Mr. President, Have I Been Rolled On Torture?
Mr. President, have I been rolled? I write today to ask this question, because it is truly, critically important to me as a citizen and a voter. All my life I have derided single issue voters, after all can’t they see that there is a bigger picture beyond their issue? That they find it compelling and are sincere in their commitment is not in doubt, but there has to be a balancing of the issues in any democracy. Now, I find myself in the position of being a single issue voter. It is due to the fact that there is finally an issue that is so overriding, so critical to the very notion of what it means for all of us to be Americans that I find myself in this position. That issue, Mr. President, is the extra legal holding, rendition and torture of prisoners in the so-called War on Terror.
In the primary season, I switched away from the candidate I supported because of a statement that you made. Do you remember this, Sir? :
Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in coverups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law — and I think that’s roughly how I would look at it.
You said that less than a year ago in Philadelphia. That you would make such a statement, at a time when we already knew that we had tortured through water-boarding, (this from the February 5th Senate testimony of CIA Director Michael Hayden) was a stunning revelation for me. I found that regardless of my other concerns about your policies that any candidate that would publicly commit to the investigation of torture and other War Crimes had to be the one that I supported. From that forward, you were the candidate that I would work for, write in support of; defend to my Republican friends and in all ways work to put in the White House.
We did it too. You, hundreds of thousands of volunteers, tens of thousands of activists and more than 60 million voters made sure that the Party whose president put those policies in place did not retain the Presidency. Now is where my concern comes in. We hear your new Attorney General state unequivocally that water-boarding is torture. Yet we hear you say that you would rather look forward than back. We see you signing an Executive Order to close the shameful Black Site prisons where we have held unknown numbers for unknown amounts of time, but your CIA Director says that he supports the transfer of captured terror suspects to third party countries for questioning. Mr. President, what in the world could be gained from doing that, except an attempt at deniability for when these suspects are tortured?
It is enough to make me ask, have I been rolled? Is what I heard you say that day in April 2008 just a political sop to win election? I am not a naïve person about politics. I have never expected to be happy with all of your policy choices. I grew up in a political family and understand all too well that you must make compromises if you are to govern effectively. In fact I take a lot of heat for appearing to be a centrist about policy for this very reason. The thing is Mr. President, that there are some bright lines where compromise is unacceptable. They are few, but it is their very rarity that makes it so critical that we do not cross them.
This issue of extra legal detention and torture of prisoners is one of them. Sir, if you do not do the right thing on this issue, your entire Presidency will be tarnished. I have exactly no doubt that you will do major things to improve our economy, that you will set us on the real path the a more environmentally sustainable energy future and that you will take real steps towards assuring that health care is not a privilege but a basic assumption of citizenship. However none of those will matter if you do not act on torture and extra legal detention.
My Father was an attorney; he worked all this adult life in the law because he believed in the fundamental premise that the law must be applied universally and fairly if we are to have a nation that is worth being proud of. The very idea that no one is above the law, is one that, if allowed to be proven false, will lead to irreparable damage to our Republic. While mitigating circumstances can be used to reduce the punishment, we must never let them deter the functioning of the law. If we do not end the illegal policies, investigate those that justified them, ordered them, carried them out and then lied about them in public, we will be doing just that, letting the circumstances mitigate our responsibilities’ in the law.
Make no mistake, Mr. President, these actions are against the law. Article Six, Clause Two of the United States Constitution says:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
In 1994 we, the United States ratified the International Convention Against Torture. In Article One of this Convention it states:
For the purposes of this Convention, 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.
In Article Two of this Convention it states;
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.
Mr. President, based on the Supremacy Clause and the first two Articles of the International Conventions Against Torture that we are still signatories too, we must investigate and punish the acts of torture that we know have been committed in our name. To fail to do so is to say that we are no longer a nation of laws. If that is what we are going to do, then I have to say that I am, for the first time, glad that my Father is dead, and will not see his life’s work in law thrown on the ash heap of expediency.
I am sure that you are aware of the facts above, after all you were a Constitutional Law professor, but I thought that it would be worthwhile to remind you, as your new job brings a myriad of issues to your attention on a daily basis. I hope that you will remember that you are still an officer of the Court and still bound by the cannons of professional ethics that requires you act in the best interest of the law.
You are however also the President of the United States. On January 20th of this very year you stood in front of the Capital Building and with the world watching took the following oath:
"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
Sir, you are required by this oath to preserve, protect and defend our Constitution. That same Constitution makes Treaties the Supreme Law of this land. I put it to you Mr. President that you can not actually fulfill this oath if you do not fulfill our treaty obligations under the International Conventions Against Torture.
In fact, under those Conventions, you yourself would be complicit along with the criminal Bush administration for their crimes if you do not act to investigate, indict, prosecute and punish those that conceived, justified, ordered and carried out torture. Water-boarding, according to your own AG is torture. We know that this was done at the order of the criminal Bush administration, you path here is clear. Ideals must be defended with idealism, there is no room for compromise when we are talking about the basic building blocks of our Republic.
I must, finally ask again, hoping the answer is no, wanting the answer to be no, pleading for the answer to be no, but Mr. President, have I been rolled by you?