Torture – America v. Bush–Cheney et al

For three years now, crystelZENmud has been one rational voice and, most recently deeply concerned with the nature of the debate on the heinous subject of Torture within the United States. A chasm lays between the way we think about this subject, and that which one hears broadcasted by the many shrill shills who dominate the MSM media and dwindling Republican power base.

This series on the subject of Torture includes three previous posts:

Pungent pundits marked, firstly, how recent tantrums developed in Conservative pro–torture radio and TV, upon the Obama White House authorization releasing legal memoranda from selected Bush misAdministration legal staff. We secondly (Moral Clarity of Torture) brushed on the argument first posed in a Der Spiegel online article, itself addressing why Obama's current dilemma (inheriting the Bush Republican Torture regime) was comparable to the 'crises' of Vietnam and Watergate, and introduced the clear American position in the post–Nazi era; finally (Henry T King and more on Torture) we honoured Robert Jackson, Chief Prosecutor at Nuremberg, and quoted Henry T King, one of the three longest surviving Prosecutors who'd worked under Jackson.

King's death on Saturday came one day after we first wrote about him.

In summary, the radical–right American radio and TV announcers that support torturing human beings, now are vehemently against Obama's potential action of investigating and perhaps prosecuting former Bush misAdministration officials for violations of US Law. Our ZENopinion came from analysis of the historical US position, when the Allied victors of World War II decided that high Nazi officials would be prosecuted in law, with a presumption of innocence. Prosecutors Jackson and King were two of many, an Associate Justice on assignment from the Supreme Court, and a rather young (King was 26 when he arrived in Nuremberg) American lawyer.

The inhumanity and lawless behaviour of the Nazis was without rival: their wanton slayings, slave labour, medical 'experiments' and gassing or shooting of millions of concentration camp Jews and other minorities (introducing the ghastly concept of 'ethnic cleansing') was to be examined under rules of evidence, due process and trials by an international panel of judges, from the USA, Soviet Union, the United Kingdom and France. And remember: Stalin had proposed earlier the outright execution of some 50 to 100 thousand German officers; Roosevelt apparently 'joked' (he was actually shocked) that 'maybe 49,000 ought to be enough?'

Jackson said, in closing arguments on the trial of infamous Bormann, Hess and other Nazis, which admittedly were operating under a form of ex poste facto law:

“They have been given the kind of a Trial which they, in the days of their pomp and power, never gave to any man.”

Or to any woman, or child.

However thoughts may coalesce regarding State–sponsored torture of 'enemy nationals' (which is our own 'instant jargon'; the Bush misAdministration term is 'unlawful combatants'), any basis for doing so requires supportive foundations.

Two major points distil the essential legal components:

ONE: Only peace is lawful.

War per se denotes unlawful action, when States act as aggressor.

War rarely attains legitimacy except through self–defense, as condoned within the UN Charter, where defensive actions are undertaken as a response to aggressor State(s). In other words, any 'war' will have an illegal initiation and a legal defensive response (given the 'normal' definitions of 'war'). When one masks the waging of 'aggressive war' under the guise of 'international support', the level of ambiguity rises, but not culpability itself.

Further, legitimacy cannot be claimed when aggressive actions are taken domestically, on home–grown targets. At Nuremberg, the legal concept was introduced, denominating the '... crime of plotting and waging wars of aggression and wars in violation of (...) treaties to which Germany was a party.'

This legitimates the premise that 'Initiating War is illegal', or 'Only Peace is lawful'.

TWO: A duty to uphold international public law.

International public law (as opposed to international private law) comes from historic customary practices and agreed multi–State treaties or bilateral agreements. Violations can be addressed, currently, through application for sanctions or Resolutions of the United Nations Security Council.

A State that invades, occupies and thereby tragically disrupts local population(s), must undertake to uphold and assure the highest agreed and current standards of international public law throughout the invasive actions. This indivisible duty is invoked by those expressly implemented aggressive State actions. Yet International (public) law retains a singular quality: of being the only 'body of law', the application of which is not assured through an established and legitimate 'police power'. Thus the 'international community' of our time, through the United Nations is the 'posse', 'jury' and 'forum' for violations of international order and peace. NATO may be the closest that any intergovernmental organization attains, to being an 'intergovernmental police force', as a mutual–defense set–up. NATO had approved and supported the Afghanistan campaign.

+ + + + + + +

Thus in the case where a superpower such as the USA takes a position under which it claimed a 'right' to invade first Afghanistan (via NATO and a claim of 'legitimate self–defense' – the retaliatory war option was unleashed to respond to the Nine–Eleven acts (aka the Bush Terrorist Disaster)). US actions against its terrorist nemesis Osama bin Laden and Al Qaida, from the Fall of 2001 to the Spring of 2003, as well as their hosts, the Taliban rulers of Afghanistan, were an opportunity for US forces, under Commander–in–Chief Bush to take the already 'bombed to the Stone Age' country (who'd suffered through the late 70s and 80s with the occupation of the Soviet Union, then was to suffer under the Taliban), and 'reduce it to rubble'.

The American citizenry were suffering Post–Traumatic Stress Syndrome from the Bush Terrorist Disaster of Nine–Eleven, compounded by media acquiescence and support to the misAdministration's Patriot Act, No-Fly Lists and 'Orange Terrorism Alerts'. We, the People, were shaken out of the role that prior generations had enjoyed: the proud Moral Clarity of being the Planet's protectors of Human Rights.

SIDEBAR: In saying this, one has to address the issues of 'naïveté': certainly there were individuals, and eras, in which our public 'white hat' was not universal. The CIA, Special Operations in the military, and any number of the other ten to fifteen intelligence agencies of the USA, were not always perfect angels when acting under their Federal authorities.

After Afghanistan came Iraq, where a great majority of people globally protested what it saw as US action not within the cadre of the international laws and treaties to which it was bound. By most rationales in International law, the US appeared to have chosen to take illegitimate, if not fully illegal hostile action. Before its invasion of Iraq, the US attempted, yet failed, to persuade the UN Security Council to provide clear UN support via Security Council Resolution.

Nevertheless our country walked away from that session claiming the ambiguous language it did receive sufficed to allow full military intervention.

Earlier in 2002, the Bush White House had sought and accepted the express written legal justifications, which first classified Al Qaida captives as 'unlawful combatants', thus offering an opinion promoting a sidestepping of certain articles of the Geneva Conventions (“GC” I through IV) and other treaties, such as the Convention Against Torture (“CAT”). Doing so allowed for their desired second step, the legal effect of which was to justify how these non-soldier fighters may be tortured. Once this process was achieved, under Bush and Cheney, it became a simple step to the implementation of proper Torture protocols.

The Bush misAdministration's legal memoranda on Torture, which circulated between the White House, the Defense and State Departments for approval (and perhaps shared with our British allies?), positioning these captives as unlawful combatants, or 'non–POWs', ostensibly provided the semblance of legal legitimacy. The US Government implemented them against captured Al Qaida fighters, Taliban adherents, Iraqi defenders or... simply incautious neighbors who found they'd been sold out for US bounty money.

Thus the Wars were the genesis of Bush's approval of Guantanamo as a site used for Torture.

Restating our conclusion seems legitimate: when a State takes express acts to venture abroad from its borders, and rains war down upon another State, without broad international support, it has taken the criminal act described above, an outlaw aggression, an unlawful invasion, and conscious implementation of this international incident creates, per se, a duty to protect captured POWs under the most legitimate regime possible.

Christians would call this applying the Golden Rule: 'do unto others as you would they do unto you...'

States whose military adventures fall within the scope and ambit of International law, are already bound (as signatory or ratified States of the GCs or CAT) to provide high standards of prisoner treatment: the simple fact of illegitimacy in State action should automatically trigger compensatory mitigations whenever possible. Prisoner treatment to the norms prescribed under the Geneva Convention would be evidence of such mitigation, and perhaps allow some necessary balance: “we may have acted rashly, but we grant our POWs all guarantees provided by the GCs”.

For whatever justifications unimaginable, the Bush misAdministration chose to compound their errors, 'legally' and consciously, by conjuring heretofore unknown protections covering its descent into the heinous world of Torture. The White House, State and Defense Departments are as bound to the opinions offered by their high–level Legal officers, due to their wholehearted implementation, as they were to the banner on the aircraft carrier tower, which proclaimed 'Mission Accomplished'. They are tied to their policy choices forever, and must submit to the repercussions of History.

The Government shifted into military high gear for Iraq in the summer of 2002, and would soon attain its real goal – Republican gains in Congressional seats, in the 2002 elections – and the MSM media presented the media–darling phrase 'March to War'. During the winter, 'March to War' was superseded by Shock and Awe, offering (New! Improved!) total–testosterone terminology that helped focus US citizens' Pavlovian reaction. Shock and Awe became a major performer in the US current events vocabulary.

With war diagnosed and prescribed for Iraq, while the Afghanistan campaign continued as a somewhat abated priority, both territories received a hellish rain of American or 'Coalition' military might. The Bush–Cheney White House decided upon Guantanamo, as the right location to promote its newly–approved 'enhanced interrogation techniques'. Our President accepted, with approval of 'Guantanamo', to have an 'American facility' that was neither 'in America' nor (its opinion) constituted 'territory' for habeas corpus situations, until rulings from the Bush–friendly Supreme Court overturned a good part of their desired activities.

Rumsfeld's famous comments could be evidence of the superficiality of Bush era concerns. He responded to one memo regarding torture techniques, with a written note on the margins (paraphrased from memory): “why [do we] only [force prisoners to remain standing for] four hours? I'm standing eight to twelve hours per day in my office!”

If Bush's causus belli action in Iraq (rubber–stamped pro forma by Republican majorities in Congress) had been in the context for an aggressive action that carried unequivocal UN Sec Council approval, their duty to uphold POWs' international law rights would have been penultimate and unquestioned. Failure to attain Security Council approvals cannot justify implementing lowered standards for POWs in any militarily–controlled correctional institution sequestering foreign nationals. In a country that is defending against the US military under orders from the Commander–in–Chief, its nationals deserve no lesser treatment as a result of the Aggressors' subjective decisions.

Whether the Bush misAdministration failed its duty to uphold International law, in authorizing and undertaking acts of Torture directed against captured Al Qaida operatives, as well as Afghani and Iraqi nationals requires investigation. Bush, as Commander–in–Chief, requested, inspired, received and accepted these legal arguments for Torture, then approved them for widespread implementation. Medical officers that witnessed and offered medical support surely violated their oaths as medical doctors.

It should also be noted, that there is no clear record showing which (or what percent) of the 'captives' held at American facilities, nor at the 'secret sites' that received 'rendition flight' travellers, actually were 'unlawful combatants'. One could presume that captured Iraqi Army members retain 'lawful combatant' status and thus the protections of the GC while in detention.

The outrageous nature and legitimation of unlimited monstrous acts of Torture inflames any real sense of Morality around the world. Robert Jackson, or Henry King, Jr. devoted their best years, as Americans at Nuremberg – creating through International law (the Nuremberg's London Charter is validly called the precursor to many following Human Rights documents) a new world which would vow to prevent any similar heinous inhuman acts in the future – these two Americans would likely disbelieve that it would only take some sixty–odd years for their own country to cross openly that wicked line.

Should America question how, and why former President Bush determined that his 'wars', the most expensive drain of national governmental (read: taxpayer) capital in the World's history, need not comport under International law?

– Maybe not.

Should America inquire or investigate the whys and hows of former President Bush's determination that his 'wars' necessitated redrafting all legitimate human progress in International law as to the classification and treatment of certain novel classes of prisoners (away from the Nazi era), including orders passed through the chain of command from the legal Advisers and supervisory Medical personnel, to the line officers, 'civilian interrogators' and guard staff (field doctors as well)?

– Yes.

Torturing prisoners, no matter their legal status, by Americans for America, was ideologically and politically driven, as much so as were the early Nazi actions.

It defied logic.

It defied US supreme law.

It shocked the world.

It proved itself unreliable.

Yet did it 'break' the terrorists?

We may know next week if American Torture actually had any success, or what ratio higher than 0.1 – 2pc (our estimated range, goes from one per thousand torture–sessions, to maybe two 'actionable items of intelligence' per hundred). The Obama administration appears to be debating whether to release certain other reports that may prove Dick Cheney's recent claims to be true, or simple, contrived bullshit.

Obama announced this week that thousands of horrible US–sponsored Torture photos would not be published. Given the fragile state of the Muslim world today, such a decision is sure to remain a grave disappointment to a significant portion of his supporters, and yet geopolitical or Realpolitik reactions to such disclosures must be carefully weighed: delaying release is not denying release, yet.

If the reports to which Cheney alluded on several occasions are fabricated, self–serving hogwash, what effect would their disclosure have towards elevating public ire to the boiling point? Releasing them, if they actually were to prove that Cheney was bluffing, might revitalize the outrage against the previous Republican regime's 'Teflon–style' elusiveness from accountability.

Senator Christopher Dodd's comments on the Nuremberg–Guantanamo dichotomy facing America's soul today, appearing in the article in Der Spiegel last week, offer a stark contrast. Der Spiegel analysed America's current reflective moment as to this defining stain of Torture, to the Vietnam and Watergate eras (and Robert Jackson's history prosecuting the Nazis). To return to the moral alternative, and restore our country's historic role, extinguished under Bush, may require vast investigations.

Although those two cataclysmic events in the Seventies found resolution under the Republican administrations of the time, it's certainly different for Obama. Nixon resigned due to bipartisan support building for articles of Impeachment relating to the Watergate cover–up (and lying to Congress about bombing Cambodia!), and during Ford's year–and–some presidency, the Vietnam war came to a bitter end (bitter to the proponents as well as the protesters): Carter's presidency simply renewed America's commitment to Human Rights.

For Obama to find the path leading to the end of both Bush wars is entirely another prospect. Solving the nexus between Afghanistan, Iraq and Torture requires a profound, yet relatively simple, systemic examination of the former misAdministration's actions and responsibilities.

Would further 'Torture memoranda' revelations reveal any 'incidents' that might rival that created by Nixon's claim that Rosemarie Wood's accidentally erased an '18–minute gap' in his complicated efficient taping system?

When events took Nixon down, he was still President. His resignation, then pardon, effaced Watergate from a country's injured psyche.

America has never prosecuted after leaving office, a former President, nor Vice President, nor Cabinet level Secretaries, nor their legal Advisers, in a matter with such grave implications. If investigations begin with the Bush–Cheney Legal Advisers, who are able, if radical attorneys, they will surely subpoena any superiors who had requisitioned the fruits of their legal, and ideological thinking processes, and acted upon their advice. The voices of the most rabid of Neoconservative pungent pundits, who foist off their ideological persuasion as voices of reason, are without legitimate persuasion, and hardly bear recognition, for their displayed lack of moral values.

We would hope that there exists a prosecutor who could rise to the occasion, in the face of a domestic crisis as shocking as were Vietnam, or Watergate.

In the face of continuing international moral outrage against the bellicose words, and sins of the two wars that Bush–Cheney initiated, America should provide, as Robert Jackson and Henry King once did in the name of American Democracy, Moral Clarity and the Rule of Law, by investigating and repudiating the stains of Bush's approval of torture.

Sins? From Afghanistan (legitimized by NATO and the UN, rendered outrageous by the Tortures), to Iraq (Abu Ghraib, Tortures and irresponsibility in post–invasion Occupancy), America's leaders took commercial (Oil) and political (increased electoral Republican majorities) self–interests to heart, while abandoning our national (citizens) interests.

And Bush?

He at least should be found guilty of numerous 'Crimes against the Presidency'.

___çç*******/ ZENmud \*******çç___

© 2009

Tribute to Henry T. King and more against Torture

Before returning to the continuing topic of American Democracy, Moral Clarity, and Torture, a sad yet surprising news–bite came our way this morning. Last Friday, crystelZENmud published a post entitled Moral Clarity of Torture... which contained a quotation regarding Robert H Jackson, spoken by Henry T. King, Jr. in 2003.

Mr. King died last Saturday, the following day: 9 May 2009, attaining the same beautiful age as our revered ZEN mother... 89 tours of the Sun. Now the marvelling exists, since we do not buy the International Herald Tribune (IHT) every day, nor do we always read its obituaries. But the stars are aligning themselves.

Henry T. King Jr. was one of 200 Nuremberg trial prosecutors (age 26 when he began) and eventually became a senior advisor of the Robert H. Jackson Center in New York state. The NY Times Obituary on King appeared today in Wednesday's IHT. King was (according to John Q. Barrett, professor at St. John's University): “... one of a handful of uniquely credible veterans in his field, one of the last 'voices' of Nuremberg.”

We express sincere regrets to his surviving friends and loved ones, and marvel that this tiny blog could have 'discovered' Mr. King in time to publish a discussion on torture during his last complete day of life.

King, along with former Nuremberg colleagues Whitney Harris and Benjamin Ferenez (who are both still alive) combined “forces to help shape the creation of the International Criminal Court”. As the draft of the ICC Statute progressed in Rome, it contained articles citing 'war crimes, crimes against humanity and genocide'. The three surviving prosecutors of Nuremberg committed to lobbying the international array of Delegations for the inclusion of 'wars of aggression' in the Statute, which became a part of this formidable treaty against international lawlessness.

As may be remembered, the negotiated ICC Statute was not signed by President Clinton, the US Congress being against (as Republicans) it. Thus that Treaty never came before the Senate for ratification, and some have no illusions why President Bush was content to avoid committing his misAdministration to upholding long–standing international (moral) law.

In Henry King's own words:

“As I walked to the courthouse for the first time (NYT: “... [amid] the rubble of bombed out buildings and people begging for food”), I said I'm going to dedicate my life to the prevention of this.”

Evidently Mr. King, who worked so long to aid the Center named after former Associate Supreme Court Justice Jackson, was unable to persuade GW Bush, Dick Cheney and others of the need to eliminate wars of aggression and the accoutrements that pass with such heinous acts.

To this end, crystelZENmud awards Mr. King its second Global Peace Award.

Sidebar: On 12 May 2009, alleged Nazi war criminal John Demjanjuk was deported and flown to Munich Germany; perhaps the last case of a living Nazi being tried for the crimes of his youth. There exists no statute of limitations on Crimes of War, or Crimes against Humanity: he is apparently facing some Twenty Nine THOUSAND counts of homicide...

The two prior crystelZENmud posts (Pungent Pundits, and Moral Clarity of Torture) first decried to the Conservative 'voice' that alarmingly regards the revelation of official Bush–era acts (memoranda offering purported legal support for US torture procedures), when those media voices fully supported those in every way (radio personality Rush Limbaugh repeatedly compared torture to 'fraternity pranks'). Secondly, we wrote on how the USA had developed a historic voice for 'moral clarity' through the legal process developed in response to the fall of Nazi Germany, throughout 1945, which produced the London Charter, the Nuremberg Trials, and from those, the foundations of modern Human Rights law. A great portion of these were the result of one legal mind: Robert H Jackson, US Associate Justice of the Supreme Court.

The continuing question is whether (or to what extent) the rationales that propagandized torture through the more agitated set of extremist, Right wing commentators provoked perceptions of an alarmingly large number of Americans to change 180° towards supporting torture? Answering the question must take into account any future investigations of these acts. They simply call into question America's perceived role as a champion of Human Rights advancement.

In simple words (adapted from the recent article in Der Spiegel online):

Have we forsaken Nuremberg for Guantanamo?

Have we replaced Nuremberg with Guantanamo?

The United States may be the only country now on Earth in which people actually smile when talking about Torture, with an alarming number of citizens who see it as a 'good thing', where most other countries' citizens are silent–to–fearful of being seen or heard discussing such a heinous, secret State issue. And certain polls show nearly fifty–percent support for the 'unholy arts', aka 'enhanced interrogation techniques'. Availing upon one's moral compass, the situation at hand seems so far away from the theories that formerly held the USA as equals, with countries such as post–war Germany, England or France, as modern–day champions of Human Rights.

In seeking guidance from notes in the archives our Twentieth Century Schizoid War Era, so many quotations appear to be designed expressly for our times, this current debate. They ring with the clarity of a just cause, and they beg for reinsertion into our modern inquest. Some are thoughts on the universal origins of conflicts, which is where we begin.

Compare George Orwell's statement...

“Every war when it comes, or before it comes, is represented not as a war but as an act of self-defense against a homicidal maniac.”

With this Nuremberg opening statement quote from American Chief Prosecutor Robert H Jackson:

“Terrorism was the chief instrument for securing the cohesion of the German people in war purposes.”

The reader might be wondering whether we have forgotten, at ZEN Central, the 'terror' that reigned down upon the World Trade Center Towers, the Pentagon and a flight that crashed into the Pennsylvanian countryside... nothing could be further from the truth. But certainly if 'methods' were once used, insidious people can learn them, and implement them again. It remains to 'the People' to be aware, to react and renounce those methodologies.

But we are not against reminding the readers, that American planes (American, USAir and United) were hijacked by made–in–America 'hijackers' (most of the 'pilots' were trained at Florida flight schools, some with historic ties to CIA flight training programs), who had made their way through American airport security, which was designed by Americans, staffed by Americans as a least–cost model, financed by American companies in the air transport business. The ghastly events were so vividly broadcast in endless repetition in such a short span of days that they remain indelibly seared into the minds of the entirety of the American psyche, and a good portion of the Western world as well.

A stark event, producing a violent series of official reactions as a result of that strange day. Were the terrorist acts exploited (in the benign sense of the word) by an American Presidency whose remarkable commitment to aggression in that part of the world was coincidentally implemented prior to Bush's Inauguration (per Richard Clark)? Neoconservatives had advocated a 'sea–change' in American Foreign Affairs since the latter half of the 1990s, and had written that this could hardly occur without a 'Pearl Harbor' style event. They literally 'wished for' some cataclysm that would allow their ideology to take a more centrist role in America. We watched it happen.

Can we not say that Jackson's words (above) fulfil the contemporary situation? The 'American cohesion' was strongest between 2001 and 2002, while we looked for Bin Laden's 'Team Terrorism' throughout the ranges of Afghanistan: America wanted him 'Dead or Alive', in the very words of GW Bush, until coincidental failure to do so had Bush stating that he 'really wasn't concerned' (about catching ObL).

Consider the relevance from yet another Jackson quote, from his Opening Statement against the Nazi Defendants:

“Propaganda organs, on a scale never before known, stimulated the Party and Party formation with a permanent enthusiasm and abandon such as we, democratic people, can work up only for a few days before a general election.”

Whether or not readers have strong opinions regarding the current status of US mass media news as being 'balanced, and fair', it is hard to argue with the connotation that investigative journalism has changed, in the course of the last 15 years or so. 'Take it for granted' seems to be the modus operandi of today's 'newscaster': she or he rarely comes in on a political story with the kicker: '... and then we went to check the Government's statement(s) for ourselves; this is what we found'.

The timeless sense of Jackson comes through again, when thinking of our current culture's debate over torture:

“International law, natural law, German law, any law at all was to these (Nazi) men simply a propaganda device to be invoked when it helped and to be ignored when it would condemn what they wanted to do.”

From the Bush misAdministration, we know and cannot deny (if one is a supporter), that the regime argued fervently against application of the Geneva Convention against the Al Qaida/Taliban fighters, using as its basis the fact that the 'combatants' were 'unlawful', ie.: they are not the armed forces of an opposing state, but a transnational band of 'terrorist brigades' with classically–integrated cell hierarchies, thus the protections afforded to 'combatants' should not be extended.

This is the very issue facing those whose wholehearted support for the Neoconservative 'mission' precluded retention of our 'moral clarity' in the face of the overwhelming realities of a post–Nine–Eleven world.

But one aspect that was never developed in the process that implemented the 'Guantanamo and Abu Ghraib' procedures, was the aspect of reciprocity. Even the Nazis possessed enough clarity to consider the quid pro quo aspects of upholding (or appearing to...) the Geneva Conventions.

Again, from Jackson's Closing Statement:

“The Geneva Convention would have been thrown overboard openly except that Jodl objected because he wanted the benefits of Allied observance of it while it was not being allowed to hamper the Germans in any way.”

(Alfred Jodl: Chief of the Oberkommando der Wehrmacht (OKW: the Army) Operations Division 1938-1945)

Public debates regarding the position of American POWs that could be captured and held in either Bush–era war zone was extremely limited, and certainly had no influence on the authors of the now infamous Torture Memos. Any anecdotal reports of American POWs in either war theatre, are non–existent. Whether one should trust 'unlawful combatants' or simple natives in two occupied countries, to observe the Geneva Conventions is beside the point: being that the ratio of 'civilian victims' to 'combatant victims' is too high already, bystanders who are not judged to be 'combatants' probably are not expanding their Rules of War lexicon, prefering to use their most base motivations were they to 'stumble on' or actively capture any Coalition Forces.

Our discussion centers on these primal comparisons, via the prism of History, to compare the different eras: Moral Clarity of the USA in terms of prosecuting the unthinkable crimes directed from the heights of the Nazi war machine, with the opposing situation confronting the USA of today. What future for the USA of a post–Nine–Eleven world? We do not claim that the issue is as clear–cut today, in discussing whether there should be investigations or prosecutions of the Bush regime, as when Hitler's Generals, diplomats, bankers, propagandists and industrialists were scorching the European soil in their descent into the hell of Aryan superiority.

But one more time, Jackson comes through with a statement that survives the times, and revives a sense of how we could have chosen to maintain our Moral Clarity, yet didn't do so:

“Modern civilization puts unlimited weapons of destruction in the hands of men. It cannot tolerate so vast an area of legal irresponsibility.”

Waging wars of aggression is something theoretically illegal in International Law. Pre–emptive law, under the Bush 'Doctrine', went against the grain of the UN Charter. The 'Torture Justifications' violated several modern era accords, one being the Convention Against Torture of the 1980s. They also violated US Law, and the US Army's Rules.

Is it worse for a Human Being to condone Torture, or to subsequently condemn the logical, morally clear choice to investigate and, if judged sufficiently grave, to prosecute the actors who operated under Oath, to uphold and defend the US Constitution? One could say the latter compounds the former.

Persons who act in the name of the citizenry, do so with a responsibility to simply be responsible. Changing the rules to suit contingencies, requires heightened levels of responsibility. We know this, we are, theoretically 'Civilization'.

Thus we conclude this series of thoughts, developed through their historical context, with a composited foundation provided from Jackson's Opening Statement:

The real complaining party at your bar is Civilization. (...) Civilization asks whether law is so laggard as to be utterly helpless to deal with crimes of this magnitude by criminals of this order of importance.”

At some point, the American people shall have to acknowledge that accountability, in some form, should determine the individuals' status of responsibility, from the Commander–in–Chief and Vice President through their Cabinet staff, and subordinate legal advisers, down through the entire hierarchies: to the field staff who'd actually performed the infliction of torture; from the teams that selected victims, and the Doctor(s) that supervised the ordeal(s), to the hand pouring water on a waterboarding victim's covered, immobilized face.

Once again, arguments arise that resist comparing what happened to millions of Nazi victims, to what treatment is brought against 'terrorists' currently or formerly in US custody under the novel theory of 'unlawful combatant' status. Those who argue such, seem to be missing the fundamental points, which underscore most of Jackson's points... Those thoughts are harmoniously simple:

Aren't we supposed to be better than they: the Nazis of yesteryear?

Hasn't Civilization cultivated a better world in the last sixty years?

___çç*******/ ZENmud \*******çç___

© 2009

Moral Clarity of Torture, tribute to R H Jackson

The 8th May, 2009 ... a day to recall our moral history:

The dawn of the Twenty–First Century will be indelibly tied to the revived planetary debate over torture; a topic loudly re-echoing through the Obama Administration's recent publication of several Bush regime “Torture memoranda”. One marvels at the blasé tones and assertive stances that permeate the US mainstream media (MSM) on this subject.

Media Matters provided a list of 'Republican sound–bites' recently, which emanated in four days (late April 2009), and were timely, albeit negative responses to the Bush torture memo revelations. We wrote about those previously, describing the manipulative tactics from the foul underbelly of Republicanism. Those sound–bites promote a comparison of revealing known Bush misAdministration war crimes, to the USA's turning thereupon into a 'Banana Republic'. Far be it for anyone to remind those several announcers, and their wannabe–dittohead audiences, that Bush's regime had been compared to Banana Republican leaders long before similar language hit Obama's Presidency. Moreover, the attacks on Bush came through an international press, precisely due to his deprecation of Human Rights.

Take one sound–bite example, from the former malignant 'Brain of the White House' himself – Karl Rove (April 21):

“... what we're going to do is we're going to turn ourselves into the moral equivalent of a Latin American country run by colonels in mirrored sunglasses, and what we're gonna (sic) do is prosecute systematically the previous administration or threaten prosecutions against the previous administration based on policy differences.”

'You see', implies Rove: 'torture? It's merely a 'policy difference'...'

Comparable to policy differences about tax cuts for the wealthiest 1pc of Americans? And why use the word 'systematically'? These incidents seem quite specific. A nuance lost in Rove's Republican fog...

Although some became hysterical due to these 'revelations', whether as protectionists of the 'Loud Right' or from the 'Liberally outraged Left', debates on the pros and cons become sidesteps themselves away from the truth. And sidestepping the truth becomes sticky: the issue becomes whether the USA under GW Bush had given away its sixty–four year semblance of moral authority, and if so, whether it perhaps will not be able to recuperate this for an entire generation to come?

The Iraq of today will have to evolve into the 'Vietnam as seen today', before Americans lose their intimate relationship to the acts taken under Bush, in their names. American media, being more than the 'nightly news', offers shows like “24” or “NCIS” that inundate viewers' brains, with an inculcated banality towards an abhorrent subject, through its treatment of always–vanquished fictional terrorists by the very well–scripted heroes.

Sixty–four years ago today, 8 April 1945, Nazi Germany surrendered.

The international web site of der Spiegel, one of Germany's flagship periodicals, has historic moral authority to add to the conversation regarding Torture that rages within America. In its on–line article “Torturing for America”, der Spiegel quotes Senator Christopher Dodd's poignant thought:

“... for 60 years, a single word has best captured America's moral authority and commitment to justice: Nuremberg.”

“... what we risk today is that future generations will look back at this time (...) and be able to capture the loss of America's moral authority and commitment to [battling] injustice also with a single word: Guantanamo.” (emphasis added)

Der Spiegel provides an outside–in view that is succinct, and chilling: “His [Obama's] decision puts the US to the kind of test it has not seen since Vietnam or Watergate.”

It refers to the ongoing question of 'consequences'. Consequences for ordering, consequences for justifying, for aiding, and administering heinous treatment of alleged 'terrorist' prisoners. However, neither Vietnam nor Watergate was impugned against Jimmy Carter, the Democratic President whose Bicentennial election closed most of the doors to those painful years.

Life predictably produces consequences to almost every action: some intended, some unforeseen. Unintended consequences range from innocent errors (left the milk out overnight) to stupid ones (an email reply to 'all' rather than 'sender') to the ghastly (offering legal 'authority' for torture, based on catastrophic events). Even actions that were undertaken through guise of legal justifications provided may provoke unintended consequences.

Sidebar: in how many days or weeks, and under whose authority, was the palatable media–phrase 'enhanced interrogation techniques' incubated?

Sen. Dodd's father worked with Robert Jackson, our Chief Prosecutor at the post–World War II Nuremberg trials. A Supreme Court Associate Justice since 1941, Jackson was on a Court leave of absence, by President Truman's appointment, to lead both the Allied negotiations that produced the post–Nazi Nuremberg Trial prosecution modus operandi, and the trials themselves.

Jackson waxed eloquent, regarding the morality of the Allies' prosecution against alleged Nazi war criminals (as noted by der Spiegel) from Germany's military and commercial elites: “... the speech he gave was so powerful that it reduced his audience to tears. Never before had an American spoken as beautifully as Jackson”.

(Photo credit to Roy D'Addraio, official Nuremberg War Trial pohotographer: thanks to the Robert H. Jackson Institute)

Segments of his speech(-es) include:

“The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated.”

Consider:

“That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.”

And:

“We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow.”

Comparing the words of Jackson to those of Dodd, is to be offered a moral balance between generations: the Greatest Generation of yesteryear's Century, versus the Greediest of today.

Or are we the most Fearful? Some afraid of 'terrorists', others afraid of what America became?

Now there is certainly a dichotomy in regarding the Nuremberg Nazi trials.

Summary: the Nazis themselves were fairly judged and harshly sentenced, and similar treatment went to the Captains of German Industry, whose trials were on grounds of using Jews as slave labour, funding the Nazi War effort, or providing its deadly materiel.

Yet, the most important Industrialists' sentences were, to a great degree, abrogated by practical political decisions. German businessmen found their ten to twenty–year sentences reduced to a light fraction: a significant group were back at their desks within two years. These special commutations were deemed vital to the reconstruction of the ravaged German economy, by American commercial partners and Establishment representatives. One such was John Jay McCloy, our High Commissioner for Occupied Germany, who oversaw the German transition from Occupied defeated State to the fledgling government of West Germany.

It seems now, that these decisions by McCloy were a repayment to Power, of the 'tribute Power [had] paid to Reason' (Jackson). Interestingly, der Spiegel reminds us that today's wheels of justice are turning in a similar–to–Nuremberg fashion:

“Lawsuits that victims of torture are now filing against the government's facilitators in private industry suggest the broad extent to which the nation is burdened with the stench of torture. Even the aircraft manufacturer Boeing has been sued for damages, because a Boeing subsidiary allegedly arranged flights to the CIA's so-called “black sites”.”

Are we surprised that Boeing's subsidiary apparently did not seek a legal opinion, internally or from an outside counsel, for risk assessments regarding potential corporate liability for 'the stench of torture', through its arranging of 'rendition' flights bringing 'terrorists' to 'black sites'?

From the heights of Nuremberg to the stench of Guantanamo; from the Rationalists Jackson and Dodd to the Neo–conservatives Rove et al, we find ourselves trapped in a moral balance, due to previously–decried amoral acts. Those Republicans who find themselves 'appreciating the excellent intelligence provided' by Bush–American torture activities, as determined merely by media sound–bites, negate their allegiance to their Greatest President, Ronald Reagan. As President in the Eighties, he himself was the American President that signed the Convention Against Torture, in the 1980s.

It provides eloquent precise statements regarding State involvement, beginning with Article Two:

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.

As to Article 2.1: the USA had all these, prior to Bush;

As to Article 2.2: the USA, with some glaring CIA–proffered

exceptions, respected these prior to Bush;

As to Article 2.3: the USA respected this, prior to Bush.

Proponents of torture appear to have adopted the multi–generational Israeli–Palestinian argument that lies at the root of those peoples' historical situation: “... but look what they did to us!”.

Proponents offer justifications (against the clear mandate of CAT Article 2.3) because these ghastly procedures were implemented through express legal authorization provided by specific US Justice Department and White House attorneys (the 'Memos'). Those acts themselves, of creating legal justifications, are probably prosecutable under applicable US laws, or under CAT Article 2.2: “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency...”.

Military people currently use a phrase that has expanded into the general public: 'He's got my back'.

The American proponents of torture must remember 'who's got their back':

Iran, China, Syria, North Korea, Mexico (?), Israel and other radical or eccentric States (as well as America's fictitious “24”, “NCIS”, etc), and two or three well–known Islamic groups.

American opponents of torture may be prouder of the host of organs, States, NGOs, or IGOs that 'have their back': International Law and Treaties, the great majority of OECD States, the United Nations, American Law and Robert Jackson. If Jackson were with us today, would his eloquence wax against neo–proponents of torture? Would his words now echo these?

“How could we ever have forgotten our Nuremberg–era clarity? That the torture which we inflict on these prisoners today is the record on which history will judge us through many tomorrows? What subjugation has Power exacted from Reason?”

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Obama is inundated with problems that reverberate out of his predecessor's regime. He has access to information now, as President, that he may not have held in the early days of his campaign. Yet der Spiegel reminds us today, that the problems that most divided our recent, pre–Internet United States – Vietnam and Watergate – share moral grounds with the decisions regarding prosecutable offenses arising from Bush's Torture regime. One situation that preceded his entry into office, is Speaker of the House Pelosi's pronouncement that 'impeachment [of Bush] is off the table'.

At cZm, we believe that this Democratic decision was politically generated: it would have played into Republican hands during the earliest stages of the 2008 campaign. The biased MSM would have had a field–day in describing the Democratic Party's 'persecution obsessions'. Multiple 'trials' of multiple defendants would have sapped great portions of Congress's time. This analysis does not tackle how the Constitutional role of Congress, to protect the Country against Executive 'High Crimes and Misdemeanors', had been subjugated in order to 'win elections' rather than attaining a status of being the moral Constitutional Branch of Government.

Obama should assess wholeheartedly, how this Torture legacy will sap his moral clarity, more than to worry about 'opening wounds' through necessary investigations, indictments and trials. It was America's emerging moral clarity (through years of released evidence and protest) that ended the Vietnam War, nearly simultaneously with Nixon's bipartisan–forced resignation. Yet times have changed: the Bush misAdministration was supported throughout its distortion of America's normal moral clarity by the co–dependant right–wing press and radio, as well as its elected Party members in Congress.

Dick Cheney now responds with a call for the release of the 'memoranda' that outline the 'information gains' from Torture. Doing so, to him, would prove the utility of these reprehensible acts taken in the name of American people: this raises many questions. Would their authenticity be unquestionable? Would those reveal any more substantive content than did the famous 2002 Powell presentation to the UN? Would they prove that America received one accurate, beneficial, actionable item of information, for what ratio of hundred(s) of torture sessions, or victims? How many thousands of man–days have been accumulated by Guantanamo inmates, for what real end?

The saddest part of all this, is how Republicans saw value in supporting Government–authorized violence against Guantanamo prisoners as a means to support GOP re–election efforts, perhaps more so in the negative: 'candidates against torture', became vulnerable media victims to 'Soft On Terror!' attacks.

We should be thankful, perhaps, that the US Military has miraculously avoided (apparently...) any sizeable POW situations in Iraq or Afghanistan. Because no one – proponent or opponent of torture – wants to think of how 'our boys' would be treated by Sunni, Shi'ia or Al Qaida 'guards' who have cousins in Guantanamo... or in US secret prisons scattered elsewhere.

Guantanamo? Or Torture? Or Abu Ghraib? These certainly contend for places in the top–Five of single–noun legacies ascribable, purely and justifiably, to George Walker Bush. And we should pray to all gods that Jackson was wrong: “... that civilization cannot tolerate their being ignored, because it cannot survive their being repeated.”

Yes, other nations torture(d); yes, other nations pursued genocides; yes, other nations have been prosecuted for war crimes.

But they aren't the United States...

If President Obama wants the preceding sentence to promote renewed esteem for America, he should resist sustaining any of Bush's legacies; doing so may morph them into his own.

Henry T. King spoke of Jackson's Nuremberg legacy at the Chautauqua Institute, in June of 2003:

“The more significant, and more dramatic, consequence of Nuremberg is personal rather than legal. The trials altered the way that individuals perceive their status.”

Are we merely to insert the word 'Guantanamo'?

Is the resulting phrase spine–chilling to You?

Commemorating Robert Jackson,

American Moral Authority, and the

Day of Nazi Surrender...

As it was it can be again.

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