Column No. 217
Hopefully, torture, and how to deal with its purveyors in the Bush/Cheney Regime at both the policy and delivery levels, will be back on the political/policy agenda, once A.G. Holder and his team get set in their new positions.
One of the principal lessons that Karl Rove (gone for now, but don’t forget him) learned from his master teacher Lee Atwater was that he who controls the agenda wins the debate and, in grander terms, the election. Rove was positively brilliant with this tactic, from 2000 until 2006. True Bush policies and programs were never on the agenda, whether in that first election or any of the subsequent ones. Rove was able to do this on both the grand and the lesser scales. And so we came to the debate over torture and Judge Mukasey (Bush’s last undistinguished Attorney General, you may recall) at his confirmation hearing, and the agenda for that debate. I have no way of knowing whether Rove was still active on a day-to-day basis at that time in the Bush White House. My suspicion is that he was, for the tactics they used had Rove's fingerprints all over them.
They are being repeated in the current debate over President Obama’s decision to ban torture by US personnel, regardless of location. The debate and where it is going is still, in part at least, in the control of those who will control the agenda. Torture and intelligence “experts” like MSNBC’s “Morning Joe’s” Joe Scarborough tell us that despite what anyone says torture is good for gaining “actionable” intelligence. In fact, he tells us, Khalid Sheik Mohammed gave up such nuggets after being waterboarded. So therefore, “to protect the American people” it should still be permitted. To Morning Joe it matters not that so many intelligence experts have dismissed what he has to say both about torture in general and the supposedly “actionable intelligence” (not) obtained from the Sheikh by waterboarding in particular. Joe says it and he controls at least one portion of morning cable’s agenda. Opposing views, supported by facts, are not allowed, although Mika Brzezinski, with her sad face on, does dispute him about whether it really does any good or not.
The Scarborough/Rove control-of-the-agenda approach still aims to confine the whole discussion to just what is the definition one particular torture technique known as “waterboarding." Is it or isn't it torture is the total matter for debate. It happens that it has been used by torturers, most of whom were only too happy to have potential victims know what they might face, since the time of that "Instrument of God's Will" known as the Spanish Inquisition. (Although the Inquisition was originally designed to "inquire" as to whether a particular resident of Spain after the official Expulsion of the Jews by Ferdinand and Isabella in 1492 was a Jew or not, it came to be more broadly used against a wide variety of persons perceived by its Catholic masters as "enemies of the church.") The technique has been used by a variety of repressive and oppressive regimes, not the least of which was the German Nazis, as a frank method of torture of chosen victims. There is no record of either the Inquisition or the Nazis ever claiming waterboarding or any of their other techniques of choice were not torture. As I said, they wanted to make sure everyone knew exactly what went on in their chambers of horror.
But not so the Georgites and their current successors in the debate. For they have a little problem, which unfortunately doesn’t make it into debates in which the agenda is sharply controlled a la Scarborough. It has to do with International Law, the U.S. Constitution, the Rule of Law, and the Georgites’ constant lying about what they were and were not doing, which still persists. Because of this little problem, they have needed and still need to control the agenda of the debate. And boy have they done this well. The agenda, as noted, was been all about whether or not waterboarding is torture, extended now to whether such things as stripping, enforced prolonged squatting, noise exposure, cold exposure, public humiliation, and etc. are torture. It is about whether what the Bush Regime did to certain of its captives/victims amounted to torture. It is about, even if it did, whether or not using it constituted a “necessity,” and still might. It is not so much about whether they tried to cover that up, whether they violated the Constitution and the law, both domestic and international. And so, now that the Obama Administration has disavowed torture, generally using the Geneva Convention definition of the techniques, its defenders are still trying to keep the discussion on definitions (arguing with those of the Geneva Conventions) and on whether torture ought to be used anyway.
They are also still using a second agenda item, whether or not torture (which of course it wasn’t any way) if not generally justified, might just be justified in the "ticking bomb" scenario. (That that scenario has never been shown to occur doesn’t seem to concern those who would use it in such a circumstance. However, the fact that if it were to, anyone caught with the proper knowledge wouldn't give it up anyway because a) they would want the bomb to go off and b) they would know they were going to die in any case. These considerations are treated by all of the non-experts discussing the matter as irrelevant. After all, they know all they need to know about the use of torture and the ticking bomb from the plots of the TV series "24," (at least up to the current series, which has a somewhat different take on the matter). Thus the debate, as controlled by the Georgites and their present media successors/defenders, first comes down to: "it is torture; no it isn't; yes, it is; no it isn't; yes it is," and so on and so forth. Then it goes on to "it is justified in certain circumstances, well what circumstances, yes it is, no it isn't," and so on and so forth. These are the matters that were essentially at the center of New York Sen. Chuck Schumer's defense of his vote for Judge Mukasey (The New York Times, Nov, 6, 2007). And yes, Schumer, the darling of the Wall St. Whizzes, did define Mukasey as “OK” way back when.
But this is not what the agenda for this debate should be. The United States is a signatory of the Geneva Conventions, by treaty. Under Article VI of the U.S. Constitution, they have become part of the Supreme Law of the Land. Waterboarding was specifically defined as torture at the Nuremberg Trials and previously by the US military as far back as 1902 when it was putting down the post-“liberation” revolt in the Philippines. Without doing a poll, we know it is regarded as torture by virtually all, if not every one, of the signatories of the Geneva Conventions. We know the Georgites knew this. They also knew that the fact presented difficulties for them, as they obviously contemplated incorporating torture into their protocols for treating captives in the so-called "War on Terrorism." How do we know that? Because, as White House Counsel, none other than Alberto Gonzales described the Conventions as "quaint," i.e., discardable.
There is just one little problem here. Nations that abide by the rule of law cannot and indeed don't discard treaty obligations just before they think one provision or another of them is "quaint." They either abrogate the treaty (which in this case would put U.S. citizen captives of foreign regimes at great risk, to say nothing of even further diminishing the international stature of the United States) or they re-negotiate it. Obviously the Georgites didn’t want to do either one. And neither are their current defenders proposing to. However, a) they apparently didn't want to take the P. R. hit around the world, and b) much more to the point for them, they wanted to keep exactly what they were planning to do secret.
The primary agenda item for the current debate should not be whether or not the Georgites and certain of their supporters think waterboarding (and etc.) is not torture, or even if it is, that it might be justified in certain circumstances (even if these circumstances have never been known to occur except on the aforementioned "24"). The primary agenda item should be: The Obama Administration has reversed the BushCheney Regime’s policy of willfully violating international law and in this case specifically an element of the Constitution, in this case defined as the supreme law of the land. This was an impeachable offense and may become a prosecutable one.
Now, finally, Sen. Arlen Spector, he of “full disclosure” in the case of Attorney General-designate Eric Holder, knows all this. (One wonders where he was on full disclosure for, say, Bush’s Supreme Court nominees.) Spector knows that the torture thing carries with it potential legal problems for the Georgites. Obama may show no inclination to go after them now, but the case may build up to such a point over time that he will just “have no choice” but to call in a special prosecutor. Spector is terrified of a number of things other than simply dealing with the torture issue in a Constitutional manner the new Justice Dept. will do. Not the least of them is to convert the Civil Rights Division back to its original function of protecting and extending civil and voting rights for discriminated-against sectors of the population. The movement for converting it to a mechanism for suppressing the African-American vote in particular, under the claim of “fighting voter fraud,” started with Ashcroft and intensified under Gonzales and Mukasey. That trend will be totally reversed.
At the same time, Spector knows that he would not be able to prevent Mr. Holder’s nomination. Some observers think that he did what he did because of some statute of limitations issue on some kind of possible prosecution of former Atty. General Gonzales and aides around the original torture order and how it was processed. Some think it has to do with trying to prevent any prosecutions of Bush Regime officials, up to and including the man himself, on the use-of-torture issue itself. In my view it is not quite that devious (or even criminal, as in obstruction of justice, literally). What he was really trying to do (and all he really could do in this instance) is just the same old political thing: establish himself as a “true Republican” because if he is planning to run again in 2010 he would likely face a primary challenge from the Right.
And so, there we have all those attempts at agenda control, in this case on the torture issue. Atwater, Rove, Bush, Cheney, etc. It has been used just brilliantly by them, and people like Scarborough are still trying hard to keep the discussion off the real questions of the Rule of Law and what Constitutional government means and doesn’t. While until recently Democrats just never seemed able to learn the lesson of agenda control, with the new President and his team, that state of affairs may well be history. Oh my. What a nice turnaround that would be.
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This column is based in part on a Commentary of mine that originally appeared on BuzzFlash on Nov. 8, 2007, http://www.buzzflash.com/articles/jonas/081