Sunday, September 4, 2011

Torture is How We Become Villains

Sent from Chuck Fager - a longtime staff director at the Quaker House


During the Quaker House 40th anniversary in 2008, we presented an award to the Fayetteville Observer, for its series of hard-hitting editorials against torture. It was a series unprecedented in "mainstream media", never mind a paper in a major military town.

It remains so; and the OpEd below, just out, is a distinguished addition to this series:

As the paper wrote in 2008: “Torture is not how we overcome villainy. It’s how we become villains. It must be stopped.”

Hang your heads, News-Observer editors. Your craven complicity has been outed once again. or CLICK here

Published: 12:00 AM, Sat Sep 03, 2011

And from the law professor ... silence
By Gene Smith

Even when I've disliked the drift of certain of President Obama's policies, there's usually been a discernible pattern of thought, an unspoken reassurance that at least he knows the location of "the right track." In one area, though, he's been a total disappointment.

I never expected him to round up Bush administration officials by the busload and haul them off to court, or to have the attorney general prosecute an ex-president and vice president whom Congress had shown little interest in impeaching even when many Americans were calling for just that. But neither did I expect acquiescence.
Pause for a couple of distinctions, small but important.

First, there is such a thing as executive privilege; it is legitimate, and it is deserving of protection.

Second, the Justice Department has some responsibility to mount a vigorous legal defense of whatever is defensible about a previous administration's actions, even if the current occupant of the White House hopes the courts rule the other way.

But: The Obama administration has consistently sided with, remained neutral toward or deflected attention from wrongdoing that needed confronting. And if his argument is that those past deeds were not things he wanted cluttering his first-term agenda, my reply is that his argument makes sense in regard to, say, gun control, but not in regard to the very essence of what America is and does.

"We do not torture," said President Bush, in what became a mantra. "America does not torture."

Everybody now knows that Bush's ritual reassurance was a cold, deliberate lie, recited to a nation that wanted to believe it because we had not yet sacrificed honor on the altar of partisan politics.

Obama's response was to rescind Bush's torture "policy" and substitute his own anti-torture "policy." There can be no such thing. Torture isn't a policy matter. Torture has no constitutional foundation - is in fact contrary to the Constitution every president vows to preserve, protect and defend. The president has no authority to allow it.

What we needed was a carefully drawn lawsuit leading to reaffirmation, in all three branches of government, that the United States, despite these aberrations, still forbids torture and prosecutes torturers. Instead, we got a paper-shuffle.

On the day that Bush leapt to defend the ultra-secret warrantless wiretap program that he'd ordered because he was dissatisfied with the emergency FISA court, he publicly confessed to impeachable offenses. Again, there was a total lack of constitutional authority, total contempt for law. But Obama has steadfastly refused to pursue anyone in Bush's legal brain trust.

This is tricky, but only slightly so. Legal advice to a president from his lawyers, even bad advice, generally is protected. But what John Yoo and his counterpart in the vice president's office concocted was not serious advice. It was chaff, a wordscreen, nonsense clad in legalese so the lot of them wouldn't be left standing there stammering if they were caught doing what all of them knew to be criminal.
I never believed Yoo's legal parody was protected. More importantly, neither did the Bush administration, which did everything in its power to keep the scheme from going to court and being ruled unlawful (which, years later, it was). But now Yoo's yammering that the law is whatever the president wants it to be from moment to moment gets an executive-privilege shrug from Obama.

And Obama's successors, if they wish, can cite his non-response as legal precedent.

A Harvard law professor doesn't get to plead ignorance of that.

Gene Smith is the Observer's senior editorial writer. He can be reached at


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