Wednesday, April 22, 2009

Cruel & Unusual Punishment?

There has been a lot of talk in the news lately with regard to the military prison at Guantanamo Bay, the military prison at Bagram Air Force Base (Afghanistan) and the CIA Torture Memo's that are potentially applicable to both institutions.

In the Pre-9/11 film, The Seige, (staring Denzel Washington, Annette Bening and Bruce Willis), America on the silver screen was faced with the very same issue we find ourselves confronted with today: torture. Denzel's character, an FBI agent, represents the voice on the Left that believes that we can protect our nation by the book, without the use of torture. Willis' character, an Army General, represents the voice on the Right that believes we must protect our nation by any means necessary, including torture. And in one defining scene Denzel's character states the following in reference to the use of torture on an Arab detainee:

"Come on General, you've lost men, I've lost men, but you - you, you can't do this! What if they don't even want the sheik, have you considered that? What if what they really want is for us to herd our children into stadiums like we're doing? And put soldiers on the street and have Americans looking over their shoulders? Bend the law, shred the Constitution just a little bit? Because if we torture him, General, we do that and everything we have fought, and bled, and died for is over. And they've won. They've already won!"

The General's response was simple: "Escort him out." [referring to Denzel's Character] And he then proceeded to torture the detainee until the detainee died having provided no information whatsoever.

10 years later, this exact same debate is playing out right now in Washington and the Attorney General, Eric Holder, is being pulled between the polarizing views on the Left and the Right with respect to prosecuting those who sanctioned the use of torture within the Bush Administration. On the one hand, there are those who say it made our country safer and no punishment should be levied against those in the previous administration who participated in the torturing of detainees at Guantanamo or elsewhere. On the other hand, there are those who say that not only has torture failed to make our country any safer, but that we have shamed ourselves in the process because by engaging in such activity our government has violated the 8th Amendment of the United States Constitution, which squarely states on its face that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

When considering whether or not to prosecute members of the Bush Administration, it is important for Eric Holder to ascertain what they knew at the time. That includes whatever legal counsel they may have received and relied upon in good faith with regard to whether torture could be used or not. To that end, a former Bush Administration official who used to serve under Condoleeza Rice in the State Department came forward this week with some very inculpatory evidence for those Bush Administration officials who claim to have acted upon sound legal counsel. That individual, a lawyer by the name of Phillip Zelikow, reviewed the CIA memo's supporting the use of torture back in 2005 and drafted a memo of his own which, in essence, revealed the many legal weaknesses of the CIA torture memo's. He distributed his memo to the administration at the time, however, not only was his memo rejected by the Bush Administration, but the Administration took affirmative steps to have any and all copies of it destroyed. Holy cover ups, Batman!!!

It is one thing to disagree with the legal research and analysis of Mr. Zelikow on the merits with respect to torture, it is quite a different matter altogether to seek to silence that analysis. Such actions smack of a guilty conscience.

Which brings us back to the fundamental question: to torture or not to torture. President Obama has already declared on more than one occasion over the past few weeks of his presidency that America will no longer torture. But there are those on the Right, like Dick Cheney, who feel this type of a philosophy will only make America weaker. So before we have Attorney General Holder go through all the trouble of opening up Pandora's Box with this investigation, we need to ask ourselves as a nation:

America torture terrorists and other detainees if it will keep America safe?
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