By Emily Spence
22 April, 2009
“The United States is committed to the worldwide elimination of torture and we are leading this fight by example.” -- President Bush in June 2003
“I'm aware our national security team met on this issue. And I approved ... I told the country we did that. And I also told them it was legal. We had legal opinions that enabled us to do it.” -- President Bush in April 2008 about interrogation tactics used on detainees.
“As Americans, we can take enormous pride in the fact that courage has been inspired by our own struggle for freedom, by the tradition of democratic law secured by our forefathers and enshrined in our Constitution. It is a tradition that says all men are created equal under the law and that no one is above it.” --President Obama in November 2008
Based on legal precedence, there is plenty of evidence that interrogation techniques used in Guantanamo Bay and other US run facilities, such as Abu Ghraib, constituted torture in violation of US and international laws. It makes no difference that some slick legal counselors, that were under pressure to deliver lies, skirted these regulations and informed operatives that barbaric actions are acceptable. Regardless of the justifications used, the infractions still stand and represent a breach of laws that government agencies are sworn to uphold.
Indeed, serious circumvention of statutes should always result in legal proceedings and usually does so unless some affair is settled, to the satisfaction of all parties involved, outside of judicial processes. At the same time, refusal to obey illicit orders, even when commanded to conduct them by superiors, does stand as defense in courts as events related to the My Lai slaughter and similar incidents verify. As such, any claim that one is forced to obey wrongful orders has no weight any more than it did during Stanley Milgram's experiments wherein subjects assumed that they were electrically shocking others and carried out the action merely because they were told to do so.[1]
Therefore, it seems easy to conclude that anyone either authorizing or implementing illicit and agonizing practices on captives, prisoners legally deemed innocent until proven guilty, needs to be publicly investigated and brought to justice when found culpable. That it is not expedient due to extrajudicial complications, such as pertain to future behaviors of CIA agents and as President Obama alleges, should have no bearing. In the end, the whole matter is this simple.
At the same time, President Obama's release of the four memos provided a perfect moment to show the world about the true meddle of which America is made after the nation lost its way for the past eight years. So why let Baltasar Garzón, the Spanish counter-terrorism judge who prosecuted General Augusto Pinochet, take the lead against six senior Bush officials condoning torture based on allegations by five Spaniards previously held at Guantanamo Bay? [2]
Instead, US officials, in good faith and with earnest determination, should emulate his actions with the first step taken being to engage in consultations with a number of legal experts, including Lawrence Velvel, who has written briefs for the Supreme Court, and Vincent Bugliosi, who meted out justice to Charles Manson for his egging on associates to commit heinous crimes.
Indeed, these seasoned legal advisors, unlike their underhanded rogue counterparts, well understand acceptable codes of conduct as defined by US Constitutional law, military regulations and international rules of engagement to which the USA is bound as a signatory. Moreover, there are no jurisprudential grounds for coddling these criminals and to do so is, frankly, outrageous, unjust and immoral!
More specifically, it is clear that the use of torture circumvents US law. The Eighth Amendment to the Bill of Rights, particularly, regulates the Federal use of "cruel and unusual punishment" while the Fourteenth Amendment ratifies "equal protection" even at the State level and would, seemingly, apply to all US territorial jurisdictions. Indeed, Justice Brennan; in Furman v. Georgia, 408 U.S. 238 (1972); determined that "There are, then, four principles by which we may determine whether a particular punishment is 'cruel and unusual'."
- An "essential predicate" is "that a punishment must not by its severity be degrading to human dignity," especially as pertains to torture.
- "A severe punishment that is obviously inflicted in wholly arbitrary fashion."
- "A severe punishment that is clearly and totally rejected throughout society."
- "A severe punishment that is patently unnecessary." [3]
At the same time, it is clear from the language used in the Eighth Amendment that it was, in large measure, passed to ban government agents from subjecting incarcerated persons to atrocious forms of corporal punishment. The prohibition is not a nebulous set of loose regulations into which legal teams are free to implant their own spurious understandings of cruelty. Instead, it is a clear-cut prohibition whose meanings and intentions were largely fixed at the time that the Eighth Amendment was sanctioned.
Meanwhile, the Military Commissions Act is equally clear on the issue of persecution and outright prohibits the use of acts that inflict suffering, including extreme mental or physical pain. At the same time, its chief interpreters judge water boarding to be a war crime and an excruciating brutal punishment.
On account of such a viewpoint, Major Edwin Glenn was sentenced to ten years of hard labor for inflicting simulated drowning upon a Filipino prisoner at the turn of the century and a US military tribunal found at least one Japanese officer, Yukio Asano, guilty of war crimes after W. W. II for his use of the "water cure" and other acts of cruelty upon Americans and for which he was sentenced to fifteen years of hard labor. In a similar vein, a US army officer was court-martialed in 1968 after assisting in a water boarding exercise executed upon a Vietnamese insurgent.
Just how could the memos' authors and the prison torturers have missed the implications of these prior judgements? If appropriate rulings are not applied to law breakers in the event that they are given undeserved dispensations or pardons, what will serve as impediments to these laws being broken again in the future? Moreover, does the military ban on water boarding and other horrors need to be more defined than these prior happenings irrevocably prove?
The report from the Senate armed services committee, written at the end of 2008, hints at the answer: "The abuse of detainees in US custody cannot simply be attributed to the actions of 'a few bad apples' acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees." [4]
In a similar vein, water boarding and other forms of severe torment are condemned by Geneva Conventions, the Torture Act, the Detainee Treatment Act and United Nations protocol, as Manfred Nowak, U.N. special rapporteur, makes clear, "The United States, like all other states that are part of the U.N. convention against torture, is committed to conducting criminal investigations of torture and to bringing all persons against whom there is sound evidence to court."
In the final reckoning, it is certain that US operatives rationalized, condoned and carried out acts of torture. In addition, ignorance of the law cannot stand as any sort of credible legal justification! Besides, it is not as if the above information regarding the Eighth and Fourteenth Amendments, the past military proceedings against water boarders and international prohibitive laws was not easily and publicly accessible through an internet search, a library visit or some other means.
Consequently, there is absolutely no excuse for the perpetuators of this violent conduct to not be brought to justice regardless of the rationale used by the equally liable and devious shysters that devised the memos based on their errant fanciful musings rather than pertinent facts.
So please, let's all urge US Congressional representatives to hold a public investigation and once again set America right with the world as best as can be done after the debauchery that many detainees endured as a matter of policy that transgressed US edicts in every sense of the word. If American agents cannot abide by clearly defined legalities, then how can the US leadership possibly expect anyone else around the world, including typical US citizens, to do so? Do laws not stand for something more than a sham that only apply when convenient? Is the world to now witness the USA making a mockery of its own judicial mandates and international statutory rulings?
If so, our entire nation, after having lost its way, truly is as bad as any common thuggish pirating lowlife on the high seas or elsewhere. Surely we, as a people and a nation, can collectively rise above that despicably squat, base and deficient stature. If not, all of the underlying principles of our country's founding fathers, our justice system, itself, and the ethical underpinnings that make our country truly great are without value. They are merely empty platitudes and nothing more.
References
[1] Stanley Milgram Experiment - Will People Do Anything If Ordered?
(http://www.experiment- resources.com/
stanley-milgram-experiment.html).
[2] Criminal proceedings in Spain against Bush Administration Officials ongoing
(http://www.globalresearch.ca/i
ndex.php?context=va&aid=13233).
[3] Eighth Amendment to the United States Constitution - Wikipedia ...
(http://en.wikipedia.org/wiki/Eighth_Amendment_
to_the_United_States_Constitution).
[4] Spanish judge to hear torture case against six Bush officials ...
(http://www.guardian.co.uk/world/2009/mar/29/
guantanamo-bay-torture-inquiry).
Emily Spence is an author living in Massachusetts. She has spent many years involved in human rights, environmental and social services efforts.
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