Saturday, February 09, 2008

Why should it be said among the peoples, 'Where is their God?'

2:1 Blow the trumpet in Zion; sound the alarm on my holy mountain! Let all the inhabitants of the land tremble, for the day of the LORD is coming, it is near-

2:2 a day of darkness and gloom, a day of clouds and thick darkness! Like blackness spread upon the mountains a great and powerful army comes; their like has never been from of old, nor will be again after them in ages to come.

2:12 Yet even now, says the LORD, return to me with all your heart, with fasting, with weeping, and with mourning;

2:13 rend your hearts and not your clothing. Return to the LORD, your God, for he is gracious and merciful, slow to anger, and abounding in steadfast love, and relents from punishing.

2:14 Who knows whether he will not turn and relent, and leave a blessing behind him, a grain offering and a drink offering for the LORD, your God?

2:15 Blow the trumpet in Zion; sanctify a fast; call a solemn assembly;

2:16 gather the people. Sanctify the congregation; assemble the aged; gather the children, even infants at the breast. Let the bridegroom leave his room, and the bride her canopy.

2:17 Between the vestibule and the altar let the priests, the ministers of the LORD, weep. Let them say, "Spare your people, O LORD, and do not make your heritage a mockery, a byword among the nations. Why should it be said among the peoples, 'Where is their God?'"

So I open the New York Times this morning, and immediately I find this:

Military prosecutors are in the final phases of preparing the first sweeping case against suspected conspirators in the plot that led to the deaths of nearly 3,000 Americans on Sept. 11, 2001, and drew the United States into war, people who have been briefed on the case said.

The charges, to be filed in the military commission system at Guantánamo Bay, Cuba, would involve as many as six detainees held at the detention camp, including Khalid Shaikh Mohammed, the former senior aide to Osama bin Laden, who has said he was the principal planner of the plot.
There's a reason the Bush Administration wants these trials held in "military tribunals," and it's not because these 6 men are too dangerous for a US courtroom. It's because they have been tortured, and evidence obtained under torture is inadmissable in a US court of law. Or, as Philip Carter put it almost four years ago:

There are plenty of good reasons to avoid using torture in interrogations. It's an immoral and barbaric practice condemned by most Western nations and theological traditions, for starters. International human rights law and U.S. criminal law both outlaw it. And as if that's not enough, there is serious doubt as to whether torture even produces reliable intelligence, as Mark Bowden explains in the October 2003 issue of the Atlantic Monthly.

Add this additional reason to the list: Any information gained through torture will almost certainly be excluded from court in any criminal prosecution of the tortured defendant. And, to make matters worse for federal prosecutors, the use of torture to obtain statements may make those statements (and any evidence gathered as a result of those statements) inadmissible in the trials of other defendants as well. Thus, the net effect of torture is to undermine the entire federal law enforcement effort to put terrorists behind bars. With each alleged terrorist we torture, we most likely preclude the possibility of a criminal trial for him, and for any of the confederates he may incriminate.
Let me use his words once again, to make absolutely clear why the Administration must use a "military tribunal." Thanks to what they've done, it's all the "legitimacy" they have left:

Evidence (such as a confession) gathered as a result of torturing a person like Mohammed will be excluded at his trial, if he ever sees one. This is true both in federal courts, which operate under the Federal Rules of Evidence, and military courts, which operate under the Military Rules of Evidence. Both the Fifth Amendment's right against compulsory self-incrimination and the 14th Amendment's guarantee of due process preclude the use of a defendant's coerced statement against him in criminal court. In addition, any evidence gathered because of information learned through torture (sometimes called "derivative evidence") will likely also be excluded. Furthermore, the Supreme Court suggested in its landmark Fifth Amendment case, Oregon v. Elstad, that it might exclude evidence gathered after the use of any coercion, regardless of attempts by police and prosecutors to offset the coercion with measures like a Miranda warning. If Mohammed were prosecuted, and a court followed the line of reasoning set forth in Elstad, he might well see the charges against him evaporate entirely for lack of evidence.
And what have we gained by this torture? According to the times, Khalid Mohammed has said: "I was responsible for the 9/11 operation, from A to Z." A prosecution of such a man for such a crime in a US court of law would carry tremendous political and moral weight. But 9/11 changed everything, and now the question of culpability may well be lost in the questions of the reliability of the tribunal, and of the evidence presented there:

Gitanjali Gutierrez, one of Mr. al-Qahtani’s [the "20th hijacker"] lawyers at the Center for Constitutional Rights, said she had no information about whether he would be charged. “But if he is,” Ms. Gutierrez said, “I can assure you that his well-documented torture and the controversy over secret trials will be the focus.”
What justice, then, do we even have for the families of the victims of 9/11? And who is to blame for this? The GOP? Bush? Cheney? Remember that line about one finger pointing at you, four pointing back at me?

Neither, I have to say, does Digby:

Considering that all this was done by people who had previously brought us secret wars in Cambodia and sold arms to our alleged enemies to fund illegal wars from a shadow government run out of the white house, it really shouldn't be surprising that they did what they did. And unless there is a reckoning, it would be criminally stupid if we are surprised the next time they get their hands on the white house and do it all again. It's what they do.
There is another branch of government with all the power needed to stop this, and see that it stays stopped, and for the last two years that branch has been under the control of people who say they are opposed to torture, that torture is illegal, immoral, and unacceptable. And yet those same people gave us the current AG, the one who won't call waterboarding "torture," and who won't even tell the Congress, in secret session, what he knows about the facts of waterboarding by US agents or their employees (Digby seems to have discovered the "outsourcing" of torture just recently). But even the reviled (well, in left blogistan it is) Washington Post understood the breadth of the problem almost a year ago:

Two senators who attended Mr. Mohammed's Guantanamo hearing, Carl Levin (D-Mich.) and Lindsey O. Graham (R-S.C.), issued a statement calling for an investigation of the torture charges. Yet any administration investigation -- especially one conducted in secret -- will almost certainly conclude that the waterboarding was approved by senior administration officials. What's needed is a genuinely independent investigation, one that airs Mr. Mohammed's charges and tests the administration's claim that the CIA's actions were legal. Mr. Levin -- as chairman of the Senate Armed Services Committee -- could conduct such a probe in cooperation with the Intelligence or Judiciary committees. What's stopping him?
What, I ask, have they done to stop this? And the answer is: nothing. Nothing, because while it makes good sound bites for Patrick Leahy to yell at Alberto Gonzales or for Russ Feingold to denounce torture, or for Dick Durbin to demand an answer to a question in a hearing, the political calculus still seems to be our country is ruled by a "24-Kiefer Sutherland-is-our-savior" mentality, and that means no one can afford to appear "soft" on terrorism. Which means torture and secret prisons and Gitmo must continue, and neither party will stop it, because "that's what they do."

And yes, I realize Dahlia Lithwick is right:

Let me say that again, for the benefit of folks who believe this matter might be resolved by the passage of pending legislation to force the CIA to use only those techniques permitted in the U.S. Army Field Manual. It doesn't matter to this president what the laws say. FISA was a law once, too.
But then, Nixon wasn't impeached for that "secret war" in Cambodia, either. This is no longer a question merely of laws. Laws will not save us. Politics will not save us. Process will not save us. Only the enforcement, the requirement, of something akin to morality, will do now. And it isn't a question of "them"=evil, and "us"=true, blue Americans.

Extraordinary rendition began under Clinton. Bush just made refined it. This is not what "they" do, some vague "other" who is not like "us." This is what people in power do. This is what power does. It tends to corrupt. And absolute power tends to corrupt absolutely. Ironically, that phrase was first addressed by a Roman Catholic lay person in response to the promulgation of the doctrine of "papal infallibility." Funny how religion keeps teaching us lessons we don't want to learn. Funny, too, how we overlook the fundamental problem of governance that has now been raised. As Ms. Lithwick puts it:

This is not simply the theory of a unitary executive at work; this isn't the notion that the president makes the law, and acts of Congress are legal elevator music. This vision of executive power is that the law not only emanates from the president but also ebbs and flows with his hunches, hopes, and speculations, on a moment-to-moment basis. What we are hearing now from senior Bush administration officials is that if the president thinks someone looks kinda like a terrorist and the information sought from him seems kinda worth getting, it will be legal to torture him. And it's legal no matter who justified it, regardless of the supporting legal doctrine, because, well, the president just had a feeling that the information would prove valuable.

That's not an imperial presidency. That's the kind of presidency Yahweh might establish. I'm sure there's some law professor out there who can make the legal argument that executive power in wartime encompasses even the reckless guesses and impressionistic whims of a single man, as they arise. At which point, that too will become an "open question" on which "reasonable people will differ." And the dance will begin again.
It's not longer a question of what is "Reasonable," but of what is "right," and by "right" we have to mean "moral." Digby ends her post pessimistically, saying: "Sadly, very few people seem to think it's a problem." Very few people leaves a lot of people, in both parties, covered in this disgrace. But that's what they do; and, apparently, what they will keep doing. And very few people can be enough to see the truth:

Well, it's official: We are no better than the terrorists who blow themselves up to kill us.
This week's admission that the CIA has used waterboarding will have some easily foreseeable consequences, but none of them will make America safer.

Most obviously, it will help inspire thousands more terrorists who can't wait to kill us.

And don't count on any sympathy from the world for the next 9/11-style attacks on the United States. Instead, what we're going to hear will be more like, "Serves them right." As the Bible suggests, he who sows the wind will reap the whirlwind.

William Smith

Isaiah 58:1-12
58:1 Shout out, do not hold back! Lift up your voice like a trumpet! Announce to my people their rebellion, to the house of Jacob their sins.

58:2 Yet day after day they seek me and delight to know my ways, as if they were a nation that practiced righteousness and did not forsake the ordinance of their God; they ask of me righteous judgments, they delight to draw near to God.

58:3 "Why do we fast, but you do not see? Why humble ourselves, but you do not notice?" Look, you serve your own interest on your fast day, and oppress all your workers.

58:4 Look, you fast only to quarrel and to fight and to strike with a wicked fist. Such fasting as you do today will not make your voice heard on high.

58:5 Is such the fast that I choose, a day to humble oneself? Is it to bow down the head like a bulrush, and to lie in sackcloth and ashes? Will you call this a fast, a day acceptable to the LORD?

58:6 Is not this the fast that I choose: to loose the bonds of injustice, to undo the thongs of the yoke, to let the oppressed go free, and to break every yoke?

58:7 Is it not to share your bread with the hungry, and bring the homeless poor into your house; when you see the naked, to cover them, and not to hide yourself from your own kin?

58:8 Then your light shall break forth like the dawn, and your healing shall spring up quickly; your vindicator shall go before you, the glory of the LORD shall be your rear guard.

58:9 Then you shall call, and the LORD will answer; you shall cry for help, and he will say, Here I am. If you remove the yoke from among you, the pointing of the finger, the speaking of evil,

58:10 if you offer your food to the hungry and satisfy the needs of the afflicted, then your light shall rise in the darkness and your gloom be like the noonday.

58:11 The LORD will guide you continually, and satisfy your needs in parched places, and make your bones strong; and you shall be like a watered garden, like a spring of water, whose waters never fail.

58:12 Your ancient ruins shall be rebuilt; you shall raise up the foundations of many generations; you shall be called the repairer of the breach, the restorer of streets to live in.

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