Wednesday, April 29, 2009

Politicizing Criminality

Just got back to Tokyo after another week on the road for Fault Line promotion. No time to write while I was traveling, but I did have a chance to read a number of establishment opinion pieces about torture. They were so alike in various respects that they could have have been churned out by the same government press office. The most glaring similarity was an omission of any discussion or even acknowledgment of the role of the law. Reading these opinions and knowing nothing else, you could be forgiven for believing that no law on torture or other cruel, inhumane, or other degrading treatment even exists, let alone that such laws might matter.

A sampling:

David Broder in The Washington Post: "But now Obama is being lobbied by politicians and voters who want something more -- the humiliation and/or punishment of those responsible for the policies of the past." That's one way of looking at it. Another way would be that this is simply about prosecuting criminals. But if you refuse to recognize that the law should even a part of the discussion -- that applicable law even exists -- I can see where you might look at things in the stunted, distorted way Broder does.

Ross Douthat in the New York Times: "We need to hear more: What was done and who approved it, and what intelligence we really gleaned from it. Not so that we can prosecute – unless the Democratic Party has taken leave of its senses – but so that we can learn, and pass judgment, and struggle toward consensus." Yes, if you think people who break the law should be prosecuted and punished, you have taken leave of your senses. You'd have to be crazy to argue something like that.

Tom Friedman in the New York Times: Friedman acknowledges that up to 27 prisoners were tortured to death in US custody (i.e., murdered), but then goes on to argue against any prosecutions because "bringing George W. Bush, Donald Rumsfeld and other senior officials to trial... would rip our country apart." I'd be more comfortable with this argument if Friedman also favored a constitutional amendment making de jure his de facto grant of immunity to high government officials. Why are establishment pundits always afraid to make explicit arguments for what they're calling for?

Garrison Keillor in Salon: Keillor actually entitles his piece, "Let War Crimes Be Bygones." Substitute "Rape," "Murder," or the other crime of your choice in his chosen title and see how the concept works for you that way.

Lexington in The Economist: "The most important comment on Mr Obama’s approach to counter-terrorism so far came on April 20th, from the CIA agents who cheered him to the rafters." Is cheering at the CIA really the most important comment on Obama and counter-terror? More important, then, say, an analysis of, even a reference to, the law? The spooks must have done a wave or something. Damn lawyers, it's their fault -- obviously they're not cheering sufficiently loudly for the application of the law. Maybe we who believe, as Thomas Paine did, that in America the law is king, should cheer more loudly for the law's application so the law can get favorable mention in Lexington, too.

Jon Meacham in Newsweek: Meacham argues, "And to pursue criminal charges against officials at the highest levels—including the former president and the former vice president—would set a terrible precedent." As opposed to the precedent of de facto immunity from criminal prosecution for our political class? Pretty nice perk Meacham, Friedman et al are suggesting there. I wish novelists could get get out of jail free cards, too, but alas, it seems the hoi polloi are ineligible.

But surely Meacham isn't arguing that politicians are actually above the law? Yes, he is, explicitly, and the only kind thing you can say about it as that at least he's more honest about what he's calling for than Friedman et al: "That is not to say presidents and vice presidents are always above the law; there could be instances in which such a prosecution is appropriate, but based on what we know, this is not such a case." Holy when the president does it, that means its not illegal, Batman! Although again, it would be nice if Meacham could propose some guidelines for which politicians are in fact above the law (is it just the President and VP? What about the Secretary of State and Defense? Treasury? Leaders in Congress? Only federal officials, or state, too? Any lobbyists out there who would be willing to go to bat for novelists? Seriously, we want proactive immunity for lawbreaking, too) and under what circumstances (do sexual peccadilloes count, or is the immunity only for war crimes?). Then we could codify it (maybe as the "Get Out of Jail Free Act") and wouldn't have to rely on pseudo-journalists like Meacham to make up the law as we go along.

Peggy Noonan in the Wall Street Journal: Noonan argues, "A problem with the release of the [torture memos] is that it opens the way—it probably forces the way—to congressional hearings, or a commission, or an independent prosecutor. It is hard at this point to imagine that what will follow will not prove destructive to—old-fashioned phrase coming—the good of the country." Like Friedman, Noonan shies away from saying aloud what she is really arguing: that America is better off when ruled under secret laws, with immunity for government officials who violate the non-secret ones.

Think about that concept for a moment. Secret laws. In America. And we have "journalists" telling us the secret laws are good for the country. War is peace, baby. Dig it.

Even Jon Stewart seems to have momentarily forgotten that there's such a thing as the law, suggesting instead immunity for anyone willing to admit, "My bad." Apply that thinking to criminality generally and see where it takes you.

If you want to stay in denial, avoid clicking on this link (h/t Andrew Sullivan). Especially avoid The UN Convention Against Torture and Other Cruel, Inhumane, and Degrading Treatment or Punishment, which President Reagan signed in 1988 and the Senate ratified in 1994, and which Article VI of the Constitution makes the supreme law of the land. Definitely don't read the following excerpts from the UNCAT, which provides that:

Article 1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.


Article 16. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.

How is it that none of the opinion pieces linked above sees fit even to mention these laws?

For the record: I also failed to include a discussion of applicable law in November 2007, when responding to an interview Vince Flynn did with the Washington Post in which Vince argued for torture. But I've taken the trouble to educate myself in the interim. Vince, you didn't mention it before except by omission, so I'll ask now: do you think the law is irrelevant to a discussion of torture? And what do you make of the news that Kalid Sheik Mohamed was waterboarded not once, but 183 times in a month? Not exactly the "rarest of circumstances," or the "clinical precision" you claimed at the time. And if you have to do it 183 times -- over the course of a month -- can you really claim it's effective, or even appropriate for the Ticking Bomb Scenario? (well, maybe the bomb was ticking really slowly). Especially because all the facts that have come to light since the former administration and its cheerleaders began their "torture works and is necessary" campaign belie both claims.

For a nice summary debunking the myths various establishment figures are still peddling about torture, here's Scott Horton.

Opponents of prosecuting the architects of Amerca's torture regime argue that prosecutions would be about "criminalizing policy differences." No. Failing to prosecute would be to politicize criminality, and proponents of de facto immunity for our political class are doing exactly that.

By the time we prosecute them, crimes are by definition past. That the crime has already been committed is never an argument for failing to prosecute it ("Your honor, it's true my client raped the victim, but that's part of the past and we need to look forward. This is a time for reflection, not retribution"). But the Bush administration's torture policies are not even part of the past. The fact that President Obama has banned the practices in question implicitly ratifies his or the next president's right to re-invoke them. Only investigation and prosecution can restore the proper place of the law in our country and ensure, insofar as possible, that the law is not treated as a sad joke in the future.

But don't take my word on all this. Take President Bush's:

You'd think Republicans, who purport to be the party of law and order, might be concerned about law-breaking. Well, I thought the GOP was about small government, balanced budgets, and a modest foreign policy, too. To the extent Republicans still bother making such claims, they've become the world's emptiest brand. Republicans have no principles, Democrats have no balls, and our pseudo journalistic class enables the worst and weakest elements of both. Imagine where we'd be without the blogosphere.


Anonymous said...

barry, thank you, thank you, thank you, for some sanity.

On a diff note, haven't ordered Fault line yet, about to do so from Can't wait.

xxx a fan

Anonymous said...

I like the last paragraph the best.

Read this today too:

Mentioning the comedian Jon Stewart is never a strong move IMO, but I dislike his smarmy delivery. Stephen Colbert is much smarter, funnier, and more effective. Sadly, Stewart's recent highly publicized interviews have taken the place of the 'serious' professional media TDS was created to make fun of so long ago.

In America, newspapers are dead, the news readers on the 24-hour networks are infotainment artists, the big 3 networks are in the pockets of one political party and bent more than Stewart, and the un-verified, un-sourced, panic-inducing bilge that flows from these places is not 'news'. The blogoshere puts the old media to shame.

DeBecker suggests in "Fear Less" that we all boycott the nightly news and daily newspapers. Read magazines and books for analysis.

Many blogs are acceptable. Look back 2 years at the opinions on this blog to see how the contemporary analysis stands up.

Now go do that for the other blogs you read for 'news'. Whose opinions changed with the winds? Whose stand firm? Who gives a reason for changing their opinions? What sources do they provide?


JudokaJoe said...

Thank you for this, Barry.

I teach several different courses in political theory/application. My students and I have been discussing this very topic all week and will be having a "last man standing" debate this Friday.

I had planned on using some exerpts from Noonan's article, but will be fleshing out some 'swerve' questions gleaned from this post... with full credit given of course.

Thanks again!

PBI said...

Great minds etc., etc.:

A Simple and Straightforward CaseRonald Reagan: vengeful, score-settling, Hard Left ideologueCheers,
Sensen No Sen

Anonymous said...

So, what are we to make of this?,0,7173449.story

The fellow was (supposedly) jailed for 5 years before finding out why.

He gets a lot of anti-government and especially anti-Bush administration press, especially around the end of the presidential election debates.

Now details of his deeds are publicized for the sake of a 'plea agreement' and he wants to serve his sentence in Qatar.

So... who are we trading for him?

James Goetz said...
This comment has been removed by the author.
Jim White said...

Hi Barry,

Fault Line was great; I look forward to the next adventures of these characters.

An interesting twist on the mainstream torture apologists is the observation by Pew polling that shows the more a person goes to church, the more they favor torture. Further, evangelicals favor torture more than mainline protestants or Catholics.

An Oxdown Diary discussing those results is linked at my name; it has generated a very lively discussion.

Anonymous said...

Here, this'll make you puke:

Novelty said...

The fact of the matter is that this stuff has been going on since Lincoln. They didn't prosecute Lincoln for ordering his Generals to kill woman and children during the Civil War, pillaging and destroying entire cities, suspending habeas corpus, arresting anyone and everyone that opposed his policies or shutting down newspapers that criticized the war. This is nothing new. The Founding Fathers would be ashamed of us. I totally agree that if you break the law you should answer for it no matter who you are and wish they would prosecute Bush and his cronies.

On a lighter note, I finished reading "Rain Fall" and really enjoyed it. I recently picked up "Hard Rain" and will be reading it soon. I'm glad you post on Chud too, or I would probably never would have come across your books. Keep up the great work.

James Goetz said...

[sorry, correcting the typo]

Hi Barry,

I've been disturbed about this since I heard Bush reject Powell's advice to stick with the Geneva Conventions, which I assume is why Powell didn't serve in Bush's second term. Anyway, I see a dilemma. I no little about law, but I tend to think that all three branches of government opened a loophole to torture terror suspects. Perhaps we need more investigation to see if it was approved by all three branches of government. But if that is the case, then US government can close the loophole for the future while I don't see how the US can prosecute people for following the so-called law. Perhaps the UN can prosecute for violations of Geneva Conventions, but I don't see how the US can. For example, the US eventually outlawed slavery while it never retroactively prosecuted for past slavery.

If all three branches of government opened the loophole, then all or none of three branches need to be prosecuted. Do you agree or disagree? And I would appreciate your view on this based on your background in law and the CIA.



RMD said...
This comment has been removed by the author.
Anne Rettenberg LCSW said...

Unfortunately the media pundits are part of the power structure and are mostly in bed with the politicians. I've been writing about this for awhile.

Margaret said...

One news source has consistently agreed with you, Barry, and is rightfully as wll as professionally outraged: Jonathan Turley, law professor at George Washington School of Law, in appearances on MSNBC's Countdown, Hardball, and The Rachel Maddow Show. (That's where I've seen him--he may have made other appearances.) Prof. Turley has been clear and unambiguous in declaring, over and over, that the LAW has been broken, referring us to the same souces you have quoted, and discussing the consequences. I can only hope someone is listening.

Barry Eisler said...

Thanks, JodokaJoe, and I hope the debate went well.

Paul, read the blog post -- terrific as usual.

Jim White, thanks and glad to hear you enjoyed Fault Line. "Shall We Gather at the Waterboard?"! Horrifyingly hilarious title, and a subject actually worthy of Obama's call for "reflection."

Jim Goetz, I don't think it's all that complicated. Follow the links in my post to the various laws against torture. People who've acted contrary to those laws are subject to prosecution. If torture enablers really wanted a get out of jail free card, they needed to get the US to withdraw from the treaties it's signed and change domestic law, as well. They didn't.

RMD, I don't know what to make of your post. Are you being sarcastic, facetious, or did you really misunderstand my post to that degree?

Margaret, agreed, Jonathan Turley is great, and I listen to him whenever Glenn Greenwald or Scott Horton includes a clip.

Chad said...

Torturing people in the first place destroyed a lot of our soft power and now the lack of prosecutions will destroy even more. This has been our greatest asset for almost two centuries and we have watched be destroyed in almost a decade.

David Terrenoire said...

I don't understand how anyone, but particularly conservatives, can ignore the law. We signed the conventions against torture in 1984. There's US legal precedent naming waterboarding a war crime and torture. People have admitted to waterboarding and other methods outlaws by the convention we signed.

Why, all of a sudden, we can't hold people accountable for crimes they may have committed is a mystery to me.

Thanks for pointing out how many of our pundits have lost their legal compass in pursuit of expediency. It should come as no surprise that most, if not all of them, were ardent backers of the awr in Iraq, too.

Alexander Hamilton warned us that in times of crisis, the people would be eager to shed laws that constrain power and it was up to our leaders to make certain that didn't happen.

Our leaders have failed us.

James Goetz said...


"If torture enablers really wanted a get out of jail free card, they needed to get the US to withdraw from the treaties it's signed and change domestic law, as well. They didn't."

We didn't withdraw from the treaties, so the UN can prosecute that. Of course, the UN and the rest of the news watching world knew that Bush planned to make exceptions to the Geneva Conventions since Powell publicly objected to it in Bush's first term.

Evidently, a couple of judges gave the stamp of approval from the judicial branch to carry out the interrogations outside the Geneva Conventions. I suppose that judicial decision (judicial activism) effectively changed domestic law. Of course, Obama said that these judges might get investigated for their authorization of torture, but that's part of what makes this an interesting case.

I see I conflated some issues. I thought the USA PATRIOT Act had something to do with torture, but I retract my suggestion that congress legislated on the torture policy. But the House knew Bush's motives since the end of his second term while the House knew about some of the torture in the second term, and the House could have moved to impeach Bush for war crimes but decided that it wasn't an issue.

The issue needed to be dealt with soon after Powell objected to Bush suspending the Geneva Conventions, and I don't know who now has the high ground to cast the first stone. (Please note that I'm undecided on this.)

LeisureGuy said...

Nit-pick apology: I have to mention that "the hoi polloi" is in error. "hoi polloi" means "the many". Same sort of error as referring to "the Sahara Desert".

Even worse, of course, is using "hoi polloi" to mean "the elite"---and I've seen it.

OTOH, I really like the Duffy's Tavern locution in setting forth a contrast between something believed and reality: "That's the ipso, but the facto is"...

Barry Eisler said...

Thanks LG, didn't know there was controversy on this. Still, I'll go with the Chicago Manual of Style, which considers "the hoi polloi" to be the standard usage, and Webster's:

"When hoi polloi was used by writers who had actually been educated in Greek, it was invariably preceded by "the". Perhaps writers such as Dryden and Byron understood that English and Greek are two different languages, and that, whatever its literal meaning in Greek, hoi does not mean "the" in English. There is, in fact, no such independent word as hoi in English — there is only the term hoi polloi, which functions not as two words but as one, the sense of which is basically "commoners" or "rabble." In idiomatic English, it is no more redundant to say "the hoi polloi" than it is to say "the rabble," and most writers who use the term continue to precede it with *the*."

So that's my story, and I'm sticking with it...