By Steven Jonas, MD, MPH - February 18, 2009
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 Muk asey. 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. 
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