights--you may wish to stay tuned for the post I'm about to make. It probably applies to you as well as Dave.)
10 - Cindy
Dave,
I am sure you have seen this. What I don't understand is how you can fail to identify with the innocent people who were tortured, simply because they were not soldiers, but civilians. Should this 'war on terrorism' continue the way it is going, soon you may be a victim of your own reasoning.
Oh and these people have broadened their term, they call it the war on terrorism and crime.
Missouri Information Analysis Center (MIAC) has done a strategic 'study' to profile potential domestic terrorists: The Modern Militia Movement
Columbia Missourian
Never in my wildest dreams would I have suspected that the seemingly mild-mannered, elderly neighbor with the Ron Paul yard sign prominently displayed was a prospective militia man or urban terrorist.
The analysis center-compiled report flagged certain activities of individuals or groups, linking them prone to militia membership or domestic terrorist activity. These indicators include “subversive” literature, selected political bumper stickers [such as Ron Paul or Bob Barr] and religious and anti-abortion paraphernalia. The “Modern Militia Movement” document identified supporters of third-party candidates and those displaying the “Don’t Tread on Me” flag of the Revolutionary War and even the American flag as objects for added surveillance.
Fox News - Glenn Beck:
The report was put together by the Missouri Information Analysis Center. It warns that militia members, most commonly associate with third-party political groups. They may display constitutional party, campaign for liberty or libertarian material.
Militia members are quote, "usually supporters of Ron Paul or Chuck Baldwin or Bob Barr." A motivation for militia activity, according to the government now, is the anticipation of the economic collapse of the U.S. Government.
Oh. And the report continues that militia members may have cartoons and bumper stickers. Yes, with anti-government rhetoric. Or sometimes, they'll have a Ron Paul bumper sticker, or they'll have this flag, "Don't tread on me."
MIAC has a page where you can turn your neighbor in for 'suspected terrorist activity" right over the internet. One of the boxes to check off says:
Miscellaneous Suspicious Activity with a Terrorism Nexus
(Best get rid of your Libertarian literature and your don't tread on me flags.)
11 - Franco
I don’t see how you can prosecute Bush and any members of his administration for crimes involving methods of interrogation that are all the exact same methods practiced and used on our own US forces in SERE training.
I think it is an excellent debate that Americans are questioning whether we should or should not be using these methods on our deadly enemies.
If it can be shown that hundreds, or thousands of lives were saved by applying SERE interrogation methods on the worst terrorists then it becomes a harder debate for the no vote.
If we were using electric drills and boring holes through the skin and muscle in the joints of arms and legs and eyes, just like our enemies do in Iraq and else where, then the fever of this debate would be fully warranted, But were are not, we are talking about SERE training methods of stress positions, cramped spaces, and the ever dreaded waterboarding.
The leftwing extreemist in America today are so anti-US everything that it has become a mob of vengeful destroyers with their torches red hot wanting to trasform America into their own image. The only reason they want to burn Bushes at the stake is to have it stand as the last cremation of what they hope is the last memory of conservatism.
I just wish the debate could really be intellectually discussed on the basics of if it saving lives. Because there are those who are convinced it does and has. Before we burn them too we should seek to understand why they say so.
12 - Cindy
Franco,
I think, there are times when an ad hominem attack is about the most honest reply a person could give.
But I'm practicing changing my ways. So, that's all I can say about your post.
13 - Jordan Richardson
I don't see how you can prosecute Bush and any members of his administration for crimes involving methods of interrogation that are all the exact same methods practiced and used on our own US forces in SERE training.
I think the answer is actually in this statement. That your own troops had to be briefed and prepped for these techniques and methods is evidence alone that they were beyond the normal context of interrogation. The military was briefed on those methods so that they'd know what to do and how to react to having such things inflicted on them. When those techniques, call them what you want, are subjected to normal civilians and others without that training and preparation, you can probably imagine why it would ruffle a few feathers. At least I certainly can...
If it can be shown that hundreds, or thousands of lives were saved by applying SERE interrogation methods on the worst terrorists then it becomes a harder debate for the no vote.
It would be a harder debate, yes. Unfortunately, that proof is sorely lacking. As is the proof that the techniques actually produce valuable information in any context. Quite the opposite, the information obtained via these techniques is often proven to be false. And that just wastes valuable time, which in turn can and possibly has cost lives. Were the aforementioned to be proven,
would that be a harder debate for the "yes" vote? Somehow I doubt it.
The reason I doubt it is that, once again, this has become a ridiculous political debate. It is no longer about the morals and ethics of a nation trying to defend itself. Instead, it is about left and right and political sides of the aisle. There is a refusal to critically examine the issue. If one does criticize, the notion of being "anti-American" or "not American enough" comes up and immediately decreases the validity of the discourse. It's no wonder that many Americans aren't even intellectually capable of entering honest discourse anymore.
As damaged as the public conversation has become, with its infusions of twin political ideologies and partisanship bullshit, there are still some who hold to a moral standard that goes above and beyond which politician one supporters.
Before we burn them too we should seek to understand why they say so.
Because they, like all other politicians, want to save their own asses first. They'll worry about moral responsibility later, all the while waving the ridiculous notion of "security" to distract the huddled masses. There's only so much any country on earth, no matter how powerful, can do to remain safe. The real measure of morality in a changing world is the extent to which one is willing to go to do so and the lies they're willing to tell in order to maintain order.
14 - zingzing
oh god, i have to agree with dave. change the laws. make it so that we can't do things we can't do to our own something we can't do to anyone else. we shouldn't be doing it anyway, so change the law.
but such is the political climate that if obama, et al, go after bush, et al, then the damn thing will just come around to bite obama, et al, whenever the republicans get back into office. they can AND WILL find something if they think retribution is in order. no former president has ever been tried on war crimes for what he did during his administration, and putting bush and his cronies in jail would just be a horrible example to make.
(what we SHOULD DO, of course, is just leave it be and see if those folks at the hague can make bush/cheney/etc piss their pants for the rest of their natural lives. inhuman bastards should be in such a state they can't tell scotch from urine.)
torture is wrong, but torture after the fact is only "politics," and that's not the same thing.
15 - Dave Nalle
To start at the beginning.
Mark, I refer you to the section specifically on War Crimes, Chapter 18: § 2441, Section C which refers specifically to the definition of protected individuals in the Geneva Convention. You then go to Section IV of the Geneva Convention which makes a very clear definition of who the agreement considers a protected combatant and to Section 3 to see who it considers a protected non-combatant.
Those definitions specifically exclude people involved in armed conflict or acts of violence who are not part of an organized and uniformed military. This has been interpreted to mean that the Geneva Convention and US laws deriving from it do not apply to terrorists.
This argument is certainly technically correct, even if we can agree that it is morally wrong.
Dave
16 - Dave Nalle
Cindy, MIAC was rescinded and an apology was issued as soon as it became known by the public. And Glenn Beck is a weeping, posturing lunatic.
I agree there are grounds for concern, but at least in this case the forces of oppression seem to be getting discredited as fast as they are exposed. Even Janet Napolitano is on the run over the DHS report I wrote about a couple of weeks ago.
Dave
17 - Cindy
Dave,
I think Glenn Beck is an insane lunatic. That doesn't mean he didn't accurately describe what was in the report. And that was the purpose of my quote, to show the contents of the report.
???
Is there an unwritten code against using insane people as references when they are accurate?
I agree there are grounds for concern...
Good Dave. I'm glad to hear that.
18 - El Bicho
"putting bush and his cronies in jail would just be a horrible example to make."
Not if they broke the law, and just to be clear I am not saying they did, but if they did, what example does it make to let them get away with it?
"torture is wrong, but torture after the fact is only 'politics,' and that's not the same thing."
"after the fact"? That's one of the more foolish defenses I have read. How can it be wrong in the present, but okay when it occurred in the past? If it's wrong, it's wrong.
19 - Cindy
zing,
If government breaks the law--they are supposed to be subject to prosecution just like anyone else. If that isn't upheld then how do you expect to protect yourself from arbitrary government? It is part and parcel of the rule of law for that reason.
Think about what it would mean if a society espoused allowing those who have power over them be above the law? How do people protect themselves from the state eventually becoming a totalitarian dictatorship then?
Also: The law only ever can be applied 'after the fact'...
20 - Ma rk
Dave, so it looks like torture can be approached as a war crime under Chapter 118 and/or as a crime under Chapter 113C. Is there reason to argue that the restrictions found in 118 that you point to apply to 113C?
21 - Doug Hunter
"How can it be wrong in the present, but okay when it occurred in the past?"
A little thing we call laws, and yes believe it or not they do change. Also, there is no absolute, god given, right and wrong. Moral values and the concept of right and wrong change over time. People with alot more sense and compassion than your statement represents realized this and built protections into our system that prevent people from changing the law after the fact then going back to hold you accountable. This is knows as ex post facto law and is prohibited in most common law derivatives.
Additionally, the protection from after the fact law changes is explicitly enumerated in the constitution Article 1 section 9 where it is stated that "No bill of attainder or ex post facto Law shall be passed. " In other words you can't go back and change the law regarding waterboarding and then prosecute people.
Now, that being said, I am a layman reading these things so a professional opinion probably is different. Lawyers and judges can twist any law or protetion and make it say anything they want. That is why judges will state that Geneva Convention applies to terrorist even though the text of the Geneva Convention lists as requirements for protection:
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
Terrorists do no wear a distinct sign as a distance, terrorists usually hide their weapons to avoid detection, and terrorism of the 9/11 variety I hope is not within the law of war.
Any laymen reading this would be forced to conclude it didn't apply to terrorists, but thats because you haven't been properly schooled in the in law. Laws are made for normal people, not lawyers judges and politicians.
22 - Doug Hunter
"How can it be wrong in the present, but okay when it occurred in the past?"
A little thing we call laws, and yes believe it or not they do change. Also, there is no absolute, god given, right and wrong. Moral values and the concept of right and wrong change over time. People with alot more sense and compassion than your statement represents realized this and built protections into our system that prevent people from changing the law after the fact then going back to hold you accountable. This is knows as ex post facto law and is prohibited in most common law derivatives.
Additionally, the protection from after the fact law changes is explicitly enumerated in the constitution Article 1 section 9 where it is stated that "No bill of attainder or ex post facto Law shall be passed. " In other words you can't go back and change the law regarding waterboarding and then prosecute people.
Now, that being said, I am a layman reading these things so a professional opinion probably is different. Lawyers and judges can twist any law or protetion and make it say anything they want. That is why judges will state that Geneva Convention applies to terrorist even though the text of the Geneva Convention lists as requirements for protection:
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
23 - roger nowosielski
Yes, Doug; the laws are not static and they can and do change - sometimes for the worse and sometimes for the better. Which makes them far from perfect; the question is whether laws have been skewed to suit the purposes and designs of the powers that be. You're not naive enough to insist that such things don't happen. So the legal code at any point in time can be questioned as to whether it represents and reflects the highest standards of justice; and there are unjust laws against which some consider it their duty to rebel.
I am not going to argue with you against your position as to the "relativity of morals." That would take too long. Only to indicate that when we do come to a realization that certain laws may be unjust, we can correct them. And by virtue of what? is my question. By appeal to what higher standard?
Laws are imperfect expression of the common morality - imperfect because the highest moral standards are unenforceable to a population at large. But the common morality is their only valid source.
24 - Dave Nalle
If government breaks the law--they are supposed to be subject to prosecution just like anyone else. If that isn't upheld then how do you expect to protect yourself from arbitrary government? It is part and parcel of the rule of law for that reason.
Ironically, although a lot of people believe what you wrote here, Cindy, it's not actually true. Very much the opposite. The government and elected officials have always enjoyed something called "Sovereign Immunity" which protects them from most prosecutions. The only exceptions to this are things like injunctions and constitutional challenges, but suing for damages or criminal liability is virtually impossible.
Our actual course or redress against government is to vote it out of office.
Dave
25 - roger nowosielski
So would you say that the Watergate proceedings were illegal, or any other action initiation by the office of a special prosecutor? How come "sovereign immunity" didn't apply to those cases? Or are you saying it was disregarded?