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Bob Herbert's Recent Truths And Their Consequences

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Message Lawrence Velvel
Bob Herbert is the first member of the mass media to recognize a crucial truth. To wit, Bush wants no retroactive liability for torture -- a felony -- because he is guilty of this crime. Herbert also recognized that the reason Bush wants military tribunals to try detainees is that civilian courts won't allow evidence to be introduced if it was obtained by torture or is the "fruit" of evidence obtained by torture. These truths have several very likely consequences which are going to haunt Bush and his henchpeople.

September 20, 2006

Bob Herbert's Recent Truths And Their Consequences.

From: Dean Lawrence R. Velvel

On Monday Bob Herbert of The Times became the first mass media figure I know of to at least partially recognize a truth whose underlying basis has been urged here virtually since this blog began in May 2004. To wit: the real reason that Bush, Cheney and the other pretexters ("pretext," meaning to lie or, at minimum, to falsely pretend) want there to be retroactive immunity for the federal crime of torture is that the higher-ups are guilty of this felony, are guilty of a crime punishable by up to life imprisonment or execution for those who murdered prisoners and up to life imprisonment for coconspirators like Bush, Cheney, Rumsfeld, Wolfowitz and the rest of that pretexting crowd. Yet, though Hebert had the courage to recognize the foregoing truth, even he, who was among the first to say Bush is incompetent, did not have the courage to explicitly say that Bush and Cheney are liable for crimes. Instead Herbert spoke only of a need "to cover the collective keisters of higher-ups who may have authorized or condoned war crimes," and he said that, if defendants can see the evidence against them, there is a "possibility of evidence emerging that could lead to charges of war crimes against high ranking officials."

Since there already is ample evidence that Bush and his top henchpeople knew of and desired torture in an effort to get information, it is ineluctable that Herbert is ultimately speaking of Bush, Cheney and the other top pretexters, though he did not mention their names or offices. As well, Bush's pretext that all he seeks is clarity of the law for low ranking officers is, well, just another of his pretexts ("pretext," remember, meaning to lie or, at minimum, to falsely pretend). The truly pertinent law is sufficiently clear already (despite attempts by Bush and his allies to obfuscate the problem by either refusing to discuss specific actions or by alluding to things like playing loud music). Anybody can know you can't waterboard, can't beat prisoners, let alone beat them within an inch of their lives or unto death, cannot inflict great pain upon them, etc. Beyond the adequate clarity, moreover, The Pretexter-In-Chief and the Vice Pretexter have never given a damn for other people, for low ranking people: their actions in fomenting this war and its scores of thousands of killings speak louder than all their pretexting words in this connection, as does the very fact that they have sent no members of their families, in harm's way, but only members of other people's families.

Perhaps some men and women in the CIA and the military may deserve sympathy in a way, because the pretexters put them in a position where they felt they had no choice but to do bad stuff, since they knew the pretexters wanted it done. Yet they could have refused to join in it. The FBI refused to join in it. And surely the CIA and military people knew that following orders is illegal when the orders themselves are illegal -- that is, after all, the principle of Nuremberg, which we established, and is taught to our people, one gathers. And the CIA people, at least, did know that what they were doing was illegal, as evidenced by the fact that their fear of ultimately being put in the dock led to their initial requests for the CYA memoranda written or approved by reprehensible lawyer-savages like John Yoo, Jay Bybee, David Addington, Alberto Gonzalez, Jack Goldsmith (who may be a bit less reprehensible and savage), and others.

There was another truth, propounded here since the beginning of this blog, and later admitted (at least defacto) by the government and recognized by the media, that appeared in Herbert's column on Monday. This truth is that the reason the Pretexter-In-Chief and his henchpeople want military tribunals, not civilian courts, to try detainees is that evidence obtained by torture, and the so-called fruits of this evidence, i.e., other evidence it led to, cannot be used in the civilian courts. Thus, the entirety of cases against top Al Qaeda figures could collapse in the civilian courts, since evidence against them was obtained by torture or is the fruit of such evidence. And the cases will equally collapse before military tribunals if the Prextexter-In-Chief does not succeed in ramming through a bill allowing evidence obtained by torture, and the fruits of such evidence, to be used by the tribunals. We are not dealing, you know, with interrogation techniques that the top pretexter pretextingly tries to sanitize by calling them "alternative" techniques of interrogation. We are generally dealing, rather, with torture, plain and simple; waterboarding, beatings and murder are the heart of the problem.

All of this gives rise to some most interesting ideas and questions. To begin with, it is commonly said by The Pretexter's opponents that what is at stake is whether our own men, when captured in this or future wars, will be tortured because we torture people. The pretexters generally don't respond to this, except to say that terrorists are in a different position when captured. Well, I would never belittle the views of the pretexters' opponents, many of whom are or were military people, the very kind of people who could in fact be tortured by others if the pretexters get their way -- while the pretexters often have no combat experience or even military experience whatever, or even were draft dodgers, like the Vice Pretexter. It also remains, true, however, that one conceivably can doubt whether the treatment given Americans captured by terrorists, or captured by certain of the nations the pretexters seem eager to fight if they can get away with it (e.g., Iran, Syria), will turn on whether we engage in torture. One cannot be sure about this, but one can have doubts.

This reinforces the idea that there is something else equally (or in are way even more) at stake here. What is at stake here is morality. Decent people in this country -- in its civilian body, in its military, in its law enforcement agencies, recoil in moral horror at torture: at waterboarding, at beating people mercilessly. The spirit of this morality was caught beautifully by Herbert on Monday when he said, "Torture? Secret prisons? Capital trials in which key evidence is kept from the accused? That's the stuff of Kafka, not Madison and Jefferson". Of course, we have a lot of people who are not decent, who are not moral, people who often are called red state savages here (regardless of where they live) and who favor the torture, the secret prisons, the capital punishment without defendants seeing the evidence against them. I reiterate: What is at stake in the current battle over what Bush wants is morality. It is, one notes, an already "accomplished" (by The Pretexter and Co.) lack of morality, and threatened future lack of morality that gives rise to the increasing hatred which people of the world feel for us already and will feel even more strongly if The Pretexter's pretexting views prevail (because of a pretexting Congress that has no guts and often no morality). Morality is the fundamental point here.

Then there is the question of the possible trials themselves, a question arising regardless of whether or not Bush gets his bill enacted. If evidence obtained by coercion and torture is inadmissible, evidence of the specific tortures used against specific individuals is likely to be offered to prove torture and inadmissibility. Such evidence will be introduced at trials, and will become public, thus revealing immoral acts and furthering demands for investigations of the chain of command all the way up to the Pretexter-In-Chief, exactly the kind of investigations which are the very thing that Herbert correctly implies Bush is fearful of.

Even if evidence obtained by torture is not ipso facto inadmissible, but instead is admissible if reliable, there will still be evidence of the torture itself because the defendants will argue that evidence of the torture will show unreliability and inadmissibility of the evidence against them. Unreliability of evidence secured by torture has already proven to be the case with at least one detainee who was thought (mistakenly, one gathers) to be a high ranking Al Qaeda type. So, once again, evidence of the torture is going to come out and there are going to be calls for investigations of the chain of command all the way up to the Pretexter-In-Chief.

Maybe the Pretexter-in-Chief will try to avoid all this by closing the trials to the press and public, by having secret trials before military tribunals. This in itself could raise a furor, with one of the questions which arise being just what is The Pretexter and his henchpeople afraid of. Beyond this, the defendants' lawyers will be speaking with their clients, and from them will learn what happened to them. One can rest assured, I would bet, that what the lawyers learn from their clients will become public sooner or later. Probably sooner rather than later precisely because morality will be at stake, and the kinds of lawyers who will represent the defendants are the kinds of people to whom, thank goodness, morality is very important.

The future trials, however, are not the only reasons why the Pretexter-in-Chief and his henchpeople can find themselves in deep yogurt. If the Democrats win either house of Congress in November, the yogurt could hit the fan. Armed with the subpoena powers of the house they capture, the Democrats may mount aggressive investigations of all the actions of The Pretexter, The Vice Pretexter and their pretexting henchpeople. In connection with torture, and in connection with the Iraqi war, no doubt there are many Democrats -- not to mention a host of the party's supporters -- who would be chomping at the bit, and applying pressure, for this to be done.

Nor is this all. Hundreds of detainees have now been released, and their stories are slowly finding their way into the media here and in other countries. This will likely increase, so that, in this way too, ever more will become known about what was wrought by the Pretexter-In-Chief and his henchpeople.

Then, too, there is the question of prosecutions abroad, perhaps even mounted in absentia if this is necessary because the defendants won't show up and won't be forcibly extradited by the United States because of its immorality. A lot of what has been ordered, desired, or done by Bush and company, and by CIA and military people acting under their aegis, is illegal under international law and sometimes, one gathers, under the domestic laws of the countries in which the acts were committed (e.g., snatching someone off the streets of a foreign country for rendition). Foreign countries have jurisdiction over these criminal violations of international law and their own domestic laws. (Italy has thus issued an arrest warrant for CIA officers who kidnapped a Muslim there.) They can bring prosecutions against American violators. If necessary, they could, as indicated, try the culprits in absentia, as has been done under international law when necessary and desirable.

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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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