Governmental Oversight: October 2008 Archives

Torture by Any Other Name

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By Daphne Eviatar 10/17/08

Before a packed crowd at the Netroots convention, Cass Sunstein, a law professor at Harvard and the University of Chicago and a legal adviser for Sen. Barack Obama, was asked how the next president should address the Bush administration's potential war crimes. When Sunstein said the new adminstration must be cautious and not partisan in the use of the prosecutorial power, though egregious acrs should not be ignored, he was still met with a chorus of boos and angry rejoinders that the president and his Cabinet cannot remain above the law.

Since then, legal experts have generally agreed that the next administration is unlikely to prosecute Bush administration officials for authorizing the torture of suspected terrorists -- no matter how many laws the government officials broke. But that hasn't placated many others, like George Washington University Law Professor Jonathan Turley, or the constitutional lawyer and author Glenn Greenwald, who argue that holding policy-makers accountable for their actions is critical to restoring the reputation of the United States -- not to mention respect for the rule of law.

Illustration by: Matt Mahurin

Illustration by: Matt Mahurin

Indeed, how can a new president refuse to prosecute Bush administration officials for authorizing the same acts, like waterboarding, that the United States has previously prosecuted as contrary to U.S. and international law?


Quite clearly, lack of an intent to commit a crime would not obviate such forms of criminal responsibility and orders or authorizations will not lessen criminal responsibility for conduct that is manifestly unlawful.

However, the creation of National Security Courts--aka. special 'terrorists' courts--as distinct from federal district courts to try cases involving torture as a crime against humanity would actually create legal loopholes that would perpetuate the use and implementation of an unlawful torture and interrogation program and further violations of due process as a customary right, according to Jordan Paust's "The Case Against a National Security Court," pursuant to a report by The Constitution Project titled "A Critique of 'National Security Courts,"' "In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts," by Human Rights First and Ben Davis' "Against a US 'Terrorists' Court.'"

[I]n 2006, President Bush told the nation, "The United States does not torture. It's against our laws, and it's against our values. I have not authorized it -- and I will not authorize it."

Which was, of course, a lie. [...]

Then you look up one day and realize how profoundly that fear has changed your world. People are imprisoned without charges or access to attorneys, and it's routine. People are surveilled, their reading habits studied, their telephone usage logged, and it's commonplace. People, including children, end up on a secret list of those who are not allowed to fly, nobody will tell you why, there is no appeal, and it's ordinary. We swallow lies like candy, nod sagely at babblespeak, and it's unexceptional.

Torture is inflicted with White House approval, the president lies about it and it's just another Tuesday.

Once upon a time, Americans were fond of looking upon backward nations, upon places where law was whatever the king said it was, and noting with pride that we do things differently in our country. But that was a day long ago and a country long gone.

If we miss the one or mourn the other, you'd never know it to look at us. We live through what feels evermore like a Joe McCarthy fever dream. We feel without feeling, hear without hearing, see without seeing and do not protest what we have become.

Because this is normal now.

from Mourning A Country Long Ago

Nick Juliano
The Raw Story, Thursday October 16, 2008

Patrick Leahy, in his role as chairman of the Senate Judiciary Committee, has often found himself on the receiving end of a metaphorical middle finger from the White House when he's tried to exercise oversight of the Bush administration.

Undeterred, Leahy reiterated his request for White House torture documents following reports that the White House sent the CIA memos explicitly authorizing the use of the simulated drowning technique known as waterboarding.

Leahy and Sen. Arlen Specter (R-PA), the committee's ranking member, most recently requested any and all White House waterboarding documents in August, but the White House said it had already been fully cooperative.

Cue Leahy's surprise when that assurance turned out to be untrue.

"I now read in The Washington Post that the White House issued two previously undisclosed memoranda to the CIA in 2003 and 2004," Leahy wrote Wednesday in a letter to White House counsel Fred Fielding. "It is disturbing to be reminded, at this late date, of the stonewalling, misdirection and lack of accountability that has characterized this administration from its first days in office." 

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About this Archive

This page is a archive of entries in the Governmental Oversight category from October 2008.

Governmental Oversight: November 2008 is the next archive.

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