I have now been bitterly disappointed. On May 13th I attended a Senate Judiciary subcommittee hearing in Washington, D.C. The first witness was a law professor with no ties to UVA who spoke out clearly and forthrightly on the illegality of torture.
The second witness was UVA history professor Philip Zelikow who began by agreeing with statements of Republican Senator Lindsay Graham, claiming that "Americans of both parties" had believed several years ago that we needed to torture people, and that it would be unfair now to look back and judge that decision. Zelikow called systemic government torture "a collective failure." Excuse me? I don't recall having had any say in the matter. Do you? Neither do I recall placing my highest loyalty in one of those two parties. If a fear driven poll could legalize any crime, where would we be? Certainly not anywhere that a poll of Americans would support. If polls overturned laws, nobody would have to pay taxes or go to jail for smoking pot. If polls criminalized behavior, campaign "finance" and "lobbying" would fill our prisons. But if you ask the American people whether they want laws made that way, they will tell you emphatically not. We wish Congress would obey majority opinion, but we want laws to be down on paper and available so that we know what is illegal and what isn't. And we want changes to our laws to be made deliberatively and legally.
If the American people knew that torture was illegal, would they want it made legal on the grounds that Mr. Zelikow and the people he worked with were really, really scared? Of course, not. If you set aside the Eight Amendment, the Universal Declaration of Human Rights, the Geneva Conventions, the International Covenant on Civil and Political Rights, the Anti-Torture Act of 1994 (enforcing a treaty signed by radical angry leftist Ronald Reagan), the War Crimes Act of 1996, and the Uniform Code of Military Justice, there's no reason to think torture is illegal. Zelikow's position in his testimony seemed based on the assumption that these laws did not really exist. He said that he opposed the secret memos written by the Office of Legal Counsel purporting to authorize torture, not because they violated existing law, but because they would have rendered moot an amendment proposed by Senator John McCain (and signing-statemented away by President George W. Bush) to redundantly re-criminalize torture by the military while allowing it for the CIA. In fact, a July 2005 memo by Zelikow, cited in his testimony as evidence of his good behavior, sought the same loophole in a voluntary ban on something already absolutely illegal in every circumstance. He wrote:
"One reason to avoid any clear legal framework or definition of humane treatment is to allow maximum flexibility for interrogations and detention in the activities of other government agencies [that is, other than the military]."
Zelikow proposed that we,
"Apply Geneva standards for civilian detainees under the law of war only to detainees held in DOD facilities."
"Set an appropriate time period during which detainees can be held without disclosing that they are in US custody."
Zelikow had written another memo the month before in which he similarly argued that the president should choose as a matter of "policy" to apply standards similar to those required by law, but only in some circumstances, allowing exceptions for other situations. He proposed that military commissions be used only for "major criminals clearly guilty of war crimes," although in serious judicial systems clarity of guilt comes after a trial rather than before it.
These memos preceded the 2006 memo by Zelikow that we have not yet seen in which he supposedly takes a stronger position against torture, but he cited these memos in his testimony, and in them he supports holding underlings accountable for their crimes. However, in these memos and in his testimony, not to mention in the work of the 9-11 Commission and the Carter-Baker Election Commission, both of which he directed, he did not support prosecuting high-level officials for ordering those below them to violate the law. If Zelikow has any hard and fast principle, it is that those in power should be above the rule of law.
His second principle might be that he himself should be protected. Think about how long he refrained from even secret, internal, polite, and perversely limited opposition to our government's torture policies. Torture was underway in 2001. Zelikow wanted the military to choose not to do it, but the CIA to keep free reign, in 2005. He may have secretly gone an inch beyond such bravery in 2006. And he dared to go public in 2009, eight years after all our train stations had filled up with posters and audio recordings screaming "If you see something, say something!"
The third witness at the May 13, 2009, Senate hearing was Jeffrey Addicott, alumnus of UVA. Addicott made Zelikow look good by comparison. He had been brought in by Senator Graham to defend torture, and he did not disappoint. He argued that, even though we have tortured people to death, the techniques used did not quite rise to the level of torture. He even parroted former vice president Dick Cheney's claim that members of the U.S. military, in their training, are put through the very same techniques, even though troops who have been through the SERE training program have protested it as cruel and unusual, and even though they are made aware that they will not be killed and in fact are not killed. A UVA student who cheats on a test can be expelled. What about a UVA alumnus who does THIS?
Next up was Professor Robert Turner of the UVA School of Law. He, like Zelikow, agreed with Senator Graham's positions and even, in all seriousness, referred to the water torture as "torture lite." Absolutely disgraceful.
The final witness was an FBI interrogator (not from UVA) who gave testimony that legal techniques of interrogation had proven effective in questioning key detainee Abu Zubaydah, whereas torture had not, and that President Bush's claims to the contrary had been false. This led Senator Graham to baselessly claim that torture simply MUST have "worked" with some other prisoner, it just must have. Graham got Addicott to agree with him that "intelligence" was central to "this war," and that a police force could handle the non-intelligence part of it. Graham pointed out that other nations treat terrorism as a crime rather than a war. He and Addicott meant this as an argument around the Geneva Conventions, not realizing that they had also thereby delegitimized the U.S. invasions of Afghanistan and Iraq.
Democratic Senator Dick Durbin was, like Zelikow, primarily concerned with covering his own tail, and stressed that had he or Zelikow or anyone else spoken out earlier about what they knew about torture, they would have supposedly endangered people's lives. But they clearly cost people their lives through silence. They violated the legal requirement to report felonies, even if by so doing they complied with a bogus claim of secrecy for information classified to protect a crime. There were people sitting all around me in that hearing who had risked their careers, family life, income, and liberty to right these wrongs. Justice Department whistleblower Jesselyn Radack was sitting right next to me. She'd spoken out for the rule of law and seen her career destroyed and her liberty put at risk. Medea Benjamin was to my other side. I've lost count of the number of times she's gone to jail for justice. But senators and congress members, and wahoos like Zelikow, Turner, and Addicott, are held to lower standards of sacrifice.
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