The Torture debate: I think we should explore it more in here

[TayTay]

However, given that I am such a geeky little thing who likes to cite research and hard links to the source material, I also wonder if we should lay out the terms here. What are the Nuremberg Principles? What is the jurisdiction of the Senate Foreign Relations Committee as pertains to the international rules of warfare and what constitutes war crimes and so forth?

I think we run the risk of talking around these subjects unless we give at least thumbnail sketches of what we are talking about. I don't think there is a person on this board who is not concerned about this topic and has ideas about what should happen next. But I also think we should do one of the things we do best in here and do our research. That way we are not talking past each other and making statements without citing at least something as to why we think that way. (I'm not asking for a doctoral thesis here. But a statement that says that the Geneva Conventions state this and then a link to the Convention being cited would be nice. I mean really, it's not like we can't do elementary google searches and find simple links to things.)

Does this sound reasonable?

BTW, in case anyone was looking and got tired of waiting for me to post (cuz, geez, I do get called away now and then to attend to other things, like job hunting) here is a great resource on the Geneva Conventions, written to provide background for journalists: http://www.genevaconventions.org/

[TayTay]

1. Jurisdiction of the Senate Foreign Relations Committee

From the http://foreign.senate.gov/jurisdiction.html">Committee Website:

Jurisdiction refers to the subject matter and issues that the Committee looks into for the US Senate.

JURISDICTION OF THE COMMITTEE ON FOREIGN RELATIONS

(Excerpted from Rules of the Committee)

Rule 1 — Jurisdiction

(a) Substantive. — In accordance with Senate Rule XXV.1(j)(1), the jurisdiction of the Committee shall extend to all proposed legislation, messages, petitions, memorials, and other matters relating to the following subjects:

1. Acquisition of land and buildings for embassies and legations in foreign countries.

2. Boundaries of the United States.

3. Diplomatic service.

4. Foreign economic, military, technical, and humanitarian assistance.

5. Foreign loans.

6. International activities of the American National Red Cross and the International Committee of the Red Cross.

7. International aspects of nuclear energy, including nuclear transfer policy.

8. International conferences and congresses.

9. International law as it relates to foreign policy.

10. International Monetary Fund and other international organizations established primarily for international monetary purposes (except that, at the request of the Committee on Banking, Housing, and Urban Affairs, any proposed legislation relating to such subjects reported by the Committee on Foreign Relations shall be referred to the Committee on Banking, Housing, and Urban Affairs).

11. Intervention abroad and declarations of war.

12. Measures to foster commercial intercourse with foreign nations and to safeguard American business interests abroad.

13. National security and international aspects of trusteeships of the United States.

14. Ocean and international environmental and scientific affairs as they relate to foreign policy.

15. Protection of United States citizens abroad and expatriation.

16. Relations of the United States with foreign nations generally.

17. Treaties and executive agreements, except reciprocal trade agreements.

18. United Nations and its affiliated organizations.

19. World Bank group, the regional development banks, and other international organizations established primarily for development assistance purposes.

The Committee is also mandated by Senate Rule XXV.1(j)(2) to study and review, on a comprehensive basis, matters relating to the national security policy, foreign policy, and international economic policy as it relates to foreign policy of the United States, and matters relating to food, hunger, and nutrition in foreign countries, and report thereon from time to time.

(b) Oversight. — The Committee also has a responsibility under Senate Rule XXVI.8, which provides that “. . . each standing Committee . . . shall review and study, on a continuing basis, the application, administration, and execution of those laws or parts of laws, the subject matter of which is within the jurisdiction of the Committee.”

(c) “Advice and Consent” Clauses. — The Committee has a special responsibility to assist the Senate in its constitutional function of providing ``advice and consent'' to all treaties entered into by the United States and all nominations to the principal executive branch positions in the field of foreign policy and diplomacy.

Ah, I would say there is definite jurisdiction here on loads of things having to do with the subject of abuse of power in the conduct of war or foreign interventions.

I looked up the subcommittee structure and this sub-committee has specific jurisdiction on this:

Subcommittee on International Operations and Organizations,
Human Rights, Democracy and Global Women's Issues

Barbara Boxer, Chairman
Russell D Feingold
Robert Menendez
Edward E. Kaufman
Jeanne Shaheen
Kirsten E. Gillibrand

Roger F. Wicker, Ranking Member
Jim DeMint
John Barrasso
Republican Leader Designee

Chairman and Ranking Member are ex-officio members of all SFRC subcommittees.

[TayTay]

2. What are the Nuremberg Principles? Are they law or guidance to law?

The http://en.wikipedia.org/wiki/Nuremberg_Principles">Nuremberg Principles are guidance developed as a framework for prosecuting accused war criminals after World War II. They do not have the force of law, they are guiding principles that inform the background of the law.

The Principles

Principle I
Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment.

Principle II
The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.

Principle III
The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible government official does not relieve him from responsibility under international law.

Principle IV
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

Principle V
Any person charged with a crime under international law has the right to a fair trial on the facts and law.

Principle VI
The crimes hereinafter set out are punishable as crimes under international law:

(a) Crimes against peace:

(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).

(b) War Crimes:
Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation of slave labor or for any other purpose of the civilian population of or in occupied territory; murder or ill-treatment of prisoners of war or persons on the Seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.

(c) Crimes against humanity:
Murder, extermination, enslavement, deportation and other inhumane acts done against any civilian population, or persecutions on political, racial, or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.

Principle VII
Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.

There is an excellent discussion of the power and lack of power of these Principles and how that has been both used and ignored in the past 60 years. http://en.wikipedia.org/wiki/Nuremberg_Principles

[beachmom]

3. Well, Article 3 of the Geneva Conventions is what is relevant here.

It deals with prisoners of war. I have to admit I need help on this. I cited it on a post on dkos but did not interpret it correctly. In that case, I was trying to refute the argument that since al Qaeda is evil and does not follow the Geneva Conventions, then therefore we do not need to honor it either. This is just the first section (sorry for the length, but I think it is what we need to really internalize):

Preamble

The undersigned Plenipotentiaries of the Governments represented at the Diplomatic Conference held at Geneva from April 21 to August 12, 1949, for the purpose of revising the Convention concluded at Geneva on July 27, 1929, relative to the Treatment of Prisoners of War, have agreed as follows:

Part I. General Provisions

Art. 1. The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.

Art. 2. In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular, humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

Art. 4. A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:< (a) that of being commanded by a person responsible for his subordinates; (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.[br />
(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

B. The following shall likewise be treated as prisoners of war under the present Convention: (1) Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.

(2) The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.

C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.

Art. 5. The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

Art. 6. In addition to the agreements expressly provided for in Articles 10, 23, 28, 33, 60, 65, 66, 67, 72, 73, 75, 109, 110, 118, 119, 122 and 132, the High Contracting Parties may conclude other special agreements for all matters concerning which they may deem it suitable to make separate provision. No special agreement shall adversely affect the situation of prisoners of war, as defined by the present Convention, nor restrict the rights which it confers upon them.

Prisoners of war shall continue to have the benefit of such agreements as long as the Convention is applicable to them, except where express provisions to the contrary are contained in the aforesaid or in subsequent agreements, or where more favourable measures have been taken with regard to them by one or other of the Parties to the conflict.

Art. 7. Prisoners of war may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention, and by the special agreements referred to in the foregoing Article, if such there be.

Art. 8. The present Convention shall be applied with the cooperation and under the scrutiny of the Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict. For this purpose, the Protecting Powers may appoint, apart from their diplomatic or consular staff, delegates from amongst their own nationals or the nationals of other neutral Powers. The said delegates shall be subject to the approval of the Power with which they are to carry out their duties.

The Parties to the conflict shall facilitate to the greatest extent possible the task of the representatives or delegates of the Protecting Powers.

The representatives or delegates of the Protecting Powers shall not in any case exceed their mission under the present Convention. They shall, in particular, take account of the imperative necessities of security of the State wherein they carry out their duties.

Art. 9. The provisions of the present Convention constitute no obstacle to the humanitarian activities which the International Committee of the Red Cross or any other impartial humanitarian organization may, subject to the consent of the Parties to the conflict concerned, undertake for the protection of prisoners of war and for their relief.

Art. 10. The High Contracting Parties may at any time agree to entrust to an organization which offers all guarantees of impartiality and efficacy the duties incumbent on the Protecting Powers by virtue of the present Convention.

When prisoners of war do not benefit or cease to benefit, no matter for what reason, by the activities of a Protecting Power or of an organization provided for in the first paragraph above, the Detaining Power shall request a neutral State, or such an organization, to undertake the functions performed under the present Convention by a Protecting Power designated by the Parties to a conflict.

If protection cannot be arranged accordingly, the Detaining Power shall request or shall accept, subject to the provisions of this Article, the offer of the services of a humanitarian organization, such as the International Committee of the Red Cross to assume the humanitarian functions performed by Protecting Powers under the present Convention.

Any neutral Power or any organization invited by the Power concerned or offering itself for these purposes, shall be required to act with a sense of responsibility towards the Party to the conflict on which persons protected by the present Convention depend, and shall be required to furnish sufficient assurances that it is in a position to undertake the appropriate functions and to discharge them impartially.

No derogation from the preceding provisions shall be made by special agreements between Powers one of which is restricted, even temporarily, in its freedom to negotiate with the other Power or its allies by reason of military events, more particularly where the whole, or a substantial part, of the territory of the said Power is occupied.

Whenever in the present Convention mention is made of a Protecting Power, such mention applies to substitute organizations in the sense of the present Article.

Art. 11. In cases where they deem it advisable in the interest of protected persons, particularly in cases of disagreement between the Parties to the conflict as to the application or interpretation of the provisions of the present Convention, the Protecting Powers shall lend their good offices with a view to settling the disagreement.

For this purpose, each of the Protecting Powers may, either at the invitation of one Party or on its own initiative, propose to the Parties to the conflict a meeting of their representatives, and in particular of the authorities responsible for prisoners of war, possibly on neutral territory suitably chosen. The Parties to the conflict shall be bound to give effect to the proposals made to them for this purpose. The Protecting Powers may, if necessary, propose for approval by the Parties to the conflict a person belonging to a neutral Power, or delegated by the International Committee of the Red Cross, who shall be invited to take part in such a meeting.

Also, I am very interested in what Mass brought up: that Kerry in 1971 (who was not a politician as of yet but an activist) said war crimes were committed but that he did not feel those soldiers should be punished. That literally means he does not agree with the Nuremburg Principle, which when I think of it, is stunning. Here is a guy who was called a traitor and a Communist, who was smeared in every possible way to this day, was actually not terribly principled as to the how the Geneva Conventions came into being. In short, he compromised big time here. Really, if soldiers commit war crimes, they should be investigated and when necessary charged with a crime.

Anyway, if anyone has writings and such by Kerry during this time (especially something else other than his '71 SFRC testimony), that would be great to look at and interpret.

[TayTay]

11. I would disagree here.

I still don't think anything was gained by prosecuting Lynndie England. I don't. She was a kid from West Virginia who carried out her orders. She was 19. I don't honestly think that she, in her mind, thought she could do otherwise. I honestly don't.

Also, I am very interested in what Mass brought up: that Kerry in 1971 (who was not a politician as of yet but an activist) said war crimes were committed but that he did not feel those soldiers should be punished. That literally means he does not agree with the Nuremburg Principle, which when I think of it, is stunning. Here is a guy who was called a traitor and a Communist, who was smeared in every possible way to this day, was actually not terribly principled as to the how the Geneva Conventions came into being. In short, he compromised big time here. Really, if soldiers commit war crimes, they should be investigated and when necessary charged with a crime.

John Kerry, in subsequent interviews on the Dick Cavett Show and elsewhere, implicated his behavior as complicit in what he would term war crimes. Would you prosecute him? What would this have done? Would his protests, during service and while assigned on the boats in Vietnam have made any difference?

Yes, there is an absolute on the theory of the Nuremberg Principles and the law of the Geneva Conventions. What does this mean? How do you carry this out in terms of actual combat?

These are serious questions. On the one hand you are balancing actions taking in the theater of war itself. On the other hand, talking about actions taken by people safe from combat and behind desks at the White House and the Pentagon. Does this make a difference in the actual circumstances and determining the nature of guilt here?

[MarjorieG]

15. Distinction elsewhere about claiming ignorance of the law and having those lawyers giving illegal

orders say they must follow through. CIA and Military were constantly questioning upstairs to no avail.

These thuggish tactics went against what was understood as effective interrogation, relationship building, to get good intel.

Guess they wanted the link between Iraq-Al Qaeda any way possible. The expert on Rachel tonight called the administration acting like the 24 show, without any experience of interrogation. Guess ignorance will be the top level's argument. That, and War on Terra. Despite program, inquiries initiated 12/01.

[beachmom]

16. I think SCAPEGOATING Lynndie England was wrong.

But that does not take away from the fact that what she did was wrong. The problem is it should have been Donald Rumsfeld and Dick Cheney who were prosecuted for Abu Ghraib at the beginning. There should have been SOME consequences for the West Virginia crew, shouldn't there have been? Are you suggesting that they get away with what they did forever and always?

This is very, very difficult stuff here. Because my husband is German, this is not as abstract for me. Read this opinion piece about the 86 year old Nazi from Ohio and whether justice has an expiration date:

http://www.daytondailynews.com/news/dayton-news/mccarty-should-demjanjuk-be-spared-for-age-health-92021.html

Now this guy was a camp guard, and I want to be clear that genocide is the gravest of war crimes that can ever be committed. But I wonder if we could imagine that there were charges for a German or Japanese who waterboarded, and we finally found them. Can you imagine what that would mean to our current debate?

I really want to get a torture advocate on record as to how they feel about German and Japanese soldiers being put to death for waterboarding, when they were "just following orders". In fact, I would like to ask John Kerry how he feels about the Nuremburg Principle since he does not feel it applies to the CIA here.

[Mass]

21. Dropping out of this particular conversation. Do you actually think every German

involved in a war crime during the war was sued and condemned? Get real. Learn about European history a little bit. The Nuremberg trial MOSTLY applied to decision makers (sure, they were all taking orders from Hitler, but they designed the policies, for the most of them).

England was judged because the civilian governement wanted to keep the idea that no orders were given at a high level.

[beachmom]

24. Just because you disagree with me does not give you the right

to call me ignorant when you act like I haven't read a book on the subject. I have read countless books on European history, and I am getting real. I think this should be a civil conversation where everyone can state their opinion without being personally attacked.

[karynnj]

22. I would love to hear Kerry's response to that - because he was one of the

stronger voices calling it torture and saying it was wrong. Is it that it would make it hard to get and retain CIA officials?

"I really want to get a torture advocate on record as to how they feel about German and Japanese soldiers being put to death for waterboarding, when they were "just following orders". In fact, I would like to ask John Kerry how he feels about the Nuremburg Principle since he does not feel it applies to the CIA here."

For the torture advocate, this would be a wonderful question for Dick Cheney.

[karynnj]

20. I completely disagree on Kerry in 1971

I never heard Kerry disagreeing with the trials of people like LT Calley - who when released from prison was honored in GA by the then Governor, Jimmy Carter, with Lt Calley Day.

Kerry went beyond condemning the actions of Lt Calley, arguing that even people who never went beyond what they were told to do had violated the Geneva Convention, including himself. That public confession from someone who wanted to run for public office could not have been easy and was clearly done to argue for this never happening in the future. He spoke of the fact that the ammo they used was not permitted, but it was the ammo provided. It sounded like he had not known that until after he returned, but had he known it, what were the real choices that he and all other men in similar situations had? He spoke of free fire zones being illegal, but many soldiers could well have thought that a no man's land was the norm.

I don't know about Mass, but in my case, I was referring to Kerry's 71 SFRC testimony, which doesn't say anything about trying soldiers one way or the other, but it placed the blame squarely on the people in charge who gave those commands. Not that he claimed they were blameless. The line saying that he wished a merciful God could erase the memories told the cost many people, including himself, paid for serving in that war.

What comes through is a passionate insistence that the Geneva Conventions be the policy of the country. That those rules guide what people are told to do. You are actually saying that he should have done more than the right has accused him of doing - which was to push for a significant portion of the millions of people who fought in Vietnam to be tried as possible war criminals. Can you site any Senator, Congressman, religious leader etc who called for the massive number of trials of people who did any of the things Kerry listed in the Dick Cavett interviews?

I remember in 1970, at the time of My Lai being in the news, endless late night college discussions on the morality of war itself, whether it was even moral to go to war, and the Nuremberg judgments. What I don't remember is ANY official or statesman arguing for war crimes trials for anyone other than people who committed atrocities that went outside the rules they had. Thomas Dodd, one of the people who worked on the Nuremberg decisions was in the Senate then and he was supportive of LBJ on Vietnam. Father Drinan, a Jesuit priest, sponsored legislation to impeach Nixon over Vietnam, but I can't find anything where he argued that troops, following the rules, be tried.

Not only that, a call to hold all the soldiers accountable would have completely hurt Kerry's call for the country to help the veterans who needed it and would likely have eclipsed his call to end the war.

[beachmom]

25. Actually, that is what I am wondering.

I wish we had more transcripts and writings of what Kerry said back then, in addition to the 1971 testimony, because I am wondering what his thinking was precisely during that time.

[Mass]

27. This is what I was referring to as well, karyn

[ProSense]

4. If any one wants to read a piece destroying the "good faith" argument, here:

"This bad faith analysis runs through the latest batch of torture memos."

[YvonneCa]

5. This is a lot like homework...

...:7 So, I started out reading the Constitution online here: http://www.law.cornell.edu/constitution/constitution.amendmentxi.html because I believe the torture issue goes beyond the Geneva Conventions...or even the jurisdiction of SFRC.


Then I came across this post by Tom Ricks: http://ricks.foreignpolicy.com/posts/2009/03/16/torture ...and I agree with him completely. Torture is against all we are as a country. How can we have any kind of foreign policy...let alone be a leader of importance...if this is allowed to remain as a defining moment in our history?

This link is to Amnesty International, and it has a lot of good information and references: http://www.amnestyusa.org/war-on-terror/reports-statements-and-issue-briefs/torture-and-the-law/page.do?id=1107981 It refers to the Eighth Amendment of the Constitution.


Having said all that, here's my 'opinion' about the torture issue going forward:

I think our country 'over-steered', like during a car accident, after 9/11. Bush/Cheney were driving. They ordered things done...maybe in a good-faith effort to protect the country...that were wrong and against the values of this country. One result was what we now call 'enhanced interrogation'...or torture. Setting such a policy led to a host of bad behavior...from interrogations that probably exceeded guidelines, to approved torture techniques, to expansion of techniques to Abu Ghraib and other places, to covering up the decision, to Cheney going on TV to argue for torture. The damage to the US and our foreign policy has been great, hopefully not irreparable.

There are several 'groups' that could be held to account. CIA or anyone else (contractors?) who did the actual acts, middle men who knew what was happening and either supported it or stayed silent, those who argued FOR the policy in the administration, all the way up to Bush and Cheney. I am of the opinion...and I'm not a lawyer :7...that all could legally be held accountable. I understand the argument to do so and do not think 'I was just following orders' is ever an excuse.

That said, I want the Bush Administration...Bush, Cheney, Rumsfeld, Gonzales, Feith, etc...to be the ones held responsible. I think Obama is right...his administration needs to look forward. But Congress should do it's job...hold the hearings, do the investigative work, make the story public so that lessons are learned, and decide who made the mistakes and hold them accountable somehow. THAT, IMO, will be the tricky part. It has to be done in a way that helps re-unify the country...not in a way that tears it apart.

[beachmom]

17. I wanted to address one thing you said (and you said it all well):

I think our country 'over-steered', like during a car accident, after 9/11. Bush/Cheney were driving. They ordered things done...maybe in a good-faith effort to protect the country...that were wrong and against the values of this country.

Here's the thing. The first torture memo was written in 2002, and that fits in with your "over-steering" analogy. BUT, the other 2 memos were written in 2005 after the election. I think that by then, cooler heads most certainly should have prevailed, yet they did not.

Now I am not sure if people here read Andrew Sullivan, but he has constructed a compelling theory of how once you start torturing, in order to justify the first time you tortured, you have to keep doing so again and again. I think that is what happened. I think our country was run by a bunch of thugs, frankly.

[YvonneCa]

30. Thank you, beachmom. On my good, more positive,...

...days, I try to give GWB and company the benefit of the doubt. This is probably because some in my family really believe in the guy...for some reason. But, on most days, I think you are right. It seems we have more than enough evidence, from multiple sources, about what was done. I don't read Sullivan much (except when you post things :) ) but since all this happened I have read every book I could find to try to understand what happened (from Woodward, to Suskind, to Gore, to McClellan, to Krugman, to Ricks, to even Lincoln Chaffey).

The case is very strong that the motivation was not a patriotic one and that you are absolutely right.

[YvonneCa]

6. Here's a link. Senate Armed Services...

...report. http://armed-services.senate.gov/Publications/EXEC%20SUMMARY-CONCLUSIONS_For%20Release_12%20December%202008.pdf


How sad this is for our country.

[TayTay]

7. The revelations of this week might mean treason was committed

Treason. I can't believe I am seriously typing that word and applying it to the Administration of a US President. I am not thinking in hyperbole and I am horrified at the revelations that came out regarding the Bush Administration and the use of torture.

It is alleged, by a committee of the US Senate no less, that the Bush Administration tortured people before they had their fake justifications in place. They tortured people in order to get them to provide false information that could be used to justify our war in Iraq. (Last count on icasualties.org states that 4275 Americans have died in Iraq, as of 4/22/09.)

That is treason. No joke. No hyperbole. The prior Administration sent our troops into combat under blatantly false pretenses that the Administration itself worked to bring about.

Treason. Oh my God, what a horrible and sad day for America. We HAVE to have a reckoning. There is no going back from this.

[YvonneCa]

8. This is what...

...I believe: "The prior Administration sent our troops into combat under blatantly false pretenses that the Administration itself worked to bring about." I continue to hope I am wrong...that they DID just 'over-steer' after the trauma of 9/11.

This is a sad day.

[TayTay]

10. It is horrific.

And I feel so awful. This was done in our name.

And I feel awful because John Kerry lost in 2004 and he was betrayed by people like Jane Harmon and I think he might have made a difference on this and God, everything just snowballs into more awful things.

This is a terrible day. Yet, we must have a reckoning.

[YvonneCa]

13. I KNOW he would have made a difference...

...on this and so many other things we now face. Tay, you often ask why we are here...THIS is why. It's not just a little political squabble. This is about the kind of country we want to live in going forward. It's about standing up for that.

I hope we will have a reckoning...sad as it is...it will make us stronger.

[beachmom]

18. And yet "The Village" in our media is still contemplating

whether this is politically good for President Obama. I mean WTF? I really couldn't give a damn whether it is good for him or not. Really evil stuff went down, I would say through 2006. There really was some moderation following the "thumpin'" in '06 as well as some Supreme Court decisions. THAT election actually did have consequences. What also is stunning is that Condi Rice is directly implicated as the first administration official to okay waterboarding. Yet it was her guy who dissented from the 2005 torture memo. What does that all mean?

[YvonneCa]

9. Levin at Huffpo...

...http://www.huffingtonpost.com/sen-carl-levin/new-report-bush-officials_b_189823.html

[TayTay]

12. More homework. (Well, I never said reading this group would be easy.)

Just food for thought. Hannah Arendt was a famous philosopher and writer who covered the trial in Israel of Adolph Eichmann for war crimes. It is interesting to read her thoughts on how evil works and the moral responsibility for it:

Eichmann and the 'Banality of Evil'

Published in the same year as On Revolution, Arendt's book about the Eichmann trial presents both a continuity with her previous works, but also a change in emphasis that would continue to the end of her life. This work marks a shift in her concerns from the nature of political action, to a concern with the faculties that underpin it - the interrelated activities of thinking and judging.

She controversially uses the phrase 'the banality of evil' to characterize Eichmann's actions as a member of the Nazi regime, in particular his role as chief architect and executioner of Hitler's genocidal 'final solution' (Endlosung) for the 'Jewish problem'. Her characterization of these actions, so obscene in their nature and consequences, as 'banal' is not meant to position them as workaday. Rather it is meant to contest the prevalent depictions of the Nazi's inexplicable atrocities as having emanated from a malevolent will to do evil, a delight in murder. As far as Arendt could discern, Eichmann came to his willing involvement with the program of genocide through a failure or absence of the faculties of sound thinking and judgement. From Eichmann's trial in Jerusalem (where he had been brought after Israeli agents found him in hiding in Argentina), Arendt concluded that far from exhibiting a malevolent hatred of Jews which could have accounted psychologically for his participation in the Holocaust, Eichmann was an utterly innocuous individual. He operated unthinkingly, following orders, efficiently carrying them out, with no consideration of their effects upon those he targeted. The human dimension of these activities were not entertained, so the extermination of the Jews became indistinguishable from any other bureaucratically assigned and discharged responsibility for Eichmann and his cohorts.

Arendt concluded that Eichmann was constitutively incapable of exercising the kind of judgement that would have made his victims' suffering real or apparent for him. It was not the presence of hatred that enabled Eichmann to perpetrate the genocide, but the absence of the imaginative capacities that would have made the human and moral dimensions of his activities tangible for him. Eichmann failed to exercise his capacity of thinking, of having an internal dialogue with himself, which would have permitted self-awareness of the evil nature of his deeds. This amounted to a failure to use self-reflection as a basis for judgement, the faculty that would have required Eichmann to exercise his imagination so as to contemplate the nature of his deeds from the experiential standpoint of his victims. This connection between the complicity with political evil and the failure of thinking and judgement inspired the last phase of Arendt's work, which sought to explicate the nature of these faculties and their constitutive role for politically and morally responsible choices.

From: http://www.iep.utm.edu/a/arendt.htm#H6

[YvonneCa]

14. Now my brain hurts...

...:) I've only read your excerpt (three times) and not the full article yet. I'm trying to apply it to torture 'participants' at different levels and think about it that way...and the implications...before I read the article.

Low Level...Lyndie Englund, CIA

Middle Level...Feith, Addington, Yoo

High Level...Alberto G. , Bush/Cheney

[beachmom]

19. I would argue a huge proportion of the American people lack the ability of "self reflection:

Like the Tea Party Set (that is now how I refer to the shrunken conservative movement). They suddenly are mad about the deficit when they really didn't give it much thought, except a passing mention, during the Bush years. There is a complete lack of self reflection of what went wrong, and why their party was so completely thrown out of power. That doesn't happen for nothing, or because the populace got bored.

I feel with all their flaws, Democrats DID do self reflection after 2004, and that is why we have a better Party then we did at the beginning of the 21st century. Still, we have to acknowledge that some members of our party were briefed on the interrogation program and did not protest. They were spineless and NON-reflective. They were complicit, and that includes the House Speaker. Although this is very disspirting, this actually gives us an opportunity to make this issue truly non-partisan, as it should be. This is about who we are as a people and what we believe, NOT what political party we belong to (or if we belong to no political party).

[YvonneCa]

31. This gets back to that whole "nature vs nurture" issue. I think you...

...are right about many Americans lacking the ability to self-reflect. And not just everyday, middle-class ones. The words, "...a failure or absence of the faculties of sound thinking and judgement..." along with a 'lack of curiosity' that many have noted, describe our former president pretty well. I think that's one of the reasons that Al Gore's book, 'Assault on Reason' resonated with me. Gore is obviously a reflective person. So are John Kerry and Barack Obama.

But back to the nature/nurture thing...I think some people are born with high levels of reflectiveness and some are not, BUT they can be taught the skill. The same is true of 'empathy'...some are born with empathy highly developed and others show no empathetic skill, BUT the skill can be learned IF it is taught.

The problem is, EVERYONE needs these skills. But not everyone has been given the opportunity to learn these skills. My question, then, is how do we fix THAT? (And, as a parent and teacher I have MASSIVE thoughts on that which I will leave to another day. :7 )

As to the Tea Party folks, I agree with you. I also think some lack empathy. That's one reason country unity is a difficult task. We Democrats had a battle after 2004 (IMHO) over our direction. Many of us argued for our values and the ideals we needed in a new president and a new direction...INTELLIGENCE and empathy (health care, environment, etc.) won out...partly because reflective people refused to accept that the Tea Party set knew what they were doing. JMHO. That doesn't mean our party is without no-reflective people. :7 (BTW, Obama's speech from today has a REALLY good line about empathy. I'll try to post it later.)

[Mass]

23. It is one of the most difficult debate in a modern society, but I do not think the

debate should be about torture, at least on a progressive blog where we should all agree torture should not be permitted.

However, some people here have said that everybody down the food chain should be judged if they had followed the orders of their governemnt (remember it is NOT about following the order of a lieutenant or captain becoming beserk here). So, the real question is the following: when is it OK for a public servant or a soldier to refuse to carry an order when he thinks this order is wrong, but is still in accordance with the law. Now, I find this a difficult and provoking question.

Now, we are talking about the Geneva Convention, there are two types of crimes concerning the Geneva Convention, or at least two types of circumstances:

- a soldier (or an unit) on his own does something that is against the Convention.

- a country does something that is against the Convention.

While in the first part, it is OK to sue the individuals, what should be done in the second case? Now, is the US going to sue one by one every single person who took part in an act of torture (which is pretty much the implication of what some people here have been asking here) or are we going to deal with the people who were in charge (I am not saying one or two people, but I am not saying the guy on the ground who was told his government had said some techniques were OK. and I am not saying that some people who order to torture the same people 200 times should not have their acts reviewed. In fact, nobody is saying acts should not be reviewed -- well, nobody on our side at least).

Sorry, but some of the things that were said here make me angry because it is so easy to agitate big principles when you are safe behind a keyboard, but when you are on the ground, following orders that you believe are lawful, it is a different question.

Consider that from coming from somebody who grew up in Europe in the 60s -- I pretty much grew up with the notion of who should be tried and who should not --, and have known people who had to go through these dilemma. Sorry, I do not find that that easy (and not necessarily comparable with the situation nowadays in the US). Some of the choices were difficult, and I can fully understand that some of the choices made by people on the ground were difficult as well.

[beachmom]

26. You know, EVERYONE is behind their keyboard here.

But apparently, MY opinion is unacceptable and offensive. So I am out. Since you know everything, you can tell us all what to think. Anyone who did not grow up in Europe in the '60s is apparently unqualified to discuss this issue. Thanks for that clarification.

[Mass]

28. Never said that.

I only explained where my POV came from (btw, I have never been in the military, so I have no insight about what it would take to disobey to such an order).

So, can we bury the war ax here. We disagree on this issue. You have some strong feelings. So do I. Can we stop here.

[beachmom]

34. You are right. We should agree to disagree.

I actually am interested in your insights as to what happened in the 1960s in Europe, if you care to elaborate.

Upon taking a couple hours away, I actually don't think we are as far apart as at first glance. It is not that I am arguing every American who ever committed a war crime should be prosecuted. What I objected to was when Obama (and then Kerry) said no CIA interrogators would be prosecuted. I don't like ruling ALL OF THEM out.

[karynnj]

37. Kerry,at least,didn't rule all of them

He ruled out those who operated under the legal frame work. I would interpret that similar to waht Mass said that anything that went beyond the guidelines should be prosecuted. I also would think that waterboarding hundreds of time would too.

[Democrafty]

29. A key point:

Sorry, but some of the things that were said here make me angry because it is so easy to agitate big principles when you are safe behind a keyboard, but when you are on the ground, following orders that you believe are lawful, it is a different question.

I absolutely agree with this, and it's important to keep in mind. Not just as we debate, but because it raises really important questions about the way people are trained in the American military. If troops are being trained in a way that conflicts with the Geneva Convention, that has to be addressed. Even if nobody gets prosecuted, it has be addressed.

I think most citizens who care about this issue are less interested in punishing individuals than they are in finding out why those individuals thought it was okay - or maybe it was expected of them? "Who is responsible for torture?" may be too big a question to deal with in a legal way. But isolating the system that allowed and/or caused torture, and prosecuting the architects of that system, could be possible, and, I think, is necessary.

[YvonneCa]

32. Great post. It is important to know if this was structural...

...and it seems it was...how did that come to be? You said, "But isolating the system that allowed and/or caused torture, and prosecuting the architects of that system, could be possible, and, I think, is necessary." That would be my goal as well.

I have never been in the military, either...but I HAVE worked in a government structure (education) for many years. Here's another way to think of this:

Corporal punishment has been banned in public schools for years. Suppose a new superintendent came in and reinstated it. I, as a teacher, now continue to work within that structure. I have some options. I could quit my job, loudly or quietly. I could go to superiors and make them aware of what was happening. I could say nothing, but refuse personally to participate in corporal punishment. Or I could 'go along to get along'...because that's the new system of which I am a part. (I may have left out options, so feel free to add them. :7 )

Personally, I'd want to quit...loudly. For my values, for the kids, to stop what was happening. Some, like me, would stay...maybe because they had families to support...also a highly valued choice. They might speak out, if they didn't feel their job was in jeopardy. Some might have participated, feeling they had no choice. And some might have cheered, saying "It's about time! These kids need REAL discipline."

Now, the local newspaper (a really good investigative one :7 ) gets the story and wants the superintendent's head (figuratively). So he pretends to know nothing and blames the teachers who actually administered the spankings to kids.


What should happen? IMO, the truth needs to be told. Punishment should be reserved to those who made the decision to either 1) use corporal punishment, or 2) administer it excessively with great glee.

Thoughts?

[Democrafty]

45. This is the most astute analogy I've seen yet!

Thank you for this. I agree 100%. fdfi9nnnnnnnnnnnnnnnnnnnnnn

(So does the cat, apparently.)

IMO, starting from the bottom up on this, and then stopping, would be kind of like if the Watergate indictments had stopped with the burglars.

[YvonneCa]

46. EXACTLY. The burglars didn't plan...

...it. Thank you for the kind words.


BTW, I completely lost it when I read about the cat! :7 Hilarious!!!!

[YvonneCa]

33. EMPATHY. Obama video from today...

"We have the opportunity to make a habit of empathy...to recognize ourselves in each other."


President Obama today, speaking at a Holocaust Remembrance event.


http://www.politico.com/news/stories/0409/21632.html

[beachmom]

35. In case anyone missed the News Hour last night, I think this is a good debate

to watch or read. It is between Lindsay Graham and Sheldon Whitehouse. Frankly, if Graham was representative of Republicans the debates going on would be less absurd. At least he criticizes the legal reasoning in the Torture Memos.

http://www.pbs.org/newshour/bb/politics/jan-june09/memosanalysis_04-22.html

I really like what Whitehouse said, and if you guys are wondering what I think is the proper response his is as close to ideal as a politician is going to get for me:

GWEN IFILL: Senator Whitehouse, we've heard the president say this repeatedly on different subjects, but I wonder what you think: Should the administration be looking forward on this matter or backward?

SEN. SHELDON WHITEHOUSE, D-R.I.: I think it's a little bit more complex than that. I think clearly the president wants to send a signal to the country that the focus of his administration is forward-looking.

We have an economy that is still in the ditch. We have two wars going on. We have a health care system that is falling apart. There are serious issues that grieve Americans every day. And I think for the president to insist that his focus will be forward-looking is important, and valuable, and correct.

That said, there are many folks, including those of us who sit on the Senate Judiciary Committee or, in my case, the Senate Intelligence Committee, who have different responsibilities and who need to make sure that misconduct that was done under the Bush administration is investigated, is revealed, and is not repeated.

And to the extent that that investigation or other investigation ends up leading to criminal prosecutions, I think it's far too early to be trying to prejudge those one way or the other.

Later on Whitehouse is asked about Obama's comments and how it relates to the Justice Department. Again, really good answer:

SEN. SHELDON WHITEHOUSE: I think the important point here is that, you know, we've just been through a very challenging episode with the Department of Justice in which it was very heavily politicized.

And there's been a great deal of talk about who should and who should not be prosecuted criminally by people who, frankly, are not in a position to make that decision.

The attorney general of the United States is the person who's in the position to make that decision, and he should make it based on the facts, he should make it based on the law, he should make it based on the evidence that is available to him.

And if there are criminal cases to be made, even potentially unlikely ones, such as ones against lawyers or people who followed orders, the law protects those people and creates defenses for them that are real and that are there.

Video and full transcript at the link.

[YvonneCa]

36. I saw that. It was a good debate. Senator Whitehouse...

...has been pretty outspoken on the issue of accountability. Did you see his speech on the Senate floor in January, "As we look forward, we must also look back"? It's one of the better Senate floor speeches around. :)

Link: http://whitehouse.senate.gov/newsroom/multimedia/view/?id=3bd59c66-ecbc-42f1-8326-c058c2bbeee4

[fedupinBushcountry]

38. My 2 cents

IMO, it needs to be investigated and from there those who have been found to have broken not only our laws but international laws too, need to be put on trial and punished for going against everything that we stand for as a country. If it shows to be true that they did it for pure political reasons to back up their reasons for going to war, well they need to be punished and never pardoned.

IMO, we are where we are now because of lessons not learned and letting others get away with crimes. Nixon-Watergate, Reagan-Iran Contra. I am angry when I hear the ludicrous arguments played by the pundits on cable news. We do not TORTURE, period. They can twist and turn it all they want, if we do not debate and find out exactly what happened and put those before the justice system, I don't see how we can ever be the same again.

We are a nation of laws but whenever anyone in the Whitehouse goes above the law nothing is done. We have to stop that, or it will continue and who knows what will happen or what has happened but we just don't know about it yet.

As far as who should be punished, it starts at the top, whoever was involved in making torture a policy should be tried for war crimes. I don't get the discussion about what constitutes being torture, it is already defined and we do not TORTURE.

My husband served for 20 years and yes they are taught some ugly things to combat their enemies, mainly it is ugliness and berating their enemies, but never was he ever taught to torture. They always went by the Geneva convention. Those who disobeyed those laws were duly tried, like Lt. Calley.

I do not want to be apart of a country that has lowered itself to such immoral acts, it really angers me. I just want the truth out and I want those who had anything to do with it to be punished. They have shamed our country, they have put our troops in danger, all for political reasons, that is just beyond what I ever thought that Bush would go that low, just to win. Shameful and sickening.

[ProSense]

40. Exactly.

As far as who should be punished, it starts at the top, whoever was involved in making torture a policy should be tried for war crimes.

I will reiterate a point above. There are thousands and thousands of foot soldiers following orders at any given time, it's unrealistic to think that they should be or can be held accountable.

I've never been in battle, but even in training as a soldier the thought of limits (to following orders) does cross one's mind. Whether it's with a weapon in hand, live of dummy ammo, night or day, you don't have much time to contemplate direct orders. It could be a simple order to wade through water where you know there could be snakes. Imagine the anxiety if you are terrified of snakes? That's a simplistic analogy, but for a soldier on the battlefield or anyone following orders during a time of war, it becomes complicated and potentially deadly.

Leaders who betray their soldiers or anyone directly reporting them by involving them in crimes are despicable. When the betrayal rises to the level of war crimes, they are evil. They should be prosecuted. There is no justification for not holding them accountable. None.

The Bush administration time in office represents a horrific and tragic episode in U.S. history, for all the lies, devastation, torture and death. No one could have ever imagined that this would be our collective destiny in 2000.

[YvonneCa]

39. Assault on Reason, page 208...

...

"I'm not sure that any single word is entirely adequate to describe the feelings that many had after the invasion of Iraq when they saw American soldiers holding dog leashes attached to helpless prisoners, 99 percent of whom were innocent of any connection to terrorism or violence against our troops; they were innocent prisoners who were being tortured in our name. What did you feel?

I don't know the words to describe my own feelings. But I would like all Americans to draw a line connecting the feelings they had when they saw the visual images of our soldiers, acting in our name, with our authority, torturing helpless people...and it was a matter of policy, even though the White House pointed fingers at the privates and corporals and said it was all their responsibility...with the emotions they felt during Hurricane Katrina when they saw those corpses in the water, people without food, water, medicine...our fellow citizens left helpless.

And of course in both cases the story is complex and many factors are involved, but I want people to draw a line connecting the feelings they had in both situations. And then I want them to draw a another line connecting those responsible for both unbelievable tragedies that embarrassed our nation in the eyes of the world. Connect those who ignored the warnings about Katrina and then bungled the aftermath with those who ignored the warnings not to invade Iraq and then bungled the aftermath, and the line makes a small circle.

In the middle of the circle is President George W. Bush."

---Al Gore

If you have the book, pages 150-160 are about GWB's torture policies. They are EXCELLENT reading.

[beachmom]

41. Al Gore does not have clean hands, sadly:

http://www.huffingtonpost.com/michael-schwartz/lets-not-forget-al-gore_b_69349.html

I'm not saying he is as bad, I am just saying we need to look at the entire person when they were in power, not just what they are saying now.

"extraordinary renditions", were operations to apprehend terrorists abroad, usually without the knowledge of and almost always without public acknowledgement of the host government.... The first time I proposed a snatch, in 1993, the White House Counsel, Lloyd Cutler, demanded a meeting with the President to explain how it violated international law. Clinton had seemed to be siding with Cutler until Al Gore belatedly joined the meeting, having just flown overnight from South Africa. Clinton recapped the arguments on both sides for Gore: Lloyd says this. Dick says that. Gore laughed and said, "That's a no-brainer. Of course it's a violation of international law, that's why it's a covert action. The guy is a terrorist. Go grab his ass."


This is from Richard Clarke.

More on extraordinary rendition:

http://en.wikipedia.org/wiki/Extraordinary_rendition

Extraordinary rendition and irregular rendition are terms used to describe the apprehension and extrajudicial transfer of a person from one state to another.<1> "Torture by proxy" is used by some critics to describe situations in which the United States has purportedly transferred suspected terrorists to countries known to employ harsh interrogation techniques that may rise to the level of torture. It has been alleged that torture has been employed with the knowledge or acquiescence of the United States (a transfer of anyone to anywhere for the purpose of torture is a violation of U.S. law).

From what I have read, Obama is continuing this practice in some form or another. It's still wrong.

It started during the Clinton Administration:

The American Civil Liberties Union alleges that extraordinary rendition was developed during the Clinton administration by CIA officials in the mid-1990s who were trying to track down and dismantle militant Islamic organizations in the Middle East, particularly Al Qaeda.

[karynnj]

42. Also both Gore and the Clintons backed legallt funding the Contras

who massacred people and they didn't end the School of the Amicas, though they were said to have stopped some bad things.

[ProSense]

43. Is this still a discussion about prosecuting torture?

Obama's position on rendition is clear, and it doesn't violate any law. I'm not really understanding the point of let's extrapolate every issue in detail to determine the level of Democratic complicity.

What the Bush administration did was abominable evil. I would like to see prosecutions of he officials directly responsible for sanctioning torture.

[beachmom]

44. You're right. It's off topic. It popped in my head. Let's drop it.

But, actually, if Democrats were complicit to torture (as it is possible is true if some were briefed in '02), then I condemn them, too. I am not a partisan hack, and condemn anyone who either breaks international law or who turns a blind eye to those who do.

[YvonneCa]

47. Frank Rich, NYT Opinion Page...

http://www.nytimes.com/2009/04/26/opinion/26rich.html

[beachmom]

48. More research. U.N. Convention on Torture. Ronald Reagan signed it:

http://www.salon.com/opinion/greenwald/2009/04/25/nowak/

I realize the link is Glenn Greenwald, but he is interviewing a U.N. official, with the title "United Nations Special Rapporteur on torture and other forms of cruel, inhuman or degrading treatment or punishment". His "day job" is a professor at the University of Vienna. He is Austrian.

MN: Yes. The United States of America is a party to the United Nations Convention Against Torture from 1984, which clearly contains the obligation to make torture a criminal offense under domestic law, on the one hand, with adequate sanctions taking account of the gravity of torture as a very serious civil rights violation, and then to exercise jurisdiction on the basis of different principles -- the territoriality principle, the nationality principle, but even the universal jurisdiction principle, because one wants to make sure that perpetrators of torture have no safe haven wherever they are.

But primarily its the territorial state's obligation. So, if under the direct jurisdiction of the United States of America, a government official - whether its a high official or a low official or a police officer or military officer, doesn't matter - whoever practices torture shall be brought before an independent criminal court and be held accountable. That is, the torturer, him or herself, but also those who are ordering torture practices, or in any other way participating in the practice of torture. This is a general obligation, and it applies to everybody; there are no exceptions in the Convention.

The law is clear. Anyone up and down the chain of command who participated in or ordered torture should be prosecuted. Ronald Reagan signed the treaty. But, if people think this is wrong, then we need to withdraw from the treaty, since apparently, we didn't mean it when we signed it.

On a side note, I am sick and tired of this issue being shown as something coming from "The Left". This should not be a "left" issue.

[beachmom]

50. Andrew has a good post on the treaty Reagan signed:

http://andrewsullivan.theatlantic.com/the_daily_dish/2009/04/what-reagan-signed.html

Article 1.
1. For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

Article 2.
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

[beachmom]

49. About those CIA folks "just following orders". Um, they were contractors:

http://www.newsweek.com/id/195089/output/print

But the tenor of the Abu Zubaydah interrogations changed a few days later, when a CIA contractor showed up. Although Soufan declined to identify the contractor by name, other sources (and media accounts) identify him as James Mitchell, a former Air Force psychologist who had worked on the U.S. military's Survival, Evasion, Resistance and Escape training—a program to teach officers how to resist the abusive interrogation methods used by Chinese communists during the Korean War. Within days of his arrival, Mitchell—an architect of the CIA interrogation program—took charge of the questioning of Abu Zubaydah. He directed that Abu Zubaydah be ordered to answer questions or face a gradual increase in aggressive techniques. One day Soufan entered Abu Zubadyah's room and saw that he had been stripped naked; he covered him with a towel.

The confrontations began. "I asked if he'd ever interrogated anyone, and he said no," Soufan says. But that didn't matter, the contractor shot back: "Science is science. This is a behavioral issue." The contractor suggested Soufan was the inexperienced one. "He told me he's a psychologist and he knows how the human mind works." Mitchell told NEWSWEEK, "I would love to tell my story." But then he added, "I have signed a nondisclosure agreement that will not even allow me to correct false allegations."

The tipping point came when, after a few weeks, Soufan saw the coffinlike box that Mitchell had constructed. Soufan refuses to say what he was told the box was for. But other sources who heard accounts of the confrontation say the idea was to stage a "mock burial." (A CIA spokesman says, "The CIA's high-value-detainee program did not include mock burials. That wasn't done.") When an incensed Soufan told his superior what was happening, the response was quick: D'Amuro told him to leave the scene of the interrogations. Then, a few days later, he was told, "Come on home."

So, according to Obama and Kerry, Mr. Mitchell should not be prosecuted since he was operating in "good faith". Sorry, I completely disagree. I think no prosecutions should be taken off the table.

[wisteria]

51. Yes, some were contractors who had no military backgrounds.n/t

[YvonneCa]

52. Not JK related, but Senate Judiciary Subcommitee hearing this morning...

...on C-Span 3 with Sheldon Whitehouse as chair and Lindsay Graham as ranking member was interesting.

Sen. Graham had said it was a 'foundational' hearing in an interview (Maddow) yesterday... with Zelikow(formerly of State) and a whistleblower on torture. Went as expected until Whitehouse had to leave at the end (to catch a plane, he said) and then Graham was to finish closing statement and close the hearing. He took full advantage of the cameras.

After ending the official proceeding, he talked to reporteres and C-Span broadcast it live...they finally gave 'equal time' to Zelikow, who was also being intervied. JMHO, but I think Whitehouse blew it by trusting Graham.