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A Novel Idea: Prosecuting Guilty American Leaders For Torture

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Message Lawrence Velvel

Those who are not big deals know that ordinary folk often are not given credit for being the authors of ideas they either created or pushed early on. (Sometimes this even happens to big deals, like the inventors Nicholas Tesla and Elisha Gray.) My personal experience with this phenomenon goes back 40 years, when I was alone or virtually alone in writing of various matters relating to the Indo China war. Such matters included: the founders’ intent behind the declaration of war clause. The reversal of the constitutional and political systems occurring when the Executive takes us into war without Congressional authorization: now instead of a majority of each House having to authorize war and the President having to sign the war bill, it takes a majority in each house and a presidential signature to stop the President’s war, and it takes two-thirds in each house to override a veto, so that a mere one-third plus one in only one House can scuttle the bill -- an anticonstitutional fact that virtually destroys any political chance of stopping a presidential war. The correlative fact that Congress’ spending power is useless as a vehicle for stopping a war (though supporters of the Viet Nam war constantly invoked this Congressional power as supposedly justifying continuation of the war). The fact that the wording of the Gulf of Tonkin Resolution was a delegation to the president of Congress’ power to decide on war. The correlative fact that the Tonkin Resolution, however broadly it might have been worded, was not intended by Congress to be an authorization for a major war.

You will not find my work or name cited by the hordes of writers who later adopted these ideas with regard to either the Indo China war or later ones in which the ideas were relevant. Rather, you would have to go back 40 years to read my stuff -- and why in hell would anyone do that?


Well, so be it for ordinary people in this celebrity driven world. Nevertheless, in this posting and the next one this ordinary person shall again discuss new ideas in the hope that once again they may be picked up by others, by those who are celebrified, those who are read and listened to. The idea in the next posting, an idea which may be completely novel, deals with the question of when courts should strike down a law of Congress. The idea in this posting has begun to be bruited, especially because of ABC’s story (Jan Greenburg’s story, really) that people like Cheney, Powell, Rice, Ashcroft, Tenet, and Rumsfeld sat in the White House deciding what tortures should be applied to whom -- sort of like Lyndon Johnson sitting in the White House picking bombing targets. But though the idea has begun to be bruited, one fears it nonetheless will largely be ignored, with the consequence that in future we will face more disasters like Viet Nam and Iraq and like the entire situations -- the horrid, wide-ranging debacles -- surrounding those wars.


With regard to Greenburg’s story, anyone who wished to know -- instead of wishing to be blinded by naïveté or supposed patriotism -- has been aware for four years or so that the torture started at the top. The Administration and its lackeys in Congress, the media and the right wing public have tried to blame it on low level people in the army (or, though rarely, on general officers). They have likewise claimed that the torture memos produced by Yoo and others were done at the request of, and to protect, CIA field officers who were engaging in torture.


This was all 99 percent bullshit. Of course low level military guys were abusing and torturing prisoners, and of course CIA field torturers wanted the memos for protection. But that stuff is not the real truth. The real truth is that torture was ordered from the top and the torture memos were meant to give legal cover to -- were meant to preclude criminal actions against -- the Bushes, Cheneys, Rices, Tenets, Rumsfelds, Ashcrofts, Addingtons, Haynes and Feiths who were committing serious crimes that could be punished by execution.


The same is the real story behind the 2006 bill taking away jurisdiction from American courts to hear cases involving these crimes. The Administration and its Congressional lackeys pretend this was done so that lower level people wouldn’t be punished for supposedly doing their duty (notwithstanding the Nuremberg principles). This claim too is 99 percent bullshit. Of course, lower level people wanted protection. But the real concern, the one you have never heard expressed, was to protect the Bushes, Cheneys, Addingtons, Rices, et. al. against possible prosecution.


As said here many times, these people and their ilk must be punished, must be tried and sent to the slammer or the gallows. American officials have committed moral treason, if not legal treason. Legally, they are certainly guilty of crimes so serious that execution is a possible penalty. If they are not sent to the slammer or the gallows, this country will never be safe from their traitorous ilk, just as, due to the absence of punishment for Johnson, Rusk, McNamara, Nixon, Kissinger, et. al., we were not safe from the current moral traitors, from the current criminals, after the Viet Nam debacle. (There is a reason why Germany and Japan have not had to worry about people like this for over 60 years. That reason is called the gallows (in 1945 and 1946).)


The only way this punishment can occur is if liberals and progressives start demanding prosecutions and start demanding that all Democratic candidates for any federal office begin saying that justice will have to be done -- and that the 2006 immunity law will therefore have to be repealed, if necessary -- because we’ve had so many criminals in government (in all three branches frankly, most assuredly including federal judges who played the role of the German judges of Nazi times), and begin recognizing that this kind of evil will surely continue until people go to the slammer or swing as Germans and Japanese did.


Then there is the question of who will investigate and prosecute, and what tribunal will hear the matter. The Department of Justice could investigate and prosecute, but it is so deeply involved in the crimes that this probably is not a good idea. A better idea might be a special prosecutor -- an idea now being bruited -- with all necessary investigative, subpoena and other powers and with unlimited time and money to do the job.

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Lawrence R. Velvel is a cofounder and the Dean of the Massachusetts School of Law, and is the founder of the American College of History and Legal Studies.
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