Thursday, September 28, 2006

Are We Different Enough?

"The issue isn't whether we are the same as the Nazis. The issue is, we aren't different enough."
--Israeli historian Avi Shlaim
Yesterday the United States Congress passed a bill which allows the President to decide what is and is not torture. Since we have been interrogating prisoners for the last six years in secret prisons overseas, we already know what behavior this President considers acceptable, so in effect we just gave a stamp of approval to:
  • Repeatedly submerging the person's head in water to the point of almost drowning, then reviving them to do it again, and again, and again.

  • Electrical shocks

  • Repeated beatings, to "a bloody pulp" in the case of five of Saddam's generals

  • Long-term standing and sleep deprivation, 40 hours at least

  • The cold room,risoners left naked in cells kept in the 50s and frequently doused with cold water.
Ask yourself -- if you read about an enemy doing this to American soldiers, would you be pissed? Would you consider it torture? I would. And we've been doing it for up to six years. When the Soviets did these exact same things in their gulags, and the Khmer Rouge in Cambodia, and the North Vietnamese during the Viet Nam war, we condemned them for it. We have now taken their place, becoming a nation that tortures people, people who have never had a trial, people who have no way to defend themselves in a court of law, people who may be completely innocent. That last is not rhetorical, sadly:

Four years ago this month, a Canadian citizen named Maher Arar was on his way back to Canada from a family vacation in Tunisia. The Syrian-born man had a stopover at JFK airport in New York. The date was September 26, 2002. He wouldn't see his family for another 374 days.

After being questioned at the airport, U.S. officials took him to an immigration facility in New York. Two weeks later he was secretly flown to Jordan aboard a Gulfstream Jet. Maher Arar ended up in Syria where he was held in a cell, the size of a grave. He was repeatedly tortured. For weeks his family didn't even know where he was.

On Monday, the Canadian government admitted for the first time that Arar was a completely innocent man.

Let's review that again. We whisked a completely innocent man off the streets of the United States and tortured him for a year in the Middle East. This was done not by the Soviet Union, not by China, and not by al Quaeda. By us. And yesterday, our representatives put their stamp of approval on behavior like this and its utter imperviousness to redress in a court of law.

What's particularly galling is that the techniques in question (particularly waterboarding and cold rooms) were stolen primarily from the Khmer Rouge and were intended not to discover secret plots, but to force confessions. Confessions to what? Whatever the torturers wanted, because when you torture someone they'll say literally anything to make it stop. Other than reading tea leaves, it's about the stupidest and most useless way to gather intelligence there is.

But that's not all the bill passed yesterday did. It also eviscerated the right to habeus corpus. From Wikipedia:
A writ of habeas corpus is a court order addressed to a prison official (or other custodian) ordering that a detainee be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he or she should be released from custody. The writ of habeas corpus in common law countries is an important instrument for the safeguarding of individual freedom against arbitrary state action.

It's so important for protecting liberty from arbitrary state action that it's written directly into the Constitution:
"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
(Article One, section nine).

We basically gutted it yesterday. In essence, the President can declare anyone he likes to be an enemy combatant. The language is so vague, referring to "providing support for terrorists", that almost anything would fit it. And once a person is so declared, they can be taken into military custody where they will not have the right to challenge their arrest or to see the evidence against them. Habeus corpus does not exist for these people.

The worst part of this bill is a truly malicious combination of (1) allowing the administration to be sole arbiter of what all these words "mean", and (2) stripping the courts of any power to intervene in those decisions or even hear about their abuse. We're basically saying "We completely trust the President, he does not need any check on his authority whatsoever." But if history has taught us nothing else, it is that power corrupts, and absolute power corrupts absolutely. Investing the Executive with this kind of broad, unchecked power is completely antithetical to everything the Constitution and our Founding Fathers stood for.

We're doing things which, during the Cold War, were the exclusive province and distinguishing characteristics of our enemies. We imprision the innocent, torture our prisoners, define words to mean anything we wish, and we do it all without any oversight or review by anyone except the man in charge.

Again, question is not "are we the same as our enemy", the question is, "are we different enough?"


Darknotday said...

First, two quotes:

"Any society that would give up a little liberty to gain a little security will deserve neither and lose both. "

- Benjamin Franklin

WE hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness

- Declaration of Independence

I've been thinking about these two quotes a lot. The Ben Franklin quote begs me to ask of our country, what are we protecting if not our liberty? If we are fighting to protect liberty, how does it make sense to give up that liberty to protect it? Then I had to ask who's liberty are we protecting? I answered, "Ours, right"?

Well who's us?

But then why are we fighting to free people in Iraq? The argument was ultimately to free the people of Iraq and make the USA more secure. Then the real answer is that we are fighting for the liberty of all people. At least thats where I get when I ask myself.

At first I didn't realize the incompatibility between our governments "black sites", prisons and torture practices and our great document, the declaration of independence. The document doesn't say "all american men" or "all patriotic men" are created equal... It seems to apply to all people. My father once told me that you should do what you need to do to get to where you want to be. But don't compromise yourself. If upon success you look back on your path in shame, what has your success cost? If we finally establish peace in arab worlds, will we as a nation look back on what we allowed to happen with disgust?

As a catholic, I have to remember that my first loyalty is to the creator. Putting aside faith and doubt for a moment and assuming my hope is in something real, I have to remember that the gospel message of love and forgiveness was meant for all people in all times. Sometimes fighting and war and even killing are justified. But to torture someone, even your enemy under the guise of nation security is a lie. And should be considered an affront to the "Sanctity to Human Life". (This term is usually associated with issues of Bioethics and research but i think it makes sense here... )

Psychologist know that torture does not give accurate information, so why are we wasting time on this? With all the technology available there's got to be a better way to get real and accurate information about the people trying to kill the "infidels".

I understand that we can't have an honest open dialogue (or any dialogue) with Al Queda or any terrorist, but I don't think its worth becoming evil to stop evil.

Jeff Hebert said...

Wow, great comment Darknotday, thank you for sharing it. I was particularly struck by "I don't think its worth becoming evil to stop evil," I think that sums it up perfectly.

Another thing I hear a lot is "You have no civil liberties if you're dead". Well guess what, you don't have them if you give them away, either!

All of this, the torturing and the secrecy and the wiretapping, it's all based on fear. People are (understandably) afraid of getting hurt or killed, and so they abandon their principles and morals. That's nothing more than rank cowardice. It's easy to "do the right thing" when there's no danger; real courage is standing up for what is right when it might cost you.

It's like people forget that we're fighting "TERRORists". They WANT us to be afraid, and that's exactly what they're getting. Fear has become a campaign tactic, an electoral strategy. If anything is "aiding and abetting the enemy", it's THAT.

Adam H said...

this thread is awesome. i can't express myself any better than what has already been said. kudos to you both! i will quote the satirist/visionary Bill Hicks though...

::mimicking a guy w/ a bullhorn::

"Go back to bed America, your government is in control. Here, have a beer and watch T.V. Go back to bed America, your government is in control."

and that famous quote:

"a state of war only serves as an excuse for domestic tyranny" -- Aleksandr Solzhenitsyn

annie'sbuddie said...

The other thing I see this accomplishing is a CYA for the current government from any charges relating to their past behaviors regarding these torture events once they are out of office (read "power") so no one can bring indictments against them later.

Geopoet said...

It is edifying to see the concern with our fundamental rights and our roots as a nation. And I cannot agree more with everything darknotday has said. However, the paranoia expressed by some against the President and the war on terror is so out of the bounds of reality that it has morphed into a self-induced hysteria that is paralyzing the ability to ethically defend ourselves. The words flying around are global condemnations that paint all our endeavors as evil, cowardly, torture, abandoning principles and morality out of fear, etc. etc. etc. as if we're just pervasibly evil invaders.

When we get specific with respect to every issue the left brings up, the actual facts have little to no resemblance to the rhetoric. No, it is not evil to listen to phone calls coming from foreigners known to want to destroy us. It is not Nazism to interrogate a foreign criminal who knows where the bombs are, and U.S. citizen rights (in the sense of the American justice system) do not automatically extend to foreign criminals. Except for some isolated events that definitely demand investigation, our tactics so far have been in line with moral behavioral norms in these circumstances and and have resulted in preventing actual planned deaths of innocent men, women and children in this country. Let's not get confused here - we are the good guys with a right to freedom and self defense, the killers are the bad guys spreading hatred and fear; ove 3,000 of our innocents were murdered and our enemies are constantly trying to find ways to kill more innocents. They sit back and read things being said by the left and laugh at the utter weakness of will and think they are winning. We must understand that our extension of certain priveleges and liberties to them only invokes hatred and contempt, not respect. This can be done (and is being done) without throwing away our liberties - I think that actually is a fear tactic of the left actually. We know they want to kill us (that is not fomenting fear); the left's paranoia is ideological at most.

Thank God for the men and women in uniform there and here in the states that are trying to protect us. And I'll go ahead and say it - thank God for a President who has the clarity to understand what's at stake here. The killers (evil-doers is still appropriate) not only wish to take our liberties and our nation, but our lives and the lives of our family unless we convert. Our response has been incredibly restrained in fact and, from all the service men I've spoken to or read about, we should be proud of how the vast, vast majority of them are representing this country over there. In fact, nearly all who come back or read the papers say the same thing, that they are dumbfounded by these allegations and portrayals highlighted in press and Hollywood as being nothing resembling what's really happening. So who's really doing the spinning?

I would ask that those who are way out on the left on this debate not get sucked into the obvious political gaming going on here. So far, I have not heard a single idea or suggestion from the left that offers an alternative to what we've done or are doing to protect our loved ones. Let's debate this on the facts and the merits of each allegation and ditch the hidden agendas.

Jeff Hebert said...

When we get specific with respect to every issue the left brings up, the actual facts have little to no resemblance to the rhetoric.

I think this sentence right there shows that you're unwilling to engage in an actual debate, but rather that your mind is already made up. Any time someone says "in very case" I smell blind partisan loyalty and an upcoming disregard for facts. Certainty is the enemy of wisdom. And sure enough, bam, right off the bat we see it happen:

No, it is not evil to listen to phone calls coming from foreigners known to want to destroy us.

First sentence, straw man. You're presenting the other side's argument as "You think we're evil because we're trying to protect each other from destruction" which is a gross distortion. Furthermore you have the basic facts wrong even in this distorted straw man argument. What the deranged anti-troop we-hate-America crowd is upset about is not listening in to foreigners's calls to glean intelligence -- no one on the evil Nazi-sympathizing irrational-Bush-hating-left has said that. No sane person would say that. No thinking American is against intelligence gathering.

What we are appalled at is a President who willfully, intentionally, and purposely violates the law in order to spy not just on foreigners, not just on calls or communications terminating in a foreign country, but involving United States citizens right here on American soil without even the cursory oversight demanded both in the Constitution and in the body of the FISA law.

The President HAS the authority to wiretap foreign communications coming in to the US and always has. The necessity of getting a warrant to do so, as laid down in the Constitution, was codified by FISA for cases when a US citizen was involved. It's trivially easy to get such authorization, as revealed by the fact that virtually no such requests have ever been denied. And that protection is not for the foreigner, it's for YOU, the US citizen. This isn't about "extending rights to terrorists", it's about protecting YOUR rights as a United States citizen protected by the Constitution.

But even that was too restraining for this President. He declared, by fiat and in secret, that because we're in danger, he had the authority to just ignore this law, and spy on Americans any time he wanted, with absolutely no warrant and no oversight by any other branch of the government.

If you feel it's vital to our national interests for the President to have the authority to eavesdrop on American citizens (NOT foreigners, Americans, don't confuse the issue), then have him go to Congress and get such a law passed. If you think the current FISA laws are too restrictive, then go to Congress and get them amended. What's really confusing is that this President DID that -- he got FISA amended and got the Patriot Act passed -- and then he STILL ignored it.

That's what should be deeply troubling to anyone even pretending to be a conservative. This administration has willfully and on multiple occasions, both in deed and in philosophy, shown that they have complete contempt for both international and federal law, even when compliance with it would be trivially easy and in no sense would violate their ability to keep us safe.

Do I fear an administration and party that seem hell-bent on the concept that the President can violate the law whenever he likes, regarding whomever he likes, in whatever way he likes? Yes, I absolutely do, and you should too. A terrorist can kill only our bodies, but this kind of imperial rot can destroy the foundations of our nation in a way no plane flown into a building can.

I also find your attempt to paint those who raise concerns about the overreaching constitutional authority claimed by this administration as being somehow anti-troop to be shameful. It's a cheap, disgusting political ploy, putting American soldiers in the position of political props.

There is so much more that's wrong about your post, but this has already gone on long enough. The final point I want to make is that when I read comments like this, what jumps out at me is how afraid people are. "They might kill us, aaaaaaaaagh!" is not a good basis on which to make laws and create a government. They're called "terrorists" because they want to, you know, make us afraid, and sadly it looks like it's worked all too well.

My final question for you, since I know what a devout Christian you are, is how Jesus would view torture. Specifically, would Jesus have engaged in waterboarding, Long Time Standing, or Cold Room treatment? Would it have made a difference to Him if the person involved were good or bad? A Gentile or a Jew? Muslim or Christian?

Taliesin said...

< rant>
Good afternoon;
I am intrigued by the progression of this thread. Let me begin by stating that I do not hold any opinion on the subject under discussion, as I am a 'foreigner' (Canadian), and thus could be subject to arrest and detainment by the US military if I express 'non-allegiance' to the office of the President. ALL HAIL THE BUSHHEAD. There, now that that's out of the way, I want to congratulate you, Jeff, on your response to geopoet's comment. Many people (myself included) would get quite worked up and argumentative, and name-calling would quickly follow. Especially when my political viewpoint is treated as backward and damaging to national interests. I'd probably have simply deleted the post. I admire your restraint and applaud your logical and well-worded arguments. I'm glad that there are Americans who see their President's actions for what they are, which is the rape and disembowelment of the US Constitution, and who are willing to stand up and state their objections publicly, despite the possibility of their own government placing them in a secret prison and subjecting them to torture.
Lastly, I want everyone from the 'right' to know this: just because I am Canadian (and proudly so), I am not 'anti-American,' 'anti-troops,' or a terrorist in disguise. I was born and raised here in Canada, as part of a family whose roots are the same as most Americans (i.e. white Anglo-saxon), and one of my best friends is a dual citizen of the US and Canada, and is presently serving in the United States Air Force in Qatar, as part of the ground maintenace crew of an RC-135 aircraft flying daily missions over Iraq. I'm very proud to call him my friend, and I wish him, and all the troops fighting overseas (including our Canadian boys in Afghanistan) a safe journey home.
< /rant>


PS Believe it or not, my real name is Jeff Hebert too... (insert Twilight Zone theme here) ;)

Geopoet said...

Wow; TWO Jeff Heberts! May very well be related too if you're from Canada. We got kicked out of there by the British and some of us have been kicked out of a lot of places since then. Also, we don't call people names on this blog; we know and respect each other too much for that; just good ole arguing, which is why I threw out that post cause I knew it would get Jeff stirred up.

Hey, we're both guilty of generalizations ("complete contempt", "intentionally violating laws"); it's easy to do in a blog; you don't even realize you're doing it. Secondly, I have still not seen or read about any specific evidence of wide spread unauthorized or illegal abuse of US Citizen rights that you are so afraid of. It is by looking at the actions that we find the intent and it seems to me that the fear of the left is based more on theory than actual transgressions. Show me the evidence that your fears are realized and I'll be on the phone with my Senator along with you. It's just that your post comes across as if there are bunches of American citizens in secret prisons being tortured and vans are parked across streets listening in on our conversations. You have to admit, there's fear on both sides of the aisle.

It seems to me that the more important question you raise is one of precedence. Do these actions establish a permanent weakening of Congressional law? Will the next President invoke similar powers in less-than-critical situations? Is habeus corpus and the being redefined? These are all good questions that must be asked, and it's good that people are bringing it up actually. Since lawyers could argue this forever, the right policy will likely come from us, the people, over time.

On your question - of course Jesus would condemn torture; I don't think you seriously believe I actually condone it as a Christian. That was way off the mark and unjustified and cheapened your otherwise thoughful posting. Similarly, if indeed the rights of US citizens are being illegally waived or abdicated then of course this must be strongly corrected. No argument there; again I just don't see it happening. And you again completely misread my point on the military - of course people can object and still be patriotic; I can't believe you could even make such an accusation of "shame". Again, it detracts from an otherwise good discussion, or shuts it down completely. I think we all could do better in that regard, myself included.

Jeff in Canada; please let your friend know that we're very proud of him and extremely thankful for the sacrifice he's giving for our country. Thank God for our good Canadian friends.

Jeff Hebert said...

Show me the evidence that your fears are realized and I'll be on the phone with my Senator along with you. It's just that your post comes across as if there are bunches of American citizens in secret prisons being tortured and vans are parked across streets listening in on our conversations.

How many American citizens is it all right to torture, and how many conversations is it all right to listen in on illegally before it's a problem? Either the President must obey the rule of law, or he can break it when he wishes. That's the issue here -- whether a man breaks a law once or a dozen times matters only in terms of sentencing, not whether or not he is guilty. Precedent matters, and if we as a nation say that it's all right for the President to break the law whenever he wishes with no oversight from any other branch of government, then we no longer have a constitutional democracy. We have a monarchy, even if the King takes his time about asserting his new powers.

However, here are some examples as you requested.

Indefinite Detention of US Citizens
As for examples, we have Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant". Fortunately the Supreme Court ruled that such indefinite detention of an American citizen was unconstitutional and unlawful, but the Military Commisions Act of 2006 has now put the Congress' stamp on exactly that. The argument from the Bush Administration in Hamdi from the beginning was that the President has the power to declare anyone he likes as an "unlawful enemy combatant" with no legal recourse beyond that of the Executive Branch, and it appears that this power has been retained and codified by the MCA.

Warrantless Wiretapping of US Citizens
As for vans parked in our driveways and listening in on our conversations, this Wikipedia article covers the ground pretty well. In a nutshell, a list of "eavesdropped" phone calls was accidentally released by the government, covering calls between the Middle East and the United States, including privileged attorney-client communications. These were US Citizens right here in America who were having their conversations recorded without a warrant, in direct violation of the FISA laws. The administration has not denied this.

Their defense tactics are, if anything, even more alarming than outright denial, false though that would have been. Instead, they have claimed in this and other cases that the very existence of the program is so secret that no details can come out at all, thus claiming that no court can rule on any case involving the warrantless wiretapping program.

That's essentially an end-run around the judiciary branch. Have you been spied on? We can't tell you. Is it legal for the government to spy on you? They refuse to say whether they're doing it at all, so you can't even find out if you have standing to issue a lawsuit. This tactic makes it possible for the executive branch to spy on anyone it likes, any time it likes, and no one can ever hear about it. Even if someone does find out they're being spied on, as happened in this case, the government refuses to allow anyone to see any evidence whatsoever, effectively removing themselves from any possibility of redress in court.

Do you see why protests about the MCA are not wild, crazy, fevered ravings of the lunatic fringe? The Bush administration has already admitted that they are engaging in warrantless wiretapping in direct violation of the FISA law, they have already admitted that they interrogate people with techniques Geneva would consider torture, and they have already said they want to be able to hold US citizens indefinitely without access to their righs of habeus corpus. You can see why one would conclude, given a Swiss-cheese-like law such as the MCA, that this administration intends to keep right on doing the things they already admitted they were doing before the law passed.

I'm not an excitable person. I generally think the best of people, and I don't have a lot of patience with conspiracy theories or foolish sterotypes. I don't think someone's a devil because they have a different political or religious philosophy than I do.

But the Bush Administration has outright told us what they have done, and what they want to keep on doing. I take them at their word, and that is why on this legislation and on the FISA bill that they were unable to push through (but which will surely be taken up next session) I demand absolute iron-clad assurances that such violations of the Constitution will be stopped.

I asked the Jesus question not to be snide or rude, but because I find it outrageous that our government is torturing people at all, and doubly galling that they are doing so at the direction of a man who claims the mantle of Christian righteousness as his reason for being. It blasphemes everything Christ stood for, and I am bewildered that so few Christians have stood up as John McCain has, and said "We are not a people who torture." If you're (the general you, not GeoPoet you) going to claim Christ's blessings, you should act like Christ would. Torture is the absolute antithesis of "Turn the other cheek".

Jeff Hebert said...

For another example of the Bush Administration detaining a US Citizen without charging him and engaging in behavior that at least is cruel and likely could be construed as torture, see this post at Glenn Greenwald's blog about Jose Padilla. Note that the argument of the administration lawyers all along on this case was that the President should have the authority to detain even US citizens indefinitely without charging them. That's not a claim by some crazed lefty interpreting a minor comment, it's the official position of our government as stated by their attorneys in a court of law.

Geopoet said...

Thanks Jeff for informing us of the nuances of this issue. I think it is healthy to ensure through debates like this that all people's inalienable rights are respected and that the rules of interrogation and detention, especially for US citizens, are clearly understood and upheld. From my standpoint, the sooner we clear these issues up, the more effective we will be in stopping these fanatics from killing more innocent people. The worst thing would be for them to filter through while we're all standing around arguing about side-issues that may not even be germane. Keep drilling into the details, brother. For example, exactly what techniques are proposed, if any, that cross the line for "torture" (an emotionally charged term, no doubt)versus the Geneva Convention or, if the Geneva Convention is not relevant to crimes, than to some other standard.

Jeff Hebert said...

From my standpoint, the sooner we clear these issues up, the more effective we will be in stopping these fanatics from killing more innocent people. The worst thing would be for them to filter through while we're all standing around arguing about side-issues that may not even be germane.

There's a whole other discussion to be had over whether these techniques -- broad-based warrantless wiretapping, exclusive executive-branch detention and definition of unlawful enemy combatants, and "aggressive interrogation techniques" help or hurt the effort to stop terrorist acts. As you might guess, I also think that by and large they're terrible methods for keeping us safe, but as I said, that's a whole separate discussion.

Keep drilling into the details, brother. For example, exactly what techniques are proposed, if any, that cross the line for "torture" (an emotionally charged term, no doubt)versus the Geneva Convention or, if the Geneva Convention is not relevant to crimes, than to some other standard.

The three relevant "aggressive interrogation" techniques are waterboarding, cold rooms, and long-time standing, all of which have been used by the CIA at the direction of the Administration. When the "torture memo" came to light a number of months ago and Administration lawyers quickly moved to distance themselves from its contents, the CIA freaked out (to use a technical term) and immediately quit using those techniques, realizing that their agents would have no legal basis if their conduct was brought before a court. Hence the rush to get something passed in Congress to give legal cover to the CIA so they could continue their conduct with the assurance that it was legal.

Unfortunately this particular piece of legislation is so exceptionally bad that the exact opposite may have occurred. Essentially the situation now is that these specific techniques are still illegal under both the McCain Anti-Torture legislation and the Geneva Conventions, but only the President can investigate or try any case where they might be violated. So now a CIA operative who is ordered to use long-time standing, cold rooms, or waterboarding is in the position of knowing they're breaking the law (instead of being unsure as they were before), but with the knowledge that only the Executive Branch -- the one that is issuing his orders -- can try him for it. Supposedly.

That's what's so galling about this law, which sadly was signed today by the President. It does the exact opposite of what its proponents thought it would do, and has made the position of the front-line CIA officer charged with carrying out these techniques even more untenable rather than less so.

Whether you want to avoid or use the politically charged word torture, the fact is that this Administration has used in the past, and has now pushed through a law allowing, conduct that in the past the United States has prosecuted as war crimes. We're now less safe from terrorists, less able to extract reliable intelligence, have less moral standing in the eyes of the rest of the world to do our business, and our front-line agents in the CIA have even less confidence that what they're doing is legal.

For a more thorough analysis of what this law means for the CIA agents whom it was ostensibly meant to protect, see this article by Balkin.