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Even if Bush isn’t impeached…

Posted by JOE WINDISH, Technology Editor in Politics.
Jul 31st, 2008 | Comments

…the consequences of his actions could be severe.

The comments on my Sunstein post are terrific. Thanks to everyone involved. Certainly worth remembering is that impeachment is hardly the only option. And even if we do nothing at all (and I am not suggesting that!!!) there is still the whole wide world to consider.

In early June Attorney Philippe Sands talked with Dave Davies on Fresh Air about interrogation techniques and how Britain’s handling of the IRA could teach the U.S. a thing or two. Sands is the author of Torture Team: Rumsfeld’s Memo and the Betrayal of American Values, an international human rights attorney, and has worked on several high-profile cases including the extradition of former Chilean dictator Augusto Pinochet.

The Pinochet portion of the interview is fascinating. Sands explains why, decades after his alleged crimes, he was arrested in London. Pinochet was friendly with Margaret Thatcher, felt safe in Britain, so went there for medical treatment in 1998:

[I]t was the 16th of October, there was a knock on his door and a number of police officers came in and arrested him. And they arrested him because a Spanish prosecutor by the name of Judge Garzon had issued an arrest warrant for allegations of torture, and indeed a whole lot of other crimes, carried out in Chile in the period 1973 to 1990. So much, much earlier on. And the significance about those acts, the acts of torture and related acts, is that they fall within something called universal jurisdiction. That’s to say they are international crimes which any country in the world has an obligation to prosecute if an individual turns up in their country, or to extradite the person to a place where that person will be prosecuted. [E.A.] And so Pinochet arrives in the UK, a Spanish prosecutor makes the request, and the British authorities have no option but to take action on the Spanish request…

Sands explains that after 18 months of legal proceedings the decision was that Pinochet could, in fact, be extradited to Spain to face trial for allegations of torture.

“The case,” says Sands, “established the principle that even a former head of state who is alleged to have committed torture will not be able to gain immunity from the jurisdiction of courts.”

Davies asks, of course, are any of the officials of the Bush administration vulnerable to prosecution?

I think they’re extremely vulnerable to investigation… And that goes right to the top. It goes to Mr. Rumsfeld, it goes to Mr. Rumsfeld’s lawyer, Jim Haynes, and others down the chain of command who played an active role in authorizing the techniques of interrogation; which is why the issue of where it all started becomes so important, and why the administration’s narrative that it started at the bottom and then just trickled up is, I think, necessary to explore much further.

But the bottom line is very, very clear. If you engage in torture, if you are complicit in torture, if you participate in torture, you expose yourself to the risk of investigation anywhere in the world. And that is a risk that applies to anyone of any nationality, and being a former administration official doesn’t help. [E.A.] So the immunity that the administration has tried to create with the Military Commissions Act will have no effect outside the United States, nor will any possible pardon by President Bush, which apparently is being suggested in relation to some of these characters.

So what, I wonder, do we all think of that?

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Marlowecan

Sands said: "But the bottom line is very, very clear. If you engage in torture, if you are complicit in torture, if you participate in torture, you expose yourself to the risk of investigation anywhere in the world. And that is a risk that applies to anyone of any nationality, and being a former administration official doesn’t help. "

This is totally wrong. You are only exposed if you happen to be on the right, like Pinochet.

Case in Point: the former Soviet bloc...with many members now firmly in the European Union. These countries all had secret police who conducted tortures FAR beyond the waterboarding that seems to perpetually outrage US liberals.

There is no need for extradition. These former torturers -- good Communist party members in their day -- are now happily walking the streets of the European Union. . . knowing they are absolutely immune from arrest because they were once considered on the Left.

Look at the Germans. . . whose efficiency is notably lacking in prosecuting the former Stasi. The bizarro obscenity of the refusal of the German police to prosecute former East German leaders who ordered a "shoot-to-kill policy" on the Berlin Wall for example.

Everyone here has probably seen videos of such shootings. Countless dead (not tortured . . . DEAD!)

Yet the Germans say they cannot find any written order authorizing the policy or speaking of it. It is just a mystery why guards shot so many people for decades.
So many dead . . . and no one is responsible.

Thus, I think Sands is a typical liberal witch-hunter. Europeans, hot to prosecute Rummy, could easily look in their own backyards at the murderers and torturers walking the streets of the EU.

Oh, but they are former Communists. We will just turn a blind eye to that.

Evil Rummy. Evil Bush.

Loviatar

You know whats so sad about this post / thread, since Bush became President, we've declined so much as a country in so many different ways (ethically, morally, etc.) that we are actually arguing if torture is torture and if we should punish the enablers and practitioners.

Sad, Sad, Sad

To double down, we have a slew of people around the country and on this site who gladly spew parsed and rationalized statements defending the torturers.

Am I the only one who somtimes want to cry for what my country has become?

runasim

About us, I agree with Loviatar. It's a surreal experience to read and hear Americans defending torture. How did we sink so low?

About Europe, I disagree with Marlowecan. The world is not so clearly divided between Left and Right, as he would always have it. Europe is a complicated patchwork of the left and the right, the past and the present, national ties and foreign inluences, shifting powers and alliances, dreams and fears. Russia is a real and present power, which can threaten and does so. Russian aristocrats (hardly members of the left), have been admired members of European society, and no one has ever asked them how many peasants slaved and died to provide the family jewels they inherited.

About Bush & Co., I think we would bring further shame on ourselves if we couldn't clean up our own mess in some fashion. Some manner of formal accounting has to take place - by us. But, as I stressed before, it shouldn't be done as punishment for individuals. It should be done as a restoration process for the office of he presidency, the primacy of the Constitution, and the reafirmation of the three equal branches of government. Deterrence is the watchword.

Neocon

About us, I agree with Loviatar. It's a surreal experience to read and hear Americans defending torture. How did we sink so low?

I dont think too many people are defending torture. The antiwar left just keeps lowering the standard of what constitutes torture that now our prison system is dangerously close to "Torturing our inmates" just by having them behind walls.

This has been the debate. What is torture. I do not personally find torture to be depriving one of sleep or food for a couple days, playing loud music or flushing their bible down the toilet to be torture. Obviously many of you do and it is you who have reshaped the debate and brought us to the point that once again America should be ashamed for our actions.

So I have said before and I say again, that if we let YOU define what is and is not torture then we are going to have to overhaul our prison system, which I believe is most likely on your agenda anyways. It is why the debate.

Those on both sides point to the other, shake their heads and say, How did we sink so low.

Don Quijote

About us, I agree with Loviatar. It's a surreal experience to read and hear Americans defending torture. How did we sink so low?

Easy, we let the right set the terms of the political debate.

I dont think too many people are defending torture. The antiwar left just keeps lowering the standard of what constitutes torture that now our prison system is dangerously close to "Torturing our inmates" just by having them behind walls.

I am pretty sure that waterboarding is a form of Torture, and guess what the US government agrees with me.

Waterboarding: A Tortured History

In the war crimes tribunals that followed Japan's defeat in World War II, the issue of waterboarding was sometimes raised. In 1947, the U.S. charged a Japanese officer, Yukio Asano, with war crimes for waterboarding a U.S. civilian. Asano was sentenced to 15 years of hard labor.

"All of these trials elicited compelling descriptions of water torture from its victims, and resulted in severe punishment for its perpetrators," writes Evan Wallach in the Columbia Journal of Transnational Law.

On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier.

Cases of waterboarding have occurred on U.S. soil, as well. In 1983, Texas Sheriff James Parker was charged, along with three of his deputies, for handcuffing prisoners to chairs, placing towels over their faces, and pouring water on the cloth until they gave what the officers considered to be confessions. The sheriff and his deputies were all convicted and sentenced to four years in prison.

And I am sure that none of this was torture:
Abu Ghraib

Neocon

I dont think too many people are defending torture.

ChrisWWW

Neocon,
Except the executive and legislative branches of our government.

ChrisWWW

Marlow,
As someone on the liberal side of the spectrum, I'll gladly accept the mantle of being against torture.

The right is defining itself into a box. Unlimited military spending, torture, warrantless spying, unprovoked wars. They need to take a look at what they've come to stand for.

Loviatar

Neo-con,

Thank you I knew you would come through in helping to prove my point.

I said To double down, we have a slew of people around the country and on this site who gladly spew parsed and rationalized statements defending the torturers.

You then responded with this statement I dont think too many people are defending torture. The antiwar left just keeps lowering the standard of what constitutes torture that now our prison system is dangerously close to "Torturing our inmates" just by having them behind walls.

This has been the debate. What is torture. I do not personally find torture to be depriving one of sleep or food for a couple days, playing loud music or flushing their bible down the toilet to be torture. Obviously many of you do and it is you who have reshaped the debate and brought us to the point that once again America should be ashamed for our actions.

So I have said before and I say again, that if we let YOU define what is and is not torture then we are going to have to overhaul our prison system, which I believe is most likely on your agenda anyways. It is why the debate.

That comment of yours is the essence of my point; you are so busy defending the torturers by defining down the definition of torture due to some convoluted "parsed and rationalized" statement that you’ve forgotten what this country use to stand for, like I said above Sad, Sad, Sad.

mikkel

Not to necessarily bring Glenn Greenwald into this thread as well, but interestingly enough he has had posts that say he is against the concept of universal jurisdiction.

I say that if possible we create a commission to review all the evidence (and you know, actually hold people in contempt and in jail to get them to testify if need be) and then have trials if there is enough evidence. Or if it's found that we can't have trials for some immunity legal reason, send them to the ICC at the Hague (which is different than "universal jurisdiction" under individual countries. Although I have to confess I don't have time to listen to the interview so it's unclear whether he was talking about the ICC or about countries prosecuting people themselves.)

The point is that to initiate either action it should be done by us and fully public ...although this won't happen because a lot of people still in power would be implicated. In a just world all the people that have colluded to protect the people that have broken serious crimes (including many Democrats I'm sure) would turn themselves in and face consequences. Yeah right.

mikkel

Well really there is one person in my mind that tons of Americans have had respect for for a long time and is obviously very torn up about whatever happened and knows a lot...Colin Powell.

Neocon

I dont think too many people are defending torture.

They are just debating what torture is. This is the questions that are always put before us when shifts in longstanding policy are brought forth. Just as over the years we have fought tooth and nail over Abortion and when its legal and when its not, what types are acceptable etc...etc.

This is a debate about what constitutes torture. Not about whether torture is defensible or not.

Some just dont want to have the debate and rather just use their definition as to what constitutes torture while others of us see troubling problems because if the bar is lowered to low then our prisons, jails and detention facilities might become next. Is a suspect who is handcuffed and set in a room for a few hours and made uncomfortable tortured? Does the suspect who is questioned and refused a glass of water or denied food or drink or a cigarette tortured.

Careful how low you lower the bar. There are always unintended consequences when any policy is haphazardly changed to meet the whims of some group or another.

mikkel

Yes it's important we define torture because it's not like the modern definition hasn't been standardized both by the US government and international law..and the US has never had war crimes tribunals where it had to answer the question to imprison and even execute people. And it's never been defined for the purposes of cutting off aid or to highlight what our enemies are doing to our soldiers/their citizens.

Oh wait...

(And yes things as light as waterboarding and stress positions have counted as torture and prosecution sought against people that authorized that and only that.)

And head lawyer that started this whole bout of "soul searching" about what torture really is? Yeah he's said there there is a hypothetical situation where it'd be legal for the President to order the crushing of the testicles of a terrorist suspect.........'s child.

JWindish

mikkel, on "universal jurisdiction" I'm inclined to favor the concept, but what precisely it means and how it is expressed procedurally would have to be defined. I certainly want to learn more about it.

In this podcast a panel discusses Bhikhu Parekh’s new book, A New Politics of Identity covering the impact of globalisation on ethnic, religious and national identities. About the book:

In it Bhikhu Parekh develops a theory of identity that combines respect for diversity with a commitment to redistributive justice and rationality and applies this theory to a range of key current debates on national identity, nationalism, fundamentalism and terrorism setting out the case for dialogue, global citizenship, and multiple ethics within the framework of a shared global morality.

He discusses our overlapping identites -- religious, national, ethnic, and human -- then wonders about creating institutions that ensure basic human rights globally "in an emancipative way, rather than in a hegemic way."

I find that idea very appealling. Of course if we can't even agree on a definition of torture in this one country...

ChrisWWW

This is a debate about what constitutes torture.

Only in your head. The rest of us know that waterboarding is torture.

mikkel

Yeah Joe he was all over the place.

"And so Pinochet arrives in the UK, a Spanish prosecutor makes the request, and the British authorities have no option but to take action on the Spanish request"

That is just an extradition treaty. Now technically all parties to the international court have extradition requirements in sending people to the Court, but that's different than jurisdiction which implies that they would capture and try someone (which he makes reference to in the previous paragraph).

Neocon

Only in your head. The rest of us know that waterboarding is torture.

In comments last week to the House Intelligence Committee, Hayden acknowledged for the first time publicly that the CIA has used waterboarding against three prisoners.

If your sole argument is about the three people who were waterboarded. Then this should suffice.

The Detainee Treatment Act of 2005 prohibited cruel, inhuman and degrading treatment for all detainees in U.S. custody, including CIA prisoners.

CIA Director Gen. Michael Hayden said last week that current law and court decisions, including the Detainee Treatment Act of 2005, cast doubt on whether waterboarding would be legal now. Hayden prohibited its use in CIA interrogations in 2006; it has not been used since 2003, he said.

So what are we debating?

Again Bush sought a ruling from DOJ that concluded that Waterboarding could be construed as legal but if conditions in the US changed then it could become illegal. They used it on 3 prisoners and then conditions changed. it was then banned and not used, even though the threat of its use hung publicly over the debate for quite some time and seems to even be doing so now.

I am not trying to defend torture nor waterboarding. I am simply saying that as with anything that changes in this nation a public debate goes on over it and that the conditions for which new policy is implemented is set by the resolution of the debate. If we willy nilly give in on grounds that we do not want to appear to be in favor of torture then the bar could be lowered to such a point that the supreme court would rule our prisions unconstitutional..

While I know most on the far left would love that..........the other 80 percent of Americans would not. So if its your pleasure to brand me a far right, kool aide drinking Bush supporter then go for it

I on the other hand am more interested in public policy that addresses this issue in a rational and sensible manner then in fearing being seen as a torture supporter.

Don Quijote

So if its your pleasure to brand me a far right, kool aide drinking Bush supporter then go for it

OK, you are a far right kool aide drinking Bush supporter, a true ditto-head.

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