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by Josef Joffe
Wednesday, Mar. 29, 2006 at 5:33 AM
Outlawing torture is as "American" as Independence Day and the milkshake.. How can one defend freedom by destroying it, even if only in Cuban and Arab prisons?
BETRAYAL OF THE AMERICAN IDEA
Outlawing torture was part of the founding of the US. The pictures from Abu Ghraib show that the Bush administration has broken the morality of the constitution.
By Josef Joffe
[This article published in: DIE ZEIT 09, 2006 is translated from the German on the World Wide Web, http://zeus.zeit.de/text/2006/09/Folter_2fUSA-Verfassung.]
People who hold America as depraved, power-crazed and morally backward use Abu Ghraib, Guantanamo and the “rendition” of prisoners to states where the “third degree” dominates the interrogation routine. One need not be anti-American to amass a body of evidence against the Bush administration. It is enough to criticize the Bushists for betraying the best traditions of the land.
Let us take torture and compare both sides of the Atlantic. In 1815 torture was abolished in the Vatican that could look back to a long tradition of “severe” interrogation as in the Inquisition. Among the western states, the Swiss canton Glarus in 1851 was the last entity in Europe to ban torture from the repertoire of official coercive measures. However “abolished” in Europe to the end of the 20th century never meant “ended” – see the slave driving practice of leftwing and rightwing totalitarians up to the fall of the wall.
THE US CONSTITUTION PROHIBITED TORTURE SINCE 1787
On the other side of the Atlantic, something unique happened on September 17, 1787. For the first time in the history of states, torture was outlawed in the American constitution. The Fifth Amendment declares: “No one may be forced to incriminate himself in a criminal trial.” People know the famous Fifth Amendment from dozens of Hollywood films where the villain says to the judge: “I take the Fifth Amendment” or “I will not say anything that could incriminate me.” The public prosecutor must rummage for other evidence.
This sentence embodies an enormous advance in humanity’s history, the end of the “Spanish boot.” Torture is prohibited and useless when the accused cannot be forced to confession… In the sixties of the 20th century, the legendary Miranda Rule was added that the moviegoer heard. The police officer reads to the arrested: “Everything that you say now can and will be used against you in court” and “You have the right to remain silent.”
In short, outlawing torture is as “American” as Independence Day and the milkshake. Therefore the Bushists resort to so-called renditions, transferring prisoners to countries in the Arab Middle East where interrogations occur with impunity. This is a manifestation of the bad conscience and evasion of the constitution and laws of the United States in export procedures.
His brings us to Guantanamo and the 14th Amendment: “No state may take the life, freedom or property from anyone without a fair trial or equal protection under the law within its jurisdiction.” The key term is “jurisdiction” which again explains Guantanamo. The bad conscience also scratches here. The Cuban enclave is an American possession but not a “jurisdiction” in the sense of the 14th Amendment. In any case, the Bushists thought we could satisfy our security needs here without having to “run around the constitution.”
The American constitution is very serious at this point. The Fifth and Fourteenth amendments say the same thing. The Fourteenth even repeats a central declaration of the Fifth that supports the torture prohibition: the inalienable right to a “fair trial.” In other words, this principle was so sacred to the fathers of he constitution that they wrote it twice in one document that today only contains seven articles and 27 amendments.
Thus the praxis of renditions and Guantanamo contains an implicit self-accusation. The mottos are “Let others do it” (Jordanians and Egyptians) or “Let it be done somewhere else” (where the constitution is allegedly not in force). They show that the Bush administration knew very well the importance of America’s most sacred document. Thus it is only a question of time before Guantanamo and Abu Ghraib land in the Supreme Court. A constitutional breach is a constitutional breach is a constitutional breach – the plaintiffs will argue even if the offense occurs outside the “jurisdiction.”
Now we come to the political. The question presses: Why did no one warn the president or the Secretary of Defense? The White House and the Defense Department had their well-versed legal counsel. If they had been worth their salary, they would have pointed their bosses to the snare of the constitution. The advisors knew but were not forthcoming or were forthcoming but no one listened. The consequences of this non-existing feedback are fatal – fatal for America and fatal ultimately for the West that should be rightly proud of the principles anchored in the American and all other liberal-democratic constitutions.
During the Second World War, Winston Churchill said he would even make a pact with the devil to defeat Hitler. However an old English proverb says: “See that you have a long spoon when you dine with the devil.” Certainly, other rules prevail in war than in regular cooperation in peace times. The long spoon contains a practical and a moral warning: the closer one comes to evil, the greater the danger of poisoning.
Rumsfeld et.al. cast to the wind this piece of popular (or folk) wisdom in their (self-) righteous rage at al-Qaida. To paraphrase Tallyrand: “Guantanamo and Abu Ghraib are worse than constitutional breaches; they are mistakes.” What are 500 prisoners in Guantanamo worth if they poison America’s just desire of resisting terror? Are most noble traditions of the land dismantled? How can one defend freedom by destroying it, even if only in Cuban and Arab prisons?
Perhaps the Bushists only regard this as a PR-offense that can be rooted out again with massive “public diplomacy.” Perhaps America’s enemies will use Abu Ghraib and Guantanamo as welcome ammunition. However all this does not change the problem of George Bush’s America of betraying morality in the name of morality.
CAN BUSH FORGET ABROAD WHAT IS SACRED AT HOME?
The consequences can be seen in the pictures broadcast around the globe. The opposition in America seems paralyzed. In war times, the people always gather around the president. However uneasiness and alarm are growing in the country. The criticism becomes louder and includes Republican Senator John McCain and some churches.
The man on the street is not a constitution expert. Still everyone has heard the phrase “inalienable rights” that are listed in the second paragraph of the 1776 Declaration of Independence including the right to “life and liberty.” The head of government at that time, George III, the “king of Great Britain” was accused of “annulling our most valuable laws.” Some time or other, perhaps very soon, his subjects will also ask contemporary George about “our most valuable laws” when what is sacred at home is broken outside America.
In the Declaration of Independence, the young Americans confessed their “respect” for the “opinions of humanity.” George W. ignores these opinions today. However he has to respect the “opinions of the American humanity.” Different from the rule of George III, the power of his contemporary namesake rests on the “consent of the governed,” a keyword of the Declaration of Independence. Displeasure grows. Congressional elections will be held in the fall.
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