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Today's
Stories
September 14,
2004
Jennifer van
Bergen
What's
Wrong with Torture?
September 13,
2004
Gabriel Kolko
Elections,
Alliances and the American Empire
Phillip Cryan
How Do You Say "Death Squad?": Language in Colombia's
War
Patrick Cockburn
One of Baghdad's Bloodiest Days: "I'm a Journalist! I'm
Dying! I'm Dying"
Noah Leavitt
The War on Civil Liberties
Robert Jensen
Highjacking Catastrophe: Bush, the Neo-Cons and 9/11
Mike Whitney
Alan Greenspan: Fed-Master to the Wealthy
John Chuckman
Stop Talking About the "Election"
Mike Burke
Kerry/Edwards Website Censors Discussion of Israel/Palestine
Issues
CounterPunch
Wire
The Quotations of David Cobb: "I Don't Care How Many Votes
I Get"
Website of the Day
Keep It In Your Pants: the Bush Plan to Combat Teen Promiscuity
September 11
/ 12, 2004
Alexander Cockburn
Swatting
at Flies
Fred Gardner
Yet Another Prozac Scandal
Saul Landau
When Our Assassins Go Free
Jennifer Van Bergen
How to Beat Bush: a Simple Strategy for the Average American
Roger Burbach
/ Jim Tarbell
The Real Dead Enders: Iraq and the Crisis of Empire
Christopher Reed
9/11 in an Historical Context: a Minor Event When Compared to
Worldwide War Casualties
Francisc Catalin
An ABC of American Interventions
Carl Estabrook
Big Science and Government Terror
Bernard Chazelle
Anti-Americanism: a Clinical Study
Sharon Smith
Third Party Blues
Dave Lindorff
Perhaps This Time We're the Silent Majority
Mike Whitney
Fallujah: an Iraqi Beslan?
Frederick B.
Hudson
Their Sons Perished in the Flames, But Not Their Faith
Mickey Z.
Round Up the Usual Suspects: a Look Back at 9/11
Ron Jacobs
Redneck Music for the New Century
Greg Moses
Soap Opera Moments in Texas School Funding Trial
Benjamin Dangl
/ Andrew Kennis
An Interview with Leslie Cagan
Poets Basement
Del Papa, Albert, Gelman
September 10,
2004
Patrick Cockburn
Disappointment
at Samarrah?
Michael Donnelly
Democrats v. Democracy
Alan Farago
Mosquitoes in a Hurricane
Doug Giebel
Karl Rove's Terror Playbook
Mike Whitney
Bob Graham's Political Tsunami
David Domke
God's
Will, According to the Bush Administration
September 9,
2004
Joe Bageant
Karaoke
Night in Bush's America
Ed Kinane
Abducted in Baghdad
Peter Bohmer
The Cuban Revolution: Present and Future
Todd May
The Emerging Case for a Single-State Solution
Jeremy Scahill
The New York Model: Indymedia and the Text Message Jihad
Joshua Frank
Green House Party Gasses
Fran Shor
The Crisis in Public Dissent: When Protest is Considered a Terrorist
Act
Patrick Cockburn
Welcome
to the Dirtiest City in the World: Despair in Baghdad
Website of
the Day
Liberty Street Protest: No to War at Ground Zero
September 8,
2004
Patrick Cockburn
This
Doesn't Smell Like Victory: A War on Two Fronts in Iraq
Dave Lindorff
Bush Confuses; Kerry Mute: Spinning 1000 Dead
Bulent Gokay
Russian and Chechnia After Beslan
Lisa Viscidi
Land Reform and Conflict in Guatemala
Niranjan Ramakrishnan
Byrd's Eye View
Mike Whitney
Afghanistan: American's Drug Colony
Stan Goff
Body
Count: 1001
Website of
the Day
Bush and the Love Doctors
Sex,
Drugs & the Blues!
Serpents in the Garden
CounterPunch's
Sizzling New Book on Culture and Sex is Now Available
Click here to purchase
September 7,
2004
Diane Christian
Hostage Tactics: a Game of Mortal Poker
Joshua Frank
Greens
Unravel from Within
Patrick Cockburn
Fallujah
Erupts Again: US Death Toll in Iraq Nears 1000
Ron Jacobs
Bush and Putin: "We're Not Girlie Men"
Chris Floyd
Cry Havoc: Bush's Own Personal Janjaweed
Dr. Carol Wolman
No Blood for Oil at Paul Bunyan Day Parade
John Ross
The
Politics of Darkness North / South
September 6,
2004
Alexander Cockburn
An
Anti-Labor Day That Lives in Infamy: How Many Democrats Voted
For Taft-Hartley?
Ralph Nader
The
Cruel Legacy of Taft-Hartley: a Labor Day Call for Rights for
Working People
Lee Sustar
What's Driving the Attack on Pensions?
Kathleen and
Bill Christison
Dual
Loyalties: the Bush Necons and Israel
September 4-5,
2004
Alexander Cockburn
Elephants
and Gramsci
Ted Honderich
The
Way Things Are
Sasan Fayazmanesh
The
Holy Empire: Who We Are and What We Do
Douglas Valentine
What the World Should Know About Guantanamo
Patrick Cockburn
New Iraqi Police State Flexes Its Muscles
Gary Leupp
Neo Cons Under Fire
Fred Gardner
Pot Shots: the Hempstead T-Shirt
William A.
Cook
The
Day of the Lemming
Dave Zirin
Kobe Bryant and the Price of Freedom
John Chuckman
The Day the World Ended
Karyn Strickler
God Save the Endangered Species Act
Vanessa Jones
Bad Day with an Ikea Cup
Mike Whitney
Kerry: the "Better" War Candidate
Mark Donham
Dear John (Kerry): Start Explaining and Fast
Mickey Z.
McBypass Nation: Feeling Clinton's Pain
Alan Farago
Can the Everglades be Fixed?
Poets' Basement
Landau and Albert
September 3,
2004
Jeffrey St.
Clair
High
Plains Grifter: Jesus Told Him Where to Bomb
Rahul Mahajan
Bush's RNC Speech: an Annotated Response
Carl Estabrook
The
Book of Slaughter and Forgetting
Joshua Frank
The Florida of the Northwest: Oregon Dems Sabotage Nader Again
Gary Leupp
Music to My Ears: Sunday's March
James Hollander
Deja Vu in Manhattan: Assisted Political Suicide?
Mark Engler
Republicans
Among Us: a Week at the RNC, Inside and Out
Jesse Sharkey
Making Students and Teachers Pay for the Crisis in Education
Jane Stillwater
Calling the Cops on Your Own Kid
Stephen Green
Serving
Two Flags: the Bush Neo-Cons and Israel
September 2,
2004
Jeffrey St.
Clair
High
Plains Grifter: Part 3: More Pricks Than Kicks
Max Gimble
Et Tu, Menchu? Extrajudicial Killings and Clandestine Graves
in Guatemala
James Petras
President Chavez and the Referendum: Myths and Realities
Christopher
Brauchli
Bush and the Afghan Electoral Model: "If They Want to Vote
Twice, Let Them"
Todd Chretien & Jessie
Muldoon
Will the Democrats Expel Zell Miller?
Jack Random
Spite and Venom Day: the Turncoat and the Profiteer
Alan Maass
The Real Vietnam
Christa Allen
Contre Bush
Website of
the Day
[Redacted]
September 1,
2004
Alexander Cockburn
The
Stench of Doom
Kathleen and Bill Christison
Poor Larry Franklin
Dave Lindorff
Kerry's Litmus Test
Josh Frank
Protest in White: Not All of New York Rises Up
John L. Hess
Moles, Scoops and Flip Flops
Mike Whitney
Deconstructing Arnold
Jack Random
Kindergarten Night at the RNC
Andrew Wilson
War on the Pachyderms: Why Do Elephants Hate Us?
Jeffrey St.
Clair
High
Plains Grifter: Part Two: Mark His Words
August 31,
2004
Joseph Nevins
Escapism
and Global Apartheid: The Dominican Republic & the NYTs
Matt Vidal
Beyond
Bush's Rhetoric on the Economy
Neve Gordon
Kerry and the Middle East
Dave Lindorff
Bush
the Peace Candidate?
Mike Whitney
NPR Leads the Charge for War Against Iran
Jack Random
Opening Night: Playing the War Card
Jeffrey St.
Clair
High
Plains Grifter: the Life and Crimes of George W. Bush (Part One)
CounterPunch Photo of the Day
Pete Seeger in NYC
August 30,
2004
Justin Podhur
The
Disappeared Mayor
Shaun Joseph
The
Hypocrites at TheNaderbasher.com
Mike Whitney
Israeli Moles in the Pentagon: What More Could They Possibly
Want?
Ron Jacobs
Live, From New York: the Majority of Protesters Claimed No Candidate
David Lindorff
Sunday in Manhattan: the Sound of Marchin', Chargin' Feet, Boy
Dave Zirin
USA Basketball: The Team White America Loved to Hate
Sam Husseini
Israeli Spying on the US: a Long History
August 28 /
29, 2004
Alexander Cockburn
Zombies
for Kerry
Patrick Cockburn
Najaf Ceasefire Good for Iraq, But Weakens Allawi and US
Ray McGovern
Blowing Smoke on Intelligence
Dr. Juan Romagoza
From El Salvador to Abu Ghraib: Reflections of Torture Survivor
Ray Hanania
An Israeli Spy in the Pentagon? Ridiculous!
Fred Gardner
Eddie Lepp Busted by DEA: Facing Life for Growing Medical Pot
Diane Christian
Big Men: the Better Leader Lets You Live
William S. Lind
The Desert Fox
Paul D'Amato
The Left Takes a Dive for Kerry
Joshua Frank
Greens at the Crossroads
Mickey Z.
Media Declares War on Anti-War Protests
Winslow T. Wheeler
Sen. McCain's Pork Chops: an Exchange
Justin E.H.
Smith
The New Age Racket and the Left
Thomas St. John
Burning Slaves at the Stake: On "Sinners in the Hands of
an Angry God"
Ali Tonak
Help the NYPD?
Mark Engler
New York Says "No"
Justin Felux
Haiti: the Attica of the Americas
Poets' Basement
Gelman, Albert, Ford and Hamod
August 27,
2004
Gary Leupp
Neocon
Musings
Robin Cook
The
Ghosts of Abu Ghraib
Diane Christian
Disarming
Michael Donnelly
Situational Democracy: the Show Me the Green Party?
Jack Random
4F and Other Heroes: an Army of War Resisters
Mike Ferner
"To the Swift Boats!"
Mazin Qumsiyeh
7000 Palestinian Political Prisoners
Veronza Bowers, Jr.
"You Won't Be Leaving Tomorrow"
August 26,
2004
M. Shahid Alam
The
Clash Thesis: a Failing Ideology?
Diane Christian
War
Rules: Bush is No Sun Tzu
Derek Seidman
"They're As Bad As Wal-Mart:" Starbucks Workers Get
Organized
David Lindorff
Court to RNC Protesters: Drop the Rally
Christopher
Brauchli
Signs of Dissent: the Bush in the Bubble
Stew Albert
Reporting Suspicious Activity
Mark Donham
Judgement in Athens: Give the Koreans Their Day in Court
Saul Landau
Pinochet:
the Al Capone of the Southern Cone
Website of
the Day
The Kerry 527 Ad You'll Never See
August 25,
2004
Amelia Peltz
Can
I Have 9.8 Seconds of Your Time?
Noah Leavitt
Defining and Redefining Torture
Ron Jacobs
Takin' It to the Streets: It's Not About the Election, It's About
Democracy
James Brooks
Coronado Crosses the Jordan
Akiva Eldar
How to Win the Jewish Vote: Turn Gaza into a "Mini-Afghanistan"
Gemma Araneta
Chavez's New Brand of Populism
Philip Cryan
Uribe's Boys: the Death Squads of Colombia
CounterPunch Wire
Cheney Opens the Closet Door
August 24,
2004
Jeremy Scahill
John
Kerry: the Warchurian Candidate
Gary Leupp
"We
Want Them to Go Away"
David Domke
God
Willing: an Echoing Press and Political Fundamentalism
William Loren Katz
The Meaning of Hugo Chávez: Black and Indian Power in
Venezuela
Jonah Gindin
With Chavez? Reading the International Private Media
Fran Schor
Denying Atrocities: From Vietnam to Fallujah
Joe Bageant
Driving
on the Bones of God
Website of the Day
The Great America Lockdown: a Primer for the RNC
August 23,
2004
Winslow Wheeler
Don't
Mind If I Do: Porkbarrel and the War on Terror
John Pilger
Bush
May Be the Lesser Evil
Stan Goff
Swift
Boat Dogfight
Bill and Kathleen
Christison
Notes
from the West Bank: Build, Demolish, Rebuild
Mike Whitney
The Unraveling of Afghanistan
William Blum
Brave
New World of Iraqi Sovereignty
Ralph Nader
A Letter to the Washington Post: a Shameful and Unsavory Editorial
August 21 /
22, 2004
Cockburn /
St. Clair
"They
Want Blood:" The Bi-Partisan Origins of the Total War on
Drugs
Landau / Hassen
Failing
the Mission? Form a Commission
Brian Cloughley
The
Bush Team in Iraq: Moral Cowardice, as Practiced by Experts
Josh Frank
Nader as David Duke? The ADL Wants You to Think So
Mike Whitney
Reincarnating Mengele: the Torture Doctors of Abu Ghraib
Ron Jacobs
Day Labor Blues
Mickey Z.
Shooting at Whales: 40 Years After Tonkin
Fred Gardner
Dr. Wolman Comes Out: The Cannabis Consultants
Dave Zirin
Uprising in Athens: Iraqi Soccer Team Gives Bush the Boot
Josh Saxe
Witnessing Police Brutality in LA
Yanar Mohammed
Letter from Baghdad: a Democracy of Killings and Bombings
Helen Williams
Ali's Story: a Taste of Reality from Baghdad
Michael Donnelly
Elemental and NaturalForests, Fire and Recovery
Elizabeth Schulte
The Crisis in Affordable Housing
Poets' Basement
Adler, Albert, Virgil, Ford and Krieger
Hot Stories
Alexander Cockburn
Behold,
the Head of a Neo-Con!
Subcomandante
Marcos
The
Death Train of the WTO
Norman Finkelstein
Hitchens
as Model Apostate
Steve Niva
Israel's
Assassination Policy: the Trigger for Suicide Bombings?
Dardagan,
Slobodo and Williams
CounterPunch Exclusive:
20,000 Wounded Iraqi Civilians
Steve
J.B.
Prison Bitch
Sheldon
Rampton and John Stauber
True Lies: the Use of Propaganda
in the Iraq War
Wendell
Berry
Small Destructions Add Up
CounterPunch
Wire
WMD: Who Said What When
Cindy
Corrie
A Mother's Day Talk: the Daughter
I Can't Hear From
Gore Vidal
The
Erosion of the American Dream
Francis Boyle
Impeach
Bush: A Draft Resolution
Click
Here for More Stories.
|
September 14,
2004
If Sabotage
& Assassination are Okay...
What's
Wrong with Torture?
By
JENNIFER VAN BERGEN
Is torture wrong? What does the Bush
administration think? One way to analyze this is to trace ideas
wrought by post-9/11 conservative analysts whose views mirror
and expand upon those in the administration. An interesting and
valuable collection of such analyses is found in a special Spring
2002 issue of "Orbis: A Journal of World Affairs,"
titled "The New Protracted Conflict."[1]
Sam C. Sarkesian, Professor Emeritus of political science at
Loyola University, Chicago, author of numerous publications on
national security and a retired lieutenant colonel of the U.S.
Army, wrote an article in this special issue in which he endorsed
the use of a "culture" of special forces.[2] These
forces, he noted, are indoctrinated in carrying out "unconventional
warfare," which he defines as "following Sun Tzu's
notions" of "sabotage, terror, and assassination."
The special forces, according to Sarkesian, utilize "the
notion that the center of gravity is the political-social milieu
of the adversary." To combine these two statements and what
you get is: special forces carry out acts that - in language
that the PATRIOT Act uses to define terrorism "appear
to be intended to intimidate or coerce a civilian population,
to influence the policy of a government by intimidation or coercion,
or to affect the conduct of a government by mass destruction,
assassination, or kidnapping."[3] Terrorism by any other
name is still terrorism.
Sarkesian claims that "[v]eterans of the early Special Forces
era cherish their hard-won legacy and culture of the 'old' era,
a culture many believe must endure if the Special Forces are
to be successful in their primary mission of unconventional warfare."
He continues with a description of these men, quoting from Charles
Simpson's 1983 book, "Inside the Green Berets: The First
Thirty Years" -- "They are a grizzled, likeable, fantastically
experienced bunch of tough old bastards who do not apologize
to anyone for the wars they have fought and the things they have
had to do."
Sarkesian also echoes the belief that the "strategic dimension
of the U.S. effort beginning in September 2001 was termed a 'new
kind of war,'" which he uses to justify the use of "unconventional
warfare." Since World War II, Special Forces are "taught
how to set up clandestine communications, avoid contact with
regular enemy unit, combine with the local civilian populace,
and engage in night parachute operations."
Sarkesian sets forth five "critical characteristics of unconventional
warfare." They are asymmetrical, ambiguous, unconventional,
protracted, and involve "strategic cultures." Asymmetrical
means that "the doctrine and tactics employed by those engaged
in unconventional warfare avoids challenging conventional military
systems conventionally." Ambiguous means that "the
battle arena is not necessarily defined in conventional terms
or with regard to a specific territory." Unconventional
conflicts "require tactics that aim at  disrupting the adversary in its weakest
dimensions." This is where Sarkesian mentions "sabotage,
terror, and assassination." He adds that the organizational
structure and tactics "are fluid flexible and adopted
to local conditions in which operations occur." Protracted
means, of course, over an extended period of time. As to "strategic
culture," Sarkesian notes that it "differs sharply
from the usual 'American way of war.'" Instead, "the
strategic culture of those waging unconventional warfare must
allow for moral ambiguity, shifting definitions of friend and
foe . . . and objectives that change constantly with the play
of politics."[4]
Sarkesian's approach -- the unconventional warfare approach,
the Special Forces approach -- is, as he says, morally ambiguous.
It is also morally troubling. His approach helps set the stage
for human rights and international law violations. His article
comes pretty close, without saying so, to being a blanket endorsement
of torture. If sabotage, terror, and assassination are okay for
us to do to our enemies, torture can hardly be questioned.
A better, less morally troubling approach is that of Bruce Berkowitz,
a contributing editor of Orbis journal and a Research Fellow
at the Hoover Institution, who also contibuted to the same issue
of Orbis as did Sarkesian. Berkowitz writes:
"The executive branch
needs a White House-level mechanism that decides whether the
United States will take a law enforcement approach to a terrorist
threat or an intelligence/law enforcement approach. Current policy
assumes that the two approaches can be blended. They usually
cannot (although both communities should be able to assist each
other). Either the rule of law prevails in an environment, or
it does not in which case we need to turn to the rules
of war . . . If it appears that other countries will not be cooperative
intentionally or not the president should decide
to shut down the law enforcement option and proceed with military
action supported by intelligence."[5]
What is important about this
view is that, although Berkowitz appears to be proposing almost
the same thing as Sarkesian, e.g., a military solution, Berkowitz
specifically recognizes "the rules of war." Sarkesian
suggests that we should play by the rules of unconventional warfare,
but makes no mention of the law of war, which is that body of
international law (including the Geneva Conventions) that has
been developed to ensure that even during hostilities between
nations each party act within a baseline level of conduct towards
each other.
Berkowitz's distinction, however, is lost on another Orbis contributor,
Michael Radu, who is a contributing editor, as well, a Senior
Fellow at the Foreign Policy Research Institute, and Director
of its Center for the Study of Terrorism and Political Violence.
Radu's view is that "Western Europeans believe that the
Geneva Conventions regulating conflicts between states continue
to govern even in the new age of global terrorism."[6] In
other words, Radu believes that, despite what Europeans think,
the Geneva Conventions do not govern, but rather should be chucked.
Radu's approach, like Sarkesian's, resembles that of the Bush
Administration. Human Rights Watch says that the Administration
"seemingly determined that winning the war on terror required
that the United States circumvent international law" and
"effectively sought to re-write the Geneva Conventions of
1949 to eviscerate many of their most important protections."[7]
In 1945, it seems, the United States knew better. Provost Marshal
General of the United States Army, Maj. Gen. Archer Lerch wrote:
"The Geneva Convention, I might emphasize is law. Until
that law is changed by competent authority, the War Department
is bound to follow it."[8]
Radu's views reflect biases similar to those of Bush and his
cabinet. Radu declares that the "terrorists exploit all
the tolerant, human rights-oriented laws of Europe, and to a
lesser extent the United States, to infiltrate, recruit, and
raise funds in the West, whose culture they openly seek to destroy."
He even remarks that "proliferation of human rights organizations
seeking to make war between states impossible and to impose minimal
standards on justice also aids and abets terrorism."[9]
This is an astonishing reversal of morals.
To Radu, the current definition of terrorism which has raised
such a furor among civil libertarians "is obvious and simple,"
and that "[w]hile this is perhaps not sufficiently obscure
for those academics (international law experts in particular)
who thrive on complicating the simple, it is perfectly adequate."[10]
However, Radu ignores concerns such as those raised by Deputy
Director of the Americas Division of Human Rights Watch, Joanne
Mariner, who notes that "the decision to classify a given
group as 'terrorist' is far from a mechanical one: it involves
political calculations as well as a factual assessment of a group's
actions," and "the designation process is extremely
vulnerable to political manipulation."[11]
Perhaps most biased and revealing of all Radu's remarks, however,
is his view that:
When not openly applauding
the September 11 attacks, the European Left "explained"
them by blaming the United States' policies and opposing any
U.S. counterattack, in the name of peace, innocent Afghan civilians,
or the need to seek the "root causes" of Osama bin
Laden's Islamic fanaticism. In fact, all indications suggest
that the "root causes" of terrorism are to be found
in the dysfunctional middle classes of the West as well as of
Muslim countries.[12]
The tone is dripping with a
peculiar pleasure in his disdain and indifference which closely
resembles Bush's tone when he talked about putting persons to
death or making war against Iraq. If the practice of dehumanizing
others makes good soldiers, the remarks of Radu and Bush would
qualify them.
But dehumanizing others is exactly what torture does and it is
exactly what is forbidden by international laws against torture.
Common Article 3 to the Geneva Conventions prohibits "violence
to life and person . . . cruel treatment and torture . . . outrages
upon personal dignity, in particular humiliating and degrading
treatment." Contrary to the Administration's assertions
that Geneva does not apply to many of the prisoners, all persons
are protected by the "fundamental guarantees" of article
75 of Protocol I of 1977 to the Geneva Conventions. Torture or
inhumane treatment of prisoners-of-war or civilians are grave
breaches of Geneva and are war crimes under federal U.S. law
punishable for up to 20 years or the death penalty if torture
resulted in the victim's death.
Even without the Geneva Conventions, the prohibition on torture
is considered a fundamental principle of customary international
law that is binding on all states and the widespread or systematic
practice of torture constitutes a crime againsthumanity.[13]
Another Orbis analyst, University of Pennsylvania Professor of
Law and a Senior Fellow of the Foreign Policy Research Institute,
Jacques deLisle, in The Roles of Law in the Fight Against Terrorism,[14]
compares the "law (criminal justice, or prosecutorial) paradigm"
and the "war paradigm" of fighting terrorism. DeLisle's
essay considers both sides of the issue for both paradigms, resulting
in an interesting, thoughtful, and fairly balanced analysis,
but the odd effect is that every result seems as good or bad
as every other and there is no moral imperative in anything.
DeLisle acknowledges "the corrosive effects on civil liberties"
of "the blurring of legal and military frameworks,"
but adds that the "much of the civil libertarian critique
has been nearly blind to the fact of the war model's powerful
grip and its implications in the context of a fight against terrorism,"
and concludes simply that "[w]ars exact sacrifices of many
sorts, including some temporary surrenders of some civil liberties,"
as if there is no moral or practical difference between a society
with full civil liberty protections and one without.
He notes that after 9/11, during which "the prospective
means for meting out justice evolved," "[s]harp disputes
arose over the legality, morality, and wisdom of U.S. forces
seeking out identified individuals, trial by American military
tribunals, prosecution before a special international court or
criminal proceedings in the civilian judicial organs of the United
States or other states with jurisdiction." adding that the
"emergence of so many divergent means to a relatively clear
end revealed a troubling ambivalence in grappling with the choice
between a war paradigm and a criminal justice paradigm in responding
to a terrorism threat." The troubling ambivalence, however,
seems to arise more from a lack of moral grounding than a rational
difficulty in choosing. This is not a "Sophie's Choice,"
where either course is morally unacceptable, or a "Catch-22,"
where you have to take a course of action to get where you want
to get, but you cannot take that course of action until you are
already there. On the contrary, when deLisle presents readers
with the choice between the law paradigm and the war paradigm,
he is presenting us with a false dilemma. There is, in fact,
no dilemma between going to war and bringing charges. There is
no genuine dilemma between civil liberties concerns and deciding
whether to bring charges or go to war. While deLisle acknowledges
that the "war paradigm" and the "law paradigm"
are not mutually exclusive, he does not recognize (and perhaps
is not aware of) the fact that there are international laws that
apply in situations of international, armed conflict (ie. war).
DeLisle, rather, implies that the value and meaning of the resolution
of this "troubling ambivalence" is no different either
way one chooses, that what is important is simply that one does
choose.
This reasoning is fundamentally flawed and ignores the rock solid
moral bases of international laws. The outcome of deLisle's reasoning
is the erosion and ultimate evisceration of morality. In the
extreme situations in which military intelligence, special forces,
front-line military engagements, or "front line" prison
guards encounter, the laws of war, embodied in the Geneva Conventions,
the International Covenant on Civil and Political Rights, the
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, and the United Nations Charter, provide
for minimum morally acceptable conduct. DeLisle's approach, as
balanced and civilized as it appears, would remove those imperatives.
Which brings us back to how our military came to torture prisoners
at Abu Ghraib. The dilution of moral imperatives and guidelines
is, as a practical matter, an invitation to human rights abuses.
Psychologically speaking, of course, the issue is deeper. DeLisle
notes that "the current enemy made diabolically effective
use of the instruments of the United States' open, liberal, and
liberty-protecting order." But this is what lawyers like
to call a red herring. To the extent that our society is an open,
liberty-protecting one, it neither justifies nor compels human
rights abuses in response to a terrorist attack. It is no doubt
true, as deLisle says, that "the exceptional sense of vulnerability
at home and a shadowy enemy . . . magnify . . . the national
taste [for war] and the force of consequentialist moral arguments
for shifts in law and political practice that produce a stronger
government in general and a stronger executive in particular,"
but, again, neither a sense of vulnerability nor a tendency to
a stronger executive justifies or compels torture. Indeed, many
families who lost members on 9/11 have exhorted Bush not to go
to war, not to bomb, and to adhere to the rule of law.
In October 2003, Mark Bowden, a national correspondent for The
Atlantic Monthly, wrote an in-depth look at The Dark Art of Interrogation.[15]
Bowden endorses what Radu calls "the old Leninist 'dual-track'
approach to the conquest of power: simultaneous use of legal
organizations under the pretext of freedom of speech or religion
and illegal, underground, and violent structures engaged in terrorism."[16]
Bowden writes:
The Bush Administration has
adopted exactly the right posture on the matter. Candor and consistency
are not always public virtues. Torture is a crime against humanity,
but coercion is an issue that is rightly handled with a wink,
or even a touch of hypocrisy; it should be banned but also quietly
practiced. Those who protest coercive methods will exaggerate
their horrors, which is good: it generates a useful climate of
fear. It is wise of the President to reiterate U.S. support for
international agreements banning torture, and it is wise for
American interrogators to employ whatever coercive methods work.
It is also smart not to discuss the matter with anyone.[17]
This appears to be exactly
what the Bush Administration did. "We now know that at the
highest levels of the Pentagon there was a shocking interest
in using torture and a misguided attempt to evade the criminal
consequences of doing so," said Human Rights Watch executive
director Kenneth Roth. But, Roth added, "[i]f [the Pentagon's]
legal advice were accepted, dictators worldwide would be handed
a ready-made excuse to ignore one of the most basic prohibitions
of international human rightslaw."[18]
U.S. officials will answer that they are not encouraging dictators,
they are fighting a "just war" against terrorism, fighting
for democracy. Army General John Abizaid, chief of the U.S. Central
Command that oversees Iraq, is quoted in Time as saying "Our
openness about [the prison abuse] is a lesson about the rule
of law" and Bush, who a few years back joked about how much
easier it would be if he were a dictator, told Arab interviewers:
"A dictator wouldn't be answering questions about this."[19]
I guess we should be relieved.
Notes
[1] Foreign Policy Research
Institute, Orbis: A Journal of World Affairs (The New Protracted
Conflict, vol. 46, No. 2, Spring 2002). ("Orbis, Protracted
Conflict")
[2] Sam C. Sarkesian, The U.S.
Army Special Forces Then and Now, Orbis, Protracted Conflict
247-58. ("Sarkesian, Special Forces")
[3] 18 U.S.C. §2331(5)
(added by USA PATRIOT Act, Section 802) (defining domestic terrorism)
and utilized in 18 U.S.C. §2332b(g)(5) (amended by PATRIOT
Act, Section 808 (listing dozens of predicate offenses for the
federal crime of terrorism)).
[4] Sarkesian, Special Forces,
at 256-57.
[5] Bruce Berkowitz, Intelligence
and the War on Terrorism (Foreign Policy Research Institute)
Orbis: A Journal of World Affairs (The New Protracted Conflict,
vol. 46, No. 2, Spring 2002) 289, 293.
[6] Michael Radu, Terrorism
After the Cold War: Trends and Challenges (Foreign Policy Research
Institute) Orbis: A Journal of World Affairs (The New Protracted
Conflict, vol. 46, No. 2, Spring 2002) 275, 283. ("Radu,
Terrorism")
[7] HRW, Abu Ghraib, at 1.
[8] Maj. Gen. Archer Lerch,
The Army Reports on POWS, The American Mercury, May, 1945, pp.
536-547.
Quoted in a July 5, 2004 post to the American Society of International
Lawyers (ASIL) forum list serve by the Honorable Evan J. Wallach,
US Court of International Trade. Archived at: http://pegc.no-ip.info/.
Of Lerch's comments, Judge Wallach noted: "Although they
address the 1929 Geneva convention, I find them distinctly relevant
to White House Counsel Alberto Gonzales and John Yoo's arguments
about [the] obsolescence [of the 1949 Geneva Conventions]."
[9] Radu, Terrorism, at 283,
287.
[10] Id. at 275-6. Radu states:
"Terrorism is any attack, or threat of attack, against unarmed
targets, intended to influence, change, or divert major political
decisions." This is indeed similar to the definition now
in the U.S. Code (see footnote 10), as amended by the PATRIOT
Act.
[11] Joanne Mariner, The
EU, The FARC, The PKK, and the PFLP: Distinguishing Politics
From Terror, and Joanne Mariner, Make
a List But Check It Twice: Prosecuting Supporters of Terrorist
Groups.
[12] Id. at 285.
[13] See Human Rights Watch,
Summary
of International and U.S. Law Prohibiting Torture and Other Ill-treatment
of Persons in Custody
[14] Jacques deLisle, The Roles
of Law in the Fight Against Terrorism, Orbis, Protracted War,
301-319.
[15] Mark Bowden, The
Dark Art of Interrogation (Atlantic Monthly, October 2003)
[16] Radu, Terrorism, at 284.
[17] Bowden, Interrogation.
[18] Human Rights Watch, Bush
Administration Lawyers Greenlight Torture: Memo Suggests Intent
to Commit War Crimes (June 7, 2004).
[19] Johanna McGeary, The Scandal's
Growing Stain (Time, May 17, 2004) 34. (Preview only available
at http://www.time.com/.)
Jennifer Van Bergen, J.D., is the author of The
Twilight of Democracy: The Bush Plan for America, coming
out September 1, 2004, Common Courage Press. She is one of the
foremost experts on the USA PATRIOT Act and has taught anti-terrorism
law at the New School University. This article is an excerpt
from the book.
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