Torture By Germany?

Rush Limbaugh was discussing torture yesterday with Andy McCarthy, former U.S. Attorney for the Southern District of New York, who led the prosecution of the terrorists responsible for the 1993 bombing of the World Trade Center, and currently is a conservative columnist. He tries to draw a tortured (pun intended) analogy between the position of the Obama Administration toward torture condoned by the Bush Administration and its alleged position on the deportation of John Demjanjuk, who likely facilitated the murder of 29,000 Jews while he was a Nazi prison guard at the Sobibor death camp in southeastern Poland. Here is a portion of the exchange between McCarthy and the chairman of the Republican Party:

RUSH: Okay. So where we are here is that in terms of extraditing Demjanjuk, he's subjecting (sic) because the Germans (sic) going to torture him, our DOJ is saying, "No, they don't intend to torture him so they're not going to torture him." They're using the same reasoning that they're rejecting in the Yoo-Bybee memos?

McCARTHY: Exactly right. And basically what they're saying is even if Demjanjuk does inadvertently suffer severe pain and suffering from however he's treated by the Germans, our government is satisfied that that wouldn't be torture. Even if he's in exactly the pain he'd be in if they were trying to torture him, as long as they don't intend to do it. When Yoo and Bybee said that, the left went crazy and said, "They're trying to green light torture," but yet this is exactly the position the Obama administration has taken only about ten days ago.

Suppose you were listening and heard Rush say "he's subjecting because the Germans going to torture him...." and McCarthy say "if Demjanjuk does inadvertently suffer severe pain and suffering from however he's treated by the Germans" (emphasis mine). You would think that the German government either plans to torture the subject or will do so inadvertently (Limbaugh). You probably wouldn't know

In the order given this morning, a panel of three judges said Demjanjuk has failed to show he would be tortured in Germany. “At most he has offered speculation that German authorities may not adequately attend to his medical needs while he is in that country’s custody,” the decision said.

Removing Demjanjuk to Germany is not “likely to cause irreparable harm sufficient to warrant a stay of removal,” added the court, despite Demjanjuk’s claim that just flying him to Munich amounts to torture.

Demjanjuk’s family has repeatedly claimed that he is too sick and in too much pain to travel to Munich to face charges he assisted in war crimes during the Holocaust. Such transport would amount to torture and would violate an international treaty banning torture, Demjanjuk said in his petition to the appeals court.

Without having read news reports, you wouldn't know that the cruelty the attorney believes the man who is probably "Ivan the Terrible" might be subjected to is a plane ride from his home in Ohio to Germany. You might be misled into believing ("the left went crazy and said, 'They're trying to green light torture,' but yet this is exactly the position the Obama administration has taken only about ten days ago") that the Obama Administration is condoning behavior it condemns in the Bush Administration. And you wouldn't know that the government of Germany was not planning to employ such tactics as sleep deprivation, starvation, sexual abuse or humiliation, placing the individual in a dark box with insects, or waterboarding. And you probably wouldn't suspect that Rush and Tom were slandering the government of Germany precisely because Germany is a part of Europe, a frequent target of the Republican right, in part because Europe is such a large, somewhat amorphous entity that an attack would offend few people. And ironically, given the right's disingenuous attack on "political correctness," invoking the same tactic first employed by critics of the literature of "dead, white European males."

The question still remains about Rush Limbaugh: Does he know that he is wrong or does he really believe most of what he says?

Censoring A Commencement Address

It has come to Barack Obama, and now it has come to Chris Matthews.

Not to the same degree, of course. President Obama is still scheduled to deliver the commencement address at Notre Dame University in South Bend, Indiana on May 17 despite an online petition protesting Mr. Obama's support of abortion rights and embryonic stem cell research. Nearly 65,000 individuals have signed the document, despite- or more likely because- Obama's opposition to banning same-sex marriage in California, and to enacting a constitutional amendment banning gay marriage, has been omitted. The Roman Catholic Church opposes gay unions as well as the aforementioned abortion rights and embryonic stem-cell research. Consistency, I hear, is the hobglobin of small minds.

But I digress. In an opinion piece in the May 4 edition of The Philadelphia Inquirer, Stephen Majewski, identified as a graduate of St. Joseph's University in Philadelphia and member of a Roman Catholic parish in nearby southern New Jersey, criticizes the Catholic university's invitation to Chris Matthews to deliver a commencement speech and receive an honorary doctorate next week.

Majewski makes a few legitimate points- legitimate, not justified. He writes

Although Matthews claims to be Catholic, he is a longtime enthusiastic proponent of "abortion rights" - in defiance of the clear teachings of the church. And he has displayed hostility toward those who want to protect innocent human life. In March, Matthews said on his MSNBC program, Hardball, that Kathleen Sebelius, at the time President Obama's nominee to head the Department of Health and Human Services, might face "the terrorism of the anti-abortion people."

A Catholic university's mission, first and foremost, must be to adhere to church teachings. While the values of institutions of higher learning - such as open dialogue and inquiry - should be fostered at Catholic universities, they must be within the framework of the church's beliefs and practices. By inviting and honoring Matthews, St. Joseph's has decided that it is a university first and Catholic second.

An interesting point it is, especially as it ignores the church's antipathy toward embryonic stem-cell research and gay relationships sanctioned by the state (as reflected in the support of the U.S. Conference of Catholic Bishops for a constitutional amendment to ban same-sex marriage), less popular positions among the multitudes of students constituting the target audience of a commencement address. Or the church's passion for anti-poverty efforts and social justice (as memorialized by the U.S. Conference of Catholic Bishops, here, in pdf), positions which do not offend Matthews, a Peace Corps worker in his youth.

But criticism of the university's decision is particularly curious given the nature of the talk show host's talk, a commencement address. As almost any regular viewer of either The Chris Matthews Show (Sundays, NBC) or Hardball has noticed, Matthews has some pointed advice for young people graduating from college. He repeated his ideas on last weekend's The Chris Matthews Show:

I've seen ambition in the face and I've paid attention and I've seen what works. The best thing I've learned from the ambitious folks is that old, simple advice: If you want something, don't be afraid to ask for it. If you want a job, get out there. Go to the people who can open doors for you and ask them to do it. Some people are going to say no. But if you don't face down those nos, you're never going to get to the yes that changes everything, the one that gets you through that first door.

The thing is, in life, like in school, not everyone's going to go for your act. Barack Obama lost that first race for Congress. So did President Bush. So did President Clinton. The older Bush lost two races for the Senate and Ronald Reagan lost two races for president before finally finding his way to victory. It's that old, if at first you don't succeed, try, try again.

Another tip: Before you get the job you dream of, grab the one that'll get you through the door. I started as a capital policeman. A decade later, I had the top staff job in the Congress, administrative assistant to the speaker. And don't ever forget that person who got you through that first door. That's the person who's going to keep rooting for you, like your parents.

Ask for what you want. Consult the people who can help you. Don't give up easily. On your way up, don't forget the one who gave you the helping hand.

Probably good advice, maybe not. But neither liberal nor conservative, Democratic nor Republican, Christian, Jewish, heathen, or whatever. And it is a more likely topic that Matthews will address at his commencement address at St. Joseph's University than any views he has held about reproductive freedom.

In an age of Sarah Palin, Michelle Bachmann, and Samuel Wurzelbacher, we expect fanaticism to come in an uneducated, borderline hysterical package. Unfortunately, sometimes it comes in a well-composed, sober column in a major American newspaper.

More On Specter

The saga continues.

Centrist and neo-liberal Democrats, including the President and the Vice-President, are hoping that the newest convert in Washington, D.C., Arlen Specter, becomes a Democrat now that he is a Democrat.

But if Specter's appearance on Sunday's Face The Nation is any indication, it's going to be a long wait. The Pennsylvania Senator, asked by Bob Schieffer where he disagrees with "the President and the Democrats," remarked

One illustration is the legislation on employees’ choice, which is also known as card check, which would eliminate the secret ballot and also provide for mandatory arbitration. Now, while I feel there’s a need for a labor law reform, I’m not for that legislation.

This is unsurprising, given that Specter, representing a state with a very heavy concentration of members of organized labor, has said a few times in the past months that he will be opposing cloture on the Employees Free Choice Act. But asked by Schieffer "What kind of person do you think President Obama ought to nominateto the court?", Specter replied

And we can expect under our constitutional process to have very probing questions for the President’s nominee to make sure that there will be respect for the Constitution and public policy in the Congress, and not to make law but to interpret the law.

For those of you under 8 years old: this "not to make law but to interpret the law" is straight out of Republican 101. It is part of the party's rhetorical support for "strict constructionism." Conveniently, Arlen Specter, like many conservatives who rail against judges who "make law" rather than interpret it, is reluctant to identify the instances in which courts have allegedly legislated, and loathe to identify the offending judges.

On Meet The Press the same day, Specter was asked about retaining as a Democrat the seniority he had accumulated as a Republican, and offered no false modesty:

Well, no, that's an entitlement. I've earned, I've earned the seniority. I was elected in 1980. And I think that's, that's not a bribe or a gift or something extraordinary.

Nevertheless, politico.com reported earlier today that Senate Majority Leader Harry Reid now has decided to treat the Pennsylvania senator as the most junior member of the five committees on which he has been serving. Though Specter claims that Reid had indicated otherwise to him upon the switch of parties (and the arrangement will be reassessed upon convening of the next congress), the contention is belied by this exchange on MTP:

MR. GREGORY: I want to move on, though, to the question of what it took for the Democrats to get you. What were you offered? What inducements have you been given to switch parties?

SEN. SPECTER: None.

MR. GREGORY: None.

SEN. SPECTER: None.

MR. GREGORY: You won't retain your seniority, as you move over, on, on key committees?

SEN. SPECTER: Well, that is, that is, that is true. But...

There is some indication that this unusually bold move by the Democratic caucus was spurred in part by Specter's rather odd confirmation, in an interview to be published this week in The New York Times, of his radical allegiance to affirmative action and continuing fondness for the GOP:

Q: With your departure from the Republican Party, there are no more Jewish Republicans in the Senate. Do you care about that?

SPECTER: I sure do. There’s still time for the Minnesota courts to do justice and declare Norm Coleman the winner.

Speculation arose that Specter was joking (which the reporter doubts) and, as if to confirm that he was actually serious, Specter said he "misspoke." (That's politician for "I didn't realize speaking as I believed would hurt me politically.")

In classic understatement, Michigan Senator Debbie Stabenow summed it up:

"There were concerns about his actions."

Arlen Specter On Face The Nation

Senator Arlen Specter appeared on Sunday's Face the Nation and was asked by host Bob Schieffer: How do you come down on that? What kind of person do you think President Obama ought to nominate to the court? He responded (from transcript, in pdf) in part:

I’d like to see more diversity. I think another woman would be good. I think that ultimately maybe now we need an Hispanic. African-Americans are un-- underrepresented.

Specter's point raises a whole lot of possibilities. There are, by this count 12Jewish United States Senators (it really doesn't matter, does it?). That would be 12% of that body, far greater than the roughly 1.7% in the population. Decrease the number of Jews in the United States Senate? That would be up to the electorate and the suggestion therefore is silly, unless it would be accomplished by the replacement of Arlen Specter by a real Democrat.

But how about on the Court- which is not subject to popular election- itself? Currently, there are two Jews, 5 Roman Catholics, and 2 Protestants- including the outgoing (not in terms of personality, for sure) Souter. Contrast this to the American population as a whole, now approximately 51.3% Protestant, 23.9% Roman Catholics, and 1.7% Jewish.

Should we endeavor to make the Court reflect the population of the people it serves? Perhaps limit our search for Associate Justice Souter's replacement to qualified Protestants (of whatever color), casting aside Roman Catholics and Jews until such time as Protestants are better represented?

Is this idiotic? Is it unnecessarily restrictive? Is it an analogous proposition? Yes, yes, and yes. Sure, there is a greater likelihood of African-Americans bringing a different perspective to the Court because of their background (one which reflects their experiences, and status in society) than would Protestants. Then consider Clarence Thomas, who is relatively indistinguishable from most white, conservative Republicans. And unlike race (e.g., black) or national origin (e.g., African-American)- which are inherited characteristics- religion is at least somewhat a choice.

Maybe all this consideration of demographic factors is a waste of time and injurious to the cause of justice in the nation. And that would be the point.

Values And Ideology: To The Back Of The Bus

Joe Conason typically writes provocative article from the left for salon.com, and his latest, "The Supreme Court Pick of Obama's Dreams" is no exception. However, it is wrongheaded and misleading.

Conason argues that the likely selection of Sonia Sotomayor, judge on the Second Circuit of the U.S. Court of Appeals, to replace retiring justice David Souter, Conason would presents President Obama with a tremendous political opportunity, as Sotomayor likely would be loudly opposed by Republicans. How, he gloats "do you say 'bring it' in Spanish?" He argues

As a female her elevation would begin to bring gender equity to a forum where historically men have exercised far too much unchallenged power over the lives of the women. As a Latina, her rise would symbolize the next stage in the full enfranchisement of immigrants whose language, status and poverty have too often turned them into scapegoats for the cultural and economic costs of globalization.

Consider that Conason says here that the appointment:

1) would "bring gender equity" to the Supreme Court "("to a forum...). Nothing here about gender equity in society, only on one, admittedly influential, court;

2) "would symbolize the next stage in the full enfranchisment of immigrants...." Nothing here about advancing the enfranchisment of immigrants- only about "symbolizing" the cause. And no acknowledgement that though Sotomayor's parents, from Puerto Rico, were immigrants, they were Americans before even entering the United States- unlike, say, Mexicans, in whose category Sotomayor so cavalierly places Puerto Ricans.

3) would be a repudiation of immigrants being turned "into scapegoats for the cultural and economic costs of globalization." Again, insofar as immigrants have been turned into scapegoats for globalization (a facile and superficial treatment of the issue of immigration/illegal immigration), Puerto Ricans have not typically been used as such scapegoats. Except by extremely ignorant individuals unable or unwilling to differentiate them from Mexicans or other immigrants.

Suggesting we "leave(ing) aside for a moment the question of her precise place on the judicial spectrum between liberal and conservative," Conason later suggests "Sotomayor is considerably more moderate in her thinking and practice than Samuel Alito or John Roberts."

And that is the problem- if accurate- Conason glosses over. He contends that Obama could ignore the charge that in the appointment of Sotomoyer, he is ignoring white males, "because, thanks to his predecessor, members of that group were awarded the last two seats on the court."

But John Roberts and Samuel Alito are not white males. They are conservatives. And they were not appointed because they were white males but rather because they were conservatives. (If Conason believes otherwise, he should go immediately to the point and accuse George W. Bush of racism.) And while Conason and those of similar viewpoint urge selection of minorities and women irrespective of viewpoint (and judicial temperament, age of nominee/likely length of service, etc.), conservatives/Republicans will push this President, and presumably future presidents of either party, to appoint justices who are outraged by (abridged list): regulation of the financial industry; environmental safeguards; gun control; the graduated income tax; the Sixth Amendment.

Joe Conason may be right that the GOP could not vehemently denounce selection of Sonia Sotomayor without practically immolating itself, and she might even be the individual most likely to bring over a long period advanced qualities of scholarship, leadership, and progressive/liberal values to the Court. But that would be far superior motivation than the lure of ill-defined "change" in ethnicity, gender, or any other factor an individual gains by dint of parentage.

Torture, (ill)Legally

On Hardball recently (and practically always), 2009 Pulitzer-prize winning journalist Eugene Robinson explained that there are three components to the torture debate: moral, effectual, and legal. Not surprisingly, little attention has been given to the last facet, given that legal analysis does not yield effectively to video or any visuals whatever.

The issue of morality and effectiveness of torture are intimately intertwined. If, say, sleep deprivation is immoral in most instances, is it so if a detainee is supposed to have information relating to a terrorist plot about to be executed? And is morality affected by the degree of certitude that the detainee has the information? And what about waterboarding or having a detainee stand naked? Are they more or less immoral than sleep deprivation, and to what extend does the nature of the information to be gleaned affect the acceptability of that form of torture?

The legal angle, however, stands alone. "Enhanced interrogation methods" conducted by an agency administrator, CIA or FBI employee administering it, private contractor administering it, high government official, or lawyer submitting the brief setting out its alleged justification can be evaluated apart from the morality or effectiveness of the action.

The Geneva Convention Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949 proscribes enhanced interrogation, or whatever the behavior may be called, when in Part III, Section 1, Article 17 it declares "no physical or mental torture, nor any other form of coercion, may be initiated on prisoners of war to secure from them information of any kind whatsoever" (emphasis mine). Common Article 3 prohibits "cruel treatment and torture" and "outrages upon personal dignity, in particular, humiliating and degrading treatments." In a rebuke to the Bush Administration, the U.S. Supreme Court ruled that it applies to terrorism suspects.

The Army Field Manual, which proscribed "humiliating and degrading treatment" and other tactics from the Convention,

expressly prohibit(s) acts of violence or intimidation, icluding physicial or mental torture, threats, insults, exposure to inhume treatment as a means of or aid to interrogations....(such acts) are criminal acts punishable under the USMJ.

And though not directly addressing the legal issue, the Manual interestingly goes on to observe

Experience indicates that the use of prohibited techniques is not necessary to gain the cooperation of interrogation sources. Use of torture and other illegal methods is a poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the interrogator wants to hear.

This manual, dating from 1992, apparently was superceded in 2005 by FM 2-22.3 Human Intelligence Collector Operations, which made some of those methods available for interrogation- but also notes "in contrast to the previous version of the manual, this edition states that the Geneva Conventions are to be applied to all detainees in US military facilities."

The United States Code Title 18,2340A demands

Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

The alleged offender need only be a national of the U.S.A. or present in the U.S.A.

The United States Code Title 18.2441 in turn prescribes the penalty for a war crime, explains that the alleged offender can be either a member of the Armed Forces or a U.S. national, and asserts a war crime may include "a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed conflict not of an international character." Among the "grave breaches" of Article 3 is

Torture.- The act.... specifically intended to inflict severe physical or mental pain or suffering... upon another person.

According to United States criminal code, then, torture was committed by individuals subject to the law and is punishable by incarceration or, in the extreme, execution.

More comprehensive is the (United Nations) CONVENTION AGAINST TORTURE
and Other Cruel, Inhuman or Degrading Treatment or Punishment. In Article 1, torture is defined as

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

Article 2 specifies:

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Article 4 specifies:

1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
3. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

And Article 12:

Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.

A neutral look at the United Nations Convention Against Torture, then, would convice an objective reader that our nation has committed torture and must take steps (as President Obama has) to prevent torture. Note also that the Convention precludes any rationale ("no exceptional circumstances whatsoever"), and extends the prohibition to anyone complicit in torture.

The U.N. Convention Against Torture has been codified in U.S. law by enactment by Congress under 2340-2340A. It thus, unequivocally, legally, applies to the United States.

The preceeding is not meant to minimize the importance of analyzing the efficacy or morality of torture. But we know that the behavior which has been committed: a) constitutes torture, according to the Geneva Convention, the Army Field Manual (even as adapted during the Bush 42 Administration), United States Code, and the United Nations Convention Against Torture; b) is required to be punished, according to the Army Field Manual, U.S. Code, and the U.N. Convention Against Torture; c) cannot, according to the Convention and made applicable to the nation by statute, be legally justified on the basis of circumstance.... or because of an order from "a superior officer or public authority"....or because the individual was merely complicit in, rather than having committed, the act.

The least demanded of a civilized nation is a "prompt and impartial investigation," as the Convention requires. Anything less constitutes a surrender of what should be our commitment to the rule of law and to being a nation of laws, not of men. And if a thorough, impartial investigation is frightening to Obamaphiles and appalling to conservatives, they can be comforted that the most inclusive and compelling document, the United Nations Convention Against Torture, was signed by the United States in 1988. By President Ronald Wilson Reagan.

A Pretty Sweet Deal

Arlen Specter's opportunistic jump to the Democratic Party has been met with glee by the big Democratic players. Pennsylvania Governor Ed Rendell has pledged his support for Specter against any and all comers in a Democratic primary, and The New York Times reports today

.... Mr. Specter said on Tuesday that he had received commitments from Mr. Obama and from Senator Harry Reid of Nevada, the majority leader, to support him in any primary, backing intended to deter Democratic challengers. Mr. Obama made good on that pledge on Wednesday.

The most outlandish- and telling- statement of support came from Vice President Joe Biden, who as a lon-time friend, commuting buddy, and U.S. Senate colleague of Specter, reportedly was the most instrumental in convincing the guy some Republicans are now calling "Benedict Arlen" to switch parties. Biden said, with apparent pride and lack of irony, "anyone who thinks Arlen is going to cash in his independence has another think coming."

Say what you will about Biden- and so many do- he is right on target. In his statement Tuesday, Specter bragged about his reputed "independence," vowing "My change in party affiliation does not mean that I will be a party-line voter any more for the Democrats that I have been for the Republicans. Unlike Senator Jeffords’ switch which changed party control, I will not be an automatic 60th vote for cloture. For example, my position on Employees Free Choice (Card Check) will not change."

At his press conference, he confirmed "I'm opposed to the nominee for Assistant Attorney General in the Office of Legal Council, Dawn Johnsen." Then the following day, Specter voted against the budget conference report, which enables the reconciliation process, which would allow for President Obama's budget to pass with a simple majority. And Thursday, Specter joined his fellow Republicans- er, former fellow Republicans- in voting down the amendment offered by Dick Durbin (D.-Ill.), which would have added to S896, the Helping Families Save Their Homes Act, "cramdown." As opencongress.org describes it, this is "a provision giving judges the power to reduce mortgage principals and interest rates for homeowners in bankruptcy," a right currently afforded owners of vacation homes, yachts, and investment properties.

The agreement apparently struck between Speaker Reid and Senator Specter allows the latter to keep as a Democrat the seniority he had as a Republican, as a Senator elected in 1980. Here, openleft.com explains Specter's rank on each of the five committees on which he currently serves and there is a possiblility Leahy will create a special subcommittee on the Judiciary Committee that Specter would chair. There also is speculation that 84-year-old Daniel Inouye of Hawaii may step aside as chairman of the Appropriations Committee, to be replaced by Vermont's Patrick Leahy, who in turn would be replaced as chairman of the Judiciary Committee by Specter.

All in all, not a bad arrangement for a guy who a few days ago was down to two choices: stay a Republican and exit the Senate in 21 months; or do a "solid" for Barack Obama, switch parties, and have a chance to survive.