The View From 1776

Presidential Power and Torture

My early 1950s LSU Constitutional law professor, Walter Berns, gives us historical perspective lacking so far in the “hate Bush” political vendetta.


Posted by .(JavaScript must be enabled to view this email address) on 05/23 at 12:11 AM
  1. Contrary to Mr. Brewton's intro, Berns plows old ground that has been exhaustively debated since the torture memos were released months ago.

    To Review a few points (for the endless discussion of which Mr. Brewton and Mr. Berns were apparently asleep):

    1) No legal authorities believe that Lincoln's actions during the "Rebellion" justify suspension of Habeus by Bush.

    2) Lindsey Graham, Republican, is correct that we are a nation of laws. Mr. Graham has been a civilian lawyer as well as in the military justice system and knows both systems well.

    3) The bogus "Unitary Executive" theory of Bush and Cheney (and Berns)is a concept without historical support or merit in constitutional law. The "Justice Officials" mentioned in the Burns piece were John Yoo, a lawyer directed by Cheney to write the memos justifying torture. These so-called opinions lacked even rudimentary legitimacy in that they failed to mention a vast body of cases where waterboarders and other torturers were tried and convicted.

    4) The quote "Was Mr. Bush entitled to imprison the terrorists in Guantanamo?" is, on its face, a big part of the problem with the illegal actions of the Bush White House. Who determined that the detainees held at Guantanamo were "terrorists"? Turns out that most of these people were detained without charge, without evidence or on "Secret" or hearsay evidence, without access to an attorney, in perpetuity, on the mere say so of George Bush! And we now know that many of these people were tortured and that most of these people were NOT in fact "terrorists" at all.

    Before Bush left office he released 2/3rds of them because after half a decade of prisoner abuse, there was no case.

    Our laws say that war criminals shall be prosecuted. We are waiting to see if the present administration will comply with the law.
    Posted by .(JavaScript must be enabled to view this email address)  on  05/25  at  07:50 PM
  2. Mr. Jay:

    Re your point (1) "No legal authorities believe..." You cannot document that blanket assertion. Professor Berns is a recognized authority on Constitutional law. Obviously plenty of lawyers agree with the positions taken by the Bush administration.

    Are you contending that the only "authorities" are liberal-progressive-socialists? that in a socialist welfare state, people will be allowed to think only the thoughts approved by Big Brother?

    Re your point (3): please document the cases in which waterboarders have been tried and convicted of torture.

    Re your point (4), "...most of these people were NOT in fact
    Posted by .(JavaScript must be enabled to view this email address)  on  05/26  at  10:01 AM
  3. Tom,

    After the civil war, the Supreme Court officially restored habeas corpus in Ex-parte Milligan, ruling that military trials in areas where the civil courts were capable of functioning were illegal. So, using Lincoln as a basis for arguing that presidents have the unilateral power to deny Habeus ignors that fact that Lincoln was formally reversed in Milligan.

    In your second point, are you suggesting that Republican Lindsey Graham is a liberal progressive socialist?

    You asked for convictions for waterboarding:

    1983 United States v. Parker et. al (Texas sheriff of San Jacinto County convicted and sentenced to 10 years for waterboarding torture of prisoners.)

    1986 to present: US court of Appeals, Ninth Circuit re Ferdinand Marcos, 25 F. 3d 1467 (766 million awarded in class action suit for waterboarding.)

    WWII United States v. Hideji Nakamura, et al; United States v. Sawada, et al, Japanese troops convicted of waterboarding torture.

    Fisher v. State, 145 Miss. 116; 110 So. 361 (1926).

    White v. State, 129 Miss. 182; 91 So. 903 (1922).

    Treaties signed by the US Senate become the law of the land, including the Geneva Accords outlawing torture, including waterboarding. The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. was signed by the USA on 18 Apr 1988, ratified by the US Senate 21 Oct 1994:

    Article 1

    1. For the purposes of this Convention, the term "torture" means 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

    I did not imply that detaining prisoners of war was illegal. I implied that those committing the war crime of abetting torture should be prosecuted.

    How do you square the Lord's injunction to "turn the other cheek" (Matt 5:39) with your supporting those who deliberately tortured other human beings - even if some were an "enemy"?
    Posted by .(JavaScript must be enabled to view this email address)  on  05/27  at  12:09 AM
  4. Tom,

    And I forgot to add the information you requested about proof that the majority of Gitmo detainees were not found guilty of anything.

    Bush started with at least 775 detainees. So far, 420 have been released without charges (by Bush) leaving 245 for Obama to deal with.

    Lawrence B. Wilkerson, a Republican and chief of staff to then-Secretary of State Colin Powell, recently told The Associated Press that most of the detainees, "Some have been there six or seven years." were not guilty of anything. They were picked up in Afghanistan because Bush offered a bounty of $5000, if you accused anybody of being a terrorist.
    Posted by .(JavaScript must be enabled to view this email address)  on  05/27  at  12:29 AM
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