On The Rule Of Law And Crimes Of Torture
Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.
And thus was stated by Plato the general theory underlying what we have come to know and understand as the "Rule of Law". Plato’s student and protege, Aristotle, refined the thought:
Now, absolute monarchy, or the arbitrary rule of a sovereign over all citizens, in a city which consists of equals, is thought by some to be quite contrary to nature; . . . That is why it is thought to be just that among equals everyone be ruled as well as rule, and therefore that all should have their turn. And the rule of law, it is argued, is preferable to that of any individual. On the same principle, even if it be better for certain individuals to govern, they should be made only guardians and ministers of the law . . . Therefore he who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men. The law is reason unaffected by desire.
In American, and modern anglo-saxon iterations, there is no one set of constructs defining the "Rule of Law", but there are universal elements common to all. They have been generally identified as follows:
1) a government bound by and ruled by law;
2) equality before the law;
3) the establishment of law and order;
4) the efficient and predictable application of justice; and
5) the protection of human rights.
There are other lists as well. Political/legal theorist Joseph Raz has promulgated the following factors:
* That laws should be prospective rather than retroactive.
* Laws should be stable and not changed too frequently, as lack of awareness of the law prevents one from being guided by it.
* There should be clear rules and procedures for making laws.
* The independence of the judiciary has to be guaranteed.
* The principles of natural justice should be observed, particularly those concerning the right to a fair hearing.
* The courts should have the power to judicial review the way in which the other principles are implemented.
* The courts should be accessible; no man may be denied justice.
* The discretion of law enforcement and crime prevention agencies should not be allowed to pervert the law.
In the United States, the Founders, taking their cue from the Magna Carta and Habeas Corpus, laid the foundation for the Rule of Law as the ethos of our fledgling democracy in the Declaration of Independence with the words:
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.
The real work, however, was done in the Constitution and the Bill of Rights. The Framers wanted to install “a government of laws, not of men.” Look back at the list of elements common to societies that live under the Rule of Law, and think about the Constitution. It is magnificent in the way it sets up what America would and shall be. Simple, and yet enduring. The different branches of government, separation of powers, the provision for an independent judiciary, due process, the process for regular elections and legislation, the guarantee of fundamental fairness and equal protection.
There is a reason the President and all Federal officers of the United States swear their oath to "preserve, protect and defend the Constitution of the United States" and not protect individuals, or the flag or any of the other nonsense that neoconservative nitwits bandy about. It is why men and women have given their lives throughout our history, to defend the concept and the rule of law that is America, not the corpus of those that live in it. The Constitution defines us as a nation promulgated under, and bound by, the Rule of Law.
James Madison, in Federalist #57, stated:
The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust. The elective mode of obtaining rulers is the characteristic policy of republican government. The means relied on in this form of government for preventing their degeneracy are numerous and various.
And Alexander Hamilton from Federalist #51:
But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
A wonderful summation comes from James McClellan in Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (2000):
The Federal Constitution of 1787 drastically changed the concept of constitutional government by introducing the principle of constitutional supremacy. Article VI declared that “This Constitution … Shall be the supreme law of the land.” Laws passed by Congress, though supreme in relation to State constitutions and State laws, were ranked below the Constitution. Indeed, Article VI explicitly stated that such laws must conform to, and be made in pursuance of, the Constitution. Noting the significance of the Supremacy Clause, Chief Justice John Marshall held in the famous case of Marbury v. Madison (1803) that an Act of Congress contrary to the Constitution was not law:
[I]n declaring what shall be the supreme law of the land, the Constitution is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.
It may thus be seen that the American Constitution and the power of judicial review are an extension of rule of law. The Constitution is law, the highest law, and the President, Congress, and the Federal Judiciary are bound by its terms. A government of laws and not of men is, then, the underlying principle of the American political and legal system.
This means that no person, however powerful or talented, can be allowed to act as if he were superior to the law of the land. Public decisions must be made upon the basis of law, and the laws must be general rules that everybody obeys, including those who make and enforce the law. A law that violates the Constitution is not a law and is not, therefore, enforced. This was the principle that Marshall followed in Marbury v. Madison. Likewise, rule of law means equality before the law. A law that singles out certain people for discriminatory treatment, or is so vague and uncertain that one cannot know what it requires, will not be treated as a law.
With the foundation and principles of the Rule of Law now in mind, let us consider its significance to the lawless morass left festering by the Bush/Cheney Administration. Illegal and unwarranted surveillance/wiretapping, evisceration of environmental and social safety net protections, politicization of the Department of Justice and subjugation by the Executive of the other equal branches. It has been a full frontal assault on the American Rule of Law, and it is still ongoing under the Obama Administration. By far, however, the worst assaults have come from the illegal and immoral indefinite detention without charges or hearing and the unbridled torture applied. As the ACLU has stated:
We are finally beginning to learn the full scope of the Bush administration’s torture program. Government documents show that hundreds of prisoners were tortured in the custody of the CIA and Department of Defense, some of them killed in the course of interrogations. Justice Department memos show that the torture policies were devised and developed at the highest levels of the Bush administration.
The facts are incontrovertible, the United States instituted a designed and dedicated regime of brutal torture in contravention of national and international norms. The American Executive branch under George W. Bush and Richard B. Cheney created a bureaucracy of lawyers, doctors, soldiers and spies to build and execute the regime that led to detainees being waterboarded serially 183 times in one month, a crime the US has historically prosecuted as a war crime in conflict situations and as a domestic crime at home. Others we have tortured and then left to die:
In November 2002, a newly minted CIA case officer in charge of a secret prison just north of Kabul allegedly ordered guards to strip naked an uncooperative young Afghan detainee, chain him to the concrete floor and leave him there overnight without blankets, according to four U.S. government officials aware of the case.
The Afghan guards — paid by the CIA and working under CIA supervision in an abandoned warehouse code-named the Salt Pit — dragged their captive around on the concrete floor, bruising and scraping his skin, before putting him in his cell, two of the officials said.
As night fell, so, predictably, did the temperature.
By morning, the Afghan man had frozen to death.
So, what do we do about the criminal, immoral and depraved acts officials of the US government have conducted in our name? Clearly Bush and Cheney had no interest in accountability for their crimes of torture. But now President Barack Obama, who sold the electorate that he was the man to bring change and accountability, has shown himself to be more of the same. He truly desires to walk the other way and not address the wrongs committed against our nation, Constitution and fiber of existence. And, as Glenn Greenwald adroitly points out, President Obama even wants to raise the ante on indefinite detention without charges. How should we deal with that?
What do you say to citizens who say we cannot have accountability, cannot address what has been done in our name because now is:
…not the time to let fly the dogs of revenge. With all the pressing issues facing this country and the world right now, tearing the country apart would be a terrible thing to do. Iran, North Korea, the Middle East, Health Care, Energy, the deficit, imigration, etc. It would be insane to do so.
The Founders gave us the answer to that conundrum. You follow the Rule of Law. You uphold the Constitution, what it stands for, and honor every drop of blood spilled since the Revolution to establish and defend it. You honor your oath to office. You do the right thing and have accountability on the merits. That is what you do, and it is time for a concerted effort from the grassroots to demand just that. To paraphrase Ben Franklin, those who would give up the essential Rule of Law for temporary security and political gain, deserve neither.
Well done!
Ours really is a “rogue state”, and we have to hold it accountable. As citizens, we are also accountable, and it’s our task, as citizens, to insist on the accounting of our institutions. You show us how to do this; our thanks to you for this!
Mr. Obama is now also issuing signing statements like his predecessor to clarify his disregard for the rule of law…
http://thehill.com/leading-the…..06-26.html
The Obama administration announced in the statement it would disregard provisions of the legislation that, among other things, would compel the Obama administration to pressure the World Bank to strengthen labor and environmental standards and require the Treasury department to report to Congress on the activities of the World Bank and International Monetary Fund (IMF).
Bravo! Bravo, bmaz! Many thnx, too.
I don’t know about you folks, but I have yet to find an exception in the Rule of Law allowing its constructs and demands to be avoided, disregarded or postponed for personal, nor party, political convenience. In fact, I read just the opposite.
The exception to the “Rule of Law” is and has been in effect since Mr Star initiated the investigation of the Clinton’s, culminating with the impeachment proceedings. Law was and is used as a bludgeon when convenient and disregarded or changed to meet the need of the moment. Congress is busy bowing to their patrons and can’t be bothered with holding this or the past Administrations feet to the fire over any number of issued that weaken our Republic while the Imperial Presidency gains momentum.
We, as the Iranian citizens are finding out about their government, are not in control of and can not regain control of our government no matter what as power begets power.
What? You mean those aren’t far left extremist ideas? And hey, shouldn’t we be looking to the future and not the past? /s
(At least that’s what –
Rocket… er …Bobby O… um…Holodeck… eesh, what is his name now? … Oh yea, Sebastes – what sebastes tells us. I guess taking that out logically, his next sock puppet nom de keyboard should be slimehead)Constitution? Whoda thunk? You radical you
signatories to our constitution were liberals to be sure, jefferson, a far left socialist as was paine
Yea
What’s really strange and ironic, was back a few months ago, Glen Beck had an actor playing Thomas Paine on his show, taking his words out of context to try to increase support for the Fox “News” teaparties. And the ironic part is that Paine, if alive today would have excoriated Beck for his idiocy
And I like how the talk-radio-fox-”news”-conservatives call themselves “originalists,” but have no clue what that means. What they call socialism now, was in the mainstream back at the founding and was called enlightenment
Thomas Paine
http://www.buzzflash.com/hartm…..06002.html
And if they think he’s some kind of socialist – what would they call Adam Smith?
What most people don’t realize is that the revolution wasn’t a top down operation – the founding fathers were followers more than leaders. The “commoners” were very cognizant of their rights as free-born Englishmen, and didn’t hesitate to let the powers-that-be know what was unacceptable, which is why the constitution would not have passed without a Bill of Rights (actually a restraint on government) championed by Anti-Federalists like Thomas Paine, because they knew of the desire of politicians to expand and maximize their power at the expense of the people
I’ve only had a chance to read two of Pulitzer Prize winner Ray Raphael’s books so far, but they are incredibly informative
A People’s History of the American Revolution
And
The First American Revolution: Before Lexington and Concord
here’s the irony with today’s “tea baggers”
the original tea party was a revolt against the king for REMOVING tax!!!
that’s right, the king removed the tariff on his homey’s tea, the colonies went balistic and refused entrance any product they produced if it did not carry a tarrif
a convoluted story but that’s the reason they dumped tea into the sea, because the king REMOVED tax
the antithesis of todays “tea baggers”
they are morons
????????????
tiz the absolute truth
Of course you’re right. I keep meaning to do a blog on this (actually I did but accidentally deleted it while checking the links before hitting submit)
David Cay Johnston on the Boston Tea Party myth
http://www.youtube.com/watch?v=dui7mUV8zq4
you know john, that would make a GREAT diary, I sure hope you do it
search for thom hartmann’s work on the story, he has aquired access to personal correspondance at the time
I meant the modern day tea baggers are morons, not the founders for refusing entry product without tariff
Even though they’re really good books and he should win a prize, I mixed them up with Jack Rakove’s Original Meanings: Politics and Ideas in the Making of the Constitution as the Pulitzer winner
Another good ‘foundation’ book is Why the Greeks Mattered. I forget the author, but he did a series of “Why the ? Mattered” books.
It’s easy reading and very good.
and @44
This is the Paine who signed the Constitution
http://www.ushistory.org/Decla…../paine.htm
Yes?
Nope
http://en.wikipedia.org/wiki/Thomas_Paine
and @50
This has got my head swimming. The wiki article that says Thomas Paine signed the U.S. Constitution is in conflict with the wiki article on the Constitution which lists Robert Treat Paine.
http://en.wikipedia.org/wiki/F…..ted_States
Also, I found this:
http://bioguide.congress.gov/s…..ex=P000029
????
Neither one signed the Constitution. Robert Treat Paine signed the Declaration of Independence. According to my printed versions of both, anyway.
Yea! Thank you ever so much!
thomas paine
it was he along with jefferson who first proposed (in letters) a progressive tax and an inheritance tax
both of these founders believed the great test of democracy would be against great wealth
to be certain, the declaration of independance was a liberal document, the bill of rights is of course a liberal document, the constitution is of course, a liberal document
a new nation, founded because the populace could not stomach a product entering without a tarrif, a liberal sentiment
Paine may have been Liberal according to his times, but he was also very pro Freedom and pro business and almost Libertarian. He was hardly a Socialist and he didn’t sign anything but his pamphlets.
It seems to me that if Americans knew the truth about what Bush/Cheney were doing in our name, and who in Congress supported them, getting the work done would be much easier. I don’t for the life of me understand why Obama would want to protect them.
“It seems to me that if Americans knew the truth about what Bush/Cheney were doing in our name, and who in Congress supported them, getting the work done would be much easier. I don’t for the life of me understand why Obama would want to protect them.”
Just imagine if we really had a government of, by, and for the people. We don’t because everything in this country is a result of greasy palms. Now I can understand healthy profits, but I can’t understand the majority of Americans accepting a system of legal bribery. Oh, I forgot, few people know the truth, the media don’t tell them, and most are too busy feeding themselves and their families to give a crap. I agree that Obama is no different in these terms than any of the congress. A little different from Bush on a lot of issues, but the status quo needs to be fed in order to get re-elected (in the House, in the Senate, in the White House, in every state and city in the country). Doubt there will ever be anything we can believe in until we take control of campaign finance and throw the corporate lobbyist out on their arses.
Thanks for your thoughts, bmaz.
Under 43 this concept was turned on its head, where for all intents and purposes the Regent hires swore loyalty to the party and its nominal head, the Constitution be damned.
Right on! I love to browse through old bookstores and recently ran across a high school civics book from the mid-80s. It was interesting to go back and read through what is taught to students about government, the Constitution, the law, etc. In fact, it has really chapped my behind that we want young people to be good citizens by feeding them this information when obviously, the Constitution and the laws of our country are only for the masses. Elections aren’t really that important, right? For instance, Normie Coleman continues to make noises about going to the Supreme Court because he lost.
One quote that rang with me from that book (and I wish I had purchased it!) was to the effect that, regardless of all the political differences and debate, that our elected officials come together for the good of our country. I guess it is nice in theory, but it certainly does not apply today. The Republicans (at least as far as I know) have been responsible for touching off a philosophy of “our way at all costs” or else. That applies to what Bush and Cheney did in office, as well.
I am very disappointed that there is not more effort to bring some accountability to their regime, and I am disappointed that Mr. Obama chooses to embrace some of their habits.
Great writeup, BMAZ!
thanks for this, bmaz. printed out and sitting by my computer for future reference and inspiration.
Words with which to white a sepulcher. (ref. beautified container of unedifying contents.)
Nice summary. Many thanks.
One thing it suggests is that as regards the US Government, there is no lawless zone in which it can operate free from any impediment or consequence. That government is a creature of the US Constitution that made it, of the laws the provide for its funding and its detailed rules of conduct, and of those that say for whom it is authorized to act and pursuant to what limits.
Those limits may be different in mid-ocean or the Middle East than the are in Alabama or the federal city known as the District of Columbia. But there are still rules and that government is bound by them.
Many things are required to ensure that the Constitution is preserved, protected and defended. Among them are congressional oversight, open courts and independent judicial review. Even for those to work requires openness and transparency.
It’s obvious we won’t have those, no matter who is president, if the people don’t demand them and make their demands known to the legislature. Like every law and moral precept, the Constitution and the rights it enumerates are aspirations, not facts. Use ‘em or lose ‘em.
I meant to pick up yesterday on alabama’s interesting reflections on that charge that the left is being vengeful by appealing to the rule of law.
alabama mentioned revenge cycles in Shakespeare’s plays. It’s true that more and more people of all kinds through the C17-C18 were running through the disasters of recent (for them) European history in their writing — literary, philosophical, political — trying to figure out what kinds of public structures and principles could stop such disasters, macro (internationally) and micro (domestically). I figure that many of our notions of how the judicial system of a democracy should work emerged precisely from thinking about revenge cycles — that crime should be seen as a disruption of the social fabric, eg, not just an offence against a victim, and that the state rather than particular offended parties should investigate and prosecute crime on that basis.
So to me, there’s nothing vengeful about the defence of our constitutions — just the opposite. Our constitutional structures and principles are our main defence against vengeance, not an expression of it.
I think, too, that the those kinds of criticisms are missing the mark on what is happening and what has happened.
Crimes were committed, with no doubt or question. Some small, some horrifically large, but there is no question but that they were committed. And there is equally no question but that Congress abandoned it’s function and opted out of it’s check mechanisms, including aggressive investigations, publication and impeachmnet. Most importantly, there is no question but that the criminal prosecutorial branch of government, the Executive, has not only failed to seek justice for crimes committed, but has also become a co-conspirator in those crimes.
So,for example, when someone gets so upset that “now” isn’t the “time” for justice (even as statutes of limitation pass) and that it is “vengeful” to seek release of pictures, push for release of the IG’s report, push for release of information on illegal surveillance, etc. they are ignoring the fact that the only reason there is a push for those things is because government has failed. Not because of vengence, but because of government incompetence or criminality.
Would there be such a strong push for the release of pictures or the IG report if government had been a good steward? If Obama, on taking office (and with 2 years of campaigning to put together his game plan) had put Taguba or someone similar in charge of a full and thorogh MI investigation with power to charge? Such a push on the IG report if Obama and Holder had passed new regs providing for an outside counsel with far reaching authority and staffed a tough, independent prosecutorial squad under those regs?
The pressure has not resulted because of vengence, but because of government failure and vacuum. It’s interesting that no one seems concerned about the real, true victims of “vengence.” The children in Afghanistan, Pakistan and Iraq that Obama as well as Bush has chosen to bomb. The millions of refugees. The Arar’s and el-Masris and Kurnazs and Errachidis and all their friends and families who wonder ever day about someone in black showing up to wreak vengence on them – not because of some fantasy of vengence, but because of what has happened in their lives to them or to people they know.
This fantasy of vengence, that someone pursuing years of judicial proceedings to get access to evidence of government crimes committed is a vengeful act, needs to find a tether to the real world of real damage done to real people. Vengence was what was visited on the victims of the war crimes and other crimes – it was non-judicial institutionalized injustice. To equate those kinds of truly vengeful actions with the actions of seeking judicial recourse for injustice demonstrates a worrisome synaptic lapse.
How can it be vengeful if you (or someone of your family or company or friends) wasn’t a person harmed by the government?
Lovely job bmaz.
I missed the “citizen” complaints you linked, but it says a lot about them that a) they assume that the country would be “torn apart” if crimes are prosecuted (I don’t recall the Abu Ghraib trials tearing the nation apart?) and b) that somehow there is a convenient and an inconvenient time for justice to be done and that if we allow government to pick when it is convenient to hold itself accountable, that’ll work just fine.
Lack of accountability on torture isn’t going to make government “work better” on “Iran, North Korea, the Middle East, Health Care, Energy, the deficit, imigration, etc”
As a matter of fact, knowing that accountability exists for the Executive branch as much as for anyone else will make those issues more, not less, workable. Knowing that torturers go to jail is a step away from knowing that coke parties with hookers in the Dept of the Interior have consequences (and that perhaps royalties should be collected) or that misfeasance of stimulus funds will also have consequences.
Nothing undermines extremists in the ME as much as justice being done AND being seen to be done; while nothing feeds them like an absence of justice.
Exactly
Fantastic! I’m still waiting for indictments. Whether from DC or the Hague I care not.
DC indictments will never fly because of the Firestorm. As the US does not recognize the Hague’s jurisdiction, that’s a non-starter.
Supreme Court quashes 9/11 lawsuit against Saudis
BY DANIEL TENCER
“The Supreme Court has rejected a class-action lawsuit against Saudi Arabia brought by 9/11 survivors and relatives of those killed in the attacks.
. . .
“In its decision, the Supreme Court let stand a federal appeals court’s ruling that “sovereign immunity” — the notion that a country can’t be sued in another country’s courts — means that the lawsuit cannot go forward.
“That was more or less the position of the Obama administration as well, which sided with the defendants and urged the courts to dismiss the lawsuit.”
http://rawstory.com/08/news/20…..st-saudis/
Fein: Obama ’shuts his eyes’ to ‘open confessions’ of Bush-era war crimes
“Speaking at the National Press Club on Monday, former Reagan administration Associated Attorney General Bruce Fein lamented President Barack Obama’s decision to shut his eyes to open confessions of war crimes by members of the prior administration.
‘”It’s at the highest levels that the rule of law finds its greatest majesty,” he told reporters. “That’s why the United States was so idolized after Nixon left. We said that the most powerful man in the world is subject to the law. He cannot defy it.”
. . .
‘”[Today] we have an instance where the President of the United States — Harvard Law Review, a Constitutional Law professor who knows what the law is — shuts his eyes to open confessions,” he said. “We authorized torture, for which there is no exception.”
“Fein was speaking on behalf of Velvet Revolution, a coalition of over 150 peace and religious groups, that is leading the charge to get attorneys involved in the Bush administration’s torture program thrown out of office and the legal profession.”
http://rawstory.com/blog/2009/…..s-torture/
bmaz, have you read the
new yorker article on our killing detainees through crucifiction?
detainees who never knew what they were being held for I might add.
Via the ACLU Blog:
“Supreme Court quashes 9/11 lawsuit against Saudis”
Is James Baker still defending the Saudis in court against the 9/11 families?
Tour de force, bmaz. Thank you. Thank you.
One thing about this odious meme: It simply assumes that addressing the crimes would in fact “tear the country apart”. Would it really? But even “Would it really?” is a specious question until and unless “tear the country apart” is defined. What level of unrest, upset, and disruption really would happen? I don’t foresee civil war over this. I don’t foresee riots in the street over this. I do imagine family arguments, some number of demonstrations, an endless string of sternly worded op-eds and Sunday chatshow rants, and of course an equally endless string of court proceedings. Perhaps ending up with a string of bad 5-4 SCOTUS decisions. But none of that rises to the level of “tearing the country apart”.
So let’s dispatch that evil meme once and for all. Addressing the crimes just wouldn’t be the end of us. Probably just the opposite, it would cut off that which threatens to become the end of us.
Thanks for the excellent post bmaz.
I agree with Hmmm, that this straw man of “tearing the country apart” is absurd. It is used to threaten us to abandon the rule of law just as much as the “ticking time bomb scenario”. Both assertions are predicated on a set of false assumptions.
As for the “vengeance” meme… Isn’t vengeance something that occurs in the absence of law? Isn’t that why movie westerns are always set in areas beyond the reach of the law, so that the “good” guy can mete out justice in his own steely eyed way? It’s telling that we are accused of being bent on venegeance. Those who make the claim know that justice within the rule of law is being denied.
Busby bash raided.
bmaz, can I join you on your soap box?
Unending conflict against the enemies of the Constitution, foreign and domestic.
That’s what I swore to do.
That’s what I’ll do, too.
I am afraid its not going to get any better soon. Its really about a socio-economic contract made among the money lenders who have set up shop in the holy of holies. Major media outlets are on board too. The threshold of intractable public distraction has been reached. What would Jesus do?
This essay is a thing of beauty. Thanks, bmaz, for saying so eloquently what it is we need, and what it is we lost.
I think Thomas Jefferson, among the Founders, understood best the terrible uses that could be made of “law”:
Since Dawn Johnsen has yet to get a vote in the Senate to head up the DOJ’s Office of Legal Counsel (she was approved by the SJC way back on March 19, 2009), little has been heard from the OLC.
Today, via the WSJ, this showed up:
I note for the record that no May 4 2009 OLC opinion has been yet been made public, so we’re still in that OLC Twilight Zone where secret law rules.
And further from that WSJ article:
I like the way they phrase it, “a serious risk” that tortured confessions might be questioned.
Risky behavior, that.
BTW, if you’ve read up on Kurnaz, you might want to take a look at these abbreviated descriptions of other instances too
This is one shows how great the torture/indefinite detention/no judicial review system works:
So yeah, that “recidivism” rate works especially well when you buy two people for each name and then play poker of which one to release.
We know about the el-Masri name mix up, but it seems to be a recurring theme. Ther was also
Back in 2004 the Bush administration started to claim that some former Guantanamo captives had tricked their way out of detention, that they had been Taliban leaders. One of the men they named they called “Mullah Shahzada”. What the documents show, however, is that there were two captives interrogators thought was a Taliban leader named “Mullah Shahzada”. One of them was a school-teacher, who had lived out the Taliban regime in Pakistan, who had a cast-iron alibi. During the seven years this guy was accused of being the senior Taliban intelligence officer in Mazari Sharif his time cards and pay stubs would show he was a high school teacher in Pakistan. By mid-2003, with the help of Red Cross observers, he received enough letters to establish he was not Mullah Shahzada, the Taliban leader. But, what did the Guantanamo authorities do? Their unwillingness to effectively maintain a single set of records for each captive meant that they released the wrong guy — the one who actually was a Taliban leader. The innocent guy remained in Guantanamo for another four years.
Jiminy Crickets! Talk about not be able to do anything right.
shhh – you’ll sound vengeful.
Amazing. I had not heard that story.
BTW Mad Dog – not that this hasn’t struck you already, but from the WSJ article, here’s a bit more about what the Pentagon opposition guy says:
emph added
So what he’s saying is that just because the courts would, in a habeas proceeding, find torture testimony an unreliable grounds for us to hold onto a detainee doesn’t mean they won’t let us execute them based on it.
Yeah – right. Especially, I guess, since the whole habeas thing has worked so well after all – what with a CIC who pisses on the judges that tell him to release detainees. And a delusional Democratic Congress that won’t even address the issue of the innocent detainees bc that issue is inseperable from the war crimes committed against them.
But hey – at least torturing people for confessions isn’t all “vengeful” and stuff.
I think the Obama Administration needs to use a mulligan for Capt. Murphy. He doesn’t seem to understand the basics of our legal system.
Thanks for the reminder. Kudos for those who have burst the rhetorical “vengence is the reason” for holding the government and its agents legally accountable for things they have illegally done in the name of the so-called “War on Terror”. And, yes, the Obamites are still eating away at the legal structure of the country by not forcefully going after the war criminals who got us into Iraq and used torture as an excuse to send thousands of our own citizens to die, to torture, and to blow up other folks homes and lives. May Allah, God, and plain human beings forgive us for the sins of the sociopaths who we visited upon them.
Argh – remind me not to try that edit thing when I’m also on the phone. I guess I still had my old clip on my paste.
Lets try this:
There was also Abdullah Khan as
Kwisatz HaderachKhirullah Khairkhwa (actually, I don’t really know what the Kwisatz Haderach is, but if John Hodgeman worked it in so can I) and a then under 10yo al-Gharani accused of being and al-Qaeda imman in London in the 90s – even though records showed he was in school in Saudi Arabia at the time; or Errachidi accused of being a general at a Taliban/Al-Qaeda training camp at the same time he was making souffles in Mayfair.But yeah – these guys need to be given the power to cross borders into Pakistan and drop bombs on people there, bc they have such stellar intel.
Kwisatz Haderach
@36 the place where only a Kwisatz Haderach may look
Who knew it was the Office of Legal Counsel?
The tragedy of 9/11 is that, by any measure, the terrorists have won. Our country has been changed, and in ways that reduce our moral authority both at home and abroad. And when respect for “the rule of law” is eroded from within our own borders, either by the Executive, or by those who look at the world through strictly partisan lenses, then the end result is inevitably government of men and the “inflation” of law to the point of its utter collapse.
Ultimately, there is nothing so important as this issue. Nothing. Not Korea, not Iraq, not Iran, not Health Care. If our society, this “experiment” in democracy is to succeed, it can, and it must, redeem itself by bringing both the terrorists and the sadists to justice.
“Rules must be binding. Violations must be punished. Words must mean something.”
President Obama. Prague, April 5th
one to add bmaz
Law is the conscience of humanity.
From this vengeful monoglogue
Wow.
OT, kinda, bmaz.
What do you think of Scalia’s writing for the majority in the predatory lending case?
http://www.mcclatchydc.com/251/story/70985.html
I recall the other day you mentioned a possibility of Scalia breaking off from the others ?
This one surprises me a little, although I suppose you can chalk it up to states’ rights.
@46 without reading it, I’d say he is being true to ideology and not really liking the interstate commerce justifications. Something Roberts and Alito and Thomas probably only remember when federal law conveys civil rights.
Scalia is kinda brilliant in a way that would come through more with less self absorption, but except on Bush v. Gore he does have some discernible judicial philosphy that isn’t ONLY about using the courts to support Republican politicians and goals.
@48 I’m not much for westerns, but The Oxbow Incident is a lot about where we are and how we got there. The difference is at the end, when the Sheriff rides up, he actually demands accountability and men who did depraved things or stood by actually hang their heads.
Remorse. That’s the difference. As opposed to the complete lack of remorse over the last 4+ years.
I used to wonder if they locked the wingnuts in a room and showed them The Oxbow Incident and Unforgiven on a loop if it could chip away at what Fox News hath wrought.
Psychopaths don’t show remorse. And there are a hell of a lot of psychopaths involved in government and the military right now. I know one in particular, and I can tell you they take a perverse kind of joy in misleading people and lying.
As Yeats foresaw, it’s the good people who, by their passivity, inaction, or temerity, or just plain wrong-headedness, fail to call these others to account, in the end fail us all.
I’ve quoted this twice on Glenn Greenwald’s threads today, but the most fundamental tenet in Islam on law, from which the power of caliphs and the sharia were both derived reads as follows:
Justice is the origin of rule.
No government is considered legitimate unless it can first provide the rule of law. The neocons pushed the view that the only thing Muslims understood was force. In reality, the basis of respect would have been for the U.S. to have held fast to its committments to humanitarian and human rights law. How many lives could have been saved if Americans understood how fundamental this is to people, from the Indus delta to the Iranian plateau?
EPU’d, but I want to acknowledge your comment and point.
Injustice is always going to promote radicalism and dissent. The point of overlap for most religions and most stable governments is an acceptance that people must have a faith in the commitment of their government to justice. Even if it fails (as it inevitably will) at times and even if it is imperfectly applied, there has to be a perception of commitment to justice. When the pronounced policy of government is to commit injustice and to insulate those who commit injustice on behalf of government from consequences, then it really doesn’t matter how widespread or how isolated the injustice is, because the perception of commitment to justice cannot hold when injustice is governmental policy.
john in sacrimento, if you want some good founder fodder read thomas hartmanns’ ‘what would jefferson do”
thousands of correspondances with anotation…you will enjoy entirely
bmaz,
Thanks for this eloquent summary! You have sketched the “theory” of a Constitutional Republic very well.
As Ben Franklin is supposed to have observed, we have a Republic– if we can keep it. Unless Congress is willing to grow some spine and uphold its leg of the Constitutional tripod, our Constitutional democracy is doomed.
But the Congress is supposed to be responsible to US!!! We’ve really got to put more heat on them.
Bob from HI
Currently in AZ
Thanks bmaz!! What a great post on the Rule of Law that we must follow or our fragile Democracy will surely Fail. When just one elected official gets a free pass for breaking the basic Rules of Law then all Laws mean nothing and all will be lost for our decedents!! The Bush Administration Must be investigated from top to bottom. Those who broke laws must feel the full brunt of the Law.
Robert Treat Paine, signer of the Constitution.
According to comments made by Benjamin Rush, Paine was known in Congress as the “Objection Maker,” because of his habit of frequent objections to the proposals of others. These objections were eventually taken lightly, for as Rush commented, “He seldom proposed anything, but opposed nearly every measure that was proposed by other people…”
Now how does that sound familiar?
According to some, Thomas Paine wasn’t all that pleasant a guy, either. Makes you wonder how descriptive the surname actually is, doesn’t it? Fortunately for us, Thomas Paine was a great big pain in the, er . . . , neck as far as the British were concerned. I’ve always admired him, and then some.
Thomas Paine’s ideas were way ahead of his time. As a pamphleteer (Common Sense), he did more to motivate the new country into ending ties with England than any other individual. His Rights of Man was a major influence in France prior to the Revolution of 1789. He was one of the first abolitionists. The list goes on and on. He was truly a towering giant. Although Paine later fell out of favor, Jefferson revered him to the end.
You better believe it!
http://tinyurl.com/lxzlk6
(I’m sending you to a great site, though you probably already know about it. I visit it from time to time when I see a quote attributed to Jefferson that just does not seem right to me or when I want to link to what he said about a particular topic. He has no peer.)
Nicely, simply and neatly put.
When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
etc.
Great post, bmaz.
It seems this system of checks and balances was well known to the DC players and secrecy was the method for its subversion. Secret OLC memos and findings, secret detention, secret law, overuse of classification to make secret facts.
What I find instructive is Daniel Ellsberg’s take (I’ve linked to a bit of it before) on classified information– how it warps one’s ability to actually listen to and learn from others not in possession of top security clearances and therefore not in the know. This is Ellsberg’s warning addressed (ironically) to a soon-to-be cleared Henry Kissinger:
I assume Obama is making it through the Ellsberg stages as we speak. How much more secret information does he see that was not available to him as a Congressman?
I wonder if the Founding Fathers (or ‘Founding Brothers’ as they called themselves) had an counterweight to the use of secrecy in a republic.
This is an excellent commentary. I’d like to hear from bmaz or Mary on this, and what to do about it.
Thanks,
Bob from HI
Currently in AZ
Here’s another important point Elsberg made about the Papers,
“The documents “demonstrated unconstitutional behavior by a succession of presidents, the violation of their oath and the violation of the oath of every one of their subordinates”, and that he had leaked the papers in the hopes of getting the nation out of “a wrongful war”
A succession of presidents
The issue becomes one of policy more than law.The fact that the law can always be circumvented is policy itself
These policy decisions that get handed down from administration to administration get so convoluted that no one administration can be held accountable.
Not to mention they get put in the big playbook to be used as precedence or tools to enable future administrations to accomplish their goals(Iran Contra)
So the real question is, who are the primary players that are responsible for establishing policy?
Per Sam Stein at HuffPo:
Well said, Mr. Gibbs. And, what message have you and your boss sent to future U.S. personnel who torturer under color of law? Your boss who is uninterested in looking back and enforcing the laws on the powerful.
ooh. the Marcy Wheeler Fundraiser thermometer is reading a cool number right now 101101.
Hoping all the zeroes turn into ones soon, and then so on, and so on, soon.
One of the most powerful weapons of the Establishment is a statute which has gone unchallenged in the Supreme Court.
It sits there waiting to be used and instilling some little fear in people who *might* consider violating it. They hesitate. They begin. They draw back. They censor themselves.
I propose any legislator or President should be able to challenge any new law’s Constitutionality, so that it must be immediately tested in the Supreme Court before taking effect.
This is in keeping with Marshall’s idea that no mere law should be considered Law until verified as Constitutional by the Court.
I would sincerely suggest the same for state and lesser political units.
This is an amazing report. Thanks for putting this together. quite an excellent read.
A great essay, bmaz, thank you!
OT: Some of the lawyers here sometimes write out a sentence something like, “This all goes to pattern, Your Honor.” I grasp what that must mean, but could someone explain the category to me briefly? tia.
Pattern and practice evidence is admissible as prior similar acts of misconduct by the party. This type of pattern and practice evidence is most effective in proving that there is, in fact, a common scheme, plan or propensity to do, or not do, some act.
People were tortured to death. Our government refuses to prosecute war crimes, torture, and murder. Does the Rule of Law exist anymore?
We have a federal appeals judge who is a mass murderer and war criminal, who no one will touch. Disbar The Torture Lawyers Now has not resulted in a single torture conspirator losing their license, much less standing trial under the felony murder rule (18 USC 1117) or the torture resulting in death statute (18 USC 2340A).
We must pull on the levers that do nothing so that there will be a record that we tried. We must show that lawyers and judges are incapable of policing themselves, so that they can be given a system which will. But what would such a system look like?
Mr. 15-dimensional chess has this all in hand, don’t you worry. His inaction=giving them enough rope to hang themselves!
/snark
That’s a whole lotta nouns and verbs just to make the simple point that torture is a war crime that needs to be prosecuted. Thanks for the Plato though.
Enjoy.
bmaz, this man would have been very proud of your article. What a contrast between his confidence in ‘the people’ and our right to know and the Bush/Cheney and Obama administrations’ dictating that the secret government must reign.
Thank you.
Well, since it’s seemingly impossible to engage citizen redfish in simple argumentation in comments without him/her getting all militantly defensive in his “mainstream” Broderism or whatever and his/her trolling back with a series of increasingly maddening contorted generalizations about the “far, far left,” I guess this very well-developed post, laying out in detail what most of us have learned and feel in our bones, is the most appropriate response. Well done, although the masochist in me wishes you had allowed him/her back on to flail away at it.
Great post. I think I will archive it for re-reading. This should be mandatory reading for all US citizens, since most seem to be painfully ignorant of the true foundation of our country.
O/T and BTW. PEOPLE! WIKIPEDIA?? PLEASE STOP with the wiki citations already. It is most decidedly NOT a reference source! Just put it away. Any post that begins, I got this from wikipedia loses ALL credence.
If you don’t like wiki, that’s your business. But they are much more credible than WestLaw, Lexis, etc. Why? Because they are not paid to produce opinions and you don’t have to pay to get the information (already in the public domain, paid for by your own tax dollars) back. Further, it seems you have a fundamental misunderstanding of the wiki process. If you have information that a particular wiki post is in error, THEN POST A CORRECTION. Wiki only works if you do. Get used to web sources. They are the way the world works.
Gee thanks for the elucidation. I guess I must be a fucking idiot to think that public domain, no attribution, open contribution references are 100% reliable. Yeah, I’m 52 and I’m NEW to the internet? Please.
Instead of being a …. person who ascribes …. to someone, let’s see your wit and wisdom in action: Torture and the United States noting that the article itself contains
and the following references:
Which of these refertences do you take issue with?
It’s good to hear that even though you are new to the internet, you are still learning about it and how to use it.
I bet he’s had bad experiences with Ibid. Ibid’s been known to be a rabble rouser. *g*
Instead of being a …. person who ascribes …. to someone, let’s see your wit and wisdom in action: Torture and the United States noting that the article itself contains
I don’t even know what the hell this is supposed to mean. Are you now creating people for me to ascribe to? I’m not sure how I would ascribe to a person. maybe you could look that up on wikipedia and let me know.
Nice job on the long list, you are very good at copying and pasting. Your mother must be proud.
BTW, I guess the sarcasm was lost on you. I’ve been using the internet since 1993, starting with a 14k modem, and waiting hours for material to load. I really don’t think I need you to fill me in.
And Mary? Very clever on the ibid reference. You must have saving that for a special occasion.
Signed,
still not a fucking idiot
Nor are you a person interested in contributing – only cursing. So glad that after 15 years you still haven’t mastered your medium, but they say that it takes 10000 hours – unless you’re still using that 14K modem.
I gave you a simple reference. They are called LINKS. the link was to an article on Wikipedia on Torture – the topic of this thread. You insist on engaging in off thread personal attacks. I brought you back to the topic. You refuse to engage because you have nothing to contribute. That’s fine. Just don’t waste our time. Go to wikipedia.org (here is the linky again and see if there is anything in the peer reviewed, open source dictionary on the subject of US torture that you can find fault with. If you are too lazy to do that, or too prejudiced to contribute meaningfully to society, please don’t curse at those who do. It’s just damn impolite.
I am going to have to disagree with you. Anyone capable of such elegant self-proving utterances must have a light on somewhere.
I think I am finally getting some clarity about why I prefer that the writing on the wrongs against the persons and bodies of foreign individuals held in captivity by the US be described as “torture” and an attempt made to restore the meaning of the word be made. Describing these practices as “sadistic” seems detached and stylistic because of the literary antecedents of “sadism.”
The provenance of “torture” on the other hand is steeped in the tradition of the common law where there are fundamental protections against persons’ including their bodies. A “tort” is a wrong to a person that is protected against by law. It is a twisted offense to the body, a contortion. And “torture” is a systematic illegality designed to exact multiple offenses against the body of a person. In the common law the mere reasonable creation of the anticipation this offense is an “assault.” Is it not enough to recite the obvious and fundamental. But how does one highlight how far those who desire the illegal right to offend the person and body of others have gone in denying the obvious and fundamental principles out of which our law arises, in twisting and contorting the fundamental principles of our Constitutional Republic, and in rationalizing their tyrannies against the profound institutional checks of the tyrannical impulse which are historical verities.
The sanctity of the individual person does not arise of deceit, or rationalization, or confusion, or false rhetoric, sophistry, social collusion or any of the other grotesque trops that we have seen emerge in attempts to characterize “torture” as something other than what it is. Our law did not emerge in a vacuum nor did the principle of the integrity of persons and their bodies. These are fundamental institutions of decency that emerged out of human experience and inquiry. That a government would stoop to rationalizations of their bestial and unsustainable practices is something that has been understood historically, and the rule of law is a fundamental response in the capacity of mankind to seek decency, civility and fairness to avoid the blood thirsty intoxication of the barbarous tyrant.
The delusion that the effects and corrupting aspects of these tortuous barbarities are cleansed and diminished if they are handled in the faux airs of a clinical descriptions burlesquing the scientific or that the public is protected if the facts, the persons and places, not just the abstractions of the practices are held in secret. Our understanding of social systems in the post-Freudian milieu includes and understanding of their isomorphic features. The crimes of the corrupt elite can not help but propagate into the social fabric of a society. And without an education against this force, if the secret core of a society is depraved the manners of a society’s people will soon be unconsciously and mechanically depraved. But who has the patience for the understanding of mankind?
In the end Washington has emerged as a cabal of socialites protecting their accounts even if it requires the macabre theater we are witnessing today. I think the references to Plato’s view of the rule of law are instructive especially as in the end Plato advocated a kind of oligarchic meritocracy and never the less insists on the necessity of the rule of law.
The emergent police state may be an historical inevitability in the demagoguery of “security.” But the real test of the decency, the nobility, and the righteousness of any society is in the protection of the innocent, in their persons and their bodies and including against the perdition of usury.
When markets are dependent on cultivating addictions and obsessions including the obsession of self-advancement at any costs the principles which have historically served as the underpinnings of the decent society are easily washed away. I ask again, and repeat the chorus, who then shall check the masters of this grotesque intoxication with torture?
With people like yourself and BMAZ and the others here who have so eloquently stated the principles to which we rededicate ourselves, I say Bravo (and Brava for the ladies like Marcy)! Bravo! Brava! Long live the conscience of America! Long live those who oppose injustice! Long live those gathered round the Emptywheel!
We need to put this stuff in a book.
NOT the Change We worked so hard to elect.
SIGN THE PETITION & Forward our website to all
http://ANGRYVOTERS.ORG
God bless
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Do this yourself on related articles and you will reach readers who are sympathetic to prosecution of those who conspired to torture.
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