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'.
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© 2009
