Justice delayed

Visitors to London who find Buckingham Palace passé can sign up for an after-dark guided tour of the haunts of Jack the Ripper, as reported in Newsweek. The Ripper, whoever he was, was never caught, and one hopes it was not because the London police succumbed to the laissez-faire attitude of police in Frederick, Maryland who did not show up for 3 hours after Sears employees called last week to report a shoplifter, who didn't even try to flee but waited patiently to surrender. Finally, the Sears employees sent him home.

The Decider of Crawford is also about to be sent home, and the question arises (for some, anyway), as to what to do about his Administration's flagrant disregard of the law. I was aghast at Nixon's misdeeds 35 years ago, but if Nixon could be brought back from the dead, I suspect that even he would wonder what country he had landed in. As New York attorney Scott Horton crisply summarizes in the December issue of Harper's (online access by subscription only):

This administration did more than commit crimes. It waged war against the law itself....it also introduced a sweeping surveillance program that was so clearly illegal that virtually the entire senior echelon of the Justice Department threatened to (but did not in fact) tender their resignations over it....And through it all, as if to underscore its contempt for any authority but its own, the administration issued more than a hundred carefully crafted “signing statements” that raised pervasive doubt about whether the president would even accede to bills that he himself had signed into law.

No prior administration has been so systematically or so brazenly lawless....in weighing the enormity of the administration’s transgressions against the realistic prospect of justice, it is possible to determine not only the crime that calls most clearly for prosecution but also the crime that is most likely to be successfully prosecuted. In both cases, that crime is torture.

There can be no doubt that torture is illegal. There is no wartime exception for torture, nor is there an exception for prisoners or “enemy combatants,” nor is there an exception for “enhanced” methods. The authors of the Constitution forbade “cruel and unusual punishment,” the details of that prohibition were made explicit in the Geneva Conventions (“No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever”), and that definition has in turn become subject to U.S. enforcement through the Uniform Code of Military Justice, the U.S. Criminal Code, and several acts of Congress.

Nor can there be any doubt that this administration conspired to commit torture: Waterboarding. Hypothermia. Psychotropic drugs. Sexual humiliation. Secretly transporting prisoners to other countries that use even more brutal techniques. The administration has carefully documented these actions and, in many cases, proudly proclaimed them. The written guidelines for interrogations at Guantánamo Bay, for instance, describe several techniques for degrading and physically debilitating prisoners, including the “forceful removal of detainees’ clothing” and the use of “stress positions.” And in a 2006 radio interview, Dick Cheney said simply that the use of waterboarding to obtain intelligence was a “no-brainer.”

It's interesting that, as the article reminds us, a U.S. Army Captain was court-martialed for using waterboarding on Filipinos in 1902, and waterboarding was among the war crimes for which the death penalty was sought in prosecuting Japanese war criminals after World War II. Washington and Lincoln expressly forbade inhumane treatment of enemy prisoners in their respective wars, but then, they were never inspired by the work of Jack Bauer.

We can't have our cake and eat it too. To pursue terrorists and tyrants because they are inhumanly cruel and then resort, ourselves, to cruel methods discredited 100 years ago to make sure the cruelty is fully cleansed is a no-brainer, all right, though not the way the Vice-President meant it. Aside from the monumental stupidity of such a policy, we lose our moral distinction.

Not to mention the practical question of how much useful intelligence such methods actually yield. Mark Bowden's hard-headed look at torture ("The Dark Art of Coercion" in the October, 2003 Atlantic) examines many aspects of the issue; Bowden is actually willing to countenance some uses of what he calls "Torture Lite," but he also tellingly quotes Bill Cowan, a retired Marine lieutenant colonel who conducted interrogations in Vietnam:

I don't see the proof in the pudding. If you had a top leader like Mohammed [notorious terrorist Khalid Sheikh Mohammed] talking, someone who could presumably lay out the whole organization for you, I think we'd be seeing sweeping arrests in several different countries at the same time. Instead what we see is an arrest here, then a few months later an arrest there.

Montaigne, who lived through an especially brutal period in French history that saw religious wars, the St. Bartholomew's Day Massacre, and the assassination of a French King, wrote this about torture:

The putting men to the rack is a dangerous invention, and seems to be rather a trial of patience than of truth. Both he who has the fortitude to endure it conceals the truth, and he who has not....when all is done, 'tis, in plain truth, a trial full of uncertainty and danger what would not a man say, what would not a man do, to avoid so intolerable torments?

But to return to Horton's question in Harper's, what should be done about Bush, Rumsfeld, and Cheney? I wonder, after viewing Errol Morris's film Standard Operating Procedure, about Abu Ghraib, whether we shouldn't require the three stalwarts, along with Alberto Gonzalez and John Yoo, to endure for a weekend what was done for months at Abu Ghraib—not as cruel and unusual punishment, of course, but only as an exercise in fact finding. Perhaps, like boys inured to the sadism said to be practiced in upper-class British schools, they will emerge unrepentant, and that, in itself, would comprise as much truth as is likely to be discovered by any "Truth Commission," no matter how well managed.

© Michael Huggins, 2008. All rights reserved.