My father has developed the endearing(?) habit of labeling things “Commie Pinko” if he doesn’t agree with them. As in, “That commie pinko rag the New York Times“. Mom and I have both reminded him that he really need to come up with something a little more timely than “commie” but whatever, it makes him happy.
He still likes the Wall Street Journal, although today’s edition might have gotten him mumbling a bit. You need to be a subscriber to get access to their website but here’s a reprint (hopefully a legit one): Pentagon Report Set Framework For Use of Torture.
It looks to me that the lawyers who wrote this document took a conclusion and found whatever they could to try and justify it, without looking at whether their baseline assumptions were in fact correct. And their conclusions are worthy of Orwell, or maybe even Kafka.
For example:
Foremost, the lawyers rely on the “commander-in-chief authority,” concluding that “without a clear statement otherwise, criminal statutes are not read as infringing on the president’s ultimate authority” to wage war.
Now, I am not a lawyer, but if I read that right, it seems to say that unless something is explicitly illegal, the President can do it or order it to be done. That makes me a little nervous but whether that’s the actual intent of the Constitution is something I’ll leave to people who actually went to law school. Let’s just say the point is arguable and move on.
And we come to the heart of the matter. Torture is illegal under both US law and international law that the US has signed onto, most notably the UN’s Convention Against Torture. Ratified by the US in 1994, the Convention Against Torture states that
“no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture,” and that orders from superiors “may not be invoked as a justification of torture.”
Pretty straightforward, you’d think. But for 100 pages, the Bush administration lawyers tried to find their way around it, and of course came to the conclusion that despite the fact that torture is flat-out illegal there was a way out.
1) Torture should be redefined so that the US can do more to prisoners without actually having to call it torture:
“The infliction of pain or suffering per se, whether it is physical or mental, is insufficient to amount to torture,” the report advises. Such suffering must be “severe,” the lawyers advise, and they rely on a dictionary definition to suggest it “must be of such a high level of intensity that the pain is difficult for the subject to endure.”
2) Even if it is actual torture, it’s OK to do it if the President says so. See above, plus
Likewise, the lawyers found that “constitutional principles” make it impossible to “punish officials for aiding the president in exercising his exclusive constitutional authorities” and neither Congress nor the courts could “require or implement the prosecution of such an individual.”
My father would probably say, “You’re damn right it’s OK!”. Just because you really, really want to do something doesn’t mean it’s the right thing to do. Put the shoe on the other foot. Is it OK if Croatia adopts the same policy? What about Iran or North Korea? If we expect our people to be treated well, if we expect America to maintain respect in the world community, we have to follow the same set of rules we expect of others.
Now some might say that terrorists don’t follow rules, so why should we? To which I say, we need to, because otherwise we lose the right to say we’re any better than them. Just look at the quagmire of Israeli-Palestinian relations. Any time Israel has given in to its worse instincts, it gets creamed in the court of world opinion. The Bush administration has already started down that path. Of course, some might suggest that the administration doesn’t care, because they can’t envision a situation where they themselves will ever personally be at risk. I just wish I had a better way to say how wrong they are.
There’s an excellent analysis of the legal issues here over at Intel Dump. Whiskey Bar also has a good take on the subject.