WE DON’T TORTURE
By H. R. Coursen
“They are going to walk away scot-free,” my
friend said.
“Who?”
“The members of the Bush administration.”
“Not just that,” I said. “They will walk into
cushy jobs while the rest of us wonder how the hell we’ll pay for heat this
winter.”
My friend’s assumption—and mine—is that Bush
and members of his cabal have engaged in criminal activity over the course
of his presidency. If that is so, then some form of accountability should be
brought to bear. But, as my friend suggests, that seems very unlikely.
Before our nation was “under God,” I recall
saying, “with liberty and justice for all.” That was not true then, in the
North or the South, but it was “an aspirational goal,” as they say. I would
suggest that “justice” does not just mean exoneration or freedom from
prosecution. It also means punishment. I would also point out that our
inability or unwillingness to prosecute those who break the law trickles
downward, as the laissez faire economists like to say. In Shakespeare, if a
king like Henry IV steals the crown, his act is reflected in a robbery like
that at Gad’s Hill. What does it mean to what we call “the rule of law” if
it does not apply to those who administer the law? It means that we are
raising a generation that is being told that if you are powerful enough and
have enough money the rules do not apply to you. The biographical details
suggest that that’s exactly how George Bush grew up. The final act of his
public career will probably be his pardon of himself. Pardonne moi!
We are aware of the many actions of the
current administration that run counter to our laws—from the fabrication of
a rationale for the invasion of Iraq to illegal surveillance of our own
citizens to the subordination of an independent system of justice to a
partisan agenda. But perhaps the most stark of this administration’s
violations has been its policy on torture. The Yoo-Bybee Memo II claims that
individuals can be accused of torture only when their “specific intent [is]
to inflict severe pain and suffering.” No! claims the torturer. My intent
was to gain intelligence. No! says the bank robber who has just killed a
guard. My intent was to steal money. The War Crimes Act of 1996 says that
any violation of Common Article 3 of the 1949 Geneva agreements constitutes
a war crime. The doctrine of “specific intent” is not part of Article 3.
But just as the telecom companies that
knowingly broke the law at Bush’s behest have been granted retroactive
immunity, the Military Commissions Act grants the same immunity for those
who might have committed war crimes, retroactive to November 26, 1997. Why
should they be punished, Bush asks, “just for doing their job?” Former
Reagan Justice Department official, Victoria Toensing, says, “If we don’t
protect people who are acting in good faith, no one will ever take chances.”
No! says the young woman who has just run a stop sign. I did not intend to
kill anyone. And retroactive immunity, as Charlie Savage points out in the
New York Times is “an implicit admission of guilt.”
Stuart Taylor claims in Newsweek that
Bush “ought to pardon any official from cabinet secretary on down who might
plausibly face prosecution for interrogation approved by administration
lawyers.” No. Anyone who has ever served in the military knows that it is
one’s duty to refuse to obey an unlawful order. Sure, there may be
consequences, but Nuremberg and the Eichmann trial proved that “just
following orders” is no defense for violating the higher moral authority
that Justice Jackson posited as a basis for Nuremberg.
Nicholas Kristof, of the New York Times,
proposes “truth and reconciliation” programs that will encourage “soul
searching” and “national cleansing.” I can hear Republicans chortling in
their gated communities and Gulfstreams at that one.
There is “nothing quite as cleansing to the
soul as an indictment,” says Dahlia Lithwick.
Lithwick suggests that Jack Bauer and 24
have had more influence on our torture policy than the Constitution. For the
cadaverous Michael Chertoff, the show “reflects real life.” Justice Scalia
sneers, “Who’s going to convict Jack Bauer?” Our torture policy emerges from
the same unreality that once prompted Dan Quayle to tout a weapons system
because “it worked” in a Tom Clancy novel. In the real world, as Herman
Schwartz of the American University Law School put it, “excruciating pain
even for thirty seconds will induce people to say anything.” And we are
inflicting that pain on real people, not actors being paid to confess in
time for a commercial break. But, of course, we are making ourselves more
secure and that justifies any action.
One of the men tortured to supply the material
that Powell used in that infamous United Nations speech of February 2003 has
recently said that he lied about Saddam’s possession of chemical weapons. “I
had to tell them something,” he says. “They were killing me.” In reality,
torture can be counterproductive, Jack Bauer notwithstanding.
The demand for accountability for war crimes
does not just come from the lunatic left. Lawrence Wilkerson, Powell’s Chief
of Staff, when asked whether VP Cheney’s rejection of Geneva conventions
constituted a war crime, said, “it was certainly a domestic crime... and I
would suspect that it is... an international crime as well.” General Antonio
Taguba, the man charged with investigating Abu Ghraib and then cashiered for
telling the truth about it, says that there’s no doubt “that the current
administration has committed war crimes. The only question that remains is
whether those who ordered the use of torture will be held to account.”
The punishment may be just that George Bush,
Richard Cheney, Douglas Feith, David Addington, John Yoo, Jay Bybee, Donald
Rumsfeld, et al. will be unable to travel to foreign countries lest they be
arrested for crimes against humanity. But they will be able to live
comfortably enough without that glass of wine in a cafe along the Champs
Elysees.
But what does it mean to be “free” within a
system that consistently denies commonly accepted standards of due process
to those deemed “against us”? That freedom is an illusion that could easily
be denied any of us simply by presidential decree. We could then hope that
perhaps Justice Kennedy would come down on the side of the Constitution in a
5-4 decision. “They hate us for our freedoms,” Bush said, in one of his more
simple-minded moments. Bush has replaced freedom with fear. I don’t find
that a satisfactory trade. A consistent threat to our freedom represents a
diminution of that precious quality.
But what can we do about it? Tom Allen sides
with Pelosi on impeachment. The White House defies Waxman and Conyers when
they request documents. The CIA erases interrogation tapes. The White House
loses all the emails for the period when it was outing Valerie Plame.
Scooter Libby obstructs justice so that Patrick Fitzgerald’s investigation
can go no further. Harriet Miers and Karl Rove ignore subpoenas. Snowe and
Collins are Republicans.
As the criminals go off to lucrative lives,
giving talks, as Bush says “to replenish the old coffers,” the rest of us
are free to be outraged.
H. R. Coursen’s latest novel is Even in
Dreams. He lives in Brunswick Maine.
