Torture at the Justice Department? Better Not to Ask

Published on Tuesday, January 25, 2011 by CommonDreams.org

Torture at the Justice Department? Better Not to Ask

by Ray McGovern

On Sunday, I attended an informal talk given in a parish hall by the Justice Department's Thomas Perez, Assistant Attorney General for Civil Rights. His topic: "The way his work for justice is defined by his faith."

During the Q&A after his talk, I had a chance to pose some questions:

Question:  Thanks Tom, for making yourself available to us. You raise the issue of torture, and intimated that there is consensus among Catholics that torture is wrong. Polling conducted two years ago indicates that this is far from the case.

[According to the Catholic News Agency, a survey by the Pew Center Forum on Religion & Public Life found that Catholics are more likely than the general U.S. population to favor the use of torture against suspected terrorists. More than half the Catholics surveyed said that torture could be often or sometimes justified, while another 27 percent said the practice could rarely be justified. Only 20 percent said it could never be justified.]

You are head of the Civil Rights Division at Justice. I am sure you would agree that a person's right not to be tortured is a civil right.

Your immediate boss, Attorney General Eric Holder has stated in testimony to Congress that waterboarding is torture. President Obama has said the same thing. Now the President...that is former President George W. Bush...has written a book in which he brags about authorizing waterboarding and says he would do it again. Former Vice President Dick Cheney earlier endorsed waterboarding.

Like you, Tom, I went to a Jesuit high school, and I know what a syllogism is. If waterboarding is torture, and those who authorized it now admit that and brag about it, is not your boss Eric Holder bound by his oath of office to prosecute those who admit having done that?

I refer here not only to those tortured at Guantanamo, at the huge prison complex at Bagram, Afghanistan, and at "black sites" around the world where my former colleagues at CIA were given carte blanche to ply their trade. I refer also to American citizens like José Padilla born, like me, in New York City, who was deprived of his civil rights and subjected to the cruelest forms of debilitating torture right here in the U.S.A.

Again, you are head of the Civil Rights Division at Justice. You have talked a good bit about conscience. Your boss, the Attorney General, appears unwilling to see to it that the law be faithfully executed. Has your faith or your conscience led you to raise this subject with Eric Holder?

Perez:  It's a matter of prosecutorial discretion. We have discussed these matters, and I am not about to reveal information on those discussions.

Question: Your talk is billed as a discussion of how your faith defines your work for justice. I am not asking you to reveal information about the discussions you have been part of at the Justice Department; I am asking you how you come at the issue of torture from a faith perspective.

Perez:  You are very clever; but I am not going to let myself be drawn into this discussion. Next questioner.

Perez had begun by expressing appreciation for the education he had received from the Jesuits at Canisius High School in Buffalo - a sentiment I share from my four years at Fordham Prep in the Bronx. As far as moral theology and justice are concerned, though, it appears that Perez was exposed to the same dictum at Canisius as I was at Fordham. Moral theology? Ethics? Simple. The whole deal is to: Do Good, and Avoid Evil.

It was not until the mid-80s, when I completed a Certificate in Theological Studies with the more up-to-date Jesuits at Georgetown, that I learned that the Do-Good-and-Avoid-Evil proposition was only half correct. Jesus of Nazareth called us to do good, certainly. But not to avoid evil; rather to confront it.

This shows through clearly in the first chapter of the first gospel written (Mark 1:16-28). After recruiting his fisherman freshman to enroll in Discipleship 101, Jesus brings them into the synagogue at Capernaum and provides a vivid illustration of what his followers are called to do in the face of evil - confront it. 

His message: No confronting of evil, no true discipleship.

Making It at Harvard Law

Distinguished Catholic jurists who preceded Perez at Harvard Law School - like "where-does-the-Constitution-say-executions-have-to-be-painless" Antonin Scalia, and former Attorney General Alberto Gonzales - have amply demonstrated the validity of Lord Acton's dictum about how power corrupts. Perez's response suggests to me that some of this may have rubbed off on him as well.

I am grateful for the insights gained during my years of theology at Georgetown (coincidentally, the same years Perez spent at Harvard Law). The one theme wending its way through all the courses was this: what Yahweh of the Hebrew and Jesus of the Christian scriptures care about, above all else, is that we do Justice - that disciples are called unambiguously, to Do Good and CONFRONT (not merely Avoid) Evil.

I was not surprised that Perez found my question unwelcome. I was surprised that he answered it so dismissively. 

His reaction left the impression that, during whatever deliberations on executive accountability for torture he has been party to, he has held his nose in silence - like his seniors of malleable conscience at Justice and the White House, who choose to duck, rather then confront human rights abuses involving U.S. officials.

Worse still, his taking refuge in "prosecutorial discretion" is flat-out wrong.

The Convention Against Torture

Does he not know that the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the UN General Assembly on Dec. 10, 1984 (now signed by some 150 nations - including the U.S., which ratified it on Oct. 21, 1994) has been and remains the supreme law of the land?

The Convention makes no allowance for "prosecutorial discretion."

If evidence of a violation arises, the signatories are obliged to promptly investigate any allegation of torture and, if appropriate, prosecute. The Convention's description of torture certainly includes waterboarding. And, as already mentioned, Attorney General Holder and President Obama have conceded the point.

(For that matter, even if waterboarding - best defined as "contrived drowning with intentional resuscitation" - were somehow to be deemed not torture, it would certainly constitute the "cruel, inhuman, or degrading treatment" for which the Convention Against Torture also requires investigation as a matter of law.)

The Convention defines torture as:

"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, ..."

The Convention also declares torture an extraditable offense, and endorses the concept of universal jurisdiction to try cases of torture where an alleged torturer cannot be extradited.

Jesus and Empire This may sound somewhat harsh, but it struck me that if Perez was not open to addressing "the way his work for justice is defined by his faith," he ought not to have appeared under that rubric.

Comparisons can be invidious.  And the one that follows is probably somewhat unfair. But the exchange with Perez reminded me of another person of Christian faith, former Secretary of State Madeleine Albright, to whom CBS' Leslie Stahl posed a difficult question on May 12, 1996.

Referring to the effect of the sanctions against Iraq, Stahl noted: "We have heard that half a million children have died. I mean, that is more children than died in Horoshima. And, you know, is the price worth it?"

Albright:  "The price, we think the price is worth it."

In an address eight years later at the Yale Divinity School, Albright elaborated on her Realpolitik approach to matters of state. She asked what would have happened if after 9/11 the President had said, "Resist not evil.  Whosoever shall smite thee on the right cheek, turn to him the other also."

Albright's exegesis: "I suspect most of us would think it a preposterous prescription in a time of national crisis."

She went on to speak of the dilemma that "we each face in trying to reconcile religious beliefs with professional duties," and came down squarely on the side of "professional duties." She then went on to misquote Scripture, claiming that President George W. Bush, in vowing to rid the world of evil, echoed the words of Jesus, "You are either with us or against us."

In a gratuitous reflection of her empire-centric approach, the former secretary of state went on to endorse Vice President Dick Cheney's "sincere" religious beliefs. She singled out as a "good thing" his controversy-provoking Christmas card the year before (2003), which bore the inscription: "If a sparrow cannot fall to the ground without His notice, is it probable that an empire can rise without His aid?"

Stanley Hauerwas, a Yale alumnus now professor of theological ethics at Duke Divinity School, was moved to comment on Albright's speech in a Yale Divinity School publication. He noted pointedly that much of what she said was designed to "underwrite the assumption that we cannot follow Jesus and pursue the limited justice possible in foreign affairs."

But wait. Was not "His" message a direct challenge to empire - in his day the Roman Empire and religious and civil collaborators in the Roman occupation? Isn't that why the religious and civil authorities put their heads together and ended up torturing and executing him?

Had Jesus allowed himself to be co-opted by the empire and its Quislings, had he chosen to divorce his nonviolent but challenging vision of justice from the politics of the day, he could have died peacefully in his bed - as did the leaders of the institutional church in Nazi Germany.

And we can too. All that is required is a mind-trick to convince ourselves that Jesus did not really mean to say what he said, that he did not really mean to do what he did in exposing the evils of empire.

Sadly, help is at hand. It is easy to find a pastor preaching a domesticated Jesus - an ahistorical Jesus far more interested in ``piety'' than justice. I still find myself wondering how the Cheneys' pastor reacted to their Christmas card.

Letting Our Institutions Do Our Sinning for Us

Often it takes a compassionate but truth-telling outsider to throw light on our country, its leaders, its policies. Methodist Bishop Peter Storey of South Africa, who walked the walk in his courageous, outspoken resistance to the apartheid regime (and was chaplain to Nelson Mandela), provides this prophetic word:

"I have often suggested to American Christians that the only way to understand their mission is to ask what it might have meant to witness faithfully to Jesus in the heart of the Roman Empire. Certainly, when I preach in the United States I feel, as I imagine the Apostle Paul did when he first passed through the gates of Rome - admiration for its people, awe at its manifest virtues, and resentment of its careless power.

"America's preachers have a task more difficult, perhaps, than those faced by us under South Africa's apartheid, or by Christians under Communism. We had obvious evils to engage; you have to unwrap your culture from years of red, white, and blue myth.

"You have to expose and confront the great disconnect between the kindness, compassion, and caring of most American people and the ruthless way American power is experienced, directly and indirectly, by the poor of the earth. You have to help good people see how they have let their institutions do their sinning for them.

"This is not easy among people who really believe that their country does nothing but good. But it is necessary, not only for their future, but for us all.

"All around the world there are those who believe in the basic goodness of the American people, who agonize with you in your pain, but also long to see your human goodness translated into a different, more compassionate way of relating with the rest of this bleeding planet."

Finally, let me add something I have learned thanks to some thoughtful but candid comments from my atheist friends.

"Hey, Ray," one wrote, "Please, not so heavy on this Judeo-Christian heritage you keep citing. I don't buy any of it. Wake up: on torture it is not at all necessary to be a person ‘of faith.' It is abundantly clear to this atheist, and to most of us, that it is simply impermissible for human beings to torture one another. Humans do not do that to other humans. Period."

I see the truth in that. At the same time, it does seem that we who claim to follow a courageous dissident activist, who was tortured to death for challenging an oppressive system, may have extra incentive to do all we can to prevent others from being subjected to "Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment."

Ray McGovern works with Tell the Word, the publishing arm of the ecumenical Church of the Saviour in Washington, DC. During his career as a CIA analyst, he prepared and briefed the President's Daily Brief and chaired National Intelligence Estimates. He is a member of the Steering Group of Veteran Intelligence Professionals for Sanity (VIPS). 

URL to article: http://www.commondreams.org/view/2011/01/25-1

 

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"The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and everything to lose--especially their lives." Eugene Victor Debs