The Obama Administration's approach to the torture issue is driven by perceived short-term political expediency. This became clear to me after hearing a recent Phil Hendrie show.
Phil Hendrie is a conservative talk-show host who claims to be interested in the truth over a particular political ideology. There were two items in his show of May 6th on the subject of torture which got my attention. The first was his reporting of a CNN poll which reports a lack of public support for torture investigations, by 50% to 44%. This poll can be seen at:
These results may make the Obama administration think they can get away with not prosecuting crimes around torture by agencies of our government. This administration appears to be shaping up as one driven by politics over principle. In the long run, this could prove very dangerous to our liberties.
The other item on Hendrie's show that caught my attention was his advancing a tortuous theory in support of the legality of torture. The theory advanced by Hendrie is that because Al Qaeda and the Taliban are not signatories to the Geneva Conventions they are not entitled to the protections against torture contained in these treaties. Furthermore, Hendrie tries to pull a fast one by conflating the question of torture with the question of who is an enemy combatant. In my opinion, these are separate issues. The assertion that because they are not signatories to these treaties that torturing their members is legal and/or appropriate fails on legal and tactical grounds.
The most basic prohibitions against torture by our forces are contained in the body of military law. Our military law code forbids even a simple assault on a prisoner, regardless of who the prisoner is. Further sections of the military code, as well as the army field manuals and military case law prohbit abusive treatment of prisoners.
Torture of individuals taken in our "war on terror" is further forbidden by treaties that we have signed. The most prominent of these are the Geneva treaty covering the treatment of prisoners of war as well as the UN Convention on Torture. The theory advanced by Hendrie is a simple restatement of the opinions of John Yoo and Alberto Gonzales that attempt to weasel around the Geneva treaty and fails before the wording of the UN Convention Against Torture. Article 2, Section 2 of this Convention says "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." To sum up, anyone who asserts that there is any way to make torture legal under American law hasn't a leg to stand on.
Hendrie tries to confuse the issue by bringing up the idea that Al Qaeda and the Taliban are not sovereign states, but rather international rogue organizations. The model of warfare envisioned in the Geneva conventions is that of uniformed combatants of sovereign states. In that context, there is no question of who is an "enemy combatant" and therefore who is entitled to the rights of prisoners of war under these treaties. It is true that members of Al Qaeda are not uniformed combatants of a sovereign state. There could be a theoretical legitimate purpose for the military tribunals created under the Bush administration to determine if someone who fell into the hands of American forces was actually a combatant, and therefore a prisoner of war, or an unfortunate civilian. None of this, however, means that these individuals, whoever they are, fall outside of the legal obligations contained within our own military law to treat them humanely. While an Al Qaeda member operating under civilian cover might not qualify as a "prisoner of war", there is nothing anywhere in our military or civilian law that condones torture against this individual.
Hendrie's argument also fails on tactical grounds. Common sense, extensive experience, and the assertions of expert interrogators provide a preponderance of evidence that interrogation by torture is counterproductive and helps our enemies. Common sense and combat experience tells us that a combatant is more likely to fight to the death if they believe that they will be mistreated if captured. German soldiers in World War II were far more likely to surrender to American forces, believing that we would treat them well, than they were to the Russians, whom they believed would treat them cruelly. Similarly, many experienced interrogators say that the way to get useful information from a prisoner is for the interrogator to establish some kind of bond or positive relationship with them. Most of these interrogators say that torture yields useless or false information most of the time. Prisoners actually advance the tactical goals of their side by providing "information" under torture that would lead intelligence officers on wild goose chases and draw them away from the truth. Senator John McCain testifies from personal experience as a prisoner of the North Vietnamese that he gave them false information to put an end to their "enhanced interrogation." Propagandists for Islamic extremism effectively used the image, derisively called the "Statue of Liberty" of an Iraqi prisoner hooded and with electrodes attached, to show the Islamic world that we hate them and that they should wage "jihad" against us.
In an emotional moment, Hendrie asserts that Al Qaeda must know "the wrath of the American people", but this assertion misses the point. The whole world, including much of the Muslim world, even in Iraq and Iran, reacted with horror and disgust to the 9/11 attacks. They were ready to stand with us against the al Qaeda terrorists. Our abuse of civilians and terrorists frittered away most of this good will.
Hendrie falls into the same intellectual trap as approximately half the public. He either fails to understand or is unwilling to admit that failing to prosecute torture opens the door to legalized torture and sets a precedent for legalized tyranny under American law. The reptilian right-wing pundits such as Limbaugh, Hannity, O'Reilly, Beck, et al will not stand up for American liberty but cater to latent sadistic tastes. Mindless "teabaggers", steeped in ignorance, natter on about socialism, fascism, and tyranny while remaining deafeningly silent while a precedent that allows our government to exercise the most fundamental form of tyranny is set. A few Constitutional scholars such as Jonathan Turley and Bruce Fein understand this. Progressives and their TV pundits, notably Keith Olbermann and Rachel Maddow, as well some outspoken radio commentators such as Mike Malloy, Lila Garrett, Jeff Farias, Bob Kincaid and others understand this as well. Where are the conservative intellectuals on this point, though? With only a few exceptions, conservative commentators and their journals such as the National Review, Human Events, and Commentary, are silent about this most egregious violation of their supposed belief in limited government. The Republican Party, fumbling around to try and find its message, mutters about big government and totally ignores this tyrannical elephant in the living room. Unfortunately, the Republicans and their fellow travelers are invested in the Bush legacy and will not responsibly oppose the Obama administration's political expediency on the topic of torture.
One may expect that "teabaggers" and half the general public are basically ignorant and do not understand the importance of precedence in law. With its silence the conservative establishment arguably shows its true colors in support of tyranny. The course of action needed to stand up for liberty becomes clearer. Individuals such as Fein (the legal mastermind behind the Clinton impeachment), Turley, and John Dean, who actually have very good conservative credentials, need to educate conservatives about where the most imminent threat to American values lies. As noted earlier, these people find a ready audience among progressives but do not reach conservatives. They have to reach those who pay lip service to the concept of opposing government tyranny. If "teabaggers" and NRA members understand where the real threat to liberty resides, torture will not be tolerated.