Tortureby Design and Other Stuff

For those who boast or whine

About intelligent design

And draw lessons from scripture

To create a picture

Of what we humans have done

For security or fun

Need to re-check and squint

To see if we followed the blueprint

We need to review the bidding on torture and relatedviolations of law and the Constitution before we blithely travel down the roadto tomorrow’s legal issues.  Wehave endured the painful if titillating exposes of hypocrites wailing over theirpeccadilloes.  Governor Sanford andSenators Ensign and Vitter are merely the latest in a long series of failedhumans; some of whom seem bent on throwing stones while forgetting that theirpositions in life place them in glass houses in full view of the people whomthey both resemble and represent. Human failing appears to be part of the human condition and fullybipartisan.  If there is adifference, it is that the conservatives run on a platform of holiness andpurity while they stumble and fall at the same rate as liberals who are just ashuman and fallible, but run on platforms that are unrelated to personalperfection.  Let us accept thatthese practices will continue and then devote some energy to issues ofConstitutional and international law before we get too distracted.

Let me begin with the absurd posturing by our former VicePresident Dick Cheney re the efficacy of torture.  While that assertion that torture “worked” is not relevantto the law, it must still be challenged. Let us return to the design of the torture program and how it eitherevolved or was the product of intelligent design since that is a common mantraof the right wing.  We experiencedconsiderable torture at the hands of Chinese and North Korean Communists duringthe Korean Conflict.  The tortureresulted in scores of false confessions that were distributed internationallyand decried as inhuman and cruel by our government and even our press.  The purpose of the torture that wasstructurally inherent in the design was to elicit confessions…falseconfessions.  After review of themilitary subjected to torture and countless interviews and study, we recognizedthat our soldiers were not prepared for the process and that, if they were givenan orientation to the techniques of torture, that perhaps there would beincreased resistance to signing false statements and fewer incidents in futureconflicts.  The SERE program wasthen designed and presented to our military to reduce false confessions by oursoldiers.  Many of our military personnelwere then trained to resist by subjecting them to abbreviated torturetechniques.  It was not done totrain our soldiers in how to inflict torture, but rather to familiarize themwith the techniques so that they might be better prepared to resist.

Think about this. The Communists designed a program to elicit false confessions and thenexploited those false confessions on the world stage.  That was their design and the system worked according tothat design.  At no time did theCommunists assume that their extracted confessions were “truth throughtorture,” but rather that the many Americans, although not all, were weakenough to succumb to the techniques. The design worked exactly as it should.  Given that we, after failing to prevent 9/11, moved to roundup “targets” like Sheik Mohammed and torture them without any essentialredesign of the program used by the Communists, then why should we suddenlybelieve that the same design under similar conditions would suddenly produceTruth?  This is the equivalent ofdesigning a physical system to extract water from a stone and expecting it toproduce fine wine.  It’s amiracle!  We can be absolute inexpecting that physical system to extract water, not wine and we can fullyexpect that the torture of prisoners by our government produced falseconfessions.  That is the beauty ofdesign.  Incidentally, that designis not affected by the good intentions of the torturers to get Truth, or therighteousness of our cause to find the perpetrators of 9/11.  Sheik Mohammed has admitted to givingfalse answers to stop the torture he was subjected to much as our soldiers didupon return to a safe environment at home.  Hmm.  If Cheneycan create wine from water, he missed his calling.

In addition to the problem of a system working according todesign, there is the nagging reality of the law.  Our Constitution and international laws to which we areparty specifically prohibits torture. Techniques such as waterboarding have been cited repeatedly in precedentas prohibited and illegal.  Our ownfindings in the Nuremburg trials led to punishment of the perpetrators and evento the officials and legal authorities that provided covering opinions. HerbertKlemm was convicted by a U.S. military tribunal for a legal position he tookthat advocated taking rights away from people that contributed to the abuse ofthese groups.  This places Yoo andother Bush administration lawyers in the similar position of supporting torturethrough memos and other means that advocated positions that attempted torewrite common definitions of torture, for example, to provide a fig leaf tocover Bush and Cheney.  Limitingthe definition of torture as “deliberately inflicting grievous bodily harm suchas organ failure” is a bogus opinion on its face and could be prosecuted byothers using our own precedent against Klemm.  Even if some court would exonerate Bush and Cheney due totheir ignorance, Yoo and others might be prosecuted based upon the assumptionthat an attorney would be required to issue an opinion that recognizes commoninternational law and our own laws on the subject.  A lawyer calling a pig a diamond does not materially alterthe nature of the pig.  Torture istorture regardless of what Yoo called it.

More recently, we have been informed that Cheney apparentlyfailed to notify Congress of an assassination program being established inviolation of specific law created by our Legislature that required briefing onCIA programs.  Further, an earlierCongress eliminated political assassinations as policy in the 1970s as a resultof the Phoenix Program disclosures in Vietnam and Cambodia.  This is a double problem for the Cheneyoffice (hiding an illegal program from Congress).  We probably all guessed that Cheney who apparently drinksliberally but is conservative in most other aspects of life would be on thewrong side of the law, but we simply did not understand the depth of hisinvolvement.  It now seems thatCheney was not only personally cherry-picking intelligence, but he wasdirecting actions to change the rules of behavior for our intelligence forcesand perhaps saw himself as 007 with license to kill.  This is troubling on an international as well as a nationallevel because, just as we did not inform Congress, we also failed to inform ourallies.   That usually getsthem ticked off.

Where to from here? We cannot make believe that this history did not happen.  We have a major economic crisis, yes,but the law is always with us.  Thecrisis in economics will pass.  Ifwe do not pursue the law, then some day, when we least expect it, the law maypursue us.  On that tenuous note,we are all guilty of contributing to the delinquency of an administration if welook the other way…and that is true for both the perpetrating BushAdministration and the following Obama Administration.  I am fully aware that Obama does notwant to delay health care and recovery from this recession, but just how manypeople will it require to simply follow the law where it takes us?  Will history be any kinder to Obama fordoing nothing than it will for Bush and Cheney for the violations?  Should it?

We need to use our powers as citizens to cry out forjustice.  It will take months andcompromise is unacceptable, but we cannot simply stand by and allow our greatnation to shrink from our joint and aggregate responsibility to ensure thatjustice prevails.  Is it worse toadmit our failings and to repair them or to pretend that we have no faults whenthe hypocrisy is screaming to us and to the world as we wait?  Remember Sanford, Ensign andVitter?  It is not their failingsbut their hypocrisy that angers us. Let us not be hypocrites. Yes, we failed.  Now let usrepair the damage by welcoming Justice without reservation and let the ladywith the blindfold do her thing.

Peace,

George Giacoppe

15 July 2009