Habeas Corpses?

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The Obama administration now has aligned itself with the Bush administration in denying habeas corpus to foreign nationals brought to Bagram prison in Afghanistan from other countries. The logic is, if brought to Guantanamo or other U.S. domestic prisons, they would have the right to challenge their detention through habeas corpus proceedings in court. Therefore, they should be brought to Bagram, where they can be classified as captured enemies, not entitled to habeas corpus. Their only way out may be feet first, as corpses, after many years in limbo.

An interesting argument. At point A, you have some rights. At point B, you do not. We can change the application of the law just by moving you.

This is as subtle as cow pie. This is as legal as a three dollar bill. This is a disgrace. This is un-American, as was much of the Bush legal schema.

Mr. President, come back to Earth, and recognize these prisoners' fundamental rights. While you are at it, why not introduce the rule of law for all captured people into the Bagram situation, too?

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Saturday, April 25, 2009

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Is Prosecuting Torturers Justice Or Retribution?

 

Mr. Obama repeatedly has said that he wants to look forward, rather than back, on the torture issue. In this, he is violating his oath of office, when he swore to uphold the Constitution and the laws of the land. The history of the Bush administration's justification and use of torture is not a minor thing to be let go of as "bygones." These were not misdemeanors, committed in an excess of zeal in the aftermath of 9/11. These were high crimes, under any definition, and the President has the duty to investigate and prosecute. 

It is not enough to issue executive orders banning torture. Many of Mr. Obama's good deeds to date consist of orders reversing the worst of the Bush policies. However, this is government by decree, easily reversed by the next President, unless fixed in law and firmly enforced. In the case of torture, the law already was clear, and letting it go sends the message that the highest level of U.S. government can get away with high crimes. 

Protecting those who conducted the torture, with the argument that they were told it was legal, also is a mistake. We must never forget the Nuremburg principles, which stated clearly that "I was just following orders" is not a valid excuse for terrible crimes. The principle is the individual's responsibility to just say "no" to illegal and immoral orders. If we did not excuse Germans, who may have faced death for refusing orders, how can we excuse U.S. operatives, who faced at most career derailment? The good person who goes along with evil, is just as guilty.

Arguing that the CIA and others would be demoralized by such prosecutions is perverse. The CIA would be strengthened by the prosecutions, and those within it who want to uphold the law would be encouraged. The CIA needs to be proud of its behavior, not to be a example to the world of our worst behavior. Investigations and prosecutions, including the highest levels of the administration, are the best way to purge this horrible past, and to move forward with a renewed sense of purpose.

This is justice, not retribution. If all are to be equal before the law, then Bush, Cheney, and all those involved in torture must be brought before the bar. Mr. Obama, respect your oath of office, and do what is right.

Saturday, April 25, 2009

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The Claim Of State Secrets Is A Wet Blanket

 

The Administration recently supported a Bush claim that a court proceeding should not continue, in order to protect state secrets. It is time to probe the definition of "state secrets" more deeply, to shine a little more light on what is and what is not a legitimate claim.

Once, state secrets were more obvious: nuclear weapons technology, for example. Or, troop movements or strategic plans in Korea, or Vietnam. This area generally was focused on military/spy operations, to protect lives and identities. Some of these concerns legitimately continue, although broad claims even in the military area need to be examined by appropriate courts.

Beyond this, what constitutes an appropriate claim for state secrecy? Is it appropriate to protect illegal actions by the executive? Iran-Contra, for example? Or, torture? Shouldn't we decide that no illegal action is entitled to protection as a state secret?

What about legal, but stupid actions? Should the state secrets umbrella protect people from embarrassment? I think not.

What about lies? Aid to dictators? Failures to provide humanitarian assistance?

The principle should be that a state secret protects an interest that if disclosed, would seriously compromise the safety or security of the country. We should develop a list of categories of state secrets, with general justifications for each. Then, appropriate courts could review claims within each category for legitimacy, with Congressional oversight.

Continuing deference to executive claims, with reflexive acceptance, is in itself a threat to democracy: we need to do better.

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Thursday, February 19, 2009

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A Loophole On Rendition

 

Barely noted in the joy over Mr. Obama's announcements recently, is a loophole in rendition policy. Rather than ban extraordinary renditions entirely, he chose to leave open the option for renditions to governments we "know" will treat prisoners properly. This begs the question of why we need renditions at all: it can't be for lack of faith in our domestic legal system. Rather, rendition seems to assume that we need someone else to do our dirty work, in extracting information from prisoners. This is not worthy of us: ban extraordinary renditions completely.

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Thursday, February 19, 2009

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A Loophole On Prisons

 

The President's order to close Guantanamo and the secret CIA prisons is a good thing, even if one year is too long. However, he was silent on our prisons in Iraq, Afghanistan, and elsewhere. We need to close our foreign prisons, while providing due process for those long kept there. Thousands of prisoners need a way toward freedom, or an open process toward incarceration. Indefinite detention is Un-American.

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Monday, February 2, 2009

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A Loophole On Torture

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The President's directive to follow the Army Manual on interrogations is a fine order, but it has a loophole for the CIA to review the issue, and to come back with recommendations for alternative methods. Why give the CIA this loophole, which could allow them to violate the international conventions against torture, again? What is the logic justifying this approach? The President needs to block this CIA activity.

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Monday, February 2, 2009

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First Cloud, Supplement

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Richard Cohen and Ruth Marcus, in the Washington Post, and the Republican leadership, all have argued against prosecuting those who were involved in torture. The following was sent to the Post after Cohen's recent op ed:

 

Richard Cohen joins those who would forget the lawlessness of the Bush administration. He argues that intelligence agents who put forth a "sincere" effort should not have to fear a Congressional committee or a grand jury. He wants the finest people in these jobs, implying that a willingness to torture is part of the job description. What an interesting legal standard!

 

Let's be clear. Torture is illegal, and has been for many decades. It is a crime against humanity under international law, which is legally binding on the U.S. No one, under any circumstances, should be tortured. Any one who authorizes, participates in, or directly applies torture is a criminal. Our collective outrage over 9/11 is no excuse for torture. Without a clear and consistent rule of law, we lose our legal and moral standing in the world. That our CIA or military may have acted with the good intention of protecting our country is not an excuse.

 

We have learned too often that good people will do horrible things if asked to, under the right circumstances. If an individual cannot find the strength to refuse to torture, then the fear of punishment must deter. Imagine the sincere torturer, and shudder: we have to be better than that. Investigate, prosecute, and sentence the torturers, for our own sake.

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Monday, February 2, 2009

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First Cloud On The Horizon

 

The original intent was to wait until after the Inauguration, but the first cloud on the horizon has appeared: the apparent intent not to pursue investigations of violations of the law by the Bush administration. 

This is not an issue of revenge, but something much more important: the principle that no one is above the law. Those who tortured, who violated citizen's rights, and who abandoned due process, need to be investigated and prosecuted. Those who come need to know that punishment is certain, to encourage them to stay within the limits of decency, rather than to push the boundary until it breaks.

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Monday, January 12, 2009

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Torturers Must Be Punished

 

Ruth Marcus’ column in the Post on Wednesday, 31 December, arguing against torture trials attempts to minimize the crime, in a number of incredible ways. 

1. She suggests that the threat of internal investigations or Congressional hearings would be effective deterrents. This would be laughable, if the subject were not so serious. The threat of criminal convictions and serious jail time is what is needed to deter those who would torture in the name of patriotism. Remember, this is a crime under both U.S. and international law. It is a crime against humanity. It is inexcusable for anyone, anywhere, to impose torture upon another. Indeed, the threat of punishment needs to be so strong and so credible, that those so inclined would fearfully resist the impulse. An internal investigation? A Congressional hearing? Not threats at all, as experienced under the Bush administration.

2. She suggests that the threat of criminal sanctions did not deter Bush officials anyway. Right: it is actual swift convictions and sentences which would provide the deterrent, not the possibility of someday facing the consequences. 

3. She suggests stronger oversight to prevent torture. This is both after the fact and too late, and lacking in penalty: what would the oversight group do, but perhaps censure the torturers? Again, this is not enough.

4. She suggests that the costs of criminal prosecutions would be too high, and that officials could err on the side of excessive timidity. Given the choice between a tortured victim and a timid official, give me the timid official every time. There are some lines which should never be crossed. Torture is one such line.

5. She suggests that criminal prosecutions would drain energy from the new administration. Rather, I believe that the new administration is capable of walking and chewing gum at the same time; it can pursue revitalizing the economy, undoing the legislative and executive excesses of the Bush administration, and presecuting torturers. In fact, it must do this, to restore America’s moral standing with the world.

6. Finally, she raises the bar to “conscious law-breaking.” This is not necessary. Someone who tortures another, relying upon orders, or legal memos, still is guilty. It is time to remember the Nuremburg principles, and seek justice for those who would throw out the law and morality in pursuing their agendas.

Torture is a crime against humanity. In the name of humanity, it must be punished by criminal trial.

 

Wednesday, December 31, 2008