War Is Peace, Freedom is Slavery, Ignorance is Strength

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Tortured Editorials

I’ll go back to Rick Hertzberg’s devastating words on the Washington Post’s editorial page: “pathetic. Really pathetic.” This past week, straining for something that could, in the Washington environment at least, pass for wisdom on the Mukasey nomination, WaPo delivered up one of its most stunningly ignorant editorials in recent memory. It offered a wonderfully practical solution to Congress. Go ahead and confirm Mukasey, Fred Hiatt argues, and then pass a law banning torture.

Frankly I am very much in the market for Solomonic wisdom on this score. As I’ve written before, I think that Michael Mukasey has the traits that could make him an historically important attorney general. There is no issue as to his character or abilities. But there is a very serious issue as to torture, and a litmus test which the Administration seems to have put in place, as to which the Senate cannot cave without serious damage to its—and to the nation’s—reputation. And I am attuned enough to the “realities” of Washington politics to think that this is exactly what it is going to do.

But Mr. Hiatt’s suggestion is an attempt to perform a frontal lobotomy on the current debate. Why? Because torture is unlawful. It has been unlawful as long as the Republic has stood, and the illegality of the current practices is plain. The “debate” on this issue has never been a debate in any sort of reasoned, intellectual style. It has been an effort by the forces aligned with barbarity to get the entire nation to drink a carafe of red Kool Aid, to accept that Black is White, and the sun rises in the West. Or to get more to the Orwellian essence of the matter, that “war is peace, freedom is slavery, ignorance is strength,” the three-part mantra that lies side-by-side with “torture makes us safe.”

And even more astonishing, this intellectually vapid position is actually embraced by Senator Diane Feinstein, who should know better. In her Los Angeles Times op-ed, Feinstein writes

As Judge Mukasey wrote, waterboarding is clearly against the law for the American military. Waterboarding is clearly prohibited by the Convention Against Torture and the Geneva Convention. It was again prohibited by the Detainee Treatment Act, which only covers military interrogations.

Congress should go further and explicitly ban waterboarding and other so-called enhanced interrogation techniques for all parts of the government.

Feinstein’s statement that the Detainee Treatment Act “only covers military interrogations” is false. Indeed, this was a particular point of contention between the Bush Administration and the legislation’s sponsors, lead by Senator McCain. The Administration argued that the limitations should apply only to the uniformed services. But McCain and Congress disagreed. The text of the statute was explicit, and clear, and it was applicable to all persons under detention or control of the Government of the United States—i.e., it quite explicitly applies to CIA detainees, as well as the military.

There’s a common problem here. Both Senator Feinstein and the Washington Post editorial page editor have made the mistake of taking Administration arguments, which are simply and plainly bogus, at face value. They picked up the tumbler of Kool Aid and drank it to the bottom.

Neither WaPo nor Senator Feinstein appear to have taken the time to examine the Anti-Torture Statute, either, which is precisely on point, provides a clear answer, and has been at the center of the debate for the last four years. The depth of their ignorance is shameful.

Marty Lederman does a good job of walking through a bit of the relevant history, and his blog post on this subject is worth reading in its entirety

– On July 6, 1955, the Senate unanimously gave its advice and consent to the ratification of the Geneva Conventions, each of which (in Article 3, which applies to al Qaeda detainees) categorically prohibits “torture” (not to mention “cruel treatment”).

– On October 27, 1990, the Senate unanimously gave its advice and consent to the ratification of the Convention Against Torture, article 2(1) of which obligated the United States to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.”

– In compliance with article 2(1) of the CAT, in 1994 the Senate and House approved, and on April 30, 1994 President Clinton signed, the Torture Act, which categorically prohibits torture outside the United States (18 U.S.C. 2340A(a)).

– And it’s not as if torture was legal even before the Senate, House and President acted on these instruments. As the Supreme Court recently explained, under international law (including the laws of war binding on the executive branch), the flat ban on torture is among the handful of international law norms with the greatest “definite content and acceptance among civilized nations”: Even for purposes of civil liability, “the torturer has become–like the pirate and slave trader before him–hostis humani generis, an enemy of all mankind”.

All of which is to say — and it’s fairly amazing that this still needs to be said in this day and age — if there is any single thing imaginable that the Senate, the Congress, and the world community have not “declined to do,” it is to ban torture categorically. (Even Judge Mukasey understands this: He writes it dozens of times in his responses to the Senate.)

We’re approaching four years into the great American torture debate. So why, with the passage of time, does the national debate just keep getting stupider and stupider? And why do critical voices, like those of a vitally important newspaper and of a senator generally viewed as at the golden center of a great deliberative body, demonstrate a progressive mental palsy in their ability to address such a morally essential question? These are signs that torture, at last, has begun to corrupt our nation’s vital life signs. They reflect a willingness to strike a bargain with evil. But evil knows no compromises, and those striking the bargain should think well about what they are bartering away.

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The JAGs Set the Record Straight

Michael Mukasey in his testimony and written responses admits of much uncertainty as to whether waterboarding is illegal. This is scandalous. There is no issue on the subject. In connection with consideration of the Military Commissions Act of 2006, the four TJAGs testified that the practice of waterboarding constituted torture and was a criminal act not subject to qualification or privilege. And now four former TJAGs write to support the view taken by their serving colleagues:

November 2, 2007

The Honorable Patrick J. Leahy, Chairman United States Senate Washington, DC 20510

Dear Chairman Leahy,

In the course of the Senate Judiciary Committee’s consideration of President Bush’s nominee for the post of Attorney General, there has been much discussion, but little clarity, about the legality of “waterboarding” under United States and international law. We write because this issue above all demands clarity: Waterboarding is inhumane, it is torture, and it is illegal.

In 2006 the Senate Judiciary Committee held hearings on the authority to prosecute terrorists under the war crimes provisions of Title 18 of the U.S. Code. In connection with those hearings the sitting Judge Advocates General of the military services were asked to submit written responses to a series of questions regarding “the use of a wet towel and dripping water to induce the misperception of drowning (i.e., waterboarding) . . .” Major General Scott Black, U.S. Army Judge Advocate General, Major General Jack Rives, U.S. Air Force Judge Advocate General, Rear Admiral Bruce MacDonald, U.S. Navy Judge Advocate General, and Brigadier Gen. Kevin Sandkuhler, Staff Judge Advocate to the Commandant of the U.S. Marine Corps, unanimously and unambiguously agreed that such conduct is inhumane and illegal and would constitute a violation of international law, to include Common Article 3 of the 1949 Geneva Conventions.

We agree with our active duty colleagues. This is a critically important issue—but it is not, and never has been, a complex issue, and even to suggest otherwise does a terrible disservice to this nation. All U.S. Government agencies and personnel, and not just America’s military forces, must abide by both the spirit and letter of the controlling provisions of international law. Cruelty and torture—no less than wanton killing—is neither justified nor legal in any circumstance. It is essential to be clear, specific and unambiguous about this fact—as in fact we have been throughout America’s history, at least until the last few years. Abu Ghraib and other notorious examples of detainee abuse have been the product, at least in part, of a self-serving and destructive disregard for the well- established legal principles applicable to this issue. This must end.

The Rule of Law is fundamental to our existence as a civilized nation. The Rule of Law is not a goal which we merely aspire to achieve; it is the floor below which we must not sink. For the Rule of Law to function effectively, however, it must provide actual rules that can be followed. In this instance, the relevant rule—the law—has long been clear: Waterboarding detainees amounts to illegal torture in all circumstances. To suggest otherwise—or even to give credence to such a suggestion—represents both an affront to the law and to the core values of our nation.

We respectfully urge you to consider these principles in connection with the nomination of Judge Mukasey.

Sincerely,

Rear Admiral Donald J. Guter, United States Navy (Ret.) Judge Advocate General of the Navy, 2000-02

Rear Admiral John D. Hutson, United States Navy (Ret.) Judge Advocate General of the Navy, 1997-2000

Major General John L. Fugh, United States Army (Ret.) Judge Advocate General of the Army, 1991-93

Brigadier General David M. Brahms, United States Marine Corps (Ret.) Staff Judge Advocate to the Commandant, 1985-88

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