Are We Civilized Enough to Hold Our Leaders Accountable for War Crimes? The World Is Watching January 26, 2009Posted by rogerhollander in Criminal Justice, Dick Cheney, George W. Bush, Torture, War.
Tags: Abu Ghraib, Alberto Gonzales, Barack Obama, bush administration, cia secret prisons, crimes against humanity, david addington, department of defense, department of justice, detainees, Dick Cheney, dod, doj, eric holder, geneva conventions, George Bush, Guantanamo, John Dean, john yoo, Keith Olbermann, obama administration, philippe sands, rendition, republicans, roger hollander, rumsfeld, susan crawford, torture, torture convention, torture team, War Crimes, waterboarding
add a comment
Other countries are likely to take action against officials who condoned torture, even if the United States fails to do so.
Remarkably, the confirmation of President Obama’s Attorney General nominee, Eric Holder, is being held up by Texas Republican Senator John Cornyn, who apparently is unhappy that Holder might actually investigate and prosecute Bush Administration officials who engaged in torture. Aside from this repugnant new Republican embrace of torture (which might be a winning issue for the lunatic fringe of the party and a nice way to further marginalize the GOP), any effort to protect Bush officials from legal responsibility for war crimes, in the long run, will not work.
It is difficult to believe that Eric Holder would agree not to enforce the law, like his recent Republican predecessors. Indeed, if he were to do so, President Obama should withdraw his nomination. But as MSNBC “Countdown” anchor Keith Olbermann stated earlier this week, even if the Obama Administration for whatever reason does not investigate and prosecute these crimes, this still does not mean that the Bush Administration officials who were involved in torture are going to get a pass.
With few exceptions, the discussion about what the Obama Administration will do regarding the torture of detainees during the Bush years has been framed as a domestic matter, and the fate of those involved in torturing has been largely viewed as a question of whether the Department of Justice will take action. In fact, not only is the world watching what the Obama Administration does regarding Bush’s torturers, but other countries are very likely to take action if the United States fails to do so.
Bush’s Torturers Have Serious Jeopardy
Philippe Sands, a Queen’s Counsel at Matrix Chambers and Professor of International law at University College London, has assembled a powerful indictment of the key Bush Administration people involved in torture in his book Torture Team: Rumsfeld’s Memo and the Betrayal of American Values. He explains the legal exposure of people like former attorney general Alberto Gonzales, Dick Cheney’s counsel and later chief of staff David Addington, former Office of Legal Counsel attorney John Yoo, the former Department of Defense general counsel Jim Haynes, and others for their involvement in the torture of detainees at Guantanamo, Abu Ghraib, and CIA secret prisons.
After reading Sands’s book and, more recently, listening to his comments on Terry Gross’s NPR show “Fresh Air,” on January 7, 2009 I realized how closely the rest of the world is following the actions of these former officials, and was reminded that these actions appear to constitute not merely violations of American law, but also, and very literally, crimes against humanity — for which the world is ready to hold them responsible.
Here is what Professor Sands told Terry Gross on NPR: “In talking to prosecutors around the world, as I have done, they all recognize the very real political difficulties of taking on someone who has been Vice President of the United States, or President of the United States, or Secretary of Defense of the United States. But those arguments melt away as you go a little down the chain. And I don’t think the same arguments would apply in relation to the man, for example, who was Vice President Cheney’s general counsel, at the time the decisions were taken, David Addington … I think he faces a very real risk of, you know, investigation for complicity in an act that amounts to torture … ” Later, referring to “international investigations,” he added that Addington (and others) were at “serious risk of being investigated.”
These are remarkable statements from a very well-informed man. Because we have a common publisher, I was able to contact him in London, and pose a few questions. I find his book, statements and responses to my questions chilling.
Q & A With Professor Philippe Sands
The following is my email exchange with Professor Sands:
John W. Dean: When talking to Ms. Gross you said you were not calling for such international investigations because we all need more facts. Given the fact that Judge Susan Crawford has now made clear that torture occurred, do you — and others with your expertise and background — have sufficient information to call for other countries to take action if the Obama Administration fails to act?
Philippe Sands: Last week’s intervention by Susan Crawford, confirming that torture occurred at Guantanamo, is highly significant (as I explain in a piece I wrote with Dahlia Lithwick: “The Turning Point: How the Susan Crawford interview changes everything we know about torture”). The evidence as to torture, with all that implies for domestic and foreign criminal investigation, is compelling. Domestic and foreign investigators already have ample evidence to commence investigation, if so requested or on their own account, even if the whole picture is not yet available. That has implications for the potential exposure of different individuals, depending on the nature and extent of their involvement in acts that have elements of a criminal conspiracy to subvert the law.
JD: If yes, can you share what you and others might do, and when?
PS: I am in the process of completing the epilogue to my book Torture Team, which will be published in May 2009. That will set out, in detail, what I learned when I made a return visit to the European judge and prosecutor with whom I met in the summer of 2007, as described in the book. Watch this space.
JD: If no, what would it take for those like you to call for all countries with potential jurisdiction to take action?
PS: More than 140 countries may potentially exercise jurisdiction over former members of the Bush Administration for violations of the 1984 Torture Convention and the 1949 Geneva Conventions, including the standards reflected in their Common Article 3. Whether they do so, and how they might do so, turns on a range of factors, including their domestic procedural rules. In the United Kingdom, one criminal investigation is already underway, in relation to the alleged treatment of Binyam Mohammed, a Guantanamo detainee who is a British resident. I doubt it will be the last. That said, having set out the relevant facts in one case [in my book], to the best of my abilities, I feel it will now be for others to take this forward as they consider appropriate.
JD: Also, when talking to Ms. Gross you said that you did not think that David Addington and others involved in torture were likely to be travelling outside the United States. Do you know for a fact that any country might take action? Have you discussed this with any prosecutors who could do so?
PS: This will be addressed in the epilogue to Torture Team.
JD: Do you believe that a failure of the Obama Administration to investigate, and if necessary, prosecute, those involved in torture would make them legally complicit in the torture undertaken by the Bush Administration?
PS: No, although it may give rise to violations by the United States of its obligations under the Torture Convention. In the past few days there have been a series of significant statements: that of Susan Crawford, of former Vice President Cheney’s confirming that he approved the use of waterboarding, and by the new Attorney General Eric Holder that he considers waterboarding to be torture. On the basis of these and other statements it is difficult to see how the obligations under Articles 7(1) and (2) of the Torture Convention do not cut in: these require the US to “submit the case to its competent authorities for the purpose of prosecution”. What happens thereafter is a matter for the prosecutor, who may decide that, in accordance with applicable standards (“authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State”) and the facts of the case, including the prospects for a successful prosecution, that proceeding to actual prosecution is not justified.
JD: Finally, you mentioned the case proceeding in the UK regarding possible torture of a British national. Is it possible that even an American ally like Great Britain could seek extradition, and undertake prosecution, of U.S. officials like Addington and Yoo for facilitating the torture of a citizen of Great Britain — if the U.S. fails to act?
PS: It is possible. The more likely scenario, however, is that which occurred in Senator Pinochet’s case: the unwitting traveller sets foot in the wrong country at the wrong time.
What Will The Obama Administration Do?
As all who have followed this issue know, President Obama hedged after he was elected as to what he may or may not do. So too did his Attorney General nominee. After Eric Holder declared waterboarding to be unlawful, no one on the Senate Judiciary Committee truly followed up as to what he was going to do, but it appears they are going to now press him on that point.
My question is how can the Obama Administration not investigate, and, if appropriate, prosecute given the world is watching, because if they do not, other may do so? How could there be “change we can believe in” if the new administration harbors war criminals — which is the way that Philippe Sands and the rest of the world, familiar with the facts which have surfaced even without an investigation, view those who facilitated or engaged in torture?
One would think that people like Cheney, Rumsfeld, Addington, Gonzales, Yoo, Haynes and others, who claim to have done nothing wrong, would call for investigations to clear themselves if they really believed that to be the case. Only they, however, seem to believe in their innocence — the entire gutless and cowardly group of them, who have shamed themselves and the nation by committing crimes against humanity in the name of the United States.
We must all hope that the Obama Administration does the right thing, rather than forcing another country to clean up the mess and seek to erase the dangerous precedent these people have created for our country. A first clue may come when Holder resumes testifying.
Tags: 2008 election, anti-gay bigotry, anti-gay victories Florida Arizona Arkansas, California Proposition 8, church state separation, Civil Rights, gay Lesbian rights, human rights, Keith Olbermann, religious bigotry, roger hollander, same sex civil rights, same sex civil union, same-sex marriage
© Roger Hollander, 2008-11-13
(dedicated to Keith Olbermann)
In light of the negative results for same sex civil rights in California, Florida, Arizona and Arkansas elections on November 4, I suggest it may be helpful to take a political/philosophical/analytical look at the issue.
My thesis is the following:
Prejudice and bigotry aside, the greatest obstacle to resolving the human rights issue of same sex marriage is the unfortunate historic “marriage” of church and state in the marriage business.
Those who practice religious beliefs have the right to define in their own terms what a “marriage” between two human beings is. What they don’t have a right to do is to impose that definition on anyone else, least of all the state. Nor do they have the right to put into practice within their own communities a definition that violates human rights. This is true regardless of the degree to which their views are honestly held versus being based upon veiled bigotry.
From the point of view of civil society, what is generally referred to as “marriage” has to do with certain civil rights (inheritance, taxes, adoption, etc.) and restrictions (age, bigamy, incest, etc.). In a secular democracy where human rights are respected, these rights and restrictions need apply to everyone (it is a large part of the problem that the fundamentalist religious right in North America does not believe in or advocate secular democracy, rather they are intent upon imposing a theocracic form of government, not that different from their Islamic counterparts).
It has been the con(fusion) of the religious and civil concepts via state sanctioned religious marriages that has been the root of the problem. This reality reflects itself in the fact that many who oppose same sex marriage have no problem with civil unions.
This, of course, is not to underestimate the impact of bigotry, religious or otherwise, on the issue. However, it is important to have a clear political analysis with honest, clean and understandable definitions. Just as it has been crucial with respect to women’s reproductive health rights that the issue be defined as pro-choice and not pro-abortion; it is essential that those who favor same sex civil rights recognize and take into account that anti-gay bigotry is one thing, and the fundamental issue of the separation of church and state is another.
From a pragmatic political perspective, had the No vote for Proposition Eight prevailed in California, then perhaps it would have turned out for the good to have fought the battle on the grounds of “gay marriage.” Furthermore, it is understandable that men and women who are gay and Lesbian should feel entitled to the same rights and the rest of the population, even if the social institution of concern is morally or politically flawed. A gay or Lesbian pacifist, for example, would not be in self-contradiction advocating for equal rights in the military.
Nevertheless, in the long run I believe it is always best to struggle on the grounds of reason and justice even if it is going to entail a long and arduous battle. Plato said that we should judge the actual by the ideal and not the other way around. Separating religious union from civil union should therefore should never be lost sight of as the fundamental objective; it should be the long term goal regardless of tactical manoeuvres that may make sense along the way.
In an ideal world civil union would be the broader category; every couple who wished to be considered legally a single unit by the state, regardless of sexual orientation and regardless of religious affiliation, would be required to have their union performed and sanctioned by the state. Amongst that larger population, those with religious beliefs would be free, in addition, to be “married” by their church authority.
In and ideal world, a church that believed that “marriage” should only be between a man and a women, might only consider as “married” those both within and outside their community who meet that definition, but would in no way discriminate against same sex couples either within or outside their communities, who have entered into state sanctioned civil unions.
A final tangential thought. When I was a student in the 1950s and 1960s, I could not have conceived that in my lifetime we would see the election of an Afro-American President in the United States. I regret to say that at the moment, I find it just as hard to conceive of the election of an openly gay or Lesbian President in my children’s lifetime. It is my fervent wish nonetheless that History will prove me wrong once again.
Keith Olbermann’s Special Prop 8 Comment: “It’s About the Human Heart” November 12, 2008Posted by rogerhollander in Political Commentary.
Tags: bigotry, California Proposition 8, gay marriage, human rights, Keith Olbermann, love and marriage, marriage definition, prejudice, Prop 8, Proposition Eight, re-defining marriage, roger hollander, same-sex marriage, sanctity of marriage
add a comment
Finally tonight as promised, a Special Comment on the passage, last week, of Proposition Eight in California, which rescinded the right of same-sex couples to marry, and tilted the balance on this issue, from coast to coast.
Some parameters, as preface. This isn’t about yelling, and this isn’t about politics, and this isn’t really just about Prop-8. And I don’t have a personal investment in this: I’m not gay, I had to strain to think of one member of even my very extended family who is, I have no personal stories of close friends or colleagues fighting the prejudice that still pervades their lives.
And yet to me this vote is horrible. Horrible. Because this isn’t about yelling, and this isn’t about politics.
This is about the… human heart, and if that sounds corny, so be it.
If you voted for this Proposition or support those who did or the sentiment they expressed, I have some questions, because, truly, I do not… understand. Why does this matter to you? What is it to you? In a time of impermanence and fly-by-night relationships, these people over here want the same chance at permanence and happiness that is your option. They don’t want to deny you yours. They don’t want to take anything away from you. They want what you want — a chance to be a little less alone in the world.
Only now you are saying to them — no. You can’t have it on these terms. Maybe something similar. If they behave. If they don’t cause too much trouble. You’ll even give them all the same legal rights — even as you’re taking away the legal right, which they already had. A world around them, still anchored in love and marriage, and you are saying, no, you can’t marry. What if somebody passed a law that said you couldn’t marry?
I keep hearing this term “re-defining” marriage.
If this country hadn’t re-defined marriage, black people still couldn’t marry white people. Sixteen states had laws on the books which made that illegal… in 1967. 1967.
The parents of the President-Elect of the United States couldn’t have married in nearly one third of the states of the country their son grew up to lead. But it’s worse than that. If this country had not “re-defined” marriage, some black people still couldn’t marry…black people. It is one of the most overlooked and cruelest parts of our sad story of slavery. Marriages were not legally recognized, if the people were slaves. Since slaves were property, they could not legally be husband and wife, or mother and child. Their marriage vows were different: not “Until Death, Do You Part,” but “Until Death or Distance, Do You Part.” Marriages among slaves were not legally recognized.
You know, just like marriages today in California are not legally recognized, if the people are… gay.
And uncountable in our history are the number of men and women, forced by society into marrying the opposite sex, in sham marriages, or marriages of convenience, or just marriages of not knowing — centuries of men and women who have lived their lives in shame and unhappiness, and who have, through a lie to themselves or others, broken countless other lives, of spouses and children… All because we said a man couldn’t marry another man, or a woman couldn’t marry another woman. The sanctity of marriage. How many marriages like that have there been and how on earth do they increase the “sanctity” of marriage rather than render the term, meaningless?
What is this, to you? Nobody is asking you to embrace their expression of love. But don’t you, as human beings, have to embrace… that love? The world is barren enough.
It is stacked against love, and against hope, and against those very few and precious emotions that enable us to go forward. Your marriage only stands a 50-50 chance of lasting, no matter how much you feel and how hard you work.
And here are people overjoyed at the prospect of just that chance, and that work, just for the hope of having that feeling. With so much hate in the world, with so much meaningless division, and people pitted against people for no good reason, this is what your religion tells you to do? With your experience of life and this world and all its sadnesses, this is what your conscience tells you to do?
With your knowledge that life, with endless vigor, seems to tilt the playing field on which we all live, in favor of unhappiness and hate… this is what your heart tells you to do? You want to sanctify marriage? You want to honor your God and the universal love you believe he represents? Then Spread happiness — this tiny, symbolic, semantical grain of happiness — share it with all those who seek it. Quote me anything from your religious leader or book of choice telling you to stand against this. And then tell me how you can believe both that statement and another statement, another one which reads only “do unto others as you would have them do unto you.”
You are asked now, by your country, and perhaps by your creator, to stand on one side or another. You are asked now to stand, not on a question of politics, not on a question of religion, not on a question of gay or straight. You are asked now to stand, on a question of…love. All you need do is stand, and let the tiny ember of love meet its own fate. You don’t have to help it, you don’t have it applaud it, you don’t have to fight for it. Just don’t put it out. Just don’t extinguish it. Because while it may at first look like that love is between two people you don’t know and you don’t understand and maybe you don’t even want to know…It is, in fact, the ember of your love, for your fellow **person…
Just because this is the only world we have. And the other guy counts, too.
This is the second time in ten days I find myself concluding by turning to, of all things, the closing plea for mercy by Clarence Darrow in a murder trial.
But what he said, fits what is really at the heart of this:
“I was reading last night of the aspiration of the old Persian poet, Omar-Khayyam,” he told the judge.
“It appealed to me as the highest that I can vision. I wish it was in my heart, and I wish it was in the hearts of all:
“So I be written in the Book of Love;
“I do not care about that Book above.
“Erase my name, or write it as you will,
“So I be written in the Book of Love.”
Good night, and good luck.