What Fresh Hell Is This?

April 28, 2009

Shribman on Torture

This weekend David M. Shribman, the executive editor of the Pittsburgh Post-Gazette posted a column on torture.

Well not exactly on torture, but on why the Obama Administration should "look to the future, not to the past" and just let it go.

He begins with some historical precednts:
When Thomas Jefferson succeeded John Adams, a contest that put America on such a different footing that it is remembered today as the Revolution of 1800, he did not seek to put members of the Adams administration on trial. When Warren G. Harding followed Woodrow Wilson in the White House in 1921, he did not put Edith Galt Wilson on trial for usurping the office of the presidency after Wilson's stroke. When Bill Clinton ended a dozen years of Republican rule in 1993, he did not try to prosecute Ronald Reagan and George H.W. Bush for deceiving the Congress over the Iran-Contra affair.
For the record, as far as I know none of the above list was accused of torture.

In any event, while Shribman fails to mention a specific charge that the Jeffersonians could have charged the Adamsians with, the rest of his argument rests on the notion that since Harding failed to charge Wilson's widow with "usurpation" (or whatever the charge would have been) and since Clinton failed to prosecute Bush and Reagan for Iran-Contra (and so on), then the Obama should let George Bush and Dick Cheney get away with torture. He sums it up with a creatively constructed and properly punctuated alliteration:
Here presidents and parties do not criminalize the policies of their predecessors.
Implying that elsewhere, presidents and parties DO criminalize their predecessors' policies. A banana republic perhaps? That's a cheap shot, as we all know.

What Shribman fails to recognize (or perhaps what he's avoiding) is the simple fact that torture is a crime. A big one. A violation of federal and international law whose punishment is, and of right ought to be, severe.

I find this next sentence unintentially funny:
That is why the nascent effort to investigate and perhaps prosecute members of the Bush administration is a dramatic departure from American tradition.
Bill Clinton was impeached for the very serious charge of perjury as he was caught in a lie about the fellatio he'd received from a woman who wasn't his wife. The Bush administration is accused (at least in the court of public opinion) of okaying the use of "enhanced interrogation techniques" that the International Committee of the Red Cross has already deemed "constituted torture."

Perjury about fellatio was serious enough for multi-million dollar investigation but "American tradition" demands that serious allegations of torture get a pass.

Perhaps if Monica Lewinsky were waterboarded...

That snarky digression it leads me to the fundamental flaw in the next section of Shribman's column:
This is no defense of torture nor of the tactics the Bush administration may have used in recent years; press accounts of those episodes that emerged late last month were shocking. But far below the surface of the noisy Washington and cable-television conversation is a quieter but very serious debate, sparked by the circulation in elite legal circles in recent days of an Internet version of a forthcoming article in the Yale Law Journal that argues that "all interrogation methods allegedly authorized since 9/11, with the possible exception of waterboarding, have been authorized before."

This article, by William Ranney Levi, is significant as much for its intellectual provenance as it is for its contents. Mr. Levi, part of one of the most distinguished legal families in the nation, exposed his argument to the rigorous review of several leading legal minds, conservative and liberal, some of whom doubtlessly disagree with him.

He cites consultations with Jack L. Goldsmith, the conservative Harvard law professor who resigned from the Bush Justice Department and later expressed qualms over the Bush anti-terrorism legal rationale; Harold H. Koh, the dean of the Yale Law School and a leading human rights activist who has been nominated by Mr. Obama to be legal adviser to the State Department; Mariano-Florentino Cuellar, a Stanford law professor in the Obama inner ring; and Martin S. Lederman, a Georgetown law professor and fierce Bush critic who is the president's choice for a leadership position in the powerful and prestigious Office of Legal Counsel at the Justice Department.

The meaning of all of this is not that the Bush policies were smart, prudent, moral or effective. They may not have been any of those things. The meaning, however, is that the Bush policies were legally plausible. [emphasis added]

I bolded and italicized the phrase regarding waterboarding in the event it would have been missed otherwise. Now look at Shribman's argument again while telling yourself: But they did waterboard.

So Shribman's whole argument of letting it slide because there's been enough precedent for Bush's policies to be legally plausible are crushed under:
They waterboarded.
The US has already prosecuted waterboarding (in Texas recently and against Imperial Japan 6 decades ago). How's that for precedents?

And he insults his audience (meaning you and me) by insisting on calling this a "policy" dispute. This is not about taxes or spending or who'd make a good Supreme Court nominee.

It's about a crime. One that happened hundreds of times. One that happened in our name and one that to "protect" us.

There's a reason the UN Convention Against Torture exists. We can't have the high moral ground if we let the torture go. Indeed, we're in violation of international law if we do.


Dave said...

This is typical "high Broderism". I don't recall Shribman or any of the Beltway elites getting their knickers in a knot when the Republican-controlled Congress launched a year-long investigation into the allegations that outgoing Clinton staffers had "trashed" the White House (remember all the stories about how Clinton staffers had removed the "W" keys from White House computers? Stories that turned out to be lies).

Only in the clown car that is the Beltway media inner circle are allegations of vandalism considered more serious than allegations of crimes against humanity.

Philip Shropshire said...

Exhibit 4003 on why we should just let the newspapers die.

viking67 said...

Yes, if we disagree with a point of view that's published in a newspaper, we should let newspapers die. What a spectacularly moronic comment.

aberman said...

Well, you still might be able to make the case that waterboarding is prosecutable. But given that everything else they did is now shown to be not prosecutable, making the case is now dependent on showing that waterboarding is qualitatively different from everything else that was done. And note that we're not sure that assuming that waterboarding was actually never done.

Good Luck with that.

publius said...

Thursday, May 7, 2009
torture rebuttle
This is a rebuttal to the article of 5-3-09 by the executive editor of the Pittsburgh Post-Gazette, David M. Shribman.
Mr. Shribman's editorial in opposition to the practice of holding ex-Presidents legally responsible for the wrongdoings, legal of otherwise, of their administration is as myopic and self serving as the best of propaganda. Such disinformation could only exist under the banner of "freedom of speech." I say "legal or otherwise" because his first historical example in support of his position is the Revolution of 1800, as if this "revolution" had anything to do with President Adams breaking the law. Mr. Adams did not leave office with the disclaimer "I'm not a crook" on his lips. Mr. Shribman never sees fit to explain what laws the Adams administration violated. Regrettably this editorial fails to shed any light on how Thomas Jefferson established the precedent of Presidential immunity. Perhaps Mr. Shribman believes his editorial enjoys factual immunity.
Another example he sites is President Clinton not pursing prosecution of Ronald Reagan and George H.W. Bush in regards to the Iran-Contra affair. As I recall there were investigations and prosecutions, Col. North comes to mind. I can only wonder if there had been a more vigorous pursuit of the truth in that "affair" would the Bush administration have been so liberal in heir definition of torture.
Next he appeals to the American ego by reminding the reader that in America power is transferred from one president to another by the ballot, not the bullet! The unspoken he lectures us is: "Here presidents and parties do not criminalize the policies of their predecessors." The laws regarding torture were on the books prior to the Bush administration so the question is not "do we make his policies illegal" but rather "were his policies illegal?" If his policies are found to be illegal then do we not owe it to our future as a healthy democracy to prosecute? Does Presidential immunity trump the law of the land? Mr. Shribman goes on to say that "in the United States, sitting Presidents and winning political parties don't sit in legal judgment of their predecessors." Why not? Does this practice protect the America people of those in power who wish to perpetuate a custom that one day will protect them from prosecution? If their rule is just then why fear prosecution. If their rule is unjust yet they fear no prosecution is this not tyranny however subtle?
Mr. Shribman cites Nixon's failure to take on J. Edgar Hoover for the wiretapping of Dr. Martin Luther King Jr. as supporting evidence of the propriety of the ever widening custom of ruler immunity. He seems to think it's only natural that the President of the United States looks the other way when the Director of the F.B.I. breaks the law! Presumably since the President will expect the same customary courtesy when he breaks the law!
Mr. Shribman then points out that "politics is not an insubstantial factor, perhaps for the good of the system." His point being that if the Democrats pursue this legal review, than this assures that their successors will do the same. So let me get this straight. If the Democrats hold the Republicans accountable for breaking the law then we can expect the Republicans to hold the Democrats responsible for breaking the law. Oh my God! Where will it end? Our elected officials actually respecting the law, disabused of the notion that they are above the law. Poor President Nixon will be spinning in his grave over this invasion of privilege. Politics is never an "insubstantial factor" in government but the constitution is paramount and should never bend it's knee to politics. How is elevating politics over the System, e.g. the constitution, good for the system? What propaganda!
He claims Winston Churchill as having the greatest wisdom on the subject by quoting "If the present tries to sit in judgment of the past, it will lose the future." I should think that "he who forgets the past is doomed to relive it" is the greater wisdom here.
Posted by publius at 5:45 PM