Another whiff of hypocrisy

John McCain continues to distance himself from these comments by strategist Charles Black, who seems to be ambivalent about the benefits and burdens of terrorism:

The assassination of Benazir Bhutto in December was an "unfortunate event," says Black. "But his knowledge and ability to talk about it reemphasized that this is the guy who's ready to be Commander-in-Chief. And it helped us." As would, Black concedes with startling candor after we raise the issue, another terrorist attack on U.S. soil. "Certainly it would be a big advantage to him," says Black.

But there's a familiar whiff of hypocrisy from the McCain camp, as revealed in this excerpt from an Associated Press analysis by Glen Johnson:

The day Bhutto died in a bombing and shooting attack, McCain told reporters, "My theme has been throughout this campaign that I'm the one with the experience, the knowledge and the judgment. So perhaps it may serve to enhance those credentials to make people understand that I've been to Pakistan, I know (President Pervez) Musharraf, I can pick up the phone and call him. I knew Benazir Bhutto."

If any uproar ensued over this comment, it failed to attract much attention from the media.

It's clear that Republicans, and particularly McCain, are trying to position themselves so that terrorism becomes a win/win proposition, at least in their fevered imaginations. Either:

1. There will be no attack, in which case Bush/Cheney/McCain can claim that "we kept you safe" — assuming we're willing to overlook the 4,104 U.S. deaths and nearly 30,000 wounded in Iraq; or,

2. There is an attack and McCain can be hyped as more experienced, with more defense cred, than Obama -- hey, it's a tough world out there.

The ongoing attempt to "feminize" Obama, as developed by Maureen "Obambi" Dowd and many others, plays nicely into this grand, and unspeakably cynical, strategy.

"Into a different game..."

In an interview with the BBC on February 12th, U.S. Supreme Court Justice Antonin Scalia (left) addressed the question of torture in the following terms:

"To begin with the constitution... is referring to punishment for crime. And, for example, incarcerating someone indefinitely would certainly be cruel and unusual punishment for a crime."

Scalia argued that courts could take stronger measures when a witness refused to answer questions:

"I suppose it's the same thing about so-called torture. Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the constitution?" he asked.

"It would be absurd to say you couldn't do that. And once you acknowledge that, we're into a different game.

"How close does the threat have to be? And how severe can the infliction of pain be?"

Here, once again, is Scalia's version of "strict constructionism" in action: the "punishment" narrowly refers to sanctions imposed by a court following a criminal conviction.

Scalia seems to believe that the authors of the Bill of Rights weren't really concerned about how people in pretrial custody, for whatever reason, were treated. He implies that the 9th Amendment doesn't restrict coercive interrogations during the investigative process, when the presumption of innocence applies to suspects or defendants in the U.S. legal system. So "smacking someone in the face" is permissible, then, for a suspect (or maybe even a witness) who's presumed to be innocent—but not, Scalia generously allows, for convicted criminals.

There's a separate and quite vast body of law, of course, that applies to coerced confessions by persons who are merely suspects in criminal cases. Seventy-two years ago, in Brown v. Mississippi [1], three black defendants were sentenced to death following their conviction for murder. Despite uncontested evidence of torture, the state Supreme Court affirmed the jury's verdict. Two courageous Mississippi judges dissented and described the events that led to the three "confessions:"

"The crime with which these defendants, all ignorant negroes, are charged, was discovered about 1 o'clock p.m. on Friday, March 30, 1934. On that night one Dial, a deputy sheriff, accompanied by others, came to the home of Ellington, one of the defendants, and requested him to accompany them to the house of the deceased, and there a number of white men were gathered, who began to accuse the defendant of the crime. Upon his denial they seized him, and with the participation of the deputy they hanged him by a rope to the limb of a tree, and, having let him down, they hung him again, and when he was let down the second time, and he still protested his innocence, he was tied to a tree and whipped, and, still declining to accede to the demands that he confess, he was finally released, and he returned with some difficulty to his home, suffering intense pain and agony. The record of the testimony shows that the signs of the rope on his neck were plainly visible during the so-called trial. A day or two thereafter the said deputy, accompanied by another, returned to the home of the said defendant and arrested him, and departed with the prisoner towards the jail in an adjoining county, but went by a route which led into the state of Alabama; and while on the way, in that state, the deputy stopped and again severely whipped the defendant, declaring that he would continue the whipping... until he confessed, and the defendant then agreed to confess to such a statement as the deputy would dictate, and he did so, after which he was delivered to jail.

"The other two defendants, Ed Brown and Henry Shields, were also arrested and taken to the same jail. On Sunday night, April 1, 1934, the same deputy, accompanied by a number of white men, one of whom was also an officer, and by the jailer, came to the jail, and the two last named defendants were made to strip and they were laid over chairs and their backs were cut to pieces with a leather strap with buckles on it, and they were likewise made by the said deputy definitely to understand that the whipping would be continued unless and until they confessed, and not only confessed, but confessed in every matter of detail as demanded by those present; and in this manner the defendants confessed he crime, and, as the whippings progressed and were repeated, they changed or adjusted their confession in all particulars of detail so as to conform to the demands of their torturers. When the confessions had been obtained in the exact form and contents as desired by the mob, they left with the parting admonition and warning that, if the defendants changed their story at any time in any respect from that last stated, the perpetrators of the outrage would administer the same or equally effective treatment.

"Further details of the brutal treatment to which these helpless prisoners were subjected need not be pursued. It is sufficient to say that in pertinent respects the transcript reads more like pages torn from some medieval account than a record made within the confines of a modern civilization which aspires to an enlightened constitutional government."

In unanimously reversing the three convictions, the U.S. Supreme Court rejected the notion of a "trial by ordeal," stating [citations omitted]:

"The rack and torture chamber may not be substituted for the witness stand. The state may not permit an accused to be hurried to conviction under mob domination--where the whole proceeding is but a mask--without supplying corrective process...The state may not deny to the accused the aid of counsel... Nor may a state, through the action of its officers, contrive a conviction through the pretense of a trial which in truth is 'but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured...' And the trial equally is a mere pretense where the state authorities have contrived a conviction resting solely upon confessions obtained by violence. The due process clause requires 'that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions...'

"It would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process."

Is waterboarding even "more revolting to the sense of justice" than the treatment of the suspects in Brown? It's certainly not less revolting. Scalia's reference to a "smacking someone in the face" is disingenuous given the catalog of far greater horrors that have been inflicted on suspects in U.S. custody in places like Guantanamo and Abu Ghraib. His comments to the BBC also focus on the extreme situation facing Jack Bauer in 24: the suitcase atomic bomb that's about to go off in Los Angeles [2].

Ah, but Scalia has already argued that the "unlawful combatants" at Gitmo don't have the same legal rights, and freedom from coercion, as the defendants in the Brown case [3]. In another speech in Europe reported by the BBC , he is quoted as follows:

"War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts. Give me a break... If he was captured by my army on a battlefield, that is where he belongs."

Scalia, as usual, is quite reckless about expressing himself, and apparently prejudging, matters that are likely to come before the Supreme Court. To paraphrase the old bumper sticker from the days of the AT&T telecommunications monopoly, Scalia might just say: "I don't care, and I don't have to." Unlike other judges, the Supremes aren't subject to any ethical constraints whatsoever, apart from their own consciences.

While Scalia told the BBC that it would be "absurd" to rule out sticking "something under the fingernail" of a detainee in a difficult situation, at least he seems to think that detainees captured on a battlefield are entitled to the same treat as prisoners of war (although 80% of Gitmo inmates were not captured on the battlefield).

The Bush administration, meanwhile, refuses to grant the Gitmo "unlawful combatants" the same minimal rights available to POW's. The prosecution is seeking the death penalty for six detainees, a sentence that is strictly forbidden for POW's under international law, including the Third Geneva Convention of 1949. These show trials will likely be conducted as the fall election approaches, possibly winning political points for Republican waronterra candidates but deepening worldwide cynicism about the alleged "rule of law" in the U.S.

NOTES

[1] Cite: 297 U.S. 278 (1936). The prosecutor in the case was John Stennis, who was the U.S. Senator from Mississippi from 1947 to 1989.

[2] Any minimally-competent terrorist group would arrange to limit the damage to its plans that might result from the capture of any of its members, especially as the plan is about to be realized. It's likely that the terrorists who had actual possession of such a suitcase bomb would be the only ones in a cell who'd know where it was or where it would be used. Torture would be very unlikely to extract any information of value in that situation.

[3] The three defendants were described as "ignorant Negroes" even in the dissent, and no doubt they were second-class citizens. But at least they were citizens entitled to minimal constitutional protections—once their case went beyond the trial court.

PHOTO: The Washington Note

Islamofascism: construct and reality

As part of a symposium in Slate involving various discredited "liberal hawks" on the Iraq war, including Christopher Hitchens and Tom Friedman, Paul Berman writes:

It's all too true that better leaders could have made better plans, and the French and the Germans and the United Nations could help even now, if only they would. But it ought not to be so hard to see that, even so, the prospects of the totalitarian movement are looking a lot less healthy today than they did on Sept. 10, 2001 and the prospects of Muslim liberalism are looking up, somewhat.

Huh? Unless the perilous return of Benazir Bhutto to Pakistan is evidence of better "prospects" for Muslim liberalism, I must be missing something. The "totalitarian movement" in question, of course, is "Islamofascism," a meaningless term that Bush, Cheney and unrepentant neocons toss about recklessly in the hope that it will eventually gain some intellectual traction.

Writing in the neoconservative Weekly Standard, Stephen Schwartz—supposedly the "first Westerner" to use the term—attempts to define "Islamofascism" as the "use of the faith of Islam as a cover for totalitarian ideology. This radical phenomenon is embodied among Sunni Muslims today by such fundamentalists as the Saudi-financed Wahhabis, the Pakistani jihadists known as Jama'atis, and the Egyptian Muslim Brotherhood. In the ranks of Shia Muslims, it is exemplified by Hezbollah in Lebanon and the clique around President Mahmoud Ahmadinejad in Iran."

In lumping these groups together under the rubric of "Islamofascism," Schwartz seems to have overlooked the reality on the ground in Iraq, to mention just one example, where the schism between Sunnis and Shi'ites seems to have practical significance. Or the vast differences between the Sunni Wahhabis of Saudi Arabia and the Shi'ite mullahs who dominate the current regime in Tehran. If there's an unifying militant ideology that unites these conflicting groups, he's unable to describe it in a coherent way.

Schwartz goes on to state that fascism is "distinguished from the broader category of extreme right-wing politics by its willingness to defy public civility and openly violate the law." By that standard, both Gandhi and Martin Luther King were "fascists."

Terror, Schwartz writes, is one of major "fascist methods" that define the "Islamofascist" movement. Terrorism, though, is a tactic and not an ideology—a fundamental distinction that seems beyond Dubya's grasp. In fact, the systematic application of terrorist methods has been a political tactic for centuries across a vast ideological spectrum, from the Zealots of ancient Palestine to the radical Jacobins of the French Revolution to the 19th-century Russian anarchists and well beyond into the current century. Not to mention state terrorism, which has undoubtedly killed more people than all other forms combined.

The U.S. Department of Justice, back in 1975, offered a workable definition of terrorism that is independent of any specific ideology: "Violent criminal behavior designed primarily to generate fear in the community, or substantial segment of it, for political purposes." Terrorists are motivated by some form of ideology that provides a moral cover, however suspect, for their conduct. It's misleading to focus on the conduct without looking at the specific convictions that animate it.

But back to Berman's argument in Slate. His reference to the condition of the alleged "totalitarian movement" reveals how much he still shares the assumptions of the Bush war planners: they can only understand conflict in terms of a reductionist Cold War paradigm. So this fantasy-based community posits an all-powerful "totalitarian movement" on the communist model, with Al Qaida manipulating every nationalist and Muslim insurgency from Iraq to Afghanistan to the Philippines. Increasingly, in Iraq and elsewhere, Al Qaida and "Islamofascism" have become synonyms. In the same way, Cold Warriors imagined that every nationalist insurgency, from Vietnam to Guatemala, was precisely orchestrated in the back offices of the Kremlin. The reality was, and is, far more complex.

By this familiar process, Bush and the neocons attempt to transform disparate national and religious ideologies into a monolithic "Islamofascism" and launch a global war on it. Ironically, there's a self-fulfilling quality to all this: their "global war" on this alleged "totalitarian movement" may yet bring into being a unified Muslim counterforce that didn't previously exist.

MAP: Islam by country, showing percentages of Sunnis (green) and Shi'ites (red). Click to enlarge. (Wikimedia Commons)