Open thread: torture prosecutions


in Law, Politics, Security, The environment

As many articles have described, the appropriate response to allegations of torture by Americans is controversial. Some argue that prosecutions are the only moral course, that they will restore US standing and draw a sharp line under the past. Others argue that, while justified, prosecutions would be a major distraction for the Obama administration, and will undermine progress on other fronts. Of course, domestic political necessities cannot provide excuses for ignoring war crimes.

That said, there is certainly a practical case to be made on both sides. While the general public hasn’t realized it yet, today’s leaders will be judged retrospectively on whether they set us on a path to avoid dangerous climate change. Prosecutions could kick off a new phase of partisan warfare that makes such progress impossible, given the need for support in the senate.

What do readers think? Are prosecutions warranted? Are they absolutely necessary? What costs would be associated with carrying them out, and with ignoring them?

{ 4 comments… read them below or add one }

AT in BC September 4, 2009 at 6:20 pm

Glenn Greenwald has been repeatedly making this point, and in better English than I can muster: the rule of law is not supposed to permit exception, for even for the most powerful elite or most pressing practical concerns.

AT in BC September 4, 2009 at 6:38 pm

A couple passages:

From Greenwald’s “Thomas Paine v. the Right’s torture defenders”

Paine [writes] in Common Sense that “so far as we approve of monarchy, that in America the law is king” and “in free countries the law ought to be king; and there ought to be no other.” And in his Dissertations, he also wrote:

The executive is not invested with the power of deliberating whether it shall act or not; it has no discretionary authority in the case; for it can act no other thing than what the laws decree, and it is obliged to act conformably thereto. . . .

For anyone who believes in the basic principles of the founding, the fact that these acts of torture are illegal — felonies — ought to end the discussion about whether they were justified.

And his Practicalities v. principles: the prime Beltway affliction

By the design of the Founders, most American political issues are driven by the vicissitudes of political realities, shaped by practicalities and resolved by horse-trading compromises among competing factions. But not all political questions were to be subject to that process. Some were intended to be immunized from those influences. Those were called “principles,” or “rights,” or “guarantees” — and what distinguishes them from garden-variety political disputes is precisely that they were intended to be both absolute and adhered to regardless of what [Michael Massing] calls “the practical considerations policymakers must contend with.”

We don’t have to guess what those principles are. The Founders created documents — principally the Constitution — which had as their purpose enumerating the principles that were to be immunized from such “practical considerations.” All one has to do in order to understand their supreme status is to understand the core principle of Constitutional guarantees: no acts of Government can conflict with these principles or violate them for any reason. And all one has to do to appreciate their absolute, unyielding essence is to read how they’re written: The President “shall take Care that the Laws be faithfully executed.” “[A]ll Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” “Congress shall make no law . . . abridging the freedom of speech.” “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” “No person shall be . . . deprived of life, liberty, or property, without due process of law.” Even policies which enjoy majoritarian support and ample “practical” justification will be invalid — nullified — if they violate those guarantees.

. September 8, 2009 at 11:25 am

Top Bush-era lawyer ‘can be sued’

A former US attorney general can be sued by an American citizen held as a witness suspected of having information in a terrorism case, a court has ruled.

Abdullah al-Kidd accuses John Ashcroft, attorney general from 2001 to 2005, of violating his constitutional rights in 2003, when he was held for 16 days.

The court said detention of witnesses without charge after the 9/11 attacks was “repugnant to the constitution”.

The US Department of Justice said it was reviewing the court’s order.

A three-judge panel of the 9th US Circuit Court of Appeals also said the government’s policy was “a painful reminder of some of the most ignominious chapters of our national history.”

Mr al-Kidd was detained in 2003 because the government thought he had information in a computer terrorism case against fellow University of Idaho student Sami Omar al-Hussayen.

He was never charged with a crime, and Mr al-Hussayen was acquitted after a trial.

. November 16, 2016 at 2:28 pm

Likewise torture: Obama decided that it was better to move and and bury the CIA torture report, and had his DoJ block any attempt to have torture declared illegal, which would have given people opposing Trump’s torture agenda with a potent legal weapon that is now unavailable to them.

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