Thinking About John Yoo, David Addington, and Jay Bybee in Light of the 2014 Senate Report on Torture
By Mary W Maxwell, PhD, LLB
In connection with the (terribly overdue) Senate Report on Torture, released on December 9, 2014, Vermont Senator Bernie Sanders said:
“A great nation must be prepared to acknowledge its errors. This report details an ugly chapter in American history during which our leaders and the intelligence community dishonored our nation’s proud traditions. … The United States must not engage in torture. If we do, in an increasingly brutal world we lose our moral standing to condemn other nations or groups that engage in uncivilized behavior.”
Mother of God, is that all he can say? What if Bernie’s son had got caught shoplifting last week? The cops would have yelled “You are under arrest,” and off the boy would go, with Dad fully understanding that he who breaks the law gets arrested, right? The Dad wouldn’t say “A great boy must be prepared to acknowledge his errors,” as if that were to be the penalty.
Let’s see if the same holds when the crime is torture rather that shoplifting. It’s as easy as pie to look up the law. Just go to a Google-type search engine and type the words “torture, law.” You can add “USC” to get the United States Code’s exact wording. Here is what I got, in no time flat:
18 USC 2340A:
(a) Offense -- Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and IF DEATH RESULTS TO ANY PERSON FROM CONDUCT PROHIBITED BY THIS SUBSECTION, SHALL BE PUNISHED BY DEATH or imprisoned for any term of years or for life. [Emphasis added]
(b) Jurisdiction -- There is jurisdiction over the activity prohibited in subsection (a) if --
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
Pretty easy to read, eh? Definitely not confusing. I don’t know if Senator Bernie Sanders is a lawyer and I can’t be bothered to look it up because it doesn’t matter. As a member of the United States legislature, he is a LAW MAKER. He must know at least the basic minimum about law, which is that it must be enforced. “Whoever commits [blah blah…] shall be fined or imprisoned.” The key word there is “shall.”
Mind you, I am not saying Bernie has to enforce the law. The Executive has that job. (Constitution Article II, section 3, “He shall take Care that the Laws be faithfully executed.”) But, of course, any time the Congress finds the Executive not doing its job, it can knock on the door of the White House (or just send an email, or whatever) to say “Do your job or we will have the House of Representatives impeach you.” (Note: Some Americans have come to think that the president is above the legislature. No way, Jose, as clearly stated in the Constitution, Article I, sections 2 and 3.)
“But They Were Only Arabs and Enemies”
Some readers may suspect that I’ve missed a big point here – that American law only aims to protect the citizenry at home. Actually, that’s not correct. Also, please note that even if the law against torture were aimed only domestically, it’s still not being enforced: there’s mucho torture in state prisons and private prisons, and prisons so private that we aren’t even aware of their existence. Need I remind anyone of the torture of MK-Ultra performed on American children, for which no Dr Strangelove, or senator, or electroshock technician, has ever done time?
Now, however, we are concentrating on the new Senate Report regarding the torture that was performed on our (alleged) enemies abroad. We really do need to address the fact that to have any laws that curtail a nation’s violence against ‘the enemy’ is fundamentally peculiar. I personally do not think the Geneva Conventions should exist. They are difficult to enforce.
It is a general principle of law that if a bad behavior can’t be caught or weeded out (masturbation is an example), then it would be wrong to legislate against it. It would undermine law. The having of Geneva-Convention-type restrictions on the books causes scandal, as these laws are never applied. (Or if they are, look for some special political circumstance.)
Professor Alfred P Rubin wrote the definitive book in 1997: “Ethics and Authority in International Law,” arguing that there is not, and has never been, any international law. (Law of empire, sure, but not a law in which equal sovereign states let an outsider push people into ‘good behavior.’)
Perhaps some readers think that the 2002 law that set up an international criminal court, the ICC, refutes Rubin’s thesis. No. If you read the particulars, for instance that taking a political leader to the ICC needs first the approval of the UN Security Council, you’ll see that the ICC is empire law. Recall that one of the ICC’s accused, Milosevic of Serbia, had to be suicided? It looked like he was going to jeopardize the rule about not bringing evidence against the Big Powers.
Best Not To Misreport Human Nature
Back to my statement that we should not have Geneva Conventions. It’s not just that they give scandal, it’s that they positively enable cruelty. Civilized people think that because a soldier is prevented from doing certain things (attacking unarmed civilians, vandalizing a cultural monument, etc.) that the world’s people are protected. See? One can sleep easier at night knowing that there is a law in place. BUT THAT LAW IS A JOKE.
Probably such a soporific effect was the real purpose for the writing of the Geneva Conventions of 1929 and their predecessor, the Hague Conventions of 1899. If you knew who sat around the table drafting those conventions, you’d almost surely think it has to have been a trick.
I claim it would be wise for all of us, denizens of an ever-shrinking planet, to acknowledge that we evolved to conquer neighboring groups, ‘rivals,’ at the drop of a hat, and that such attempts at conquest have typically had a no-holds-barred quality. Come on, why should we play at believing in a gentleness that has never existed?
Get ’Em
So what do I want? A rescinding of the current domestic law against the torturing of overseas prisoners and suspects? Hell, no. At home I want ENFORCEMENT of law, no matter how ‘protected’ the miscreants usually be, in fact especially for the protected ones! In my opinion, the new Senate Report means it’s tum-de-tum-tum time for anyone who broke the anti-torture law mentioned above (18 USC 2340A).
The suspects would include John Yoo, who is a professor of law at Berkeley, David Addington (whose house was once burned down by lightning, suggesting to me that he was told to cooperate or else, poor thing), and Judge Jay Bybee, who put his John Hancock on the 2002 “Torture memo” drafted by someone else. By the way, Yoo worked his intellectual magic by pretending that the Constitution granted heretofore undiscovered powers to the president.
I hear you say that those guys can’t be charged with torturing, as they did not personally commit that crime? Oops, I forget to quote a further section of 18 USC 2340. It reads:
“(c) Conspiracy -- A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death), as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.”
So, just to clarify: John can get 20 years, David can plead diminished responsibility (I’d defend you, David!), and Jay’s Mom can say “Jay, you should have thought of that before.”
I heart law!
-- Mary W Maxwell is a graduate of Adelaide Law School. Please see her Youtube channel: Mary W Maxwell, and her article on torture-protestors Alyssa Peterson and Charlie Gittings, at gumshoenews.com. She wishes you would distribute her material left, right, and center.
1 comment:
Speaking of torture, the practice by the "Justice" Dept. and U.S. Marshal's "Service" of hauling prisoners around the United States highway system in buses and vans, commonly known as "Diesel Therapy" amounts to torture the same as other forms of mistreatment. Irwin Schiff, a gentle man in his 70's was hauled around in an unheated bus, in the wintertime, until his toes froze, and later had to be amputated. Is this not torture? Irwin's crime? Asking the IRS to provide the law that requires Americans to pay tax on their labor. No such law has ever been provided.
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