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TGIF: Criminal Government

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"A nonpartisan, independent review of interrogation and detention programs in the years after the Sept. 11, 2001, terrorist attacks concludes that 'it is indisputable that the United States engaged in the practice of torture' and that the nation's highest officials bore ultimate responsibility for it."

So began a page-one story in the New York Times that should have dominated public discussion for days and begun the process of coming to terms with this shameful chapter in American history. Unfortunately, the story ran April 16, the day after the Boston Marathon bombing, and thus got little notice. And just as attention on Boston was waning, the George W. Bush Library and Museum was dedicated in Dallas. Unsurprisingly, neither President Obama nor the ex-presidents assembled to celebrate the event (and the Bush administration), mentioned this "nonpartisan, independent review."

It's been pretty much consigned to the memory hole. But maybe it's not too late to retrieve it.

The review was done by The Constitution Project's Task Force on Detainee Treatment, which included members not normally associated with critics of the Bush administration, such as former Republican Rep. Asa Hutchinson (cochairman), who was an undersecretary in the Bush administration's Department of Homeland Security and administrator of the Drug Enforcement Administration.

The task force concluded that in Iraq, Afghanistan, Guantanamo, and other places, American forces engaged in torture and other practices that violated U.S. laws and international treaties -- conduct that has been condemned by the U.S. government when practiced by other governments. Such conduct has long been considered a war crime, the task force noted. While it stopped short of claiming that the highest government leaders explicitly called for the use of torture against detainees, it said the use was a consequence of the administration's declaration that the Geneva Conventions did not apply to people captured in the "war on terror." (PDF) The report states...

"The Task Force believes there was no justification for the responsible government and military leaders to have allowed those lines to be crossed. Doing so damaged the standing of our nation, reduced our capacity to convey moral censure when necessary and potentially increased the danger to U.S. military personnel taken captive.

"Democracy and torture cannot peacefully coexist in the same body politic. The Task Force also believes and hopes that publicly acknowledging this grave error, however belatedly, may mitigate some of those consequences and help undo some of the damage to our reputation at home and abroad."

The task force also found...

"There is no firm or persuasive evidence that the widespread use of harsh interrogation techniques by U.S. forces produced significant information of value. There is substantial evidence that much of the information adduced from the use of such techniques was not useful or reliable."

It notes that some former officials insist their interrogation techniques were effective, adding, "but those officials say that the evidence of such success may not be disclosed for reasons of national security." The task force discounts such assertions, however, because the former officials "generally include those people who authorized and implemented the very practices that they now assert to have been valuable tools in fighting terrorism." It is reasonable to note that those former officials have a substantial reputational stake in their claim being accepted." The task force went so far as to reject the claim that torture led to the locating of Osama bin Laden, citing the Senate Intelligence Committee finding to that effect. (The fundamental case against torture, of course, is not that it is ineffective, but that it is immoral.)

The task force also called attention to the continuing detention of prisoners at Guantanamo, over half of whom have long been cleared for release. At the moment 100 of the 166 prisoners are conducting a hunger strike, and 21 are being force-fed by nasal tube, which in itself has been called torture and is condemned by the task force. A majority of the task force called for civilian or military trials of some of the detainees and release of others to countries in which they will not be tortured. It continued...

"Those prisoners who are deemed to still be a threat to the safety of the U.S. and its citizens and who would be difficult (a) to prosecute because they were subjected to torture or the relevant criminal laws did not apply overseas at the time of their conduct; or (b) to transfer due to lack of suitable receiving country, would be brought to the mainland United States and held in custody until a suitable place to transfer them was found. Their cases would be subject to periodic review."

This recommendation is not good enough. How can men be held indefinitely because the alleged evidence against them was obtained by torture and is inadmissible? That is grounds for release. But even worse is the recommendation from the two-member minority consisting of Hutchinson and Richard Epstein (yes, alas, that Richard Epstein):

"As troubling as indefinite detention might be, there are currently no good or feasible alternatives. Those prisoners who are deemed to be a continuing threat to the United States and for whom a trial is not currently feasible, and where there is no other suitable country that will accept them, should remain in detention for the foreseeable future. They should not be brought to the U.S., and Guantánamo remains the best location to hold them."

Justice demands to know why people against whom there is apparently no trial-worthy evidence are to be left to rot in an American prison in Cuba. This is truly a disgrace. And notice the self-reinforcing nature of the argument. These people are said to be a threat, but holding them at Guantanamo sows the seeds of hostility and the desire for revenge. Even if they were tried and acquitted, they might be angry at the U.S. government for the treatment they received. Are they still to be held even if acquitted? (The Bush administration thought that in some cases, yes.)

It's good to see that the task force report holds the Bush administration lawyers responsible for the mistreatment of detainees:

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Sheldon Richman is vice president of The Future of Freedom Foundation and editor of FFF's monthly journal,  Future of Freedom . For 15 years he was editor of The Freeman , published by the Foundation for Economic Education in (more...)
 

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