From April 1953 through May 1955, Colonel Fischer — then an Air Force captain — was held at a prison outside Mukden, Manchuria. For most of that time, he was kept in a dark, damp cell with no bed and no opening except a slot in the door through which a bowl of food could be pushed. Much of the time he was handcuffed. Hour after hour, a high-frequency whistle pierced the air.
After a short mock trial in Beijing on May 24, 1955, Captain Fischer and the other pilots — Lt. Col. Edwin L. Heller, First Lt. Lyle W. Cameron and First Lt. Roland W. Parks — were found guilty of violating Chinese territory by flying across the border while on missions over North Korea. Under duress, Captain Fischer had falsely confessed to participating in germ warfare.
So that's torture now? To use the prevailing American mindset: a room that doesn't meet the standards of a Hilton and some whistling in the background is torture? My neighbor whistles all the time; does that mean he's torturing me? It's not as though Fischer had his eyes poked out by hot irons or was placed in a coffin-like box with bugs or was handcuffed to the ceiling.
Also, using the editorial standards of America's journalistic institutions -- as explained recently by the NYT Public Editor -- shouldn't this be called "torture" rather than torture -- or "harsh tactics some critics decry as torture"? Why are the much less brutal methods used by the Chinese on Fischer called torture by the NYT, whereas much harsher methods used by Americans do not merit that term? Here we find what is clearly the single most predominant fact shaping our political and media discourse: everything is different, and better, when we do it. In fact, it is that exact mentality that was and continues to be the primary justification for our torture regime and so much else that we do.
A simple fact is being overlooked in the Bush-era torture scandal: the number of cases in which detainees have been tortured to death. Abuse did not only involve the high-profile cases of smashing detainees into plywood barriers (“walling”), confinement in coffin-like boxes with insects, sleep deprivation, cold, and waterboarding. To date approximately 100 detainees, including CIA-held detainees, have died during U.S. interrogations, and some are known to have been tortured to death.
The rule of felony murder is a legal doctrine in some common law jurisdictions that broadens the crime of murder in two ways. First, when an offender kills accidentally or without specific intent to kill in the course of an applicable felony, what might have been manslaughter is escalated to murder. Second, it makes any participant in such a felony criminally liable for any deaths that occur during or in furtherance of that felony. While there is some debate about the original scope of the rule, modern interpretations typically require that the felony be an inherently dangerous one, or one committed in an obviously dangerous manner. For this reason, the felony murder rule is often justified by its supporters as a means of deterring dangerous felonies.
According to some commentators, the common law rule dates to the twelfth century and took its modern form in the eighteenth century. Because the rule requires no intent to kill, it has been criticized as unjust. Conversely, it may be argued that the inherent danger of violent felony such as arson or rape suggests an intent to cause or risk serious harm and that thus, all perpetrators should be held accountable for the outcomes of their acts.
In the United States, felony murder is generally first degree murder, and is often a capital offense. When the government seeks to impose the death penalty on someone convicted of felony murder, the Eighth Amendment has been interpreted so as to impose additional limitations on the state power. The death penalty may not be imposed if the defendant is merely a minor participant and did not actually kill or intend to kill. However, the death penalty may be imposed if the defendant is a major participant in the underlying felony and "exhibits extreme indifference to human life".
The official sanction of torture, in fact, not just the sanction of torture but the before-the-fact decision to use torture as a policy tool had this inevitable consequence: homicide. Torturing people to death wasn't official policy, but once unleashed it was inevitable that abuse would spread and intensify and result in murder. And that should demand a criminal investigation, not just of those directly responsible for the deaths, but of those who authorized them.
It would be overly simplistic to suggest that every detainee death in U.S. custody and every act of abuse was part of an authorized and ordered interrogation program designed and run from the highest levels of the Bush administration. Some deaths in Iraq and Afghanistan appear to have involved military or CIA personnel going “off the rails” and engaging in abusive conduct beyond what even White House lawyers had in mind when they crafted their “enhanced interrogation” policies. And some torture techniques were already in use in Afghanistan and spread there earlier than they were even formally approved.
Yet directly or directly, abuse spread and worsened—detainees started dying. Unlike torture, however, homicide is an uncomplicated crime. A criminal homicide occurs when a person or set of persons simply causes the death of another without legal justification. There is little nuance, little room for escape. Once a person is dead, the killer and those assisted him, those who solicited his crime or aided or abetted it, are accomplices.
The bottom line is that many detainee homicides in Iraq and Afghanistan were the direct result of approval and orders from the highest levels of government, and that high officials in the government are accomplices. Any meaningful investigation of those homicides would reveal the initial authorizations and their link to the homicides (my emphasis).
Homicide presents legal issues impossible to ignore. Attorney General Eric Holder and the Department of Justice cannot conclude their deliberations about Bush-era torture policies without closely investigating the homicide cases tied to them. One cannot speak glibly of “policy differences” and “looking forward” and “distraction” when corpses are involved.
And yet, the same people who insisted that we follow the" Rule of Law" a decade ago when President Clinton received consensual — albeit creepy and inappropriate — oral pleasure from an adult woman. We kept hearing that the impeachment was due to the perjury, which we all know was crap since the judge hearing Jones v. Clinton determined that the alleged perjury — while clearly an untrue statement — was immaterial to the case at hand. Nonetheless, the Republican Party and the lawyers for Paula Jones schemed for the next three and a half years to create a perjury trap for the President of the United States because we had to follow the "Rule of Law."
What the torture enthusiasts are arguing NOW is that the rule of law doesn't matter. Not only that but somehow the criminality, which they dispute is actually criminal, is moot because we supposedly stopped attacks as a result of torture.
If only that last point was actually true. New documents released today seem to undercut the argument about attacks being stopped. The torture supposedly stopped an attack on a Los Angeles skyscraper that was featured in the movie Independence Day except that that attack was foiled by the FBI a full six months before the torture actually "worked."
The problem with this logic is that real life is not an episode of "24." The same people who were willing to blow themselves up in order to destroy the World Trade Center and the Pentagon are not going to confess when they are tortured. These men were all told that they would be martyrs and that 72 virgins awaited them in Heaven. Capitulating to torture would mean a dishonorable death with no Heaven and no 72 virgins — not even a 72 YEAR OLD virgin.
The torture enthusiasts always like to cite that fictional ticking time bomb scenario, but given the fact that these men believe they will be martyrs makes that point absurd. Besides, giving false information would purposely waste time and resources chasing leads that only ensure that the bomb will go off.
A quick review of these torture enthusiast talking points is: torture is only a crime committed by foreigners and not Americans; this wasn't torture because lawyers working for the Bush Administration said so; the killing of roughly 100 men was neither torture nor homicide because the same people who crafted the torture policy said so; and last, even though torture was not a crime, the fact that Nancy Pelosi knew that torture was committed not only makes her complicit but that and only that is a crime.
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