War on Terror? Torture? Prosecute Us?

There is an ongoing debate over the closing of America's most notorious detainment/torture center at Guantanamo and the legality and efficacy of using torture to extract "information" from detainees in that and other facilities.

In a piece in this morning's Washington Post titled Torture? Prosecute Us, Too Richard Cohen leads with this:

"The past is a foreign country; they do things differently there." So goes an aphorism that needs to be applied to the current debate over whether those who authorized and used torture should be prosecuted. In the very different country called Sept. 11, 2001, the answer would be a resounding no.

Contrary to what has become the accepted noise, "the world" did not "change" on 9/11. Our laws, our treaties and international agreements as well as our values remained. We did not become a "very different country" on September 12, 2001 despite Mr. Cohen's (and others) claim.

In many ways it is our body of law that binds the past, present and future. The rule of law gives constancy to our "values." Laws may change but the process of change is, and should be reasoned and deliberate, not an impassioned reaction to the events of the day. That kind of reaction to the passions of the moment is the path of the lynch mob.


If, as is said in legal circles, "big cases make for bad law," the events of 9/11 and the rapid changes in our laws and public policy that resulted from the reaction to those events gives us the mother of all examples of the aphorism.  An extremely big case led to a series of terrible revisions of our laws.

Among the legion of egregious errors committed by the last Republican administration was the naming of the war that it proposed to fight following the criminal destruction of the World Trade Center, the attack on the Pentagon and the downing of a fourth commercial airliner in a Pennsylvania pasture.

As has been pointed out numerous times "War on Terror" is an unfortunate term which calls for a war on a tactic: terror. You can no more fight a war against "terror" than you can fight a war against "covering fire," "encirclement" "camouflage" or "surprise."

Bush, Rumsfeld, Cheney and the Goebbelian PR squad in the White House basement used the term "terror" more for its perceived effectiveness in arousing the public than for any accuracy in describing their strategy, or as Bush put it, "strategery." It was in the Bush White House that the ad boys gave the word a capital "T" and used it as their "brand" for instilling public fear and acquiescence in nearly any act that they chose to carry out over the ensuing seven years.

The attacks on September 11, 2001 involved specific criminal acts, all of which are spelled out in federal and state law and punishable by lengthy prison terms up to and including life in prison. Under federal law, death penalty statutes would apply for the murder of the thousands of victims of the crimes.

When the World trade center was bombed the first time in 1993 the crime was investigated by the NYPD, the ATF and the FBI with the help, no doubt, of other agencies both here and abroad. A thorough investigation by law enforcement professionals resulted in the arrest, conviction and life sentences for the criminals involved.

The Marines were not sent in, nor were the Army and Navy deployed in force and the country did not go to war. Rather than launching a full scale campaign of "shock and awe," the Clinton administration, in its wisdom, effectively, sent in "Columbo."

Following the crimes of 9/11 the mindset of our "leadership" was very different; actually, it now seems that the minds were made up before the event, made up in fact even before the 2000 election.

An investigation quickly confirmed the involvement of Osama bin Laden and al Qaeda and it was quickly decided to take on the Taliban and al Qaeda, Afghanistan was never intended to be the main thrust, nor was bin Laden to be the main target.

The public was, quite rightly, afraid after the attacks; I was. (I watched it on TV too) It was a time of fear and uncertainty that called for calm leadership and thoughtful action.

That is not what we got. We got a strutting cowboy alternately threatening the world, boasting of American might, and daring potential adversaries to "bring it on." He sounded like a drunken Saturday night drugstore cowpoke, cranked up on Jack Daniels, inviting any and all to a session of parking lot gravel dancing. "Mano a mano?"

Afghanistan and the Taliban were bottled up quickly, bin Laden isolated and rendered ineffective (at least temporarily) and the public roared its approval. (Cohen cites Bush's 92% approval ratings)

But our leadership kept feeding the collective fear and fanning the flames of public passion with manufactured intelligence, imagined alliances, an "axis of evil" cut from whole cloth and mythical "weapons of mass destruction."

Afghanistan and bin Laden was not enough, it would not serve as the entree to the Middle East that our "leadership" required, and in fact, his capture or death would retard the main goal of this posse. Saddam Hussein was to be the quarry, Iraqi oil the tool, American hegemony in the Middle East the ultimate prize.

Proof, (at least the appearance of proof) was needed to bind Iraq and Hussein with al Qaeda and bin Laden. Proof was needed to tie bin Laden's ability to acquire WMD to Hussein, to Iran, to anywhere they wanted to make a move.

They spread cash all over Afghanistan, all over Pakistan and all over the Middle East. Wads of hundred dollar bills, five grand here, ten there, were offered for information about al Qaeda members in some of the world's most impoverished countries, places where the annual per capita income is less than I spend on rum, and they got results.

People turned in cab drivers, personal rivals, enemies, tourists, their wife's divorce lawyer, you get the picture. Lots of suspects, never mind that they were often told by locals, by advisers, by interpreters that they were collaring the wrong guys, that many of these people were just hapless bystanders who had wandered into the net. It didn't matter.

It didn't matter because they weren't looking for facts; they were looking for "information." "Information" was necessary to tie Saddam to the "war on terror," so electrodes were attached, thumbs were screwed, genitals mistreated, people were "extraordinarily hydrated," and they got lots of "information."

Hook me up to the Toquemada machine and I'll confess to anything, any crime, any degradation to make the pain stop, and so will you. In a few days any of us will confess to being responsible for original sin, to make the pain stop.

Did they get facts, sure, cast a net that wide and you're bound to catch something edible, but I expect that the ratio of facts to "information" is, as they say, "highly classified."

At what cost did they gather these facts? We'll probably never know how many average Joes were destroyed, how many families ruined, how many people were murdered as a result of these "enhanced interrogation techniques," or how many minds were destroyed in the process.

And that is why we cannot "look forward," we cannot ignore these terrible, willful crimes, these war crimes, these crimes against humanity.

We must answer as a society for the criminality of our leadership by prosecuting them for what they purported to do in our name.

Cohen adds this:

At the same time, we have to be respectful of those who were in that Sept. 11 frame of mind, who thought they were saving lives -- and maybe were -- and who, in any case, were doing what the nation and its leaders wanted. It is imperative that our intelligence agents not have to fear that a sincere effort will result in their being hauled before some congressional committee or a grand jury. We want the finest people in these jobs -- not time-stampers who take no chances.

Is the cop on the street who beats a false confession out of a teenage suspect making a "sincere effort" to enforce the law? Is he saving lives?

Are the "finest people" those who can be persuaded to violate all norms of human decency?

Are those who resist power and insist on following the rule of law, now to be called "time stampers," "who take no chances?"

Cohen writes:

The best suggestion for how to proceed comes from David Cole of Georgetown Law School. Writing in the Jan. 15 New York Review of Books, he proposed that either the president or Congress appoint a blue-ribbon commission, arm it with subpoena power, and turn it loose to find out what went wrong, what (if anything) went right and to report not only to Congress but to us. We were the ones, remember, who just wanted to be kept safe. So, it is important, as well as fair, not to punish those who did what we wanted done -- back when we lived, scared to death, in a place called the Past.

I suggest that blue ribbon commissions are usually hired when whitewashing is felt to be the solution. I think that this is a job for the Justice department and perhaps a special prosecutor.

We don't need to find out what went wrong, there is a world full of opprobrium focused on our country as a result of these crimes, there is a sea of blood and body parts to attest to what went wrong. There is a universe filled with screams of torment to testify to what went wrong; it is time to find out whom, to what degree and to punish accordingly.

Yes we were scared, I too wanted to be secure but I have never been willing to give up my rights or the human rights of others for my personal safety; so don't, Mr. Cohen, try to blame this on me or the American people. We didn't sign on for crimes against humanity.

I'll leave you with this; I am a Marine veteran of Vietnam; twice a year (as I remember) we were instructed in the Military "Code of Conduct."

Here is a relevant excerpt:

"It is a violation of the Geneva Convention to place a prisoner under physical or mental duress, torture or any other form of coercion in an effort to secure information."
US Military Code of Conduct

Fact: Torture is illegal under US and international law.

Fact: We hung German officers and civilians for ordering others to commit war crimes and crimes against humanity.

Fact: We executed Japanese soldiers in WW2 for water boarding allied prisoners.

Fact: We punished our troops in Vietnam for the same offenses.

Leadership must be prosecuted for issuing unlawful orders to their troops which require them to violate our laws, treaties and conventions and the troops they lead are required to differentiate between lawful and unlawful orders whether from superior officers, from a frightened populace or... from a lynch mob.

Bob Higgins
Worldwide Sawdust


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I'm agreed on what you are arguing for here. Otherwise the rule of law is just words and exercise of arbitrary will by the powerful.

I don't know how to proceed specifically. Watergate investigations were multi-facetted and broad-based. There were the Congressional committees with subpoena and cross examination and perjury as enforcement tools. They did real well on TV some times.

There was also the Special Counsel stuff run through Justice. I don't know it well enough, but I think they went for the Plumbers and the White House Dirty Tricks people, as well as others. There were Federal law enforcement and DC cop investigations too. There was Judge Sirica who did a great job. And the journalists did a lot.

What ever is done, it needs to be done in the same kind of thorough going, no stone unturned type of way. Sun Light makes the best disinfectant they say.

There needs to be a committment to develop the chain of evidence to substantiate what crimes were committed, I doubt we know the half of it really, there needs to be ways of determining who was doing what they were told, and who was giving orders, and the 'nodes' where multiple chains come together on the way to the top, ought to be of particular interest.

Thank you for writing this. I doubt anything will mean much if this isn't dealt with, and cleaned up in a thorough way, basically because there will be a temptation to use the same methods and procedures the Bush crowd developed and got away with, and that will be just plain wrong.

Of course people who want to move on, like Cohen seems to, probably aren't of totally clear conscience in anything to do with this subject. It is worth keeping an eye on opponents from that kind of point of view. They probably had an earlier role in the play too.


If impo'tant white folk are left to run free, while black males from their teens to their fifities are jailed at a rate of about 10% of their population, all the the time, and have been siince the guy who advertized Chlorox bleach for GE on TV (gets out the reds, leaves the blues) then there's something very wrong indeed. White folk who do what the black folk do are treated differently altogether.And children! What a mess.

But this is to detract from your point I think. Though it is not surprising that a country capable of treating children under 8 as possessing moral knowledge should be equally capable of treating adult males in other countries as pieces of meat.

This was on Huffing Post this morning from Tom Hayden


I remember stories about how the "detainees" were treated in Afghanistan before being shipped to the U.S. I definitely think there is a danger that the prisoners currently at Guantanimo will be shipped to destinations unknown where torture remains a commonplace.