Saturday, July 19, 2008

Republicans Point out Hypocrisy of Anti-Torture Legal Scholars

Ric Keller (R-FL): "Isn't killing the ultimate torture?"

Walter Dellinger, Solicitor General under President Clinton and currently a law professor at Duke University Law School visiting at Harvard Law School was questioned by Rep. Dan Lufgren (R-IN) and Rik Keller (R-FL) during the House Judiciary July 17 hearings on interrogations. These Republicans deftly revealed the hollowness and distraction of the anti-torture legal analysis in this country.

To paraphrase the Republicans' line of questioning highlighting the absence of a serious peace movement: why are these liberal scholars so self-righteous in protesting the torture of a few detainees (who clearly should not be held this way much less tortured), but say nothing about our policy of killing hundreds of thousands of innocent civilians, and indeed support targeted assassinations?

Dellinger had been making the case of "24"-s Jack Bauer--the President in the case of a "ticking time bomb" can authorize torture, but then needs to turn himself in and be accountable. (Bauer regularly breaks laws but acknowledges this is his decision, for which he will accept the legal consequences.)

Lufgren made a really great point in pressing Dellinger to distinguish the narrow case of torture from the President's use of weapons of mass destruction against innocent civilians on a daily basis. Dellinger folded.

Here's the exchange (at 1:48 on the hearing streamed via C-SPAN).

Lufgren: Mr. Dellinger, you set up a scenario by which you think we ought to operate, that is in certain dire circumstances the president ought to break the law by directing people to break the law to do something that should save American lives. If that had been the case in WWII should Pres. Truman have submitted himself to the law after he ordered the dropping of the atomic bomb on two occasions.

Dellinger: I don't know that that was unlawful, in violation of any statute.

Lufgren: Even though that ended up with the loss of many lives that were innocent men women, and children who were not described in any way as belligerents or combatants?

Dellinger: I think that may well have been in the scope of his authority.

Later, Ric Keller (R-FL) pushed even further (at 2 hours):

Keller: It seems to me that the gist of your testimony is that it was okay for the Clinton Justice Department to authorize the killing of bin Laden but it's not okay for the Bush administration to aggressively question terrorists who want to kill us, and that seems just a bit inconsistent to me.

Dellinger: I can answer that precisely.

Keller: Okay.

Dellinger: The reason is quite simple. It would not have been against the law of the United States to assassinate bin Laden. It was against the law of the US to engage in torture. Those are decisions that have been made by Congress.

Keller: Isn't killing the ultimate torture. I mean, my god. What worse torture is there than killing somebody?

Dellinger We kill enemy combatants all the time. That is very different. than subjecting them to cruelty. I happen to have a personal belief that the executive order forbidding assassinations, whenever that's been in effect, is probably a mistake.

Keller: Let me just say to you. We have a Supreme Court and they just ruled that the death penalty was too cruel and unusual a punishment for someone who raped an 8 year old girl. So if the death penalty is too cruel of an unusual a punishment, how the hell is it okay to kill someone but not okay to aggressively question them?

Dellinger: Well, Osama bin Laden is not a United States citizen and not being detained in the United States, under the custody of the United States, and therefore, has no Constitutional rights.

Keller: But you agree with me that the Clinton Justice Department specifically authorized the killing of Osama bin Laden?

Dellinger: I am not privy to that, nor could I address it if I did.

Keller: I'm privy to that, and hell I was in school during that administration, because I'm looking at page 132 of the 9-11 Commission Report and I'll let you be privy to it now. “The new memorandum would allow the killing of bin Laden. The administration's position was that under the law of armed conflict, killing a person who posed an imminent threat to the United States would be an act of self-defense, not assassination. On Christmas eve 1998 bin Laden [sic] sent a final draft to President Clinton with an explanatory memo. The President approved the document. Because the White House considered this operation highly sensitive only a tiny number of people knew about this memorandum of notification. A message from Tenet to CIA field agents directed them to communicate to the tribals the instructions authorized by the President of the United States that preferred that bin Laden and his lieutenants be captured, but if successful capture operation was not feasible the tribals were permitted to kill them.”

Now you see the contradiction. You have testified with respect ot questioning from my colleague from California Mr. Lungren, that even with Khaled Sheikh Mohammed, that is not an exceptional extraordinary circumstance that should allow us under the law that should allow us to question him aggressively, right? He's not a United States citizen. That was your concern before, but he's not a United States citizen..

Dellinger: The question you're asking, I think is a question directed to the Congress of the United States. And if there's a contradiction between our legal authority to assassinate persons who are foreign leaders and the prohibition on torture that's to be resolved by Congress. My concern is that the claim in this, the fundamental flaw in these memoranda is that they take the term “the inherent authority of the president,” that is, what a president can do in the absence of any prohibition by Congress, which I think is a broad area in the area of national defense, and then will say once Congress has enacted a criminal prohibition, the President can still do it because it's quote within his “inherent authority.” That, I think, fundamentally disregards the central role of Congress in establishing what the law is.

Analysis. Dellinger is trying to avoid the blatant ethical hypocrisy of picking on the government for torturing a few people while ignoring the widespread suffering caused by, say, an atomic bomb, the effects of which are torture by any measure, by shifting the problem to Congress. Not only does the magnitude of the contrast warrant comment, even if it is on Congress' decision-making, but Keller is making an astute Constitutional point and not just one about statutes.

Keller is pointing out that the Supreme Court has declared that when the state executes people who are criminally convicted of raping children, that is torture under the Eighth Amendment. Dellinger tries to claim that because the murder of civilians and targetted assassinations are authorized by law, this makes them different from torture that violates the law. But if a legislative body passes statutes that are unconstitutional, e.g., executing rapists, then these are not laws.

If the Supreme Court says killing people who are not convicted of killing someone else is "cruel and unusual punishment" then isn't that an interesting argument against dropping bombs on civilians? The argument would be novel and is not the direction that this Supreme Court would go. But it is an intriguing opening that anyone who truly cared about the excesses and cruelties of state sovereignty would pursue. Dellinger's effort to deflect this line of questioning by claims about state custody is not only ethically indefensible but also incorrect in some cases, for instance, when the US government is an occupying power.

Rather than advancing a marginal if not distracting question about the US use of torture in a few dozen cases at most, why not hearings on the US army killing hundreds of thousands of foreign civilians?

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