After unchecked executive power, the next issue we must tackle is torture. The US government is conducting torture in Guantanamo and around the world. There is no longer any doubt. It is too well documented. The only way Bush can deny it without lying is by claiming (as they do) that psychological torture is not torture, and that things like waterboarding (making people almost drown), making people stand for hours on end, "stress positions," and sleep deprivation (to name a few) are "not torture." Baloney. Torture is the deliberate application of pain of all kinds to break the prisoner's will to resist. Its uses are: (1) punishment in itself; (2) to terrorize a population; (3) to elicit false confessions to justify further imprisonment or toturre; (4) as interrogation. Only the fourth rationale survives today at all. As interrogation, it differs from all other methods of interrogation in that it does not use the actual time-tested methods of acquiring good information, such as deception, trickery, developing some rapport, good-cop/bad-cop, or a carrot-and-stick approach. Its goal is to break the victim, not persuade her to talk.
The assumption that many have is that torture is immoral, but effective. It is not viewed as effective generally by professional interrogators. The results of torture are either failure (if the victim does not break) or the generally worthless information from a broken victim who says whatever she thinks the torturer wants to hear. This is not news. Around A.D. 400, the Romans knew that: "the strong will resist and the weak will say anything to end the pain." (credited to Ulpian. I have been unable to locate the Latin text online after about 15 minutes of half-assed searching. note: this is even before Justinian's reforms). It has been properly observed that torture is very satisfying to angry and frustrated officials, police, and interrogators, but is a poor way of producing true information. Historically, the torture has used to extract false confessions. It is good at that. The government has no credible evidence of any information gained from torture at Guantanamo. None. Porter Goss has claimed "documented successes" but refuses to release the documents. This administration has so little credibility on any issue, it would be foolish to credit this.
Moreover, the Constitution does not just outlaw torture. It outlaws forced confession (5th amendment) and any cruel and unusual punishment (8th amendment). These provisions are not limited by any text or principle, and apply everywhere, at all times. People accused of terrorism, murder, rape, treason, or other really bad things are not excepted. As Senator McCain, a torture victim himself, has forcefully put it, the issue is not about who they are, but who we are. I would add that the issue is also whether we really believe in the rule of law.
I recommend to you all a book by Alfred McCoy, professor of history at the University of Wisconsin-Madison. “A Question of Torture: CIA Interrogation, From the Cold War to the War on Terror.” He outlines not only the evidence we have of torture, but the historical experience of its failure. His unusual conclusion is that torture is effective as an interrogation technique only when applied on a mass scale. He notes that the French used torture effectively to win the battle of Algiers the late 1950s, and that the French estimated that nearly 40% of the male population of the central city (the Casbah) was subjected to torture during the "battle." The revulsion and anger this caused led to French loss of the war two years later.
I know we have been over this on the blog before, but we have to keep addressing the issue. It is, as I said, the most important moral and political question of our time.
Friday, August 18, 2006
I can make you talk
Posted by The Law Talking Guy at 10:40 AM
Subscribe to:
Post Comments (Atom)
26 comments:
Absolutely!
// posted by RBR
We settled the question of torture over 200 years ago in the Bill of Rights, and the answer was emphatically NO.
To get around this, Bush keeps saying terrorists are a new thing, outside the law. They tried placing the prisoners offshore in Guantanamo, hoping to keep them out of reach of US justice; the Supreme Court did not buy it. In the infamous "torture memo" they tried to say that not all kinds of torture are "torture"; they were forced to recant. They claim those they call "illegal enemy combatant" are merely "detainees", not prisoners of war; the Supreme Court has forced them to accept that Geneva Conventions apply.
But LTG is right to focus our attention on the fundamental question of torture as the moral and political issue of our time. For so long as the misconception exists that torture is a necessary evil--instead of just plain evil--then it will never stop. LTG is right: the dirty secret of torture is that it does nothing except satisfy the frustrations of the powerful who inflict it.
To win against the terrorists, we need to do the hard work of building international cooperation and ending the sources of extremism: poverty and violence. The easy answers provided by Bush will not work, and have never worked. A "new kind of war" canot be won by using the oldest tricks in the book.
My question from afar is how is the current Bush regime getting away with this? Does the Bill of Rights only refer to "prisoners" and not to "people"? Legally shouldn't there be the option to challenge these wordings? If not through the courts, why isn't Congress taking some stand as the representative of the people? Relatedly, why are you (as in the USA) buying the spin at all?
I think I know the answers, I just don't want to believe them.
// posted by Numbat o Love
People are afraid of terrorism; that is cynically exploited by the GOP. Frustration with democracy is common when people get angry and afraid. Congress is controlled by Republicans. Democrats are afraid to challenge the (slim) majority who are so afraid of terrorism they will let Bush do anything if he says it is for their own good, for fear of appearing weak.
It is all so depressing. But it doesn't help that Bush is supported so vigorously by Australia and England, when a little isolation might be healthy.
// posted by LTG
It's much more than simply Democrats being "afraid." This habbit people have of declaring the Democrats to be cowards or fools is disengenuous.
The Republican majority matters - A LOT - even if it is slim. Because Democrats are in the minority in both houses they prevented from calling the oversight hearings and votes that would actually do something about this. They want to. Their leadership have repeatedly criticized the President on this issue (and other issues). But when they try to call hearings the majority party prevents them or - as has happened a couple of times - force them to schedule them at odd hours in tiny basement rooms with little or no TV broadcasting ability and then boycott them. The result is the "hearings" become a joke and look like grandstanding.
As for Americans in general, nation wide there is a majority, or at least a plurality, in opposition to these policies and this opposition is growing. However, a number of institutational features protect Bush.
First, we have elections on a strict schedule - not whenever the PM wants as in most Parliamentary systems. This means we have to wait for the next election to have another go at checking this mess.
Second, our electoral system (based on state reprsentation) strongly favors rural (i.e. minority) interests over the majority urbanites. Since rural voters are more likely to be nationalists and have benefited from the pork barrel aspects of the "War on Terror
along with the Theocratic aspects of this administration, they support Bush faithfully (pun intended).
Third, the courts are addressing this. In fact in the other post today, you'll see that the Federal District Court in Detroit just slammed the Bush administration on the warrantless wire-tapping. But unfortunately, our court system is far more complex than it is in most Parliamentary systems - especially those based on the British system. The upside is that our judiciary is among the most independent in the world. The downside is that it is slow - allowing Bush to continue his dastardly policies for months or even years while the courts digest the cases.
// posted by Raised By Republicans
I'd also point out the Numbat that Australians just reelected Howard. While Bush may be a wanker, Howard is a wanker's lapdog. If you ask why "Americans" (a gross over generalization) buy the spin from Bush, look at what's going on in Australia. I suspect a similar combination of fear, propoganda, nationalism and instituational constraints is at work there as well. Understanding the one will go a long way to understanding the other.
// posted by Raised By Republicans
Ah, so combative RbR. Thanks for pointing out who the leader of my Government is: I wasn't aware.
I'll try to clarify what I was trying to get at in my earlier post: it wasn't clear. My surprise is more how easily the Republicans in Congress are accepting these definitions without any seeming thought as to the longer term implications of their moral choices now. Regardless of the majority it strikes me as odd that they have been so cohesive on this. Further I used the generalisation of "Americans" simply because I see little in the way of organised protest against it. Maybe that is symptomatic of the reporting I receive.
Thanks for the comments on the court system, but I don't see how it is more complicated than other systems. With regard to independance of the courts, that certainly does not come through in the politicising of decisions made by those courts, and the appointment process for the Supreme Court.
Howard is a lapdog but also a very clever politician, and the opposition here is in disarray to the point that there is no clear political stance from the Labor party. Howard was elected -- before Bush was -- by campaigning against a Labor leader who was imploding from the pressure, and on a platform that scared people to most given the high levels of household debt here: interest rates. He basically said we will keep interest rates lower than Labor, and that was enough. The "war" was not even an issue here, so unfortunately the support continues. Labor were able to shoot themselves in the foot. I'm not sure that understanding that gives me a clear picture of what is happening in the USA.
// posted by Numbat o Love
Nubmat, I disagree with many of your arguments and assumptions but I fear that if I go through them point by point, I will be held up as the bad guy here.
For now, I will only say that Australians as a people are in a similar political fix as we Americans are (and the British, Italians, Danes etc). Yet you personally seem to show remarkably little sympathy or understanding of that.
You are also poorly informed about American political institutions (and, to a lesser extent, events) yet seem to believe you have enough information about them to accuse and judge us all.
// posted by Raised By Republicans
British view: Blair (now aka Bush's poodle) wasn't elected because of 'the war on terror'. People in Britain are so used to terrorism that it can't be used as a campaign point - anyone heard of a little group called the IRA?...
(who, thankfully, seem to have given up their explosive hobbies at least. I'm not sure what life is like in Ireland, but that's a different topic)
To be honest, I'm not entirely sure why he *was* elected - the basic reason seems to be that people were voting 'not Tory' as opposed to 'for Labour' (in 1997, also well before Bush in 2001). And somehow they've managed to cling on to it, but 'the war' hasn't been a campaigning point, not at all - we've just had the usual stuff about health, education, taxes, sleaze allegations every which way etc.
Anyhow, I don't feel qualified to comment on things in the US, just wanted to give the Brit view on our PM.
// posted by Pombat
Pombat brings up an important point. Politics is multi-dimensional. People don't always vote for some party because of the most widely publicized actions of that party. Labour supportors are a varied bunch - some like their stand on domestic policies better than those of the Tories, some think the Torries too divided to govern, some may remember the corruption scandals from the last Tory government etc etc.
I'm sure there are similar dynamics down under.
Rebublican supportors in America are similiarly varied. Some like tax cuts, some like theocracy, some just like ag subsidies and others are nationalists.
// posted by Raised By Republicans
RbR if you have been reading my posts without assuming I'm attacking, which is certainly my feeling from here, I would hope you would realise that I am trying to become informed about American politics and simply asking questions about the items I do not understand hopefully for some clarification. If you can go through these point-by-point in a constructive manner than I would be more than happy. Maybe I am uninformed but simply telling me that is not particularly helpful.
Quite frankly you have a lot of gall to call me unsympathetic after your gloating posts on the Sydney riots. I offer you a perspective on Australia and the political system here, and it could be that I actually do understand that better than you.
// posted by Numbat o Love
"why are you (as in the USA) buying the spin at all?... I think I know the answers, I just don't want to believe them." Not a tone of genuine curiosity. But I'll take your word for it.
Here is the point by point.
Congress doesn't press Bush because Bush controls the majority party in both houses.
The Democrats don't use Congress as a platform for opposition because they are in the minority and so are restricted in their actions (they can't schedule hearings or determine which votes take place). They are limited to relatively ineffective symbolic statements on Sunday morning political talk shows.
The continued holding of office of an elected leader doesn't imply continued majority support let along the implied unanomous support. Especially when the election schedule is pre-set and fixed - not determined by the choice of the sitting PM (as is the case in most parliamentary democracies).
There have been numerous protests against the war and against Bush generally. This includes a massive protest a year ago this week in which hundreds of thousands of people demonstrated in Washington (with tens of thousands of protestors in simultaneous demonstrations in other US cities). Protests this year were smaller but they were smaller world wide too. Bush's approval ratings are currently stuck in the mid-30's a remarkablely low level of support. 65% to 70% of Americans actually oppose Bush now and don't "buy the spin." What's more, the most pro-war/pro-Bush Democratic Senator (Joe Lieberman) just lost his own party's nomination in a local primary - an extraordinarily rare event - because of popular opposition to the war among other things. This is all contributing to increasing expectations of Republcian defeat in the Congressional elections November.
If Howard's continued support is due to his cleverness, why is it you imply that Bush's is due to the fact that "you in the USA" are easily dooped, morally suspect or both? I contend that both Howard and Bush survive through similar combinations of gile, institutional features, and diverse coalitions of constituents.
The courts are complex because the heirarchies from one court to another (i.e. FISA or State Court to Disctrict Court or Supreme Court) are not always direct. The courts are independent because they (unlike many courts in many democracies) frequently rule against the government. This includes the current Supreme Court which has ruled against the Bush administrations core assertions that during war they have "inherent powers." I'll let LTG fill in the details.
Based on all this, I contend now (as LTG and I did when the race riots errupted down under) that there is so much that the US and Australian socio-political systems have in common that the all to fashionable Australian (and European) anti-Americanism amounts to throwing stones in a glass house.
// posted by Raised By Republicans
When Numbat asked why those Republicans in Congress did not oppose Bush, he asked an interesting question that hasn't quite been addresed. I think the answer is that in the US, keeping one's party in line is far easier in the House than the Senate, due to the difference in rules of procedure (the leadership have a lot of ways to punish you in the House, but fewer in the Senate), and this is borne out by the fact that some Republican Senators actually have balked at Bush's spin--notably McCain on the torture issue. I also suspect that the very precariousness of the Republican majority is what drives them to hang together so tightly even on suspect issues such as torture.
RbR is right that when Numbat went on to ask why, "you (as in the USA)," were willing to buy Bush's spin, Numbat must have been speaking out of frustration from afar as he is actually incorrect: most Americans no longer buy the spin (as RbR pointed out.) Alas, too many did so for too long...
I cannot uber-emphasize enough the relative complexity of the US Court system vis-a-vis the judiciaries of most of the world. The powerful independent American judiciary is a phenomenal and underappreciated aspect of US government, in part because all the focus is usually given to the Supreme Court. That's easy, but misguided. The SC is the tip of a judicial iceberg. We have 51 truly sovereign court systems, plus dozesns of nominally sovereign tribal courts, the jurisdictions of which overlap in the most confounding ways. Legislative power is fractured not just in federal, state, city, county, and tribal goverments, but in independently elected water districts, school districts, community college districts, and numerous others. Through it all, there is hardly an act of any government (city, county, state, tribal, special-district, or federal) that is not subject to judicial scrutiny at one or more layers. Nowhere in the world is the legislature so filled with lawyers.
Is this good or bad? It has many downsides that I could list. But I think that this is the real bulwark of our liberty - a very, very robust federalism with checks and balances even between overlapping and contesting portions of the judiciary. Even other federal and confederated systems (like Canada, Germany, Brazil, Australia, or Mexico) are nowhere near as complex in design or operation.
I'm up for lots of boring legal harangues if anyone wants it...
// posted by LTG
Actually RbR it was in genuine curiousity, with a sense of resignation in the last sentence. My wonder at why we are not hearing more protest from Congress is -- and I realise it is the same party -- that surely they must be starting to listen to their constituents given Bush's popularity levels as you point out.
My comment about Howard's cleverness as a politician does not imply that Australian's are not dumb in their voting. Nor does it imply that Howard is leader, as he IMHO lacks any vision for the country beyond making us the 51st state of the USA. My point is that Howard chose interest rates to fight the last election on, and not the "War on Terror". Hip pocket wins out, which is simply greed.
I agree with your statements that the courts have ruled against the inherent powers Bush claims, but there does not seem to have been much on effect from that. Nor from the protests you mention, unlike the recent immigration related protests. Am I missing something?
As to anti-Americanism comment, I don't think anyone is pretending that the systems are completely different, but there are cultural differences between, say, the US and Oz and the UK. Any anti-American sentiment may be a response to the barrage of "America is best" message presented in popular culture. Maybe we should be more comparative of differences rather than being defensive. For me highlighting differences is the one way I can compare.
LTG: is there a clear hierarchy in the US court system though? Dr S: what are the ways a member of the House can be punished? Crossing the floor in our system is something that can heppen readily. In fact a number of government house members here recently crossed the floor to oppose the government's stance on off shore detention, even though this had no effect on the motion moving through the house to the Senate (where it was actually defeated with the support of an extreme-right christian senator).
// posted by Anonymous
I should let LTG or RbR explain how the House leadership can punish their own members. The basics I know of are depriving them of any representation on committees and preventing them from bring any legislation to the floor: essentially, shutting them down completely. The party machine can also work against its own in primary season.
Defecting from one's party in the House is permitted but difficult and unlikely for a couple of reasons. First, House member represent local (and therefore narrow) interests. Plus their districts are agressively gerrymandered to produce large partisan majorities making them more radical and loyal to party activists. Second, because the House is strictly majoritarian in all it's decisions, defecting from one's party can be forcefully punished by the leadership.
I recently heard from LTG that actually voting against one's party in Australia is strictly verboten. I asked my colleague here at work who specializes in comparative party politics and she confirmed that this is the rule in Australia. MPs may not vote against their party. They may however abstain in strategically important ways. This is what must have happened in the aforementioned example.
BTW, because of this rule in Australia, several common measures of party unity/disunity cannot be used in the Australian case. Which causes some irritation to political scientists who would love to include the Aussie data.
// posted by Raised By Republicans
Perhaps RbR or LTG can explain, better than I have, exactly for forms of punishment party leadership can mete out to keep their members in line.
RbR has been mildly misinformed about Australia. Voting against one's party is strongly opposed, but still can occur. Last week, in fact, enough of the ruling Liberal/National coalition members threatened to do precisely that to cause John Howard to drop impending regulations to ship all asylum seekers to an offshore detention center. It was considered perhaps his most significant defeat as PM since he has been in power--because such contrary votes are very rare--but it is not forbidden.
FYI, the vote was not a conscience vote, in which MPs are free to vote as they wish--that is why it was an astonishing "revolt" from the back-benchers.
If we could put aside the Oz-US tinkling match for a second, I read Numbat O Love's original post to focus on LTG's original subject -- torture. From LTG: "The assumption that many have is that torture is immoral, but effective.... It is, as I said, the most important moral and political question of our time."
From Numbat: "...why are you (as in the USA) buying the spin at all?"
Not the "Bush is a doing a good job" spin, which we don't buy. The "in these times, torture is appropriate" spin.
If torture's the most important issue for our nation's standing and its soul, why are the news networks spending all their time playing decade-old JonBenet footage and speculating about the disturbed guy who brought her up?
Why are the Republicans winning the "cut and run" war of words over Iraq, when the Democrats could be spending their "relatively ineffective symbolic statements on Sunday morning political talk shows" on soundbites like "Torture is un-American."? (Credit to www.soaw.org)
If there are significant protests in the US against torture , I can't find them, except for the annual anti-SOA one promoted by the aforementioned site. I salute the Christians that protested last December outside Guantanamo; I don't know if they're still there, but I can't find mention of other groups joining the cause.
The media's not covering it; the politicians seem to have forgotten it; the people are not outraged by it.
The courts, in their plodding way, seem to be curbing the insanity, but why is it necessary for years to go by before such obvious violations of the clear language in the Bill of Rights are corrected?
I agree that "the torture issue" is fundamental to what defines our country. If Numbat's sentiment could be summarized as "Why doesn't the rest of America seem to think so?", then I share that concern.
// posted by bob
Bob has a good point. I think part of the reason the public buys into the "torture is necessary" argument is popular culture. Shows like "24" and "Lost" perpetuate the notion that torture is not only effective but a necessary tool when dealing with really bad guys. There is almost a romanticized notion of torture in the US popular media. (Other nations may have the same, but I am only really familiar with US stuff.)
Part of the problem is that it just makes sense to a lot of people that torture should work... and I suspect torture will probably eventually work, at least after (as LTG points out) you have first managed to break a prisoner's will to resist... but the point is there are much better methods--the "time-tested methods" LTG listed (an excellent list!). In other words, liberals should argue that torture, even when it can be made to work, is simply far too slow, especially when dealing with fanatics trained to resist it. Moreover, since better methods of interrogation are always available, torture is never necessary. Finally, torture is just plain wrong--and to do so for any reason is to squander the moral currency of the nation.
It is easy to say we should just squeeze them until they squeal. But the easy answers are rarely right. The hard thing is to try to win over the allegiance of an Al Qaeda operative and get them to collaborate willingly with us. Ultimately, we will win not because we can match them in cruelty but because we can offer something they cannot: freedom, prosperity, and truth. [I'll get off the soapbox now.]
RBR- I was misunderstood. My offblog comments were for the state of Victoria only, with a curious rule that permits abstention, but not voting against the party.
// posted by LTG
Is there a hierarchy of US courts? Yes... and no. For example, state courts cannot be overruled by the US Supreme Court when interpreting state law or the state constitution, except on grounds that these also violate the federal constitution. This leads to interesting results when state and federal constitutions or statutes contain identical text, but receive different interpretations. Many decisions of courts are essentially un-reviewable by any higher court for a variety of arcane reasons. Seventh Sister can talk from personal experience about courts that are OPTIONAL, i.e., where the litigants have the choice of courts for appellate purposes. Federal courts do not sit over state courts, but next to them. Federal courts must follow state courts when interpreting state law (which is most law in the US, by the way), except when there isn't an interpretation already, in which case they may be bound by previous decisions of federal courts interpreting state law. And I could go on and on. The point is that we have parallel court systems with concurrent jurisdiction over huge amounts of law. I was recently involved (tangentially) in a case that was initially a federal constitutional challenge to a state law, appealed to the federal appellate level (a 3 judge panel) then heard "en banc" by 11 of 21 members of the ninth circuit (the fed appellate court for most of the US west of the Rockies). Result? They referred questions to the local (Oregon) state court! The Oregon Supreme Court then answered those questions in such a way as to moot the federal case, by overruling its own statute on state constitutional grounds - something that had never even come up in the federal case. The federal appellate court has not yet disposed of its case, however.
The point, however, is that such neat stuff isn't just a bunch of weird legal tidbits, but is really the substance of the independent judiciary in our federalism.
The fact that most state judges and state attorneys general are independently elected adds to the political dimensions of the system. In 1986, members of the California Supreme Court were voted out by the public in a recall largely over their staunch opposition to the death penalty. Kind of makes your head hurt.
Federal judges, by contrast, can only be removed by impeachment, which has happened exactly six times in 217 years, with three of them at the same time (1989) (at least one of those 3 federal judges was already IN JAIL).
Oh, and the relationship between tribal and military courts vis-a-vis state and federal courts is not just confusing, but simply confused. It doesn't help that courts define their own jurisdiction most of the time. Yes, the US Supreme Court can, if it really wants to, overrule any lower court, but only if the case somehow gets there, which often it cannot. And even then, the most it can usually do in complicated cases is send the case back with instructions to reach a different result. Those instructions are not always obeyed, in part because there are few consequences for interpreting the instructions in such a way as to negate them. In the 1930s, the Scottsboro boys cases famously involved nine (I think) black men accused of attempted rape of a white woman on a train, although it was agreed that (basically) none had actually touched her. The attempted rape was looking at her funny. Georgia sentenced them to die. Ultimately, some convictions were overturned, but at least three convictions were sent back by the Supreme Court with instructions for Georgia courts to overturn the convictios. Georgia executed the death sentences anyway.
To clarify, the majoritarian nature of the House makes punishments tougher because if you lose your committee chairmanship (or subcommittee chairmanship) you loose most of your influence on policy. An individual House member is not that powerful. In contrast the Senate's looser rules allow for more individuality and more influence even by Senators that are not heading committees.
The House of Representatives is the chamber that is most similar to the strict control by leadership in single party majority Parliamentary systems.
// posted by Raised By Republicans
LTG, your off blog comments encouraged me to seek information from a colleague about the Australian case generally, and the same strict enforcement of partisan loyalty is in place nationally too.
Dr. S., important distinction here is that while it is forbidden to vote against one's own party, if enough MPs abstain, that can have a similar effect on the bill - i.e. defeat. According to my party specialist friend, this is true because voting rules in the Australian legislatures require 50%+1 of the membership not just 50%+1 of the voting members.
What this means is that back bench revolts can annoy a sitting PM but are unlikely to result in a defeat in a confidence vote (i.e. the government will not fall because of a revolt). Confidence votes reverse the strategic effect of the abstentions from being pro-oposition to being pro-government.
// posted by RBR
Bob,
I'd contest your assertion that the Republicans are winning with the "cut and run" rhetoric. Polls show majority opposition to the war in Iraq and this opposition is increasing.
The numbers on torture are not so strong but even there it's not the case that a majority of Americans favor the use of torture. If I recall correctly the numbers of people supporting torture are similar to Bush's overall approval ratings (i.e. mid 30% to 40%).
That Bush is able to continue these policies is happening despite not because of popular American sentiments.
This observation flies in the face of the conventional wisdom in many democracies where it has become chic to blame American culture or Americans as a group for these problems.
-RBR
Post a Comment