An open letter to Mr. Tim Rutten

Mr. Rutten:

Your June 18, 2008 opinion column, published by the Los Angeles Times, is untenable. Your attempt to reduce Bush administration collusion to license the torture of terrorism suspects to mere politics is a disservice to the people of the United States of America, and an insult to our neighbors around the world.

While indeed these are difficult times marked by sharp political disagreements, the pretense that bad-faith legal advice customized to warrant blatant disregard for the law, the United States Constitution, and the international agreements to which our nation has signed its commitment and prestige is mere political maneuvering does not simply verge on the outrageous, but rather punches through that border and demands a wholesale transcension of the very concept of rule of law.

In that column, you wrote,

Right-wing — as opposed to conservative — commentators already have begun branding the Senate investigation and parallel House inquiries as a witch hunt designed to discredit administration policies that they say have kept the country free from attack for seven years. (It’s interesting, however, that even Pentagon spokespeople no longer hint that interrogations involving torture elicited information on planned attacks, let alone imminent ones.)

Part of the hysteria over all this that you see in places like the Wall Street Journal editorial pages stems from an anxiety that congressional inquiries, like that of Levin’s committee, will lead to indictments and possibly even war crimes trials for officials who participated in the administration’s deliberations over torture and the treatment of prisoners.

It’s true that there are a handful of European rights activists and people on the lacy left fringe of American politics who would dearly like to see such trials, but actually pursuing them would be a profound — even tragic — mistake. Our political system works as smoothly as it does, in part, because we’ve never criminalized differences over policy. Since Andrew Jackson’s time, our electoral victors celebrate by throwing the losers out of work — not into jail cells.

Now, first, in an era when the Democratic Party is denigrated as being liberal—a laughable notion in itself—the distinction you draw between the right wing and the politically conservative is dubious enough. The Wall Street Journal—a source of what you describe as hysteria, although I am not inclined to argue with that assessment—is “right wing”, as opposed to “conservative”?

More importantly, though, of course there is anxiety that congressional inquiries might lead to indictments. Indeed, there is a viable question of war crimes. And one thing we might agree on is the notion expressed both in the title of your article, “Torture began at the top”, as well as its body:

Until now, administration officials have insisted to other congressional panels that the government approved the use of “harsh” interrogation methods only after the military commanders at Guantanamo asked for permission to get tough with recalcitrant prisoners and only after serious soul searching.

As the Washington Post reported Tuesday, however, documents and e-mails collected by investigators for the Armed Services Committee show that officials working for then-Defense Secretary Donald H. Rumsfeld began their research into waterboarding, stress positions, sensory deprivation and other practices as far back as July 2002, months before military commanders began asking for permission.

In fact, a full month before those requests came up the chain of command, former Pentagon general counsel William J. Haynes II and David S. Addington, Vice President Dick Cheney’s chief of staff, flew to Guantanamo to discuss the interrogation of prisoners.

And certainly we might also agree that “The fact that these guys seem to have defined executive branch power as the ability to hold people in secret and torture them pushes the creepy quotient into areas that probably require psychoanalytic credentials.”

But it is more than simply problematic that you would consider the efforts of such central players in this grim tragedy as merely a matter of policy. As Marjorie Cohn, President of the National Lawyers Guild, explained before the House Judiciary Committee last month,

The United States has always prohibited the use of torture in our Constitution, laws, executive statements and judicial decisions. We have ratified three treaties that all outlaw torture and cruel, inhuman or degrading treatment as punishment. When the United States ratifies a treaty, it becomes part of the Supreme Law of the Land under the Supremacy Clause of the Constitution.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, says, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal policy instability or any other public emergency, may be invoked as a justification for torture.”

Whether someone is a POW or not, he must always be treated humanely; there are no gaps in the Geneva Conventions. He must be protected against torture, mutilation, cruel treatment, and outrages upon his personal dignity, particularly humiliating and degrading treatment under, Common Article 3. In Hamdan v. Rumsfeld, the Supreme Court rejected the Bush administration’s argument that Common Article 3 doesn’t cover the prisoners at Guantánamo. Justice Kennedy wrote that violations of Common Article 3 are war crimes.

We have federal laws that criminalize torture.

The War Crimes Act punishes any grave breach of the Geneva Conventions, as well as any violation of Common Article 3. That includes torture, willfully causing great suffering or serious injury to body or health, and inhuman, humiliating or degrading treatment.

The Torture Statute provides for life in prison, or even the death penalty if the victim dies, for anyone who commits, attempts, or conspires to commit torture outside the United States.

Differences of policy pertain to issues like tax rates, the limits of diplomacy, or what sentence to seek for the guilty. But the question of how to misrepresent the law in order to pretend what is illegal is somehow right and proper under the law is not a policy issue. As Cohn noted, John Yoo, who crafted the infamous Bybee memo, said in an interview that “just because the statute says—that doesn’t mean you have to do it“.

This is an outlandish proposition. Indulge me, please, a simple illustration: In my own life, I have a history with illegal drugs. In truth, there is a decade of my life that might be described as one of the best runs in stoner history. A good friend, an engineer, once asserted to another friend, a doctor, that I am one of the few people for whom drugs can be said to be a good thing. And none of this changes the fact that I was using illegal substances. Imagine, then, if during that time I had been arrested and hauled before a court, and my answer was that drugs were a good thing. Would the court care? Would that assertion change the law at all?

And what if I stood before the court and offered an opinion written by a lawyer pointing to the political inconsistencies of marijuana policies, to the appearance of conflicted interests in the passing of the 1937 Marihuana Tax Stamp Act, to the disingenuous anti-drug public service announcements and the outright lies of policy makers? And what if I argued, “Just because the statute says, your honor, doesn’t mean I have to obey”?

Would the court care? Should the court care?

And what of the lawyer who wrote that opinion? We have at least an inkling. Actor Wesley Snipes was recently convicted of failing to file tax returns and sentenced to three years in prison. This was at least a minor victory, since he faced more serious federal charges of tax fraud and conspiracy. But his co-defendents, one a founder of a tax-protest group, and one an accountant—both of whom advised him in his ill-fated decisions—were convicted of fraud and conspiracy. Eddie Ray Kahn, the tax protester, was sentenced in April to ten years in prison.

It would seem, Mr. Rutten, that advising someone to break the law is considered an act of conspiracy.

Would you argue, then, that conspiring to commit a crime is a mere policy mistake?

In this light your statement that war crimes trials would be a profound, even tragic mistake seems, quite simply, repugnant. Perhaps your argument might shield the President himself; most jurors—say, about three quarters—could probably be somewhat easily convinced that George W. Bush was simply too stupid to know any better. But of those who colluded—conspired—to convince him that the laws were somehow inapplicable, or that Constitutionally-authorized and properly-ratified treaty obligations were quaint—in this case a denigrating characterization—or obsolete, and therefore could be ignored, what is their excuse?

Well, apparently their excuse is that they should be punished at the ballot box in an election that their administration is not participating in. How convenient.

In what way, Mr. Rutten, would it be tragic to hold conspirators accountable for the illegal acts they fostered? This is the United States of America, and not quite ten years ago, we impeached a president for lying about fellatio. Never mind, of course, that the situation only came so far along by following a sleaze campaign organized by political opponents rooted in spectacular lies. After chasing so many leads that one of the chief promulgators now admits were false, Bill Clinton’s opponents finally nailed him. And they dragged the entire nation through a forty-million dollar debacle over a blowjob.

Comparatively, Mr. Rutten, would you assert that fostering war crimes is an insignificant matter?

President Bush isn’t about to be impeached. Congressional Democratic leaders have seen to that. But is it possible, sir, that prosecuting a conspiracy to aid and abet war crimes in contravention of American law and Constitutionally-authorized, properly ratified treaties would be something better than tragic?

Is it possible, Mr. Rutten, that it might augment American security and prestige, reinforce our commitment to the rule of law, and thus benefit our national interests abroad to prosecute those who have conspired to break the law?

Or would it serve us better to just let these suspects be, and turn a blind eye to what their efforts have wrought?