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MiniLuv Says Torture Has Always Been Legal
by Monolycus
I’m not a legal scholar, of course, but I was always under the impression that the study and application of law and judicial processes was somehow different than "making up shit as you go".
Consider the latest in a string of Grand Inquisi– um, Attorney Generals, Michael Mukasey. He remarked on Thursday that the US cannot investigate the intelligence community for employing the (clearly) torture technique of waterboarding because, apparently now, the Justice department had ruled in "…2002 and 2003 (that it) was legal, and therefore the department cannot investigate whether a crime had occurred." He states that "That would mean that the same department that authorized the program would now consider prosecuting somebody who followed that advice."
Now, while his predecessor Alberto Gonzalez, became notorious for his inability to remember anything that did happen, it seems that Mukasey has the opposite affliction and is remembering things which never actually occured.
During his confirmation hearings in 2007 (4-5 years after the imaginary 2002-2003 DOJ torture greenlight he referenced last Thursday), he stated that he had no opinion about its legality (strongly implying that, at that date, the DOJ had given no such advice as Mukasey referred to on Thursday). As a matter of fact, a good part of his grudging confirmation was based on the idea that this was, as of 2007, still an open question and that Mukasey would find his humanity in his sock drawer at some undisclosed date after he occupied the office:
"Before the waterboard issue arose, Judge Michael Mukasey was deemed to be an ideal candidate for the next attorney general of the United States, almost as if he had come out of central casting," said Sen. Arlen Specter of Pennsylvania, the committee’s senior Republican.
Feinstein and Schumer made clear the waterboarding issue will not end with Mukasey’s confirmation. They said they were swayed by Mukasey’s promise that he will enforce a law banning waterboarding if Congress passes it.
Judiciary Committee Chairman Patrick Leahy, D-Vt., who voted against Mukasey, said President Bush might veto such a law.
"Some have sought to find comfort in Judge Mukasey’s personal assurance that he would enforce a future new law against waterboarding if this Congress were to pass one," Leahy said. "Unsaid, of course, is the fact that any such prohibition would have to be enacted over the veto of this president."
Sen. Chuck Grassley, R-Iowa, praised Mukasey’s independence. "I don’t believe that he would allow any illegal program to go forward," Grassley said. "And I don’t believe that he would bow to any kind of pressure, even from the president."
Sometime between his November 2007 confirmation and January 2008, a retroactive DOJ position on this issue seems to have been created. Of course, we would not be aware of any such legal position from the DOJ because (and make the appropriate updates for those of you who, like me, are still trying to get a feel for the new rules and history), public laws apparently can be secret now.
In October, Mukasey insisted he could not make a declaration of legality because he had not been briefed on classified programs.
On Wednesday, he took a different approach but ended up in the same place. Now that he has been briefed, he said, he can see that reasonable people may differ.
"There are some circumstances where current law would appear clearly to prohibit the use of waterboarding. Other circumstances would present a far closer question," he testified.
That prompted Sen. Sheldon Whitehouse, D-Rhode Island, to demand Mukasey identify "reasonable people" who differ with him. When Mukasey suggested the Senate included such people, Whitehouse rejected the answer, insisting the Senate had spoken in passing a measure outlawing the technique. But Mukasey pointed to another Senate vote in which such a declaration was rejected.
At any rate, two weeks before Mukasey’s proclamation on Thursday that the DOJ’s hands are tied by its revised decision to support torture, he announced that, while not expressly illegal, we could torture people if we want to, but we don’t. Or not. Maybe they’re not allowed to, but it’s not illegal. Or something like that:
In a letter to Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) that was delivered to the panel on Tuesday night, Mukasey said the CIA is not allowed to waterboard any detainees at this time.
After conducting a review of the CIA interrogation program, as he promised to do during his confirmation hearings, Mukasey said he found that a "limited set of methods is currently authorized for use in that program. I have been authorized to disclose publicly that waterboarding is not among those methods. Accordingly, waterboarding is not, and may be be [wait, what…?], used in the program."
But Mukasey refused once again, as he did during his confirmation hearing when pressed by Democrats, to declare whether waterboarding, in his opinion, is torture under U.S. law.
Alles klaar? Good. Get your wetsuits on, boys
tangentially related…
U.S. loses prison camp records of bin Laden’s driver
Feb 7
By Jane Sutton
GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) – The U.S. military has lost a year’s worth of records describing the Guantanamo interrogation and confinement of Osama bin Laden’s driver, a prosecutor said at the Yemeni captive’s war court hearing on Thursday.
Lawyers for the driver, Salim Ahmed Hamdan, asked for the records to support their argument that prolonged isolation and harassment at the Guantanamo prison have mentally impaired him and compromised his ability to aid in his defense on war crimes charges.
“All known records have been produced with the exception of the 2002 Gitmo records,” one of the prosecutors, Navy Lt. Cmdr. Timothy Stone, told the court. “They can’t find it.”
Shameless…
The blogger Le Colonel Chabert has dubbed it “Tales of Whoopsie” (Whoopsie I, Whoopsie II, Whoopsie III, etc.) – a never-ending story:
Each episode, considered separately, and with the subject of the profit to the same enterprise in each case forbidden, can then be deformed enough and manipulated enough to appear slightly puzzling, although the whole story, seen together, is crystal clear. Each episode is declared a separate, isolated incidence of an unforeseen “problem” met with unpreparedness, stupidity, laziness, cocky carelessness, delusion, misinformation and incompetence, of greater or lesser magnitude. The theme is irresponsibility – the absence of/opposite of responsibility – on the part of the protagonists who appear as new characters without history in each episode. Isolating each segment is in itself guaranteed to allow only completely fatuous explanations. But if you ignore the television, and look at the policy of the enterprise as a whole, it is very clear (as it is on the Rodney King tape that a gang is beating a defenceless guy to death) what the Bush gang is doing.
Oops, sorry guys, we fucked up…
A nation of Stan Laurels, mysteriously failing to heed predictions of Katrina catastrophe, making whoopsies, boom-booms and slip-ups all over the place. A banana peel artfully laid out at every step:
Federal, state and local officials all failed to anticipate the devastation threatened by Hurricane Katrina and then were slow to react when the storm overwhelmed New Orleans levees, said a draft report by a special House committee investigating Katrina.
“At every level — individual, corporate, philanthropic and governmental — we failed to meet the challenge,” the draft said. “Our report is a litany of mistakes, misjudgments, lapses and absurdities all cascading together, blinding us to what was coming and hobbling any collective effort to respond.” (Bloomberg)
Whoops! Oopie! Sorrreeeee! Never saw it coming! Pratfall! How’d that happen? D’oh! Butterfingers! Gosh darn it! —And it just was, “Henny Penny, the sky is falling.” -Rumsfeld
Posted by: Uncle $cam | Feb 10 2008 15:46 utc | 8
All this pussyfooting (if I may call it that..) about the torture issue in the US appears, on the surface, to show a deep ambivalence, or, alternatively, a strong desire to use it, by sorta’ legalizing it, by minimizing it, covering it over, sneakily justifying it, etc. Nobody in power quite knows what to say, do. Great confusion. Contradictions.
Torture is useless as an investigative or strategic tool and pragmatic justifications are nonsensical.
However, as a method for dehumanizing the torturers, it works. As a show of power, and a tool of control – it works. Its main use is to frighten both opponents and adherents, the actors, the servants, those on the ground.. The societal, in the sense of custom, and legal, institutional justifications for it are vital: without them, torture doesn’t really exist. Its reality, methods, and effects must be generally known and ‘normalized’ or seen to ‘exist’.
Saddam Hussein did not trouble himself with the niceties of executive orders or Supreme Court stooges paid to do his bidding. It was not necessary. In the US, the legal route is required, because it is a ‘democracy’ and ‘legalistic’ – torture can’t thrill, can’t terrorize, can’t mobilize, can’t allow, unless it is ‘out there’ on the TV shows.
The confusion, the heated discussions, serve other purposes as well.
First, is washes away moral, ethical, humanistic principles, in favor of legal nit picking, reducing situations to particulars. (Torture might be OK in some circumstance.) In this way, focus is put on specific situations, individual relations, feelings, justifications – voiding or negating international law (such as it is), and any all other moral, community, common-good agreements (for lack of better terms).
Second, related, perhaps a consequence, the confusion confers human rights – decisionary powers – on the torturers. Individual rights, liberty, are always framed by a formal or informal legal framework; one way of hyping hate is to provide a sort of grey zone, a no man’s land, where individuals are uncertain, under great stress, subtly pushed to rape, torture, kill, etc. and made to believe that they may find clemency in the hearts of the superiors (which generally happens), and forgiveness from God.
Third, the very possibility of accepted torture releases sadistic impulses, violence, hate, etc.
Fifth, if the PTB are chattering about torture, it must be needed, somehow. Sad but so true !!
Posted by: Tangerine | Feb 10 2008 18:28 utc | 10
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