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Monday, May 25, 2009

LEGAL PRECEDENT: Waterboarding IS Torture and IS Illegal!




There was a conservative visitor to this site recently who took issue with some comments I had made about Dick Cheney and the topic of waterboarding as torture. He posted a comment defending Cheney's assertion that waterboarding is not torture and that its use was not only beneficial, but legal as well. I replied to the visitor, and returned later to see that he had commented again, in rapid succession, 4 or 5 times in a row. Some months ago, I had been victimized by an obsessive leftist crackpot I and others jokingly refer to as "War and Peace" for his frequent, repeat, pages-long rambling comments. Seemingly seeing a similar pattern developing this time with this visitor, I quickly skimmed his first two replies and determined they were of the similar hair-splitting variety as had been "War and Peace"'s. I then made the decision to delete them all, as I had done with those from "War and Peace". (These are the only two persons' comments I have ever deleted from this blog and I hope they will be the last). I looked the visitor up and saw he had his own blog, so I visited it and left him a comment explaining that I had deleted his seemingly obsessive and successive comments for an added personal reason, which I won't go into here. I assumed he would understand my reasoning for no longer wanting to carry on the discussion, but I was wrong. He apparently took exception to what I had done (even though many other sites I have visited routinely moderate submitted comments BEFORE they are even allowed to appear, and some are blocked if the site's administrator deems them objectionable. This is standard practice with many). But this fellow evidently didn't see it that way and apparently wanted to make a federal case out of the matter by posting our back and forth point by point on his blog. Even after I had commented I would no longer discuss torture or waterboarding with him. It would appear he is indeed obsessive and may be attempting to make me and what I have written a cause celebre among his friends on the right who support waterboarding and deny it is a form of torture. No doubt he is making an effort to show how supposedly narrow-minded I and we others on the left are who oppose the use of waterboarding. I consider this to be a bit over the top, in view of the circumstances, but I do recognize and acknowledge his right to free speech and interpretation, even though I, as administrator of this site, do find his arguments supporting waterboarding and denying it to be a form of torture personally and morally objectionable, as I do Mr. Cheney's. So I haven't even bothered to revisit his site, nor will I again. The information I present below will make his presentation a moot point, and is directed at all who share his viewpoint.

My visitor has alleged repeatedly that waterboarding is not torture. I maintain that it IS, and that its use by us damages not only our credibility and standing throughout the world, but the future safety of our soldiers and citizens as well. I further believe that its use, as well as other forms of "enhanced interrogation", serve as a dangerous recruiting tool for terrorists the world over. My visitor quotes a number of "experts" including George W. Bush, Dick Cheney, George Tenet (of "it's a slam dunk" fame), the Bush administration's rubber-stamp Attorney General Michael Mukasey, several Vietnam vets who were tortured by the North Vietnamese, and a number of others, who all make the assertion that waterboarding is not torture and that it yields useful information. I counter below, with numerous sources of legal precedent which repeatedly establish waterboarding's status as torture AND an ILLEGAL act which has been successfully prosecuted domestically, most recently in 1983 by the REAGAN Department of Justice, as well as internationally. Get that, folks? Legal PRECEDENT, FACT. Which means it has been decided in numerous court cases and set into law that the practice is indeed TORTURE and is ILLEGAL. Recent history has shown, though, that facts and precednt mean apparently little to hard core conservatives (look at the Bush administration and the Limbaugh crowd as examples of those who let their prejudices cloud their legal and practical reasoning, and who spin those facts to fit those very same prejudices). But I know most moderates, independents, and liberals who read this information will see and agree that what is presented below is relevant and true, meaning, of course, that it is based on established and solid legal foundation and is therefore rationally undeniable. It is, of course, my visitor's prerogative to accept or reject this data, as it is anyone's. My bet, though, would be that, if and when the case of waterboarding ever is presented to the Supreme Court, the Court will side with established legal precedent rather than with Dick Cheney's or my visitor's seemingly selective interpretation of the practice's legality. For there is nothing conservative justices Roberts, Thomas, Scalia, and Alito despise more than reinterpreting law so as to be effectively "legislating from the bench"! Below, then, are proofs that waterboarding is torture, illegal, and must not be used by our government or military as a method of interrogation.

Evan Wallach, a judge at the U.S. Court of International Trade in New York, and who also teaches the Law of War as an adjunct professor at Brooklyn Law School and New York Law School, has prepared an outstandingly well researched and well documented article for the California Journal of Transitional Law. It was written after the passage of the Bush administration's Military Commissions Act of 2006, (parts of which have already been deemed unconstitutional by the Supreme Court), and gives a detailed accounting of prior domestic and international waterboarding prosecutions and convictions. The article is highly critical of Bush administration attorneys John Yoo and Jay Bybee, and even Mukasey himself, for overlooking so much legal precedent and for attempting to spin the act of waterboarding in a new light. Find it as I did by clicking on "Drop by Drop: Forgetting the History of Waterboarding in U.S. Courts" in the related piece found at;

http://www.theothereveningnews.com/2007/11/waterboarding-is-still-illegal.html

An interesting "digest size" listing of waterboarding convictions can be found by Googling "waterboarding conviction history". Scroll down to and click on "timeline results for waterboarding conviction history". Voila! You will find 10 instances since 1920.

Jonathan Turley, noted constitutional scholar and George Washington University Law Professor, to whom even members of Congress go for legal and constitutional advice, presents his views on the topic of waterboarding as an illegal form of torture at this site:

http://news.lawreader.com/?p=2169

There are scores of other related articles out there, citing established, legally decided cases which prove my point. I am through splitting hairs with, and will not get into a pissing contest on this very unpleasant practice with my visitor or anybody else. I will no longer personally debate the legal or functional aspects of this most disgusting and reprehensible act. I will instead let these examples of legal scholars and legal precedent serve to illustrate my position. And, until the Supreme Court has proven otherwise, I will continue to insist that waterboarding IS torture, IS illegal, and that Dick Cheney, for this and many other reasons, is a war criminal for instituting its use who must someday stand trial for this and other actions during and leading up to the Iraq War.

NEXT UP: "Time for REAL Representation! (Part VI)", the concluding segment of my series on how unrepresented most average Americans are by their Congresspersons, who have very little in common with them.

13 comments:

Marc McDonald said...

I've always thought that it was surreal that we Americans are even having this "debate" over whether waterboarding is torture.

I can goddamn well guarantee you that, in the past, if U.S. citizens had ever been waterboarded by an overseas government, all Americans would have been outraged and screaming that these people had been tortured.

What's more, we would all self-righteously claim that we Americans don't do that sort of thing and that's what sets America apart from other nations. Of course, after eight years of Bush/Cheney, we've become a nation that does indeed torture.

Cheney's mindset is clearly of the "if the President does it, it's not illegal" school. Thus, if America used waterboarding, then it's not torture, according to Dick.

Does anyone still seriously wonder why much of the rest of the world hates America these days?

Last, but not least: I'd like to pose a question: who is worse: the likes of Cheney, who made torture official U.S. policy? Or today's cowardly Dems, who sit around with their thumb up their ass and refuse to prosecute these bastards?

Jack Jodell said...

Thanks for your very valid and thoughtful comment, Marc.

Today's far right is delusional on so many fronts it is unbelievable. Their "ends justifies the means" and "if the President does it, it's not illegal" stances are morally wrong and legally indefensible. The conservatives glorify war and the military to the extent that one wonders if they are really of this world. For those who have experienced war firsthand and have seen the person right next to them with his skull shot away, leg blown off, or with his intestines hanging out of his body, do not thrill to the so-called glory of war. They correctly recoil from it and correctly know it is a measure of last resort, not a way of life to admire and revel in. Defense of our country is a necessary and vitally important thing, and we will undoubtedly justifiably be at war again in the future. But next time, it must be a just and honorable war, not one for power, plunder, and profit, or one fought out of fear. As for your last question, that is a tough one. Obviously, the answer is Cheney. But the weak-kneed Dems must also share blame and disgrace for their complicity.

Thanks again, Marc, for your insights. You are always welcome here!.

SJ said...

@Jack,
as always, a well-reasoned post supported by facts, not opinions; but greatly informed by the conviction and perspective of the latter. Your blog is an important weekly, if not daily read.
I'm glad you elaborated on your exchange with the other blogger. Difficult as it is, my own policy is to let anyone say their piece as fully as possible, (Unless it's a spammer like good ol' War & Peace who's really just practicing a form of grafitti online), Mycue23 and I had a guy who recently posted a comment about clones coming from China or some such nonsense. We let it stand. I responded with a reply both appropriate and about as considered:

http://hamsandwich66.blogspot.com/2008/12/automakers-bailout-and-future-of-human.html

-SJ

Jack Jodell said...

Thanks, SJ. Your comments on my blog mirror the respect I have for your and mycue23's work. You guys, too, are always welcome here.

Max's Dad said...

Arguing with a zealot is not productive. Anybody with a brain, a soul, and a double digit IQ knows that simulated drowning is torture. Remember how outraged Americans were back in 1980 when it was learned the hostages held in Iran were subjected to simulated executions? I guess dishonest clowns like Cheney and Limbaugh and Hannity would all claim that was all in good fun? Fat chance. I am about to put simulated drowning into the abortion,death penalty, guns category that I simply don't argue about. A subject in which a complete tool has as valid an opinion as a genius is simply a subject to avoid. Great post as usual,Jack.

Stella by Starlight said...

Waterboarding is torture. I think many of us are on the same page today. I found a great post on Alternet about the Torturing 13.

Arguing with a zealot is indeed unproductive... If there were ever a reason for hatred in this world, Cheney is the perfect target.

Jack Jodell said...

Welcome back, Stella, and thank you so much for that fabulous post you linked. What a rogue's gallery of war criminals! People like you, with a high level of moral sensibility, are always welcome here. Thanks again!

Jack Jodell said...

Thank you, Max's Dad, and I think you summed it all up perfectly. Your comment illustrates perfectly the blindly flawed morality practiced by those on the right: As long as I do it, it's ok, but if they do it, it's bad; and as long as I can make a lot of money, that's good, but if anyone wants to help the poor make money, they're wrong. Selective blindness is a mental illness all its own!

Stella by Starlight said...

Jack, this is a hell of a great blog. Thank you for your comment "a high level of moral sensibility."

The Rethugs would disagree, I think. I'm often reminded of Neil Young's Rockin' in the Free World:

"Don't feel like Satan
But I am to them
So I try to [fight them], any way I can."

If only this song were the U.S. National Anthem....

Jack Jodell said...

Hey, thanks, Stella by Starlight! It is indeed funny how so many supposedly God-fearing conservatives can claim to be Christians and then all but ignore the repeated teachings of Jesus to take care of the sick and poor, and then support people like Bush and Cheney who actually deprive the poor and start murderous iullegal wars and engage in torture. Such is the paradox of conservatism today, I guess. I've started following your blog, too, and I like your train of thought and expression. Keep up the good work!

Gwendolyn H. Barry said...

I agree...esp with Mr McDonald's surreal feeling that this 'debate' is still going on.

Jack, you and I happen to agree, I think, in most of our political ideals and woes. I agree from the heart that your 'visitor' has the right to his own views and you can cut his mania ala comments when you choose. (and should)

SO, "if the President does it"... ala Nixon? We didn't prosecute those Presidential crimes and it seems as though we aren't going to prosecute these. It stays the door open for Presidential malfeasance in the least, corruption and criminal actions as it stands. The longer we blog it, discuss it, the debate rages on... the more opportunity there may be that Obama's people will have to take some form of action.

And agreeing with McDonald's presents of posture on cowardly Dem's ... thumbs secured. What can un-glue them? Keeping the dialogue alive. And to that,

Kudo's to Saturday Afternoon Post and Jack Jodell for his well writ part in that. To all the bloggers, malcontents, upstart ACLU-er's, ripe rebels and on and on...liberal / progressive... so many ID's to work with ...

I clearly read your opinions through your facts and you do express them! Thanks Jack. You keep me up to speed when I've been away. Happens a bit with the way the world is wagging these days. Heck, I've missed three Olberman / Maddow records this week. Not like me. LOL

Looking forward to the rest of your series. Stay your course!
always sincerely...ghb

Jack Jodell said...

Thanks, Gwendolyn! You, like all who have commented here thus far this time, are always welcome here. Each of you regularly takes the time to air your thoughts and express your moral outrage over the injustices and mistakes all around us. And you all do it freely and without getting or expecting a financial reward for your selfless effort. You, the conscientious and thoroughly decent folks you are, easily fit the classification of patriot. You want the best for your country and for the world as well. You are each, in your own way, a good example and an inspiration to me and to all on this planet, and I thank you for it!
--------
Gwendolyn, regarding that "...if the President does it..." point, I thought this country learned from the excesses of Nixon. But we didn't, because we ended up with even worse, Cheney and Bush. I thought we had learned from the mistakes of Vietnam. But we didn't, because we ended up with even worse, Iraq. This should serve as a glaring warning to us all, that we must keep our eyes and ears open always, shout out en masse when our leaders go astray, and NEVER let apathy set in again!

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