Saturday, May 09, 2009

Torture: Crime versus Punishment

We have our ways
On the ship of State
To win your praise
While pushing fate
For the detainee
That is so unlucky
To be positioned
For Inquisition
And then to drown
While we clown

I can no longer remain silent on the false debate on torture. I have tolerated countless right wing extremists defending the US practice of torture, and now otherwise prudent and moderate people argue that torture can be legitimate under two conditions: If it is legal and if it works. The logic is bizarre more than faulty and we will explore the arguments that are essentially extensions of the logic proffered by the Spanish Inquisition. We have rule of law or we do not. That fact is independent of patriotism.

Let us first consider the issue of the law. The US signed the Geneva Accords and we proclaim that we accepted the international law on torture. Precedent from WW II and even the war in Vietnam also supports the prosecution of torture. Conviction of Japanese soldiers who tortured by using the techniques defended by Yoo and Bybee led to sentences of 15 years hard labor. Those techniques included beating, wall-banging, waterboarding (or the water cure), prolonged exposure to cold, etc. It has not always been a military issue. According to Progress Politics: “In 1983, Texas Sheriff James Parker was charged, along with three of his deputies, for handcuffing prisoners to chairs, placing towels over their faces, and pouring water on the cloth until they gave what the officers considered to be confessions. The sheriff and his deputies were all convicted and sentenced to four years in prison.”

Torture, including waterboarding, is illegal. There is no room for debate on that fact. As for what constitutes torture, beyond waterboarding, the examples abound, but precedent mentions stress positions, nakedness, prolonged interrogation and waking periods, denial of food or water, infliction of pain including emotional pain. Those all sound familiar if you have kept up with the Bybee and Yoo legal advice or the Gitmo reporting. Mostly, it is common sense administration for controlling the treatment of captives who have no other protection from abuse than the laws themselves. Merely naming a practice “enhanced interrogation” that, in fact, uses the already defined techniques of torture does not alter the practice or the offense. Requesting and receiving an attorney’s opinion that attempts to create a loophole in the laws on torture is meaningless if the techniques actually applied are already defined as torture. The crime is in the application of illegal methods, not in the advice whether the advice was sincere or an artifact of a conspiracy to commit torture.

Recently, former Vice President Cheney has offered: 1) that the techniques worked, and 2) that only 3 detainees were waterboarded. Let’s take a look at those claims. If the techniques worked, why was one detainee waterboarded 183 times in one month? It would seem that besides being irrelevant, it is hardly an efficient approach to get accurate and usable information. The techniques were “reverse engineered” from the Communist Chinese methods used during the Korean conflict. We actually set up the SERE Program to orient our own military to the Chinese Communist methods that extracted FALSE confessions from our fighting men and women. The underlying premise was that if we trained our military, that they would be less likely to provide false confessions. The method used by the Chinese Communists worked and false confessions were extracted so that our military were exploited for propaganda by the Chinese Communists. Our complaint then and even now is that the confessions were FALSE, not that they were true. Now Cheney has proclaimed a minor miracle that methods made famous for extracting false information now bring forth the TRUTH. Amazing!

If I waterboard only three detainees or otherwise only torture only three detainees, guess what? I tortured three people with multiple counts of torture on those three? That is parallel to extorting or assaulting or robbing or killing only three people. If torture is applied to only one person and only one time, then the offense has been committed. In terms of committing a crime, it takes only one offense. You don’t need to be a serial killer to be tried for murder. And the issue of patriotism as a motive for depriving a person of his rights under the laws of torture simply fails muster. If I rob a bank and assault a teller because I wanted to pay for an operation for my mother or to give money to the poor, the “motivation” is meaningless except in mitigation after conviction for the crime. If an intent is to be examined for a violation of the law, it is the intent to deprive a person of his or her rights under the applicable laws, not the intent to be patriotic. That may come after the trial and conviction for the violation of the law.

My personal interpretation of the myriad pronouncements by Cheney and others is that the truth is coming into daylight and that Cheney knows that he could serve jail time if he were tried and convicted of promoting methods otherwise defined as torture. He may or may not be evil, but surely, he is not stupid and does not look forward to being called out by our courts or by the international courts to defend his actions regarding torture. This is a basic case of conflict of interest. We have a right of free speech and Cheney is exercising that right, but please consider the source when evaluating the content. Others, including Bybee and Yoo and Rumsfeld and Gonzales have been less garrulous, but they must also be hoping all this will blow away or that people will accept their framing of the arguments and lose sight of the real offenses committed. The nation of Spain may again be in the limelight, but this time on the side of the law and against the Inquisition. The irony is worth noting.

In summary, the techniques of torture are illegal and while I seriously doubt that they work, that issue is irrelevant for all the reasons already cited. If US perpetrators (high and low) are not, in fact, tried by US courts, they may well be tried by foreign courts and, if so, we will have lost the initiative to control our own fate and reputation as a nation of law. Torture at Guantanamo and at Abu Ghraib and other sites has been credited as the greatest recruiting tool for the Taliban and Al Qaeda. We need to demonstrate that we have the courage to do the right thing and to practice what we preach…even if it hurts. Let the Taliban and Al Qaeda recruit on their own and without our help. Otherwise we face the ever increasing numbers of enemy at a time when we should be making it more difficult and less attractive for them to sign on. If these officials were criminals and were also patriotic, may they receive reduced sentences. First, we need to try them in courts of law as happens in other civilized countries.

George Giacoppe
10 May 2009

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