Friday, August 14, 2015

What Jeb Bush Owes Obama

Cross-posted at Freedom of the Press Foundation:

Well, I guess this is a thing now…people running for president musing about whether they might reintroduce the torture techniques Obama purported to prohibit when he took office. The latest is Jeb Bush; three years ago, it was candidate Romney.

The fact that torture is framed by these candidates as a policy choice, and the possibility that one of them might in fact reintroduce it, is one of Obama’s chief legacies. He chose not to prosecute torture as a crime, instead banning it (or some of it, anyway) via executive order. As I’ve said before:

Obama has no more power to prohibit torture than Bush had to permit it. Torture is illegal in America. The law, not the president, is what prohibits torture. What would you make of it if the president said, “That is why I prohibited murder. That is why I prohibited rape. That is why I prohibited embezzlement, and mail fraud, and tax evasion…” In America, the president doesn’t make the law, nor does he rescind it. The president executes the law—which is why Article 2 of the Constitution is called “The Executive Branch.” Presidents who make and rescind laws at will are more commonly known as kings.

Remember: what one president by fiat prohibits, another at his or her pleasure can permit. Anyone who cheers Obama’s torture “ban” is missing the insidious, long-term effect of that ban…and could probably use a refresher course on civics, too.

Torture: de jure illegal; de facto policy. Remember Hope and Change? No, it hasnt gone away. Its just become a punch line.


Brian Niemeier said...

Excellent points, Barry. The mindset behind these shenanigans is truly chilling.

Wayne Moore said...

Barry, I have the Audible version of your 8 John Rain novels as well as the novella (Paris is a Bitch). I'm currently listening to The Detachment (4 hours remaining). I like your writing and your narration. This is my first visit to your blog.

Your point that torture is illegal and not subject to the whims of the sitting president or presidential candidates is doubtless valid. The issue is with the definition of torture. Some say it is treatment that causes permanent physical or psychological damage. Simple incarceration can cause such damage to some individuals.

Rather than writing more, I'll just say that I do not believe the presidential candidates (Jeb Bush and Romney) and the presidents (Bush 2 and Obama) are discussing whether or not to permit torture, but instead are questioning whether certain interrogation techniques are torture. I recognize my case is weakest for Obama since he as a candidate and early in his presidency called certain techniques torture, but I'm inclined to believe he may have changed his opinion.

Wayne Moore

Barry Eisler said...

Hi Wayne, thanks for coming by and glad you're enjoying the books.

If you think about it, when it comes to legally defined terms, it doesn't really matter what "some say." So while I'm sure lots various people might quibble about what strikes them as torture or not torture, the UN Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment (signed by President Reagan, ratified by the Senate, Supreme Law of the Land by virtue of Article VI of the Constitution) provides as follows:

Article 1. 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....

Article 2. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture...

Article 16. 1. 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...

Not that individual opinions about what is torture and what's not aren't interesting (for example, I personally find it fascinating to consider that acts we would certainly consider to be torture were they committed by Chinese or Iranians are often rendered non-torture when committed by Americans). They're just not relevant to what torture is as defined at law.

With all that in mind, in response to your observation that various politicians aren't "discussing whether or not to permit torture, but instead are questioning whether certain interrogation techniques are torture," I'd say these are two ways of describing the same behavior with the same purpose behind it.

Wayne Moore said...

Barry, we have no difference whatever on whether the UN Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment is the supreme law of the US since it was signed by President Reagan in 1988 and ratified by the US Senate in 1994 in accordance with Article VI of the US Constitution. The differences that do arise are differences of interpretation of the word "severe" in Article 1.1 of the Convention as well is the vague last sentence of Article 1.1 ("It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.").

If you are claiming that your interpretation of Article 1 of the convention is the only possible valid one, and I suspect you are, then we disagree. The "enhanced interrogation" methods authorized by Bush 2 can reasonably be viewed, in my opinion, as walking on the edge of the torture cliff while remaining legal. John Yoo's analysis upon which Bush made his decision appears to me to be legally sound. Even AG Holder who had the individuals involved investigated decided not to file charges. Had he found clear violations of the law, he would have prosecuted.

I'm not saying that your interpretation of the Convention is unreasonable, but it is not the only reasonable interpretation. Yoo's analysis is another example of a reasonable interpretation of the Convention.

Wayne Moore

Barry Eisler said...

Wayne, both Obama and Holder have publicly acknowledged that waterboarding is torture. So your confidence that had Holder "found clear violations of the law, he would have prosecuted" seems to be in error. He did find those violations. He didn't prosecute. It seems that dynamics beyond just "violations of the law will be prosecuted" are at work in our quaintly named Justice Department. Perhaps some of those dynamics are political and have nothing to do with justice.

As for the rest, I seriously doubt that anyone, especially John Yoo, would claim waterboarding, "walling," "close confinement," and the rest of the "enhanced interrogation techniques" aren't torture except that Americans were the ones doing it. So I find your notion of reasonable differences to in fact be irredeemably infected with nationalism. "Waterboarding isn't torture" isn't a position based on reason, common sense, history, or experience. It's a position reverse-engineered from a desired outcome: Americans don't torture. Americans waterboarded. Therefore, waterboarding must not be torture.

Maybe you would still claim it's not torture if ISIS waterboarded etc a captured American soldier, spy, or civilian. If so, you'd at least be arguing consistently. But I wouldn't find your argument any more persuasive. A torture Turing Test would be a better way to persuade the world that waterboarding isn't torture, and so far, no one seems willing or able:


Man, why can't people wake up and see the world for what it is? I mean people are so frightened of their own existence they go blindly into agreeing with some ignorant, and obviously false blanket statement made by a politician and/or athlete/actor/CEO/parent/teacher…you fill in the blank. I have three kids of my own and try my damnedest to teach them to look at the world with true eyes and a sharp focus. I've taken some psych courses in college and tried my best to study the human mind and still can't quite figure out why fear over compasses logic in most peoples live. Great post Barry!