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The Single Thorniest Issue for Obama — Whether to Prosecute for Torture

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I am truly torn on this issue.

Senator John Cornyn (R-TX) has stated that he will block committee proceedings, effectively blocking Eric Holder's nomination as head of the Department of Justice, if Mr. Holder continues to refuse to state whether he would prosecute intelligence agents for torture. Holder has already stated unequivocally that "waterboarding is torture," and it is certain that the Army prosecuted a Japanese soldier for torturing — waterboarding — an American P.O.W., so there is plenty of precedent for prosecution.

As a retired military man, I can understand the Republican outrage at the prospect of prosecution of actions, however illegal, taken to defend America. After all, our firebombing and subsequent atomic bombing of Japanese civilian population centers could certainly be seen as a war crime. The Republicans also know that if the Department of Justice begins to prosecute intelligence agents, the blame will start percolating upwards, and is likely to end only with the prosecution of former president George W. Bush.

On the other hand, Henry Kolm, an MIT physicist who was assigned to interrogate Rudolf Hess during WWII, and who was part of an informal group of WWII interrogators, said, "We got more information out of a German general with a game of chess or Ping-Pong than they do today, with their torture." Essentially, if you want to get the enemy to empathize with you, and treat them well enough that they want to do what is right by you, then you do not torture them. Torture, psychologists have long said, is useless for garnering reliable and useful information, but is far more useful to the recruitment efforts of the enemy!

Another factor to consider is the damage done to America's reputation as a whole. We are a primary signatory to the Geneva Conventions, which specifically prohibit torture. The torture that we, the American people, have committed through the decisions of our elected leaders, has tainted our national honor. When I was a proud sailor in the Navy, I could stand tall and say, "My country would never choose to do such a thing." Sure, soldiers in the field might, but as a matter of official policy? Never! How naive I was; how angry I am that my commander-in-chief brought shame on my country by publicly resorting to such a foul, dishonorable, illegal, and useless tactic.

The criminal prosecution of a former president is fraught with danger, for where does it end? The Hague? Or will this set a precedent for future prosecutions; retribution by the incoming party against the outgoing party? And would this sabotage the bipartisan administration Obama is trying to build?

But how about the other precedents we set if we do nothing? Not only is our national honor stained by knowingly and publicly harboring those who committed torture, but if we do not prosecute, then every time an American soldier, Marine, or sailor is taken prisoner, what can he or she expect? What compunction will the enemy feel to refrain from such acts? "You Americans do it too!"

I see no absolutely right answer, but the more I think about it, the more I believe that whatever dangers we face by prosecuting those who tortured (and those who authorized torture), even if those dangers are realized, will fade over time.

I say we should prosecute all who tortured, and especially all those who authorized torture. Let America regain her honor among the nations of the world.

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About Glenn Contrarian

White. Male. Raised in the deepest of the Deep South. Retired Navy. Strong Christian. Proud Liberal. Thus, Contrarian!
  • Hope and Change?

    “Not only is our national honor stained” says who? A group of left wing loons and anti-Americans? Have you ever talked to people from outside the US?

    The only perso in the last 12 years to “stain” the Presidency (and Monica) was the Great Stain Maker – Bill Clinton…

    The hope and change of the left is so positive!

  • http://takeitorleaveit.typepad.com/ Roger Nowosielski

    At least they didn’t use satin sheet to do it!

  • http://takeitorleaveit.typepad.com/ Roger Nowosielski

    Glenn,

    You must consider, however, that the orders are always from high up. It would end up no differently than Abu Ghraib. And those who are REALLY responsible will remain untouchable. So I think, isn’t it better to let it rest?

    Roger

  • Hope and Change?

    Its all about Karma…if King barry falls into the left wing loon trap of prosecuting Bush..he will fall victim to bad karma and be out of office in less than 4 years..making Nixon look good…

  • Mark Eden

    You still here? Thought I saw strike three a bit ago.

  • http://takeitorleaveit.typepad.com/ Roger Nowosielski

    He/she has got nine lives, Mark. What can I say?

  • http://ex-conservative.blogspot.com Glenn Contrarian

    Roger –

    That’s precisely my point. When I retired from the military, we had honor, we had moral authority. But since Abu Ghraib and Guantanamo…

    …once lost, honor is difficult to regain, and the process is always painful.

    Do we agitate to support the rule of law, and do what is required to regain our national honor? Or do we let bygones be bygones – as was done for Iran-Contra, and McCarthyism? When does pragmatism trump honor?

    Yes, these are amorphous terms, clumsy rhetoric batted about like so much candy from a burst pinata…

    …but this is the honor of a nation, our nation. Which is the greater good, which requires greater courage? Pragmatism to avoid the turmoil that would surely follow prosecution? Or upholding the rule of law despite the pain?

    I do not always choose the honorable path (sometime I’ll relate an experience in Nairobi), but this time I feel it would be for the best.

  • http://takeitorleaveit.typepad.com/ Roger Nowosielski

    Glenn,

    But you see, Glenn. I think it has all got to do with fighting less than honorable wars. Don’t you think that much of our armed forced there have no qualms about it? Regardless of any morale boosting and propaganda, they were more or less sensible before they joined; and they’re still are. But being in that situation is bound to turn you and deprave you, hard as you try for it not to happen. After a while, it’s a group mentality; everyone becomes brutalized and desensitized. These thoughts just occur to me as I write.

    A six months or so ago, there was an interesting argument to explain these conditions. It kind of escapes now – had to do whether to blame some of that on few bad apples or (I forgot the alternative). I remember that at the time when I discussed it with my attorney friend in California, it was very interesting from the psychological standpoint. Maybe you’ll remember what I’m talking about and bring it up.

    Anyway, this is my gut reaction on the subject, for now.

    Roger

  • http://ex-conservative.blogspot.com Glenn Contrarian

    Roger –

    I believe you’re pointing out that it really isn’t the foot soldiers’ fault – and I agree. It’s certainly not.

    But in order to build a case against those who led us into a dishonorable war, who ordered torture…it may be necessary to use the force of law and the threat of prosecution in order to get the testimony needed to prosecute those truly responsible.

    But I hope I’m wrong. I really, truly do. If Obama doesn’t prosecute and everything turns out okay in the end, then I’ll happily let it go.

  • http://takeitorleaveit.typepad.com/ Roger Nowosielski

    Glenn,

    I’m not saying it’s not their fault; but they were conditioned to become that way. Cindy’s coming over to offer her expertise as a student of psychology. Look, if Dan White got off on a Twinkie Defense, I’m certain they could to. As to getting the high brass accountable, I don’t think that will happen. They have sufficient resources at their disposal to fend any harm that might come to them. It’s not exactly like the Nuremberg Trial when we dealing with an enemy. That was easy. International tribunal would be the place. But do you realize what might happen? It would split the country in half. Those are my thoughts anyway.

    Roger

  • Cindy D

    It is difficult to determine the odds of a “few bad apples” always turning up together in one place as they seem to do.

    Perhaps, it’s better to look at ways to avoid creating apples that seem to go bad so easily.

  • http://takeitorleaveit.typepad.com/ Roger Nowosielski

    Yes, that was my point. I was referring to dehumanizing conditions these people are subjected to. Do you recall the controversy about it – as to where to lay the blame?

  • Cindy D

    I don’t remember the controversy. I merely have my own ideas. I should probably read about it.

    It only makes sense to me looking at it that a few people who would act like that wouldn’t statistically end up together by chance.

    So, either it’s, someone puts only bad apples together. Or people are capable of turning into bad apples given the right conditions.

  • http://takeitorleaveit.typepad.com/ Roger Nowosielski

    What I’m saying, as it’s coming back to me, that’s how the military tried to justify the abuses: by saying, just a few bad apples. That’s when the whole issue, from psychology’s standpoint, exploded.

  • http://takeitorleaveit.typepad.com/ Roger Nowosielski

    Right!. I’ll try to look it up tomorrow. I’m done for today.

  • http://www.indyboomer46.blogspot.com Baritone

    The “dehumanizing condition” that they faced was war. Just within the span of the last 70 years or so, we can find any number of instances wherein American and Allied troops committed terrible and brutal acts. In those instances, there may be one or more “bad apple,” but once in motion, things like the massacre at My Lai among many others tend to snowball, taking with them most everyone in their path.

    There is something more calculating and certainly less spontaneous about how prisoners were treated at Abu Ghraib and Gitmo, and in particular the various acts of torture including water boarding during interrogations which are a “whole ‘nother smoke.” These were not spontaneous acts of passion born of fear and an adrenaline rush. There is no evidence that there was any dire emergency, no nuclear bomb about to explode, that might carry with it some justification as an extraordinary circumstance.

    That these acts were explicitly ordered by the likes of Cheney and Rumsfeld and not overruled by Bush does in fact render them culpable and likely guilty of war crimes. Those further down the chain of command who ordered and those who carried out those orders are also guilty. No one can hide behind “I was only following orders.” From an ethical and moral perspective, they should all be charged and tried assuming adequate evidence can be gathered and presented to justify such trials.

    That being said, this does present a difficult conundrum for Obama. If his administration actively pushes for investigations and charges against any or all of those people, it could, as noted above result in a wide and potentially very damaging split in the nation, and perhaps set a precedent that could carry on for years to come with each new administration finding ways to throw members of prior administrations into jail. On the domestic front it seems this is something that might best be left alone. It is a grizzly can of worms. One could look back to how gleefully Republicans pursued the impeachment of Bill Clinton, but that spectre has dimmed somewhat with the intervening years, and in the end was not quite the same thing. The gravity of the charges and their possible consequences were far different.

    Internationally, it could be a plus for us to bring charges against the whole lot of them. Whether we do so or not, may or may not affect what could transpire at The Hague. It is certainly possible that charges could be brought against Bush, Cheney, etal, and there could be a trial or trials. It likely goes without saying that none of those charged would ever recognize the legitimacy of such trials. They would all probably have to be tried in absentia. (Can you imagine Bush being grabbed one day while out clearing more of the ubiquitous brush on his Crawford ranch, being wrapped up in a rug or some such, thrown in the trunk of a car and eventually being delivered on the World Court’s doorstep?)

    Were they to be tried and found guilty, the one significant result would be that none of them could travel abroad without the prospect of being arrested and thrown in jail – maybe in the same cell in which Slobodan Milosovitch lived for a time and died.

    Ultimately, I think the problem with any attempt to bring the Bush gang to justice over the torture issue, or invasion of our privacy, or whatever, would have the effect of taking our eyes off the prize. Such an effort would become all consuming in the media and in the Federal government. While it is a travesty to let the bastards off free and clear, currently we, as a nation, have much more urgent and much larger fish to fry.

    Perhaps it’s enough to know that Bush may one day get beyond being in denial and will realize what a miserable president he really was.

    Nah! That’ll never happen. That would mean that he was capable of reflection and self examination. Nevermind.

    B

    Just an afterthought. It’s interesting to me that there are those here and elsewhere who look upon Clinton’s peccadillos as having been more loathsome than Bush and company’s approval of human torture, denial and revocation of many people’s constitutional rights, and (as we are now hearing in far more detail) spying on virtually every American citizen without legal warrant or provocation.

  • Brunelleschi

    Good article, and good discussion.

    Should Obama put justice ahead of “unity?”

    I think he won’t go there. He can’t afford the backlash and has to be practical.

  • http://ruvysroost.blogspot.com Ruvy

    I mentioned this elsewhere:

    “His (Obama’s) upbringing was radically different from that of other children around him. He has far more of an exposure to the world that is NOT America than any American who has preceded him in office.

    And he is smart, articulate and ambitious. I’d like to like the guy, and can easily see why he is so popular outside of the United States.

    If he were not a corrupt Chicago politician who was trained by a subversive ideologue (Sol Olinsky), and who will happily use Jews to screw over Israel, perhaps I could like the guy. But you see, we Israelis are the screwees in his point of view – and he is the screwor. I can’t afford to like the guy, even if I wanted to.”

    So now, in that light, and in the light of what Glenn wrote about, prosecuting for torture, let’s take just a quick look at one the president’s new appointees. In doing so, let’s remember that Barack Obama was once known to the world as Barry Soetoro, a child in an Indonesian school….

    Samson Blinded reports that Obama’s intelligence embraces Iran.

    From the article:

    Dennis Blair, Obama’s choice for the director of US National Intelligence pledged cooperation with Iran “based on mutual interests.” The only common interest between Hussein Obama and Mahmoud Ahmadinejad seems to be the destruction of Israel.

    Blair’s choice underscores falsity of Obama’s concern for human rights. During his tenure in Indonesia, Admiral Blair befriended General Wiranto who commanded Indonesian Army in a series of war crimes against Christian East Timor. Despite clear orders from President Clinton to request Wiranto to dismantle Indonesian militia which perpetrated numerous war crimes, Blair, on the contrary, offered Wiranto US military assistance.

    The Indonesian squads which attacked East Timor perpetrated torture. And America’s intelligence chief once aided and abetted such torture.

    When Obama sewed up the Democratic nomination, I warned you all of his real life foreign policy experience as a senator, telling you that this was a hint of what we should expect from an Obama administration. Let’s go back to my article from the summer Barry Obama Lovews the Jews – NOT! and take a look at Obama really brought to the table that everyone decided to overlook.

    Pam Geller of Atlas Shrugs, posted this at her site at the beginning of this year. Let’s look at some highlights.

    The Evangelical Alliance of Kenya has posted on its website a photograph copy of a Memorandum of Understanding, dated and signed on August 29, 2007, between Raila Odinga and Shiekh Abdullah Abdi, chairman of the National Muslim Leaders Forum of Kenya.

    It pledges the support of Kenyan Moslems for Raila’s election. In return, as President of Kenya, Raila agrees to 14 actions, listed a) through n) on page two. Read them all, and be sure you’re sitting down. Here’s a sample:

    b) Within 6 months re-write the Constitution of Kenya to recognize Sharia as the only true law sanctioned by the Holy Quran for Muslim declared regions.

    c) With immediate effect dismiss the Commissioner of Police who has allowed himself to be used by heathens and Zionists to oppress the Kenyan Muslim community.

    g) Within one year facilitate the establishment of a Sharia court in every Kenyan divisional headquarters. [Note: everywhere in Kenya, not just in “Muslim declared regions.”]

    Raila Odinga has, in his own words, a “close personal friendship” with Barrack Hussein Obama Junior.

    When Obama went to Kenya in August of 2006, he was hosted by Raila and spoke in praise of him at rallies in Nairobi: Obama’s bias for his fellow Luo was so blatant that a Kenya government spokesman denounced Obama during his visit as Raila’s “stooge.”

    Pay careful attention, boys and girls. Stop fooling yourself about any “hope” or any “change”. The same old bastards are back. Torture will still be used under the Obama administration – but against different targets.

  • http://ex-conservative.blogspot.com Glenn Contrarian

    Ruvy –

    On Kenya, that’s politics…and necessary.

    If someone goes on a diplomatic mission to another country, you say nice things about the people there. If you really want, I can dig up any number of examples of American leaders making nice with tyrants and despots like, say, Saddam Hussein or the dictator in Pakistan or Marcos in the Philippines…do I really need to go on?

    That’s POLITICS. And just because somebody is obviously wrong or evil, that doesn’t mean he’s not the best man for the job. Sometimes you need someone like that working for you to make things happen.

    BUT WHEN SUCH ORDERS come from the top – like torture – things change.

  • http://takeitorleaveit.typepad.com/ Roger Nowosielski

    Bruni (#17),

    Very good point. It would split the country in half. Especially after Obama’s victory, it would be close to a political suicide to take this action. Whatever the intention, it would look to too many as a revenge. There must be another way of dealing with the abuses of the past.

    Roger

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Glen,

    Most of us probably agree that “torture” is bad and that a civilized nation should not do it. That is a wholesome and useful emotion. However, it would be far more useful if we had some viable definition of “torture” rather than simply spewing the word as a label. “Evil” is also bad; however a criminal statute simply making “evil” a crime would not tell us what not to do, and would leave far too much discretion in the hands of those who enforce the law.

    When you use the label “torture,” what do you mean? Can you provide something which would enlighten those about to engage in “torture” as well as those seeking to prosecute acts of “torture” criminally?

    Dan(Miller)

  • http://takeitorleaveit.typepad.com/ Roger Nowosielski

    Baritone, #16:

    You’re right. Those actions are not spontaneous. They’re result of conditioning.

  • http://takeitorleaveit.typepad.com/ Roger Nowosielski

    Baritone,

    You might remember the controversy when it first broke out. The military’s response was to say, “just a few bad applies,” but there was a counter-argument I can’t recall now, which it had to do with conditioning. I’d like to post a link to this if I could.

  • http://www.indyboomer46.blogspot.com Baritone

    Roger,

    Yeah, I don’t think the “few bad apples” argument holds any water. (Mixed metaphor?)

    In most of the cases involving abuse and torture at the various detention centers there was apparently tacit if not open and blatant approval by higher ups.

    Dan, (Miller)

    I’m not sure that any of us could come up with a specific and inclusive definition of torture. That is, as you well know a legal question, at least when it comes down to possible litigation.

    What we have been told by many people with more intimate knowledge than any of us have, is that waterboarding and certain other acts taken against detainees do in fact fall within the definition of torture as detailed in the Geneva Conventions to which we are a signatory. (Is that the right form of the word in this context?) What we do know is that we tried, convicted and executed Japanese who practiced waterboarding on US soldiers during WWII.

    Such things are those which will have to be hammered out by the legal eagles if any charges are to be brought forth.

    I do believe that on a very pragmatic level, for the Obama people to do so, could have devastating ramifications – devastating to both the administration, and more importantly, to the nation. While, ethically and morally it may be the right thing to do, it could go a long way toward the destruction of the country as well.

    B

  • http://takeitorleaveit.typepad.com/ Roger Nowosielski

    Baritone,

    I agree with you about not pursuing the matter to the extent Glenn had recommended would be a better strategy. Not only that it would fail to accomplish the desired result. Perhaps even worse consequence would be that a lot of the underlings would have to take the fall. So what would that accomplish aside from making us feel better?

    Roger

  • paulwhoispablo

    Torture is surely one of the most cruel forms of human endeavors, the reasons notwithstanding. It is akin to rape, assault, and other types of degrading criminal acts, and should be dealt with to the full extent of the law. When one conjures up the image of nazis this is one of the first things that comes to mind, as it is indeed so horrendous.

    Also as any person who is knowledgeable about this inhuman form of violence it doesn’t work, as the torturee will tell you anything to stop the pain.

    I for one instead of prison suggest that the ones that were instrumental in allowing our government to do this (Rumsfeldt and Condoleeza Rice) should have to submit to the same sort of torture that they caused to be inflicted on other human beings as punishment for their crimes. I am only being a bit facetious.

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Baritone, you contend that definitions of torture will have to be hammered out by the legal eagles if any charges are to be brought forth. I think I understand your position, but consider for a moment the unfairness of trying soldiers and others for conduct defined only after the fact. The proscription of undefined conduct would be overly broad and give prosecutors substantially unfettered discretion. I don’t think that would be a good thing.

    Dan(Miller)

  • http://ex-conservative.blogspot.com Glenn Contrarian

    Dan –

    I think I pointed out above that prosecuting the foot soldiers is wrong…except to use as a tool (“cooperate or be prosecuted”) to take things up the chain of command to find the one who authorized it to begin with.

    So often the idea of protecting a country’s honor is used to justify evil deeds…but this time is different. We need to restore our nation’s honor before the world – otherwise, our ability to lead the world will be hampered for generations to come. THAT is what I feel justifies everything necessary to prosecute the one who authorized torture.

  • bliffle

    It is a measure of the true vileness of the Bush/Cheney/Rumsfeld cabal that we now have to confront this issue and decide to uphold our principles and our laws at the risk of causing a serious civil rift in the country.

    No doubt we shall choose to excuse the immoral and illegal deeds of those characters, and we shall all be debased as a consequence. Thus, we will have no defense of morality when history descends on us.

    We will be as miserable as the haunted Germans after Hitlers insanity was increasingly revealed, but we will not have the excuse of Not Knowing, of Just Following Orders. We will have consciously decided to join BushCo in infamy.

    We are not innocent.

  • http://ex-conservative.blogspot.com Glenn Contrarian

    To put it another way, how can we support trials in the Hague for war criminals if we knowingly and publicly harbor war criminals ourselves? How can we truly LEAD?

    It would seem to me that ‘conservative values’ would dictate that we uphold the rule of law, the rule of international law, treaties to which we are a primary signatory, and our country’s HONOR…

    …and which is more important – protecting a former president (who may very well be by definition a war criminal)? Or restoring our country’s HONOR for all the world to see?

  • Brunelleschi

    A reality check for a problem like this should be…

    What if a new president was the same party as the old, and this problem of past abuses came up?

    Would we expect the new president to prosecute the previous, even if they were from the same party?

    I will go ahead and say the answer is no, which means this is just about making politics out of a tragedy.

  • http://www.indyboomer46.blogspot.com Baritone

    Dan, (relliM)

    That’s not exactly what I meant. I think it will be a matter for the courts to study the elements of the Geneva Conventions concerning the treatment of POWs and decide if the incidents at Gitmo and Abu Ghraib fall within those parameters.
    Then, the decisions as to who and whether charges are filed must be made.

    While it cannot be expected that the line troops who oversaw prisoners would have intimate knowledge of the Geneva Convention, it certainly should have been clear to those ranked above them what did or did not constitute torture. Cheney, Rumsfeld, etal most certainly knew and chose not just to ignore the Convention strictures, but blatantly go against it.

    Although, I have some memory that even as a raw recruit at Ft. Hood, TX back in 1966 we had at least a class or two regarding the Geneva Conventions.

    At any rate, I wasn’t talking about defining torture after the fact.

    B

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Baritone,

    I too had classes on the Geneva Convention back in 1966, yet I can’t define “torture” as the term often appears to be used. While I might be able to devise a definition with which I would agree, that would hardly serve.

    You say,

    I think it will be a matter for the courts to study the elements of the Geneva Conventions concerning the treatment of POWs and decide if the incidents at Gitmo and Abu Ghraib fall within those parameters.

    Are you suggesting that all of those at Gitmo and Abu Ghraib are POWs, covered by the Geneva Convention? The Convention has been applied, mainly by analogy, but not because it applies by its terms. My understanding (and please correct me if I am wrong) is that POWs are the uniformed forces of a government, and conduct toward them is covered by the Convention if their Government is a signatory.

    And, if the courts were to decide that the incidents at Gitmo and Abu Ghraib, or some of them, constituted “torture,” what then? Wouldn’t the filing of criminal charges against(and trial of) those whose conduct is found, necessarily after the fact, to have constituted “torture” be the very thing you are not suggesting? I wasn’t talking about defining torture after the fact.

    Courts try very hard not to decide matters in the abstract and, in any event, a usable definition of “torture” is more than a legal issue. It is also a political issue.

    My basic point was that in order to talk about “torture” rationally — or to rely upon many of the other labels in common use, we really do need to say what they mean, at least for purposes of the discussion. I don’t think we do that.

    Dan(Miller)

  • http://www.indyboomer46.blogspot.com Baritone

    Dan,

    I don’t really get your point. The point as I see it is whether the Obama administration should consider bringing charges against anyone in the Bush administration on down to those who actually performed the acts in question.

    I don’t think there is much confusion about what constitutes torture. The question is are people guilty of approving, ordering and/or administering torture to detainees.

    The Bushies chose to invoke the notion that most of the detainees did not meet the definition of enemy combatants. That perhaps observes the letter of the Convention, if you will, but obviously side steps the spirit of it. Human beings are human beings.

    B

  • Zedd

    Dan M

    “My understanding (and please correct me if I am wrong) is that POWs are the uniformed forces of a government”

    So if you can’t afford uniforms but your cause is right, you can be tortured at will? If you are a poor militia, you may be abused?

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Zedd,

    I did not write, sign, or approve the Geneva Conventions. Had I written them, they might well have been different. That said, I agree that they can provide some useful guidance in deciding what should, and what should not, amount to “torture.” Laws and regulations based upon those laws and regulations should, I think obviously, be enforced.

    I do find offensive the notion of treating the Conventions as the final word, applicable in criminal prosecutions, even though they were intended and considered to be of far more limited application when the complained of conduct happened.

    What would you think if your State enacted a criminal law, by its terms applicable only to retail merchants doing business in shopping malls, and applied it to your church’s bake sale held in the church parking lot far removed from any shopping mall?

    Dan(Miller)

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Baritone,

    I don’t think there is much confusion about what constitutes torture. Great! Perhaps you could enlighten me, since I am quite confused.

    Please see my response to Zedd in Comment #36 in connection with your comment #34 that

    The Bushies chose to invoke the notion that most of the detainees did not meet the definition of enemy combatants. That perhaps observes the letter of the Convention, if you will, but obviously side steps the spirit of it. Human beings are human beings.

    Spirit is great*; however, a criminal prosecution based on that sort of thing would be unfortunate.

    Dan(Miller)

    In Ron Abuelo Anejo veritas, with apologies to Mark Shannon.

  • http://www.indyboomer46.blogspot.com Baritone

    Actually, after some reading it is my understanding that should there be charges brought through the Obama administration, they would not be based on the Geneva Conventions, but rather on existing US military code. It is fairly explicit.

    Where it gets murky is how the Bushies mixed things up claiming that different agencies – particularly the CIA and, perhaps the NSA were exempt from the constricts of the military code.
    However, it is not clear that is true. Also, even if military personnel were involved in torture at the direction of the CIA or NSA, does that then exempt them from adherence to military code?

    None of these issues should stop investigations. It is through such investigations that legal determinations can be made. It’s highly doubtful that any charges would be filed against anyone unless there was clear legal evidence that those involved had committed a crime. It’s unlikely that the Obama administration would give the go ahead unless the cases were very strong.

    Even then, given the other aspects that have been discussed here – mainly the potential for damage to the administration and the nation, it is doubtful that any charges will be pursued.

    Frankly, to our shame, I doubt that anyone will ever be charged for anything – at least not through the Obama administration. That would leave the World Court which probably doesn’t have the clout to pull it off. Going after deposed dictators is one thing. Pursuing charges against members of a former (or current) US administration is quite another. Perhaps it shouldn’t be that way, but I believe that it is.

    B

    Any World Court trials would be based on the Geneva Conventions.

  • paulwhoispablo

    Baritone

    US Military personelle are exempt from being tried in the World Court, I would have thought you would have known that.

  • bliffle

    Dan(Miller): I don’t understand. Do you have a problem describing waterboarding as torture?

    “I too had classes on the Geneva Convention back in 1966, yet I can’t define “torture” as the term often appears to be used. While I might be able to devise a definition with which I would agree, that would hardly serve.”

  • Cindy D

    Well, smoking crack is much easier to define than torture. I mean, in all fairness, waterboarding, dragging naked people across the floor by a dog leash and collar, covering them with excrement, threatening to electrocute them, etc. Who’s to really say?

    Whereas we know what smoking crack is. It’s a well-known “criminal” behavior mostly engaged in by “illegitimate” people. Often non-white ones.

    We’ve got to do something about the “black problem”. If only they could learn to engage in more white crime…um, I mean white “collar” crime–like defrauding the elderly or maybe torture. Then we would have to say…oh well, we can really define that.

  • http://www.indyboomer46.blogspot.com Baritone

    paul,

    True, but the same does not apply to the likes of GWB, Cheney, Rumsfeld, etc. And it is not clear if members of the CIA or NSA who may have been involved in ordering or carrying out torture and other mis-treatment of prisoners would be exempt.

    Members of the military who were abusing prisoners can certainly be tried in a military tribunal.

    It should also be noted that both military code and the Geneva Conventions layout rules regarding the treatment of prisoners not limited only to torture. The humiliation and degradation of prisoners at Abu Ghraib may not have been torture, but still were not sanctioned by our military code nor the Geneva Convention.

    And there remains the problem that if we don’t seek charges against these people, how can we expect any future enemies to treat our POWs with any less disdain and cruelty?

    And what of rendition?

    Our white hats are stained with shit.

    B

  • paulwhoispablo

    I couldn’t agree with you more Baritone.

  • Mark Eden

    (Paul, looks like you still can’t post as Pablo…if not, sorry for the bum steer. ME)

  • http://www.EurocriticsMagazine.com Christopher Rose

    Here’s a personal first, I am in complete agreement with Baritone’s view, which means paulwhoispablo and I agree. There, wasn’t that easy!

    More seriously, when I saw footage of the US military putting hoods on people’s heads or shackling them to trolleys to move them around distant Guantanamo, I was shocked. Now it seems routine for every country in the world to do that kind of thing, even for relatively minor criminal cases, which is even more disturbing.

    There should certainly be an investigation, but whether actual prosecutions, however desirable in principle, can be successfully brought remains to be seen.

  • http://www.indyboomer46.blogspot.com Baritone

    The worst travesty would be for the low level guards to be charged, tried and convicted and the higher ups to walk away scottfree which is what happens in these type of things more often than not.

    B

  • http://ex-conservative.blogspot.com Glenn Contrarian

    Baritone –

    Frankly, to our shame, I doubt that anyone will ever be charged for anything – at least not through the Obama administration. That would leave the World Court which probably doesn’t have the clout to pull it off. Going after deposed dictators is one thing. Pursuing charges against members of a former (or current) US administration is quite another

    I agree wholeheartedly with everything you said. We have been shamed before the world.

    What’s even worse is that there are many in America who think that Bush et al were completely justified, that what they did was right in every sense, and that the rest of the world has no call for complaint, much less prosecution.

    And I must liken them to those in Japan and Germany who believe that whatever was done by their countries in WWII was completely justified.

    I really, truly did not think I would ever see such…wrongheadedness (I can’t think of a better word) by so many millions of Americans. But I should have known better – after all, England and France were far ahead of us on civil liberties from the late 1700’s through the Civil Rights struggle. Now they’re ahead of us on moral courage.

  • http://www.indyboomer46.blogspot.com Baritone

    Glenn,

    As I see it, noted two very apt points: “wrongheadedness” and our lack of “moral courage.”

    As I recall we made much of how our POWs going back at least to WWII and including the Korean conflict and Vietnam, were being mis-treated. I remember accusations against the North Koreans of “brainwashing” prisoners in their attempt to convert them to communist ideology. Both in Korea and Vietnam it was obvious that prisoners were being harshly treated – beaten and being otherwise tortured along with severe depravations – filthy, rat infested quarters, inadequate food and clothing, sleep depravation, long bouts of solitary confinement among many other heinous acts of cruelty.

    Perhaps our treatment of prisoners from Afghanistan and Iraq has not been as severe as those imprisoned by the Nazis, Japanese, North Koreans, Vietnamese/Vietcong, etc., but that is only a matter of degree and perhaps owing to greater sophistication.

    We all grew up being told that we were the good guys. That we wear the white hats that never get knocked off in a fight. That our white hats don’t even get dusty because we are so solidly and purely in the right. That was somewhat true, I suppose, while we were the top dog, until somebody pushed back. When that happened, all the goody two shoes crap went the way of eight track tapes. All bets were off.

    Now, our white hats have not only been knocked off our pure American heads, we have ourselves trampled them into the ground so that they are no longer distinguishable from the rest of the dirt – all owing to our “wrongheadedness” and lack of “moral courage.”

    B

  • http://ruvysroost.blogspot.com Ruvy

    I don’t wish anyone to think that I feel torture is good. Instead, I want to again call your attention to Mr. Obama’s appointment of Adm. Dennis Blair as America’s intelligence chief.

    Again, from the article at Samson Blinded

    Blair’s choice underscores falsity of Obama’s concern for human rights. During his tenure in Indonesia, Admiral Blair befriended General Wiranto who commanded Indonesian Army in a series of war crimes against Christian East Timor. Despite clear orders from President Clinton to request Wiranto to dismantle Indonesian militia which perpetrated numerous war crimes, Blair, on the contrary, offered Wiranto US military assistance.

    The Indonesian squads which attacked East Timor perpetrated torture. And America’s intelligence chief once aided and abetted such torture.

    So, it’s clear that closing Guantanamo is a cosmetic gesture, and that while public orders will be given to reduce torture by Americans the mentality of backing it is very much in place. Whether it is actually justified by circumstances is a very different question.

    It’s not an issue that America’s “white hat” is stained with shit – it is rather that the hat is not being cleaned and Wite-Out is being applied to hide the stain.

  • http://www.indyboomer46.blogspot.com Baritone

    Ya know Ruv, you have no room to comment on this conversation. It has oft been charged that Israel essentially wrote the book on torture techniques. You all have the same shit on your yarmulkes, but presumably its kosher.

    B

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    The United States has tried soldiers by courts martial for improper behavior toward prisoners; when the evidence against them has been clear “beyond a reasonable doubt,” they have been convicted. In other cases, they have been dealt with administratively, sometimes by reduction in grade or retirement. Off hand, I can’t think of many other countries where this has been done more efficiently.

    Dan(Miller)

  • http://www.indyboomer46.blogspot.com Baritone

    Dan,

    “Off hand, I can’t think of many other countries where this has been done more efficiently.”

    Just curious. How inimate is your knowledge of such things? Is this something you keep tabs on?

    I know that frankly, I don’t have a clue what other nations do or have done in this regard.

    B

  • http://ruvysroost.blogspot.com Ruvy

    Ya know Ruv, you have no room to comment on this conversation.

    I’m not defending Israel’s record, Baritone. I’m not criticizing it either. Our government makes no pretense at shrinking from torture, and the High Court regularly hears appeals on this issue. Occasionally, these cases make it into the news. Nobody here is pulling the wool over our eyes.

    So the point is not what Israel’s government pretends to. The point is that your president is already pulling the wool over your eyes by closing Gitmo and signing documents that effectively wipe away Bush administration policy on torture: his appointments tell a different story. You know, outsourcing torture is just as ‘profitable’ as outsourcing customer service, sales or editing work, and that is what you should expect to see – backed by far better written memoranda ordering it.

  • http://ex-conservative.blogspot.com Glenn Contrarian

    Baritone –

    I’ve got to back up Dan on this one. I give great credence to the American military justice system, and between Dan and myself, we’ve seen it from several sides. He has the deeper understanding of the UCMJ and the military court system, and I think I can safely say I know it better from the enlisted point of view (from both the right and the wrong side, I must add rather sheepishly). There are certainly valid complaints about how our military justice system works as a whole…but for the life of me, I can’t see how it could be improved (except for the ending of “Don’t-ask-don’t-tell”).

    If you really want a great example of how fair our military legal community tries to be, consider the MANY grievances aired by legal officers – prosecution, defense, AND judges – over Gitmo. These were done by courageous and oathbound officers despite the backlash they would surely receive to their respective careers.

    You asked Dan how he kept track of how efficient the military justice systems are in other countries, and I think I can answer that by connecting three facts:

    One – Our military has a low level of corruption. Many will claim otherwise, but compared to the militaries of most of the other nations of the world we’re pretty doggone good.

    Two – The U.S. military has the Uniformed Code of Military Justice – and unlike the laws of the states, these are uniform (just like it says) throughout the military. Having such a clear and uniform code throughout the military prevents confusion and conflict that will ALWAYS be found between differing judicial codes. As a result, legal officers of any service can – and do – perform their duties in the courts-martial of any other service without the aforementioned confusion and conflict.

    Three – Discipline is divided between judicial and non-judicial punishment. More serious crimes – such as drug-dealing, rape, murder, and other felonies – are judicial in nature and are handled at courts-martial. Less serious crimes – AWOL, non-violent disrespect, the occasional fistfight, and non-felony theft – are handled with non-judicial punishment. It’s relatively quick and effective and prevents such low-level stuff from bogging down the overall legal system.

    Considering our low level of corruption, the sheer size of our military, and the unsurpassed scope of our operations and responsibilities, I feel Dan is COMPLETELY justified by saying that we do have the world’s most efficient military justice system.

  • Clavos


    Just curious. How inimate is your knowledge of such things? Is this something you keep tabs on?

    B-tone,

    Dan served in the US Army’s JAG (Judge Advocate General) corps, which is the military’s legal branch, as both an attorney and a judge.

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    Baritone,

    When I said, Off hand, I can’t think of many other countries where this has been done more efficiently, I meant just that. I have seen quite a lot in the press about what the U.S. has done recently, and very little about what other countries have done, to punish offending soldiers.

    I do have a now somewhat faded recollection of what the U.S. Army was doing in (I think) 1969, when I spent about a year in the JAG Government Appellate Division back in the U.S. dealing, from the prosecution side, with appeals of courts martial. There was some pretty gruesome soldier misconduct (gang rape of a 13 year old “Viet Cong nurse,” for example) and the defendants were properly tried and convicted. As I recall, the convictions generally withstood appeal. In some case, the sentences were less severe than I (as a REMF) thought appropriate, but sentences can’t be increased on appeal. The members of the courts martial imposing sentence probably knew a lot more of the situation in Vietnam than I did (I was never there), and my views on the matter probably didn’t take into account a number of factors, including the stress experienced by front line troops.

    Confirming Glen’s confirmation of what I said on another thread, I thought the Supreme Court’s decision, also back in 1969, holding that courts martial could not try soldiers for civilian type offenses committed off post in the U.S. was a bad mistake. That left them to be tried by civilian courts. In many civilian courts, I would not like to have been a Black soldier tried for raping a civilian White woman. I was working on a petition for reconsideration when the decision came from above not to seek reconsideration. Win some, lose some.

    Dan(Miller)

  • http://www.fontcraft.com/rod/ Dave Nalle

    Glenn, I’ve been busy and neglected this article. But your first couple of paragraphs are truly reprehensible. I guess there’s no smear too low for you to throw in when it comes to finding a way to bash Republicans and the Bush administration.

    IMO Cornyn is a hero for standing up to the Democrats over Holder. Holder is a potential fascist, and far and away Obama’s most dangerous appointee. Cornyn is probalby going after him on the wrong issue, but he needs to be blocked at any cost.

    Prosecuting anyone for torture so far after the fact with so little justification will come off as a witch hunt, and will reflect very negatively on the administration. Holder is enough of a fanatic that he might do it, but it’s a bad idea and I doubt Obama would support it.

    Dave

  • bliffle

    This is a pretty lurid claim, so I assume it’s backed up by some convincing evidence:

    “Holder is a potential fascist, …”

    So, what is the evidence?

  • http://www.fontcraft.com/rod/ Dave Nalle

    Try to keep up, Bliffle. Read my previous article which goes into Holder’s record in detail.

    Of course, you probably don’t agree with me on what constitutes a potential fascist, but that’s because you have a selective view of what rights are fundamental and need to be protected.

    Dave

  • paulwhoispablo

    #57 Nalle

    Now that truly is doublespeak and hilarious Dave, if there it one true fascist in the US Senate aside from Orin Hatch it has to be Conryn. hehehehe

  • http://www.fontcraft.com/rod/ Dave Nalle

    I’m sure I’ll regret this, but what makes Cornyn particularly more fascist than all the other little Hitlers in the Senate? Based on his record he’s largely indistinguishable from the rest.

    Dave

  • http://www.morethings.com/log Al Barger

    I’m with Glenn on this – though perhaps under slightly different logic. But I do hope that the Democrats open investigations and especially that Obama’s “Justice Department” pursue prosecutions of bunches of Bush people, and especially of W and Cheney themselves.

    For starters, this would be a HUGE distraction all around from all the other pinko stuff. Keep them busy with hearings and show trials, and that’s that much less time and energy they have to expend doing dumb stuff to screw the country up worse.

    As a bonus, it would absolutely destroy the credibility of the Democrats and especially Obama’s fakery about supposed new politics. They’d burn through their political capital in a heartbeat.

    And if we have another terrorist attack by some jackasses let out of Gitmo while the Commander in Chief is busy prosecuting our guys for questioning them rather than fighting the people who are, you know, trying to KILL US – well, that’d pretty much discredit the Democrat Party for a generation.

    Besides which, there’s not a chance in hell that they’d ever actually convict anyone of anything. But if they did, some good CIA man might regard a year in jail as taking one for the team.

    Prosecutions, SI!