Point: The "enhanced interrogation techniques" used by the U.S. in the wake of 9/11 on al-Qaeda prisoners — waterboarding and others — were forms of torture, and as such were absolutely wrong, morally speaking.
Counterpoint 1: The EITs used by this country on al-Qaeda terrorists were morally justified by the fact that they, in the words of former Vice President Cheney, "were legal, essential, justified, successful and the right thing to do . . . They prevented the violent death of thousands, perhaps hundreds of thousands, of people."
My response: Mr. Cheney does not sufficiently address the question of whether the EITs were absolutely wrong, in a moral sense. By "absolutely wrong" I suggest that torture of enemy prisoners can never be morally justified. Many things which are normally considered immoral can be justified if other moral concerns "trump" them. But torture, like murder, is absolutely wrong, and cannot be justified by other, non-morally absolute concerns that might be said to trump the moral proscription against torture.
For example, if a hypothetical American president says he has a duty to use torture to show an enemy how resolute we are, that would be a specious argument, since showing an enemy how tough we are is not an absolute moral necessity.
It is not at all clear from his words that Mr. Cheney would abjure such an argument.
Counterpoint 2: The EITs were not "torture," and as such were not morally wrong in any absolute sense.
My response: This is a tough one. Defenders of the EITs have made the legal point that international laws prohibiting the torture of wartime prisoners — the Geneva Conventions, etc. — were not violated by use of these particular techniques. Additionally, the point has been made that the Geneva Conventions, along with relevant anti-torture resolutions of the United Nations, do not anticipate the kind of conflict which the "war on terrorism" actually is, and so don't apply to this situation.
But these are legal considerations, not moral ones. In moral terms, arguing that waterboarding is not a form of torture is like arguing that abortion is not a form of murder.
Judging by the unabated intensity of the argument over abortion, the latter position remains a controversial one. Well-intentioned people line up on both sides of the argument.
The same is true of the present argument as to whether waterboarding is torture. I don't claim to be able to settle this particular discussion.
Counterpoint 3: The point made at the outset of this post is correct. Waterboarding is torture, and torture (like murder) is absolutely wrong ...
... but ...
... the EITs prevented murder from being done. They, as Mr. Cheney says in his speech, "were used on hardened terrorists after other efforts failed," and they successfully elicited from our al-Qaeda prisoners information that "prevented the violent death of thousands, perhaps hundreds of thousands, of people."
My response: This counterpoint, it seems to me, is the best moral argument in favor of the use of EITs. Here we have the case of a conflict between two moral absolutes. If murder is absolutely evil, per our moral beliefs, surely the prevention of murder is an absolute good, especially when the number of people kept safe is large — but even when the number is small.
Counterpoint 4: Torture is not absolutely wrong in the first place. It is not like murder, which is prohibited by one of the Ten Commandments.
My response: If torture is absolutely wrong, it is so because it is a clear violation of basic human dignity.
Now, I admit that certain violations of human dignity have been tolerated historically. Slavery is a case in point. Down through history and, sadly, in some cultures even today slavery has been accepted. Yet, equally clearly, history is on the side of those who oppose slavery as an absolute affront to human dignity.
The lesson here is that things that are absolutely immoral do have a historical component which, looked at all by itself, seems to say that the moral principle is a relative one, not an absolute.
But how many of us in the U.S. today would treat opposition to slavery as a relative good?
Likewise, I would say, opposition to the torture of prisoners is now emerging from the shadows of history as an absolute good. Thus, I would say this counterpoint is a specious argument. We in this country can now generally agree, I believe, that torture is absolutely wrong.
Still and all, I think the third counterpoint listed above does carry moral weight. When torture (an absolute evil) serves to prevent murder (another absolute evil), it can be justified.
Friday, May 22, 2009
Friday, May 8, 2009
Latter-Day Abolitionists
As we in America are debating the "enhanced" interrogation techniques used on terror suspects under President George W. Bush, forces abroad (see John R. Bolton - Obama's Prosecutions by Proxy) are threatening to prosecute instances of purported U.S. "torture."
What's really going on here?
An analogy can be drawn to slavery and our Civil War. Southern states in our as yet incomplete nation seceded at a point when it looked like all new states would be "free" rather than "slave" — meaning that eventually the free states would become numerous enough to put through a constitutional amendment banning slavery everywhere, the Land of Cotton included.
Abolitionists had long been calling for the emancipation of slaves as an absolute moral imperative, since slavery was an insult to human dignity. Many leading abolitionists were from New England, where slavery was not immediately an issue.
We now know that the abolitionists were right, but in their day they were ahead of their time. Slavery is an inexcusable insult to human dignity. Yet in the years leading up to the onset of civil war in 1861, many of America's greatest minds could make excuses for it. President Lincoln, first elected in 1860, abhorred slavery, but he wrote in an open letter to Horace Greeley:
Lincoln was willing to subsume the moral principle that slavery is absolutely unjust to the pragmatic need to save the Union, so to hold foreign powers at bay who otherwise would not hesitate to take over our divided land.
Among the Founding Fathers, Thomas Jefferson in particular despised slavery (though he was a slaveholder), and George Washington went so far as to free his slaves. Yet their acquiescence to southern representatives who upheld slavery during the Continental Congress and, later, the Constitutional Convention was mandatory, if the United States (plural, then) were to be born at all.
Slavery would finally be outlawed (in the Union, not the Confederacy) by Lincoln's Emancipation Proclamation, and when the Confederacy was defeated, the reunited states were required to free their slaves as well. Reconstruction ensued, and then came the Jim Crow laws in the South. By 1896, Americans of African descent, though nominally free, were herded into a separate society in the South, one that the Supreme Court's Plessy v. Ferguson decision ratified under the guise of "separate but equal." The civil rights movement of the 20th century eventually put paid to that doctrine and set the stage to right the lingering wrongs brought about by segregation and racial discrimination.
In short, it took a lot of pain, indignity, death, hard work, patience, and disappointment over a long period of time before the principle took root that slavery and racism are absolute moral wrongs.
Now we are testing whether the moral principle that torture is absolutely wrong has taken root. It seems to have done so in Europe, where Spanish magistrate Baltasar Garzón is making noises about prosecuting the American perpetrators of torture. He is, one might say, a leading voice among latter-day abolitionists. Like the New Englanders of the 19th century who sought to end southern slavery, he has no direct tie to the U.S. behaviors he opposes on moral grounds. He thus points the way to our moral future. The question is, are we ready to go down that road just yet?
What's really going on here?
An analogy can be drawn to slavery and our Civil War. Southern states in our as yet incomplete nation seceded at a point when it looked like all new states would be "free" rather than "slave" — meaning that eventually the free states would become numerous enough to put through a constitutional amendment banning slavery everywhere, the Land of Cotton included.
Abolitionists had long been calling for the emancipation of slaves as an absolute moral imperative, since slavery was an insult to human dignity. Many leading abolitionists were from New England, where slavery was not immediately an issue.
We now know that the abolitionists were right, but in their day they were ahead of their time. Slavery is an inexcusable insult to human dignity. Yet in the years leading up to the onset of civil war in 1861, many of America's greatest minds could make excuses for it. President Lincoln, first elected in 1860, abhorred slavery, but he wrote in an open letter to Horace Greeley:
My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that. What I do about slavery, and the colored race, I do because I believe it helps to save the Union; and what I forbear, I forbear because I do not believe it would help to save the Union. I shall do less whenever I shall believe what I am doing hurts the cause, and I shall do more whenever I shall believe doing more will help the cause.
Lincoln was willing to subsume the moral principle that slavery is absolutely unjust to the pragmatic need to save the Union, so to hold foreign powers at bay who otherwise would not hesitate to take over our divided land.
Among the Founding Fathers, Thomas Jefferson in particular despised slavery (though he was a slaveholder), and George Washington went so far as to free his slaves. Yet their acquiescence to southern representatives who upheld slavery during the Continental Congress and, later, the Constitutional Convention was mandatory, if the United States (plural, then) were to be born at all.
Slavery would finally be outlawed (in the Union, not the Confederacy) by Lincoln's Emancipation Proclamation, and when the Confederacy was defeated, the reunited states were required to free their slaves as well. Reconstruction ensued, and then came the Jim Crow laws in the South. By 1896, Americans of African descent, though nominally free, were herded into a separate society in the South, one that the Supreme Court's Plessy v. Ferguson decision ratified under the guise of "separate but equal." The civil rights movement of the 20th century eventually put paid to that doctrine and set the stage to right the lingering wrongs brought about by segregation and racial discrimination.
In short, it took a lot of pain, indignity, death, hard work, patience, and disappointment over a long period of time before the principle took root that slavery and racism are absolute moral wrongs.
Now we are testing whether the moral principle that torture is absolutely wrong has taken root. It seems to have done so in Europe, where Spanish magistrate Baltasar Garzón is making noises about prosecuting the American perpetrators of torture. He is, one might say, a leading voice among latter-day abolitionists. Like the New Englanders of the 19th century who sought to end southern slavery, he has no direct tie to the U.S. behaviors he opposes on moral grounds. He thus points the way to our moral future. The question is, are we ready to go down that road just yet?
Thursday, May 7, 2009
John R. Bolton - Obama's Prosecutions by Proxy
John R. Bolton's Washington Post op-ed piece Obama's Prosecutions by Proxy gives another dimension to the present debate over how the U.S. should deal with the alleged acts of torture perpetrated under the Bush administration upon terror suspects held prisoner at our Guantanamo Bay, Cuba, detention facility and elsewhere.
Mr. Bolton was a U.S. ambassador to the United Nations under President George W. Bush and is now a senior fellow at the conservative American Enterprise Institute and the author of the book Surrender Is Not an Option: Defending America at the United Nations and Abroad.
Mr. Bolton says his takeoff point is a reported threat from a magistrate in Spain to prosecute, among others, "six Bush administration lawyers for their roles in advising on interrogation techniques."
The article linked to above says that Spanish judge Baltasar Garzón, "Spain's most prominent investigative magistrate," is probing "alleged torture of terrorism suspects at Guantanamo Bay," a move that is "separate from a complaint by human rights lawyers that seeks charges against six specific Bush administration officials they accuse of creating a legal framework to permit torture of suspects at Guantanamo Bay and other U.S. detention facilities." Yet Mr. Bolton seems to lump the latter initiative in with the former in his diatribe against Garzón's move.
But never mind. The U.S. is being called to task abroad for torture tactics that putatively violated international covenants ... which, under our constitution, apparently have the force of law domestically as well. But it is not yet clear whether the Obama administration's Justice Department is going to prosecute anyone at all.
President Obama has said that the CIA personnel who carried out the "enhanced interrogation techniques" will not be charged with crimes. Other people involved, such as the various attorneys in the Office of Legal Counsel in the Bush Justice Department — the "six specific Bush administration officials," presumably — await a determination by Obama's Attorney General, Eric Holder, as to what further legal action will be taken.
Meanwhile, some Democratic leaders in Congress are talking of a formal 9/11-style commission to investigate the whole affair.
And, seemingly, jurists abroad are taking it upon themselves to push the investigative envelope. Garzón, the Spaniard, has said said he is "acting under [his] country's observance of the principle of universal justice, which allows crimes allegedly committed in other countries to be prosecuted in Spain." Yet he is apparently a maverick whose initiative or initiatives offend his own government: "Spanish prosecutors said on April 17 that any such probe should be carried out by the U.S. and recommended against it being launched in Spain. Their opinion has been endorsed by [Spanish] Attorney General Candido Conde-Pumpido."
Enter Mr. Bolton to complain that "the critical question is who judges the official actions that U.S. personnel took while holding government office. Is it our own executive and judicial branches, within our constitutional structures and protections, or some unaccountable foreign or international magistrate in some unaccountable distant court? The proper U.S. position is to insist that our Constitution alone governs any review of our officials' conduct."
Mr. Bolton was a U.S. ambassador to the United Nations under President George W. Bush and is now a senior fellow at the conservative American Enterprise Institute and the author of the book Surrender Is Not an Option: Defending America at the United Nations and Abroad.
Mr. Bolton says his takeoff point is a reported threat from a magistrate in Spain to prosecute, among others, "six Bush administration lawyers for their roles in advising on interrogation techniques."
The article linked to above says that Spanish judge Baltasar Garzón, "Spain's most prominent investigative magistrate," is probing "alleged torture of terrorism suspects at Guantanamo Bay," a move that is "separate from a complaint by human rights lawyers that seeks charges against six specific Bush administration officials they accuse of creating a legal framework to permit torture of suspects at Guantanamo Bay and other U.S. detention facilities." Yet Mr. Bolton seems to lump the latter initiative in with the former in his diatribe against Garzón's move.
But never mind. The U.S. is being called to task abroad for torture tactics that putatively violated international covenants ... which, under our constitution, apparently have the force of law domestically as well. But it is not yet clear whether the Obama administration's Justice Department is going to prosecute anyone at all.
President Obama has said that the CIA personnel who carried out the "enhanced interrogation techniques" will not be charged with crimes. Other people involved, such as the various attorneys in the Office of Legal Counsel in the Bush Justice Department — the "six specific Bush administration officials," presumably — await a determination by Obama's Attorney General, Eric Holder, as to what further legal action will be taken.
Meanwhile, some Democratic leaders in Congress are talking of a formal 9/11-style commission to investigate the whole affair.
And, seemingly, jurists abroad are taking it upon themselves to push the investigative envelope. Garzón, the Spaniard, has said said he is "acting under [his] country's observance of the principle of universal justice, which allows crimes allegedly committed in other countries to be prosecuted in Spain." Yet he is apparently a maverick whose initiative or initiatives offend his own government: "Spanish prosecutors said on April 17 that any such probe should be carried out by the U.S. and recommended against it being launched in Spain. Their opinion has been endorsed by [Spanish] Attorney General Candido Conde-Pumpido."
Enter Mr. Bolton to complain that "the critical question is who judges the official actions that U.S. personnel took while holding government office. Is it our own executive and judicial branches, within our constitutional structures and protections, or some unaccountable foreign or international magistrate in some unaccountable distant court? The proper U.S. position is to insist that our Constitution alone governs any review of our officials' conduct."
Wednesday, May 6, 2009
Wash. Post Panel - Is Torture Ever Justified?
Is Torture Ever Justified? is a panel discussion by religious experts, hosted at On Faith at washingtonpost.com, in which thought leaders from our various faith and ethical traditions speak out on what is one of the most vexing questions of the moment, and one that is at the heart of this blog: were the "enhanced interrogation techniques" employed by the CIA in 2002 and 2003 morally justified?
The panel members were asked: "The UN Convention Against Torture states that torture should be abolished because it violates 'human dignity.' From your perspective, what is wrong with torture? Should perpetrators be prosecuted? What does your faith tradition have to say about torture?"
(This is the first time this blogger has become aware that the United Nations Convention Against Torture is being cited in preference to the much-heard-about Geneva Conventions, one of which outlaws the torture of captured prisoners of war. The U.N. CAT is presumably more general in condemning torture per se, not just that of prisoners of war, but does it carry the same force of law under the U.S. Constitution, I wonder? But never mind ... the question in this post is moral, not primarily legal.)
Waterboarding and other such techniques, most of the panel's experts say, in fact constitute torture. But were they justified? The president of the National Jewish Center for Learning and Leadership, Rabbi Brad Hirschfield, writes in Torture is Wrong, Until It Saves a Life, "The very notion of torture sickens me. I am almost 100% certain that it must always be opposed. But I live with the awareness that if it was my kid and I genuinely believed that torture would save their lives, I might think differently."
As far as this blogger knows, we have heard as yet no hard evidence that the al-Qaeda personnel held prisoner and interrogated in secret locations abroad by the CIA coughed up useful information that saved American lives. Former Vice President Chaney has charged that the Obama administration is withholding documents that would prove that they did, but the jury is still out on whether our subjecting prisoners to extreme duress produced lifesaving results that could not have been obtained any other way. Yet a fair-minded person might well assume that torturing prisoners does sometimes save innocent lives. But is it moral to torture?
Torture is Always Wrong, writes Auschwitz survivor and human rights activist Elie Wiesel, a panel member. To Mr. Wiesel, the answer is stark and simple: "Torture is always wrong, because the tortured person dies more than once." End of statement. Mr. Wiesel presumably means that there is a very real "death" associated with undergoing (say) the simulated drowning of waterboarding, even though the person being tortured actually lives. Thus, torture imposes a sort of double jeopardy upon its victim.
Frankly, I find Mr. Wiesel's response too terse to be of much use. Looking briefly at the other experts' responses, I note that almost all condemn torture out of hand, as does Mr. Wiesel. Charles Colson, however, is a lone cautionary voice. The author, radio commentator, and former counsel to President Nixon, while he clearly denounces torture per se in his contribution, The Wrong Question, adds: "The real question in war time is what kind of behavior constitutes torture? That seems to me to be a factual question before it is a theological question."
To which I counter: who or what is to determine what kind of behavior constitutes torture? If some judge or adjudicative process, the question becomes primarily a legal one ... which may or may not be congruent with the moral one. As a non-lawyer, I don't presume to know whether a law-based inquiry into the interrogation techniques would actually settle the matter. Perhaps the techniques were (barely) legal ... but were they moral?
Let me put it the other way around: if waterboarding and the other "enhanced" techniques were not moral, then we need to find a way to banish them under the law, once and for all. On the other hand, if they were morally justified, we need to find ways to uphold them legally, so that future administrations can use them when a situation dictates. The moral question precedes the legal one.
The panel members were asked: "The UN Convention Against Torture states that torture should be abolished because it violates 'human dignity.' From your perspective, what is wrong with torture? Should perpetrators be prosecuted? What does your faith tradition have to say about torture?"
(This is the first time this blogger has become aware that the United Nations Convention Against Torture is being cited in preference to the much-heard-about Geneva Conventions, one of which outlaws the torture of captured prisoners of war. The U.N. CAT is presumably more general in condemning torture per se, not just that of prisoners of war, but does it carry the same force of law under the U.S. Constitution, I wonder? But never mind ... the question in this post is moral, not primarily legal.)
Waterboarding and other such techniques, most of the panel's experts say, in fact constitute torture. But were they justified? The president of the National Jewish Center for Learning and Leadership, Rabbi Brad Hirschfield, writes in Torture is Wrong, Until It Saves a Life, "The very notion of torture sickens me. I am almost 100% certain that it must always be opposed. But I live with the awareness that if it was my kid and I genuinely believed that torture would save their lives, I might think differently."
As far as this blogger knows, we have heard as yet no hard evidence that the al-Qaeda personnel held prisoner and interrogated in secret locations abroad by the CIA coughed up useful information that saved American lives. Former Vice President Chaney has charged that the Obama administration is withholding documents that would prove that they did, but the jury is still out on whether our subjecting prisoners to extreme duress produced lifesaving results that could not have been obtained any other way. Yet a fair-minded person might well assume that torturing prisoners does sometimes save innocent lives. But is it moral to torture?
Torture is Always Wrong, writes Auschwitz survivor and human rights activist Elie Wiesel, a panel member. To Mr. Wiesel, the answer is stark and simple: "Torture is always wrong, because the tortured person dies more than once." End of statement. Mr. Wiesel presumably means that there is a very real "death" associated with undergoing (say) the simulated drowning of waterboarding, even though the person being tortured actually lives. Thus, torture imposes a sort of double jeopardy upon its victim.
Frankly, I find Mr. Wiesel's response too terse to be of much use. Looking briefly at the other experts' responses, I note that almost all condemn torture out of hand, as does Mr. Wiesel. Charles Colson, however, is a lone cautionary voice. The author, radio commentator, and former counsel to President Nixon, while he clearly denounces torture per se in his contribution, The Wrong Question, adds: "The real question in war time is what kind of behavior constitutes torture? That seems to me to be a factual question before it is a theological question."
To which I counter: who or what is to determine what kind of behavior constitutes torture? If some judge or adjudicative process, the question becomes primarily a legal one ... which may or may not be congruent with the moral one. As a non-lawyer, I don't presume to know whether a law-based inquiry into the interrogation techniques would actually settle the matter. Perhaps the techniques were (barely) legal ... but were they moral?
Let me put it the other way around: if waterboarding and the other "enhanced" techniques were not moral, then we need to find a way to banish them under the law, once and for all. On the other hand, if they were morally justified, we need to find ways to uphold them legally, so that future administrations can use them when a situation dictates. The moral question precedes the legal one.
Friday, May 1, 2009
Eugene Robinson - Torture and the Law: Where 'Those Methods' Ultimately Lead
Post columnist Eugene Robinson, in Torture and the Law: Where 'Those Methods' Ultimately Lead, says that "once we learn the whole truth, the law will oblige us to act on it. ... I'm not sure it's possible to skirt the criminal implications of what we already know, let alone what we might find out in a full-scale 'truth commission' investigation with access to all relevant witnesses and documents."
He congratulates the Obama administration for being "straightforward and righteous" on the moral issue while being "far less definitive" on the legal question. He implies thereby that President Obama would like us now to "forgive but don't forget" the crimes of torture committed by CIA agents upon terrorists jailed abroad in 2002 and 2003.
This is Option Two in Michael Kinsley's column on the subject, Where This Buck Stops. Mr. Kinsley aptly points out that Americans who re-elected President Bush in 2004 already knew (or should have) about the waterboarding and other torture tactics when they voted that November.
Messrs. Robinson and Kinsley are liberals, but not just liberals are calling for justice in the matter of prosecuting those who authorized, justified, and carried out "enhanced interrogation" techniques. Conservative columnist Kathleen Parker, in Is It Torture?, says "the answer lies in what we want to be":
If we want to continue to call ourselves a nation that is subject to the rule of law, says Ms. Parker, then we must set aside the "darkly impassioned arguments" by which most of us (myself included) would be able to justify torture under certain special circumstances — say, to save the life of our child.
Rather, we must ultimately judge our actions in the same "cool light of day" by which, it is hoped, we devise our laws. Rationality must trump passion at the end of the day, and rationality says lawbreakers must be penalized, however noble their motivations.
P.S. For those who missed it, here is the Washington Post's recent coverage of the release by the Justice Department of the memos, dated from 2002 to 2005, by which the "enhanced interrogation techniques" were originally justified. And here is a 2008 story on how "two key architects of the Bush administration's controversial interrogation policies defended their legal positions" before a subcommittee of the House Judiciary Committee.
He congratulates the Obama administration for being "straightforward and righteous" on the moral issue while being "far less definitive" on the legal question. He implies thereby that President Obama would like us now to "forgive but don't forget" the crimes of torture committed by CIA agents upon terrorists jailed abroad in 2002 and 2003.
This is Option Two in Michael Kinsley's column on the subject, Where This Buck Stops. Mr. Kinsley aptly points out that Americans who re-elected President Bush in 2004 already knew (or should have) about the waterboarding and other torture tactics when they voted that November.
Messrs. Robinson and Kinsley are liberals, but not just liberals are calling for justice in the matter of prosecuting those who authorized, justified, and carried out "enhanced interrogation" techniques. Conservative columnist Kathleen Parker, in Is It Torture?, says "the answer lies in what we want to be":
Few have put it more clearly than [Republican] South Carolina Sen. Lindsey Graham, who is also an Air Force colonel and senior instructor at the Air Force Judge Advocate General's School and has served tours of duty in Iraq and Afghanistan. In a 2006 Newsweek interview, Graham said: "Either we're going to use torture or we're not. And when you say, we won't use torture, unless we think we really, really need it [then] we're not a rule-of-law nation."
If we want to continue to call ourselves a nation that is subject to the rule of law, says Ms. Parker, then we must set aside the "darkly impassioned arguments" by which most of us (myself included) would be able to justify torture under certain special circumstances — say, to save the life of our child.
Rather, we must ultimately judge our actions in the same "cool light of day" by which, it is hoped, we devise our laws. Rationality must trump passion at the end of the day, and rationality says lawbreakers must be penalized, however noble their motivations.
P.S. For those who missed it, here is the Washington Post's recent coverage of the release by the Justice Department of the memos, dated from 2002 to 2005, by which the "enhanced interrogation techniques" were originally justified. And here is a 2008 story on how "two key architects of the Bush administration's controversial interrogation policies defended their legal positions" before a subcommittee of the House Judiciary Committee.
Mark J. McKeon - Why We Must Prosecute
Mark J. McKeon says in Why We Must Prosecute, a recent Washington Post op-ed piece, that "we cannot expect to regain our position of leadership in the world unless we hold ourselves to the same standards that we expect of others. That means punishing the most senior government officials responsible for [the torture of terrorist prisoners by the CIA]. We have demanded this from other countries that have returned from walking on the dark side; we should expect no less from ourselves."
Mr. McKeon was a prosecutor at the International Criminal Tribunal for the former Yugoslavia from 2001 to 2004 and a senior prosecutor from 2004 to 2006. He is, in other words, a professional when it comes to the workings of international law ... a subject that admittedly mystifies this blogger. Although I know that torture is outlawed under the Geneva Conventions, I can't readily explain what gives those conventions the force of law in the U.S.A.
Apparently the third of the four Geneva Conventions applies to the treatment of prisoners of war, and the fourth applies to the treatment of civilian noncombatants. The conventions have been ratified by 194 countries, including the U.S.A. But how does a ratified treaty percolate down into the legal systems of a signatory nation such as ours?
In today's Post, a letter to the editor written by Linda R. Monk of Alexandria, VA, claims, "The Geneva Conventions prohibiting torture are, under the [U.S.] Constitution, "the supreme law of the land" and require signatories to prosecute those who commit torture." Frankly, I didn't get that when I first read it, so I googled "U.S. Constitution" and "supreme law of the land." That led me to the Wikipedia article on the Constitution's so-called Supremacy Clause.
That clause, which is article VI, paragraph 2, of the Constitution of the United States, "establishes the Constitution, Federal Statutes, and U.S. treaties as 'the supreme law of the land'. The text establishes these as the highest form of law in the American legal system, mandating that state judges uphold them, even if state laws or constitutions conflict."
In other words, under the Supremacy Clause the treaties the U.S. government enters into are folded in with federal statutes and the constitution itself as "supreme law of the land."
Other Google inquiries lead me to conclude that treaties entered into by the U.S., as long as they do not override the letter or spirit of the constitution, are binding upon all courts, federal or state. So Ms. Monk is correct: treaties such as the Geneva Conventions have the full force of law here. When we undertook to abide by their proscriptions against torture, we undertook to treat any violations of those proscriptions as criminal acts.
Mr. McKeon was a prosecutor at the International Criminal Tribunal for the former Yugoslavia from 2001 to 2004 and a senior prosecutor from 2004 to 2006. He is, in other words, a professional when it comes to the workings of international law ... a subject that admittedly mystifies this blogger. Although I know that torture is outlawed under the Geneva Conventions, I can't readily explain what gives those conventions the force of law in the U.S.A.
Apparently the third of the four Geneva Conventions applies to the treatment of prisoners of war, and the fourth applies to the treatment of civilian noncombatants. The conventions have been ratified by 194 countries, including the U.S.A. But how does a ratified treaty percolate down into the legal systems of a signatory nation such as ours?
In today's Post, a letter to the editor written by Linda R. Monk of Alexandria, VA, claims, "The Geneva Conventions prohibiting torture are, under the [U.S.] Constitution, "the supreme law of the land" and require signatories to prosecute those who commit torture." Frankly, I didn't get that when I first read it, so I googled "U.S. Constitution" and "supreme law of the land." That led me to the Wikipedia article on the Constitution's so-called Supremacy Clause.
That clause, which is article VI, paragraph 2, of the Constitution of the United States, "establishes the Constitution, Federal Statutes, and U.S. treaties as 'the supreme law of the land'. The text establishes these as the highest form of law in the American legal system, mandating that state judges uphold them, even if state laws or constitutions conflict."
In other words, under the Supremacy Clause the treaties the U.S. government enters into are folded in with federal statutes and the constitution itself as "supreme law of the land."
Other Google inquiries lead me to conclude that treaties entered into by the U.S., as long as they do not override the letter or spirit of the constitution, are binding upon all courts, federal or state. So Ms. Monk is correct: treaties such as the Geneva Conventions have the full force of law here. When we undertook to abide by their proscriptions against torture, we undertook to treat any violations of those proscriptions as criminal acts.
Thursday, April 30, 2009
David S. Broder - Stop Scapegoating
A recent David S. Broder column in The Washington Post, Stop Scapegoating: Why Obama Should Stick to His Guns on Torture Prosecutions, has it that those who (like this blogger) want a 9/11-type commission to investigate the "enhanced interrogation" techniques used during the Bush administration to extract intelligence from terrorist prisoners are misguided.
Mr. Broder thinks President Obama should "trust his instincts and stick to his guns" about not sanctioning a truth commission and not allowing CIA operatives to be prosecuted. To Mr. Broder, a truth commission or special prosecutor would amount to little more than a "retroactive search for scapegoats."
Yes, this blogger admits, some people would treat the search for truth and justice as an opportunity to poke their political or ideological opponents in the eye. The accusations and recriminations might well come thick and furious, and the process could conceivably get so out of hand that President Obama could, for the duration, kiss his forward-looking agenda goodbye.
But, two things: One, the fact that some people have a strong thirst for political vengeance is no reason not to adjudicate the torture controversy. Two, sometimes settling the sins of the past has to precede engineering the blessings of the future.
If a thirst for vengeance by the concerned parties were allowed to determine whether adjudication ought to take place, there would never be a trial for murder or rape. According to Mr. Broder's logic, the sheer fact of all of that emotional contention between the prosecution's side and the defense would swamp the justice which unbiased adjudication is meant to mete out. Yet we all agree that the processes of justice and adjudication must go on, despite the rampant contention and angry seeking of revenge.
Also, one of the mottoes of this blog is the Rudyard Kipling quote, "Nothing is ever settled until it is settled right." President Obama's preference to turn the page hastily on past instances of torture at the hands of U.S. officials does not set the matter right, because it does not settle the matter at all.
Mr. Broder thinks President Obama should "trust his instincts and stick to his guns" about not sanctioning a truth commission and not allowing CIA operatives to be prosecuted. To Mr. Broder, a truth commission or special prosecutor would amount to little more than a "retroactive search for scapegoats."
Yes, this blogger admits, some people would treat the search for truth and justice as an opportunity to poke their political or ideological opponents in the eye. The accusations and recriminations might well come thick and furious, and the process could conceivably get so out of hand that President Obama could, for the duration, kiss his forward-looking agenda goodbye.
But, two things: One, the fact that some people have a strong thirst for political vengeance is no reason not to adjudicate the torture controversy. Two, sometimes settling the sins of the past has to precede engineering the blessings of the future.
If a thirst for vengeance by the concerned parties were allowed to determine whether adjudication ought to take place, there would never be a trial for murder or rape. According to Mr. Broder's logic, the sheer fact of all of that emotional contention between the prosecution's side and the defense would swamp the justice which unbiased adjudication is meant to mete out. Yet we all agree that the processes of justice and adjudication must go on, despite the rampant contention and angry seeking of revenge.
Also, one of the mottoes of this blog is the Rudyard Kipling quote, "Nothing is ever settled until it is settled right." President Obama's preference to turn the page hastily on past instances of torture at the hands of U.S. officials does not set the matter right, because it does not settle the matter at all.
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