By Any Other Name?

Joan Walsh: Torture is Illegal Whether it Works or Not. (VideoCafe, with transcript)

WALSH: You know, I couldn't disagree more with my friend Chris. This is not a "he said/she said" situation. This is torture. Torture is illegal. We don't sit here, Howie, and say he said murder is illegal, but she said, well, sometimes murder's not so bad. These are clear matters of law.

Ronald Reagan signed the 1988 U.N. Convention Against Torture where we committed ourselves to prosecuting people who torture. It's the law. It's super clear. It's not a partisan witch hunt or a "she said/he said" situation.

- - - - -
WALSH: No, it's illegal, whether it works or not. It's illegal whether it works or not, David.

International human rights instruments

Convention Against Torture

International Committee of the Red Cross: International Humanitarian Law - Treaties & Documents

Principles of International Law Recognized in the Charter of the Nüremberg Tribunal and in the Judgment of the Tribunal, 1950.

The United States is a Signatory to the Convention Against Torture

A Summary of United Nations Agreements on Human Rights:

This convention bans torture under all circumstances and establishes the UN Committee against Torture. In particular, it defines torture, requires states to take effective legal and other measures to prevent torture, declares that no state of emergency, other external threats, nor orders from a superior officer or authority may be invoked to justify torture. It forbids countries to return a refugee to his country if there is reason to believe he/she will be tortured, and requires host countries to consider the human rights record of the person's native country in making this decision.

The CAT requires states to make torture illegal and provide appropriate punishment for those who commit torture. It requires states to assert jurisdiction when torture is committed within their jurisdiction, either investigate and prosecute themselves, or upon proper request extradite suspects to face trial before another competent court. It also requires states to cooperate with any civil proceedings against accused torturers.

United Nations, Human Rights - Office of the High Commissioner for Human Rights:

Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity

The War Crimes Act of 1996, a federal statute set forth at 18 U.S.C., makes it a federal crime for any U.S. national, whether military or civilian, to violate the Geneva Convention by engaging in murder, torture, or inhuman treatment:

Laws : Cases and Codes

U.S. Code : Title 18 : Section 2340A. Torture

U.S. Code : Title 18 : Section 2441. War crimes

Finding Justice

18 U.S.C. 2340-2340A:

"Torture" means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;...

OPERATIONAL ISSUES PERTAINING TO THE USE OF PHYSICAL/PSYCHOLOGICAL COERCION IN INTERROGATION: An Overview, July 2002:

...The requirement to obtain information from an uncooperative source as quickly as possible - in time to prevent, for example, an impending terrorist attack that could result in loss of life - has been forwarded as a compelling argument for the use of torture. Conceptually, proponents envision the application of torture as a means to expedite the exploitation process. In essence, physical and/or psychological duress are viewed as an alternative to the more time-consuming conventional interrogation process. The error inherent in this line of thinking is the assumption that, through torture, the interrogator can extract reliable and accurate intelligence. History and a consideration of human behavior would appear to refute this assumption....

CONCLUSION: The application of extreme physical and/or psychological duress (torture) has some serious operational deficits, most notably, the potential to result in unreliable information....

Here's what we know, based on the public record as represented above. A) Torture is illegal. B) The architects of the torture regime were informed that the "harsh interrogation techniques" they intended to use were torture, and that those methods were unreliable. C) Against that counsel from a military agency, torture was deployed--excessively, and it was used in part to extract information from detainees about ties between al Qaeda and Iraq, ties that the best intelligence the administration had access to had already deemed nonexistent, in order to justify the planned invasion--the chosen war--in Iraq.

We've known much of this for years, actually, and that the moment for deciding on how to reckon for it was coming.

Arriving at both accountability and light in this toxic political environment will be a massive challenge, but one from which our leaders shouldn't shirk. [...]

The damage of doing nothing is hard to calculate, but I think there are a few guarantees of what will happen. More and more information will continue to come out about what America did. There are a handful of official accountings still expected, but once those have all been released, we'll start seeing the product of the people who were tortured, and of those who did the torturing. There are more photos coming, as many as 2,000, but there could be more that the government doesn't know about. There will be more interviews and exposes from former detainees, and possibly guards. There will undoubtedly be memoirs from the tortured and the torturers. There is the possibility of indictments of Americans in foreign countries.

In short, it's a book that likely won't end for at least another generation. When we turn a page, there will be another page after it, and another after that. It won't really end. It will fester. It will add to the cynicism many in our country feel toward their government, will add to the disconnect, will cement the knowledge that there are two kinds of justice in our country, and that the Donald Rumsfelds go free, while the Lynndie Englands and Charles Grangers rot in prison.

Our standing will be diminished among our friends in the rest of the world, and among civilized nations who would be our friends. It will be much easier for those who might not otherwise be our enemies to find justification to turn against us. The effect of the United States getting away with torture would mean other nations would feel unrestricted in using it. The countries that abide by their treaty obligations--and their soldiers--would be at a disadvantage. And everybody's soldiers--America's included--would be more likely to face torture if captured.

It will have made torture a policy choice that future presidents will feel justified in turning to. Finally, it will mean that we're a country governed by the rule of law only when the people making and wielding the laws feel like following them.

Torture by any other description

Several years ago, I asked a veteran journalist for advice.

"I'm trying to figure out if I have an ethical conflict," I began.

"If you have to ask, you do," he said. [...]

It comes down to that. We're either a rule-of-law nation -- or we're not. We can't invent definitions of torture for one type of person that wouldn't be acceptable for another, no matter how much we may despise or distrust him. As Graham put it: "I don't love the terrorists, I just love what Americans stand for."

Meanwhile, how trustworthy are the confessions of the tortured? Not very, according to those who know.

Most important, we can hardly present ourselves as arbiters and protectors of human rights when we selectively abuse those in our custody, no matter how compelling our cause. When we parse definitions of "mental pain" and "suffering," we begin to slip down the slope of moral ambiguity where deceit finds company among the dead. [snip]

It is by the cool light of day that we devise our laws. And it is by that same light that we judge our actions.

Simple as that. In posing a question, we often reveal the answer.

Apply the same construct to torture. If we have to ask, it probably is.

Motown Mayor Pleads Guilty, Resigns

From WXYZ.com:

Guilty Plea, Mayor Resigns

Detroit Mayor Kwame Kilpatrick has pleaded guilty to felony charges in Wayne County Circuit Court. He will be forced to resign immediately.

Kilpatrick pleaded guilty to two obstruction of justice felony charges.

In addition to his resignation, the Mayor will serve 120 days in jail, serve 5 years probation, pay one million dollars restitution, surrender his pension, surrender his law license and may not seek office for 5 years.

His sentencing is scheduled for October 28th.

The Mayor also pleaded no contest to assault charges as part of a settlement agreement under the conditions that he must resign. The second count in the case will be dismissed.

The Mayor entered Wayne County Circuit Court Judge David Groner's court room this morning at about 9:10 shaking hands and doling out hugs.

The mayor turned to Christine Beatty, his former chief of staff and shook her hand. That was just moments before his wife, Carlita, walked into the courtroom.

The court was packed with Kilpatrick's team of lawyers and public relations staff.

Wayne County Prosecutor Kym Worthy was present along with assistant prosecutors. Worthy charged the mayor and Beatty with several felonies, including perjury and obstruction of justice.

Special Assistant Attorney General Douglas Baker was in attendance on behalf of Attorney General Mike Cox, who charged the mayor with assault and obstruction.

Detroit Mayor: 'I Lied Under Oath'

Detroit Mayor Kwame Kilpatrick addressed the court admitting that he "lied under oath."

Kilpatrick pleaded guilty to two obstruction of justice felony charges.

In addition to his resignation, the Mayor will serve 120 days in jail, serve 5 years probation, pay one million dollars restitution, surrender his pension, surrender his law license and may not seek office for 5 years.

The Mayor also pleaded no contest to assault charges as part of a settlement agreement under the conditions that he must resign. The second count in the case will be dismissed.

COCKREL: The Man Who Would Be Mayor

With Kwame Kilpatrick set to resign as Mayor, Detroit City Council President Ken Cockrel Jr. will step into the city's top job. The city clerk’s office has prepared paperwork to allow for the transition of power between Kilpatrick and Cockrel.

A Detroit police officer has also delivered paperwork to Cockrel’s office to enable the setting up of an executive protection unit for the new mayor. Cockrel is still trying to determine the effective date of Kilpatrick's resignation and is speaking with city council lawyers about their interpretation of the plea agreement.

Cockrel says he is ready to become mayor, and that he is already putting together a potential staff. While he hasn't named any specific people, Cockrel says he will most likely name a new chief of staff and deputy mayor. Kandia Milton currently holds both of those position.

There are currently close to 160 mayoral appointee position in the city government. However, Cockrel says that not all of Kilpatrick's appointees and aides will have to leave their positions. But Cockrel has said, "There are some people who would definitely have to quit."

Prosecutor: 'I'm Glad He Resigned'

Though she said, “I’m glad he resigned,” Wayne County Prosecutor Kym Worthy says Detroit Mayor Kwame Kilpatrick’s resignation was never a bargaining chip.

For the prosecutor, the most critical parts of the plea deal were jail time and restitution. Worthy called both, “Critically important.”

Worthy said the mayor took responsibility for himself, "finally."

"We did not give an inch," the prosecutor said.

"These were not the mayor's conditions," Worthy said. " This has been our deal all along."

The mayor's resignation will be effective in 14 days. But some in his administration are already leaving like Detroit Police Chief Ella Bully Cummings who resigned today, according to a statement issued this morning.

Governor, Cockrel to Speak

Michigan Governor Jennifer Granholm has scheduled a 12:00 PM press conference to talk about Mayor Kwame Kilpatrick's plea deal.

Immediately following that, Mayor to be Ken Cockrel Jr. will hold his own press conference.

Beatty Court Hearing Rescheduled

Mayor Kwame Kilpatrick's former Chief of Staff, Christine Beatty, was is in court briefly to face a judge in her criminal case.

Her attorney, Mayor Morganroth asked for a Sept. 11 docket conference. Her case wil continue. That confernce date is exactly one year after a jury awarded police officers 6.5 million dollars in the whistle blower case.

So far, there has been no word of any plea negotiations in her case. Action News spoke with Attorney Morganroth on September 3. He said her perjury case may be headed to trial.

Morganroth said he is not involved in any plea negotiations for his client.

Earlier in the day on September 3, Beatty refused to answer several questions during a deposition, citing her 5th amendment rights against self incrimination. She arrived at Morganroth's office about 10 minutes late for a 10:00 a.m. deposition case in a Freedom of Information lawsuit, brought by the Detroit Free Press. The paper is seeking details about the $8.4 million settlement in the whistle blower lawsuit.

Police Chief Ella Bully-Cummings Retires

Action News has learned that Detroit Police Chief Ella Bully-Cummings announced her retirement to Mayor Kwame Kilpatrick earlier this week.

Chief Bully-Cummings’ retirement is effective immediately. She has agreed to assist her successor to help stabilize the transition of leadership within the Detroit Police Department if she is requested to do so.

Weekly Zeitgeist

AlterNet's Weekly Zeitgeist List -- The 10 Hottest Issues of the Day

July 8, 2008:

1. Is Obama shifting rightward? What should supporters do?

   ~Arianna Huffington

2. Is the economy in free fall?

   ~Dean Baker

3. Gas prices through the roof; SUV and truck sales headed to the basement.

   ~Michael T. Klare

4. The Iraq war has always been about oil.

   ~Bill Moyers and Michael Winship

5. Obama's shifting position on FISA

   ~Glenn Greenwald; Bob Ostertag

6. Will Bush bomb Iran?

   ~Jim Lobe; Amy Goodman

7. The debate over intergenerational feminism following Hillary's loss.

   ~Courtney Martin

8. Campaign for universal health insurance.

   ~Roger Hickey

9. California Supreme Court recognizes gay couples' right to say "I do."

   ~Gilbert Herdt and Robert Kertzner

10. A Supreme Court on the Brink.

    ~NY Times Editorial

And one for the road:

Professor Ticketed for "No to Empire" Bumper Sticker

The police state in the mirror is closer than it appears:


Professor Robert Ovetz was driving through San Francisco on the morning of June 30 when he saw the lights of a police car behind him.

Ovetz pulled over.

"When the officer came up to my window, he asked the typical police requests: registration, drivers’ license, insurance card," says Ovetz. "I asked him why he was pulling me over. And he said because of the bumper sticker on my back window."

That sticker says, "No to Empire," in large bold letters, and on the bottom in very small letters, "www.thenation.com," Ovetz notes. It’s a bumper sticker from The Nation magazine.

Ovetz’s first reaction was to laugh, he says.

Then he recalls the following conversation:

"How could it be illegal for me to have a bumper sticker on my back windshield?"

"It’s obscuring your view."

"You’re just trampling on my free speech rights."

"No sir, I’m just doing my job."

At that point, the officer went back to his squad car for a few minutes.

When he returned, he gave Ovetz a ticket.

That ticket cited part of the vehicle code that prohibits driving a car if the "driver’s clear vision" is "obstructed by snow or ice" on the car windows.

"I’ve never seen snow in June in San Francisco," says Ovetz’s attorney, Ross Dreyer. [snip]

[Ed: You can buy your very own "No To Empire" bumper sticker (pictured above) at the Nation Store.]

Texas may lose their fight over FLDS children, and it will be an expensive loss.

I've in the past been quite critical of some of the aspects of the FLDS church, in particular their practices of forcing teenage girls into marriage (such as I blogged on here) and kicking out teenage boys (as I blogged on here.)

I've also made it clear that my problems with them have to do with child abuse in particular, not polygamy in general (what sexual relations consenting adults have with each other, and in what numbers, is not a matter which interests me, nor is it a matter which should warrant the interest of the state.)

However, following the recent raid in Texas, I wrote a post in which I expressed concern about civil rights violations by the state of Texas in their decision to remove hundreds of children from the FLDS compound, with no specific evidence that any of them in particular had been abused. The determining factor, in fact, was their religious identity and nothing other than that. It is true that several of the teenage girls were pregnant, but without being too blunt about it I suspect that if you go to any community in America you will find that a significant number of teenage girls are pregnant. My eldest daughter was pregnant when she was fifteen. I'm not suggesting that this is a good thing, but it's not grounds to remove a child from their home in the absence of any specific evidence of rape, incest or another crime causing the pregnancy (and as noted, they had none about specific children who they removed.)

Since then, Texas' case has been unraveling and they have been embarrassed by a steady stream of bad news about their case. The first came when it turned out that the phone calls that Texas authorities had received, claiming to be from an abused teenager named, 'Sarah' inside the compound, actually turned out to be a hoax after they were traced to a woman named Rozita Swinton in Colorado Springs, Colorado. Her motivation was apparently a progressive, but misplaced mindset. These phone calls had provided the original justification for the raid and the warrant to go in, in the first place. What is especially troubling is that it is not all that hard to reverse trace a phone call and verify the caller's location (in fact this was obviously done but the information was apparently not examined until after the raid.) This leads to two scenarios, both troubling: either that Texas authorities were looking for a pretext for a raid and jumped so fast that they didn't bother to check a basic fact like this, or even more troubling that they knew the calls were phony and went ahead anyway.

Texas authorities then claimed that they had reason to believe that a man named Dale Evans Barlow had abused some of the children at the ranch. Only problem is that there is no evidence that Dale Evans Barlow was ever at the ranch. In fact during the time period in question, Dale Evans Barlow was checking in weekly with his Utah probation officer. It is conceivable but a bit far fetched to suppose that every week he met his probation officer, drove for about 36 hours to the Texas compound, stayed there a couple of days to abuse some girls, then drove 36 hours back to Utah and met with his probation officer, and then repeated this pattern every week. Texas Rangers did travel to interview Dale Barlow on April 12, but left without making an arrest, and they have no evidence at all that he ever did travel to Texas during the time when he is alleged to have committed the crime (though no one can even name who made the allegation in the first place, unless perhaps it was made by Rozita Swinton while she was pretending to be 'Sarah.')

Then we have the case of Pamela Jessop. Pamela Jessop was a pregnant teenager who was removed from the compound. She maintains that at the time told them that she is eighteen (legally an adult) and showed them her birth certificate to prove it. Records seized at the scene by the Texas authorities confirmed that her age was eighteen, so they knew how old she was. They forcibly kept her in custody anyway so that when she gave birth they were in a position to give her a choice of either returning to the compound without her newborn child (she also has a one year old) or to stay there with the newborn. Jessop has hired some attorneys and they are considering filing a Federal lawsuit against the state of Texas.

Which leads us to what happened earlier this week. State authorities returned to the compound, claiming that they believed there were more children inside. They were denied admittance despite having a search warrant. Understandably after what happened last month, the FLDS at the ranch are not very welcoming of another search warrant. More to the point though this feels a lot like a 'CYA' situation. When a case starts to fall apart, and especially if it is a case that could result in expensive lawsuits, sometimes authorities will dig in and desperately start trying to find any evidence they can, no matter how flimsy, in order to manufacture a case when the original charges don't pan out.

So then yesterday the Texas Court of Appeals ruled that the mass removal of the children of 38 mothers was wrong because the state failed to prove that the children were in 'imminent danger.' Though the court stopped short of ordering all of the children returned immediately (allowing Texas to maintain them in foster care until they decide whether to appeal to the Texas Supreme Court,) the Court of Appeals made it very clear that the raid and continuing detention of the children is, in the opinion of the court, not justified by facts or evidence and may be a gross violation of civil rights occurring on a massive scale.

What Texas did earlier this week, apparently realizing that the Appeals Court case was likely to go against them, in trying to launch a second raid was an act of desperation. They realize now that they overreached in seizing hundreds of children with no specific evidence that any one of them is in danger, and now they are starting to realize that Pamela Jessop's likely lawsuit is only the first of hundreds that could be filed-- likely costing the state of Texas hundreds of millions, or even billions of dollars. So this is likely to be a very expensive and painful lesson for Texas to learn about respecting civil rights.

I'd also like to point out how the 'hang 'em high, cowboy' attitude of Texas contrasts to the strategy that is being employed cooperatively by Arizona Attorney General Terry Goddard (a Democrat) and Utah Attorney General Mark Shurtleff (a Republican.) Goddard and Shurtleff have cooperated to seize and place the assets of the FLDS Church under the direction of an outside board of directors where they will be used for the benefit of the community and all its members, have put FLDS leader Warren Jeffs behind bars and recently held a joint meeting in St. George in which polygamists from Colorado City and Hildale were able to openly discuss their concerns and the concerns in their community. By focusing on enforcing the law against the leaders who pushed their flock into violating it but not punishing the members of the church, Goddard and Shurtleff have created an atmosphere of at least limited communication and understanding that it is safe to say after this episode law enforcement officials in Texas will never have. And with yesterday's court decision, it doesn't look like they will have anything else to work with either.