“Military necessity does not admit of cruelty—that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions.”
-Abraham Lincoln April 1863
“We can never forget that everything Hitler did in Germany was ‘legal’ and everything the Hungarian Freedom Fighters did in Hungary was ‘illegal.’
Martin Luther King Jr., Letter from a Birmingham Jail, April 1963
Simply put, what is legal or legitimate under the authority of mortal man is not necessarily moral, right, nor just.
Jose Rodriguez, The Head of the CIA’s Counter-Terrorism Center (CTC) is making the rounds hawking his best-selling book Hard Measures: How Aggressive CIA Actions after 911 Saved American Lives. His appearance on CBS’ 60 Minutes was positively chilling. The praise he got all around the table from the staff at MSNBC’s Morning Joe for helping to save America was nauseating. I’ve never seen Joe Scarborough and the rest so off the mark. Only his female co-host questioned the premise of the book quoting other authorities in the Federal government. And she had a scowl on her face the entire interview.
The basic argument made by former President George W. Bush, Vice-President Dick Cheney, Secretary of Defense Donald Rumsfeld, and Former Assistant Attorney General John Yoo, who wrote the famous torture memos authorizing what we did to human beings who were utterly defenseless and under our full control is that since John Yoo offered the opinion of the U.S. Justice Department that torture was legal and that opinion drew the support of the President and the very highest U.S. officials at the Pentagon and the CIA that it was lawful and the right thing to do.
The memos defined torture as “organ failure, impairment of bodily function or even death.” Anything less than that was legal and proper between 2001 and the end of the Bush years in 2009. Jose Rodriquez on MSNBC’s Morning Joe defined torture as “the breaking of bones and the profusion of blood on the walls.”
Extensive psychological research, and vast experience by the F.B.I. and our law enforcement agencies around the nation with giving the legal third degree and eliciting information from criminals demonstrates that torture will elicit much more information from detainees but much of what you get will be false and misleading and inaccurate; revealed by people who merely want the pain and suffering to stop and know they have to tell their interrogators something good to make that happen.
The founders of the United States placed into our Supreme Law the notion of due process in the Fifth Amendment to the Constitution of the United States. Then there is the Eighth which prohibits cruel and unusual punishment. There is the right to a fair and speedy trial and for defendants to be able to face their accusers in open court. There is the essential purpose of the document as a whole to both provide an effective mode of government, “a more perfect Union,” and to place distinct limits on the power the government they created has over us.
Of course, detainees from the war on terror are usually not American citizens. But it is undeniable that the Founders did not wish for our government and people to be part and parcel to tyranny, despotism, inhumanity, and deep injustice.
And then there is the clear distinction between legality, and what is moral, just, and right. Human rights come from God and not mortal men. Governments may not recognize them, but they form a framework for moral behavior and compassion for humanity that God demands of us. Our very souls are placed in peril when we sit idly by and do nothing about inhumanity and cruelty however it is backed up by laws passed by duly constituted governments and within their jurisdiction are legitimate. Legitimacy and morality don’t always co-exist together. In this case they are in complete disharmony with each other.
Hitler’s Germany legally passed The Nuremburg Laws in 1935 that deprived Jews in Germany and elsewhere the Third Reich might go of their citizenship, and the rights that went with them. These laws were placed into effect with the strictest legality. Under them, Jews were defined as “sub-human.” That opened the way for intense racial and ethnic discrimination, the seizing of property, the denial of dignified work, and the arrest and incarceration of the Jews in labor camps. In 1942, in a Berlin suburb on an otherwise pleasant day the very highest officials came to decide what was to be done about the Jews. It was the “Jewish Problem.” It became that summer “the Final Solution.” The very highest Nazi officials gave their official imprimatur to the policy and Hitler himself made this not only legal but demanded its prompt execution.
In 1961, Adolf Eichmann, the Nazi officer who followed the directives of his superiors so faithfully, just as Jose Rodriquez has with the lesser but no less important human rights questions he faced in the war on terror. Eichmann insisted that he himself was merely following the directives of his government and nothing more. The full approval by law of the highest officers of the Nazi government justified his detailed planning and carrying out of the transportation of millions of people to the death camps during World War II.
Now Jose Rodriguez makes precisely the same argument though no one is suggesting that he did anything akin to Eichmann. But under International Law, United Nations declarations the United States is still a signatory to, and Federal Law (even after amended by the very criminals who are responsible for the outrage) we cannot legally behave this way. Nor can we be a moral nation if we do so. It must be said bluntly that what the United States did at Guantanamo, at Abu Grahib, and in countless “renditions” where detainees were spirited away and taken to secret prisons in Europe and the Middle East where they might be fully isolated from the eyes of traditional American justice and tortured more fully are war crimes. The men and women who made these decisions about torture after 911 are very lucky they are not prosecuted at The Hague or by some other international tribunal. For in point of fact, the United States executed war criminals after World War II for doing many of the same things.
A much better look at this question is a book by Cynthia Cooper and Elizabeth Holtzman, “Cheating Justice: How Bush and Cheney Attacked the Rule of Law, Plotted to Avoid Prsecution, and What we Can Do About It.” Yes, that fine and courageous Congresswoman from New York who served on the House Judiciary Committee when the transgressions of an imperial presidency required setting right during the dark days of the Nixon years. Holtzman is a lawyer and a damn good one. She and her co-author have researched this question from the other point of view: that the torture, illegal wiretapping in open violation of the FISA law and more require action to prevent future administrations from routinely doing the same thing. Though the Obama Administration has backed off from torture and the worst abuses of the Bush years, the President did sign an executive order where American citizens anywhere, anytime, and for any reason deemed necessary by your government can be killed at will. That is on its face a violation of the Fifth Amendment to the United States Constitution and probably the Sixth as well. So we have reasons to reflect and examine ourselves and how we feel about these questions.
Cooper and Holtzman call our attention to the 1948 Universal Declaration of Human Rights adopted by the United Nations and voted in by the United States. Article 5 proclaims: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Then there are the Geneva Conventions which the United States no longer adheres to. There is also the Convention against torture. Two Federal laws put these approved international treaties to which the United States remains a signatory into effect. There is the War Crimes Act of 1996 “that makes “the mistreatment of detainees a crime,” cites Holtzman’s book. There is also what is called the “anti-torture law (18 USC SS 2340-2340A) under Federal Statute.
No doubt the seekers of “hard measures” against those who attacked us on 911 and who may in future attack us demand we do what Jose Rodriguez is being lauded for all over the nation. He and his people are “courageous heroes” who “saved America.” And you people will say that what we did was not “torture.” That we properly acted short of the definition provided by Mr. Yoo in his infamous memos permitting all we did.
But the use of such an obvious euphemism linguistically to accomplish it: “enhanced interrogation techniques” or EIT’s for short tells you it IS torture but we dare not say so. In point of fact, Rodriquez himself admits that we got most of our torture ideas from our enemies: communist countries we fought during the cold war and Nazi Germany as well as Imperial Japan. Is this the standard of behavior we wish to be known for? Can any American service man or woman captured in the future expect better treatment? Of course not. Justice would demand reciprocal action by both terrorists and nation states alike. And we would have nothing morally sound to stand upon in protest.
What is the use of waterboarding, sleep deprivation that lasts for the better part of a week or more, and the playing with detainee genitalia while they are naked and helpless? Is this courageous? And when research shows conclusively that more humane techniques work even better: somewhat less information but what you get is more likely to be accurate and useful, how can these people justify it? They cannot. And Struggles for Justice refuses to accept this standard of behavior as anything comporting with human compassion, right, justice, and humanity.
What good is it for America to say to the world that we are the land of the free where human rights are placed above all else in creating the City on a Hill spoken of first by John Winthrop, Governor of the Massachusetts Bay Colony in 1630 and made into a beacon of hope and humanity in a cruel and unjust world where the worst atrocities happen routinely? What good is it for America to win the battle of punishment against those captured alive in the war on terror only to lose our very souls as a people in treating them so?
Outright opposition to torture as argued strenuously for here is no doubt going to be seen by many as a sign of weakness, naiveté and an open door to defeat and worse human suffering. But this lowering ourselves to the level of our enemies was not what we had in mind in 1776. We are supposed to be better than that. The trick is to use our morally superior position as a democratic republic that fully respects human rights and dignity, even when threatened with terrible destruction by our enemies in a dangerous world to full advantage. And there is the added benefit that it is moral, right, and just as demanded of us by God.
We suppose it is reasonable to assume that during a great civil war, where the very existence of this Union hung in the balance, and where 620,000 soldiers would die would have to lead one of our two best presidents, and one of the wisest men who ever led us in our storied history to commit worse crimes. The fact he did not, and he argued against such things speaks volumes.
No, Jose Rodriguez, George W. Bush, Dick Cheney, Donald Rumsfeld, and John Yoo, legality and government induced legitimacy on the part of mere mortals is not the same as what is truth, moral, right and just as transmitted by the Creator. For we are mortal and flawed and not gods ourselves.