opinion

An end to innocence
by Nicholas M. Jackson

I won my bet with my brother. He owes me dinner. I bet that President George W. Bush would not issue pardons to anyone from his administration for torture or war crimes. My brother bet Bush would issue at least one such pardon. Now that Barack Obama has been sworn in as our new president, I notice no torture or war crime pardons have been issued.

This means it will be possible under US federal law to prosecute a host of former top Bush officials for torture conspiracy. The torture conspiracy subsection is found at 18 USC 2340A(c). It provides life sentences for those convicted as torture conspirators. This is considerably more severe than the five-year prison sentence available under the general conspiracy statute found at 18 USC 371.

In case one is wondering what constitutes torture under US federal law, the definition is found at 18 USC 2340(1): "an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control." Notice the part about mental pain and suffering? The tortured person doesn't need a mark on his body to have been tortured.

And what does that phrase mean, "acting under the color of law?" It means the criminal statute specifically singles out as criminals those who claim legal authority to torture. It especially applies when such legal authority is claimed by virtue of high government status, from authorization by high government officials, or through reliance upon authoritative appearing legal opinions written by well-educated legal scholars.

The Renaissance English poet and Anglican clergyman, John Donne, delivered an Easter sermon against torture way back in 1625. Donne stated, "Transgressors that put God's organ out of tune, that discompose and tear the body of man with violence, are those inhuman persecutors who with racks and tortures and prisons and fires and exquisite inquisitions throw down the bodies of the true God's servants to the idolatrous worship of their imaginary gods, that torture men into Hell and carry them through the inquisition into damnation."

Does anyone propose that John Donne was some kind of religious heretic? Only a "scholar" with the hypocrisy of the anciently-condemned Pharisees would search the scriptures looking for loopholes giving Biblical support for torture.

Because George W. Bush is a Republican politician some of his supporters also assert that all the ballyhoo against torture is merely "leftist propaganda." Interesting spin. Maybe they think Karl Marx and Vladimir Ilyich Lenin had some sort of time machine for traveling back a couple of centuries to give leftist "inspiration" to John Donne.

President Bush and his top officials generated numerous signed documents stating their intentions and giving near perfect evidence of their roles in the torture conspiracy. Most conspirators don't leave written records for prosecutors to find. And, as George W. Bush and Dick Cheney have so recently done, most conspirators don't give television interviews amounting to confessions to torture conspiracy.

According to US government documents, about two dozen "detainees" died during or shortly after interrogation --- beaten to death --- smothered --- subjected to freezing temperatures. This certainly surpasses the mental suffering element of the torture statute and even meets the "organ failure" redefinition for torture given in the infamous Bybee/Yoo torture memo of August 1, 2002. Once it starts, torture is a malignant burrower.

Torture doesn't hurt democratic forms of government "just a little." It extinguishes democracy altogether because it negates truth at every nexus that counts. Democratic societies must have transparency and truth to work. It really does not matter if you have the right to vote when you cannot know the truth and cannot make any semblance of an informed choice.

Tortured confessions are not "facts" useful for the courts and tortured witnesses are not trustworthy witnesses. Yet the whole reason for having witnesses in the various fora of democratic societies is to build trust and voluntary consensus. We use witnesses to find the truth and to convince others that the search for truth is based in reality.

A suspect who fears he might be tortured often will not need to be tortured. He may say what an interrogator wants to hear just to avoid the interrogator's hints at torture. Torture becomes "good cop/bad cop" on steroids. Sometimes tortured and broken dissidents can be sent home their families and friends as warnings to others who might think about getting out of line. Torture is one of the most toxic poisons known to civilization --- a little goes a long way.

In recent years we had members of Congress, ranking Democrats on key committees, who didn't speak out against torture because they feared their patriotism would be questioned. They weren't personally threatened with torture. What further proof do we need that torture brings a "chilling effect" to public discourse? Torture and its progeny are practically unspeakable in their association with fear.

The Speaker of the House told us in early 2007 that impeachment was "off the table" when evidence was clear that our President was a war criminal. Supposedly, Nancy Pelosi believed Congress had more important work to do than to be distracted by impeachment hearings. One might ask Pelosi if her more important business included saving the US economy. Are we going to be "conned" once again with the notion that there is too much important legislative work to be done for the government to be distracted with torture investigations and trials?

President Bush and Vice President Cheney have attempted to expand presidential power and have led us through the gateway to tyranny along the way. They apparently felt the United States was at risk of slipping from superpower status. They feared the status quo, at home and abroad, could not be maintained without some kind of new American Caesar enforcing a Pax Americana across the planet. More probably, their crackpot view of the world leads to the likes of Rome's Nero and Caligula.

George W. Bush told the world during a September 6, 2006 press briefing that the interrogation procedures we now know as torture were "tough, and they were safe, and lawful, and necessary." Isn't it possible that some policeman will take the former President of the United States at his word and decide torture is OK after all? Just as long as he keeps quiet about how he "tuned up" his suspect before he extracts a confession? How many policemen will take George W. Bush at his word?

Bush and Cheney are defiant to this day about what they did with their detainees. They insist that their decisions on this issue were good for America. They do not say, "well, we went too far and would do something different in light of what we know today." They claim Barack Obama might want to think twice before summarily rejecting the bulk of their detention and interrogation programs. Actually, they want future presidents to have torture as part of their governing toolkit. They want what they did to be a standing precedent.

If we are too afraid to bring the torture policy makers to justice under US law, Bush's torture policies will be sitting on some shelf waiting to be used by a future president. It's simply not good enough to be thankful that the next president promises not to choose torture. Will he keep his promise? What about the presidents after him?