TORTURING THE CONSTITUTION, OR HOW TO KILL THE REPUBLIC.

SOME UNUSUAL COMMENTS ON TORTURE AND HOW REPUBLICS FALL.

Abstract: In the hope of deepening the debate on torture, I span three millennia of civilization, to exhibit little known, but very telling, anecdotical and general logics, supporting the case for the exemplary prosecution of American torturers.

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FULL SPEED BACKWARDS:

In 2004, under Bush’s neoconservative propaganda, U.S. citizens were opposed, 2 to 1, to the torture of terrorists (although they knew it occurred). In April 2009, five years later, about half, or more, supported torture, and held that it led to interesting results.  In other words, American public opinion is going against the grain of civilization.

How come?  There is an intense propaganda to change the very emotions at the root of democracy.  It finds easy to occupy the terrain, because Americans know little about history. They think it’s all about themselves. So let me try to correct this by presenting some important, but little known perspectives.

***
EVEN THE NAZIS FEARED THE LAW:
During the Second World War there were about one hundred known cases when German military field police or soldiers refused formally and definitively to obey orders that they denounced as illegal according to the German military code. Not one of them was tried, because the Nazis were afraid to lose any such trial, and were afraid of the legal precedent that would create. They were terrified that such a trial would expose their torturous and homicidal practices to the entire German army and encourage enough Germans to resist Nazism, to the point the Nazi machine would collapse.

This would have certainly happened, because enough military officers were morally quartered between the moral of obedience to the legal government (the Nazis) and the moral obedience to their basic German humanity. (See addendum on the latent revolt of the German army, from 1938 to 1944.)

Such is the power of the idea of the law. If more Germans had insisted upon the law being respected, while the Nazis were in power, they would have been thrown out by the Germans themselves.
***

VIOLATING ALL LAWS, AND CIVILIZATION ITSELF:
The danger at this point, in the USA, is the opposite. The danger is to create a legal precedent where a lot of previously unlawful practices, namely torture and violation of the principle of the state of law, are tolerated, forgiven, ignored.

Now, of course, Obama has a serious problem: he is already fighting on all too many fronts. But he has no choice: on all and any of these fronts, so far, the battle was fully joined before he took office.

The legal front has not been opened yet. But it needs to be open.

Fighting the outlaws of some distant land in the mountains of central Eurasia should be harder to justify than fighting outlaws in the United States of America, after these later outlaws kidnapped the Constitution and submitted it to torture. In the first case some obscure Qur’an inspired “law” of some sort of Islamist republic is contested by some hillbillies, in the second case the law of the secular American republic, a prolongation of 3,000 years of Western law, got kicked around. We have seen that movie before. It was called the agony of the Roman republic. Or the death of the Weimar republic, too.

The situation is this: the Bush administration blatantly violated both International and USA laws. These laws were not technicalities, but extension, to this day of a fundamental principle of Roman law: TORTURING CITIZENS IS UNLAWFUL.

The United Nations extended this principle to the WORLD CITIZEN. (The concept and practice of universal citizenship is also Roman, having being made into law under emperor “Caracalla” (son of Septimus Severus); according to it, all free men were citizens.) So the UN made into international law the interdiction of torture. That, in turn, once properly signed and ratified, was buttressed by national laws saying the same. That was done in the USA; so by torturing, employees of the American people such as Bush, violated international and national law.
***

BUSH OFFICIALS AS NO BETTER THAN SADISTIC ACHAEMENID SATRAPS:
Ms. Rice has gone all over the media, trying to rewrite the law all by herself. Let’s quote the New York Times:

“Among the many absurd things Ms. Rice did was to offer this argument that torture is legal: “By definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture.””

It is not just absurd, it’s criminal. Officials of the republic cannot just go about, claiming they confused it with a satrapy, when they were in power. To say the least, an inquiry is needed.

Rice does not just legalize torture, she even claims that the USA is not a state of law: Roman empress Galla Placidia explicitly proclaimed that the sovereign was submitted to the same law as everybody else. This is what the Athenians called “isonomia”: the equality in front of the law. It was viewed as one of the three pillars of democracy. That was twenty-five centuries ago: Rice knows the music, she has just succumbed to the heady hubris of being part of a so called “super power”. But there is nothing super powerful at being a vicious torturing idiot, however big.

Of course, Nixon made the exact same argument:’The president IS the law’. He made it in a famous series of interviews to a British journalist, after he had been forgiven preemptively for his crimes by Gerald Ford.

The “don’t ask, don’t tell method” of governing with horror, terror, torture and extermination is a modern art. It was used by Stalin and Hitler. It consists of lying through and through, and never giving full, discernible orders. Hitler did not order the holocaust distinctly, and Stalin did not order the Gulag distinctly. They would just express redoubtable dissatisfaction until their subordinates got it right. The uplifting psychological aura of being part and party to a “superpower” (Nazi Germany, USSR, USA) did the rest: people got carried away, just as Athens (although a democracy) got carried away, and committed war crimes (that cost her civilization, and most of her life, as it turned out, thus was Athens’ gloomy fate).
***

NO MORE LAW, NO MORE REPUBLIC:
The danger for the United States of America is to institute a precedent where torture is banal and where the president fabricates the law as he pleases and he and his subordinates are above the law as it exists.

The Romans were under their republic for five centuries because they were under the rule of law. When the leaders stopped respecting the law, the republic fell. During the republic the law reigned. Individuals did not reign. Thus the republic happened, and went on because the law was HARD. As the Romans proudly proclaimed: “Dura lex, sed lex”: the law is hard, but it’s the law.

Do we want the Obama presidency to become the turning point when: “The law is soft, and it’s not the law”?

Another historical perspective. It looks as if Rice believed in the divine right of kings, and Bush had it. That right violated isonomia, so it was highly controversial, and did not happen most of the time. It was an invention of the fanatical Roman Catholic emperors who viewed themselves, as Bush, and as leaders in Islam (see Qur’an S4, v59), as endowed with authority from God. As soon as theocracy was beaten back, as soon as the early Franks (Clovis), this was replaced by the absolute right of life and death of Roman commanders in chiefs (called “imperators”).

A vicious antijew as Saint Louis IX of France, could not kill the Jews anymore than he could kill disbelievers, although he described in gory details the fatal injuries he wanted to inflict to them. Why? Because it was against the law.

Hitler’s rabid persecution of the Jews happened because his Reichstag changed some laws (something neither Saint Louis nor Martin Luther could do against the Jews because they did not have a legislative machinery at their beck and call).

The new Nazi laws did not allow to torture to death or kill Jews, just to make their lives jobless and miserable (already a form of torture). But it was a psychological Trojan horse. After official persecution became legal, persecutors felt morally justified to persecute further, in secret. If one tolerates torture as part of the practical constitution of the USA, next time things get a bit difficult, then what?
***

OF THE SPITE TORTURERS SUFFER FROM:
I tell you what. In the fifteenth century, France had a great king, Louis XI. He defeated various ambitious aristocrats and Burgundy (which included the Netherlands; a generation later the Burgundy heir was elected Charles V, emperor of Spain and the Holly German empire). Louis XI intervened with the heaviest hand, so that the French Protestants would not be persecuted by the Catholics out there in the wilds (yes, Martin Luther was born the year Louis XI died, 1483 CE; Lutheranism was a late comer to Protestantism).

Louis also had to be severe with some of his opponents, and put some in cages, without due process. Thus, to this day, although, in truth, he was a good, just, prudent king who augmented France, Louis XI is viewed as the torture king. Just because of these notorious cages.

Interestingly, American forces did not just smother suspects to death, and break their spines (of these activities one does not speak much in the USA), but putting victims in tiny cages in the dark was one of the mildest tortures, extensively used. Precisely the one and only torture Louis XI is spited for (and, differently from the USA, it was applied just to two or three people, and for excellent reasons).

So does the USA want to be spited? And is not contempt from others for centuries to come, a national security threat?
***

Patrice Ayme
https://patriceayme.wordpress.com/
***

Addenda:

1) Before World War One, Germany was the world’s most literate country, and a leader in physics, chemistry, and other hard fields. Still it succumbed to the appeal of fascism. This was plain obvious a generation earlier already, as anybody familiar with Nietzsche’s scathing criticism of the (absence of) German mind at the time, will know. It was no coincidence that the greatest philosopher, a German, who viewed himself as a “good European” detested what Germany was fast becoming. Even Bismarck, author of German fascism version 1.0, was alarmed by the incoming version 2.0 (Hitler’s was 3.0).

But still, Germany had long been part and next to the core of civilization, and many Germans, including Prussian military officers, were so civilized that they could not stand all what Hitler was and aimed at (although of course Hitler was a master of deception, they could see enough). Now, reflectively, the top Nazis, however crude and idiotic they were, knew this very well. So they were careful to NOT engage in direct confrontation with German law. Indeed the Army Chief of Staff, Colonel General Ludwig Beck, although he was forced to resign in 1938 (his plot having been revealed, probably by British traitors), kept on plotting with top generals. The reason the army did not strike was that the Nazis had not been painted with enough legal or moral wrong.

By banalizing torture as something which is neither here nor there, and letting the insufferable Ms. Rice maul the constitution of the USA to justify the unjustifiable, the Obama administration, a government of a republic, takes a great multigenerational risk.

2) At the Wannsee conference, top Nazis met each others and the super Nazi Heydrich had to make the (Nazi) justice minister understand that, maybe, Nazi laws of 1935 were not going to be respected, but so was the wish of the Leader, and therefore, eyes should be closed, from now on. It was going to be tolerance for extra legal methods, from now on. Top Nazis agreed to this don’t ask, don’t tell policy. Ignoring the law today would be the exact same strategy. Rice belongs in jail, and she knows it, and everybody knows it. That is why, faithful to herself, she is engaging in preemptive strikes.

3) Why did the Romans forbid torture? Because they wanted to force and define civilization as a search for the mind and its superiority, over the flesh and the animal. Conflict became something minds engage in, and therefore minds solve, not something where the howling of the beast foams all over the land.

4) Some did object that the preceding essay is “a bit melodramatic” because there were a lot of human right abuses in the past in the USA (internment of some citizens for cause of their ancestry, holocaust of Indians, slavery. etc.), and, relatively to these, torturing a few alleged terrorists seems small. My answers to this: a) the preceding problems were immensely painful. b) slavery was itself a violation of Merovingian law (which in theory applied to North America!). c) torture is a new violation of law. d) the very fact that breaking the law, major and fundamental civilizational law, is coolly neglected, breaks the meta principle of “Dura Lex, Sed Lex”. Refusing to break that meta principle is why Socrates refused to flee Athens: he thought the republic may fall otherwise (and that is exactly how Rome fell… although the case of Rome was complex, because the Gracchi had to break the law a bit first, to try to implement change… which of course was reproached to them… that is why Obama has to stick to procedure very carefully!).

5) Another objection to the essay above, from some who know a bit of history, is that torture was used in Rome. Yes, true. But only on slaves, during the first eight centuries. And slaves were not citizens. Things changed a bit during the Second century of the Principate (the fascist empire, 150 years after the death of the republic).

Above I precisely related lack of torture to the concept of republic. I agree fascist regimes have to legalize torture.

That slavery was crazy and self defeating is another problem entirely (and it was, I believe, one of the master causes of the degeneracy of the Greco-Roman world). The Franks outlawed slavery in 650 CE (for… all citizens, defined as Christians and Jews).

My essay above makes clear that the important notion is not to officially tolerate the implicit legalization of torture. If the police, in a republic, kills someone, there is an inquiry.

It should be the same with torture. Torture, like like deadly force by police, and like excrements, happens. Differently from the later, in a republic, torture and killings necessitate inquiries. In imperial Rome legal torture was under judicial review, case by case, and was not a blanket authorization as in the USA recently. 

6) For six weeks in Spring 1940, France lost more citizens killed, everyday, than the USA did on September 11, 2001. Relative to the population sizes, it was more like ten times more citizens killed everyday than the USA suffered on 9/11. Still the French republic, at war or not, and it was a total war of survival, never tolerated torture. Instead up to 40, 000 willing, particularly abject and homicidal collaborators of the Nazis were judged, and executed. A warning for future fascists. And an absolute condemnation of past errancies. Dura Lex, Sed Lex.
***

4 Responses to “TORTURING THE CONSTITUTION, OR HOW TO KILL THE REPUBLIC.”

  1. Tom Degan Says:

    “NO MORE LAW, NO MORE REPUBLIC:
    The danger for the United States of America is to institute a precedent where torture is banal and where the president fabricate the law as he pleases and he and his subordinates are above the law as it exists.”

    Words that should be etched in granite. Where the hell is my chisel?

    I came across your excellent comments on Paul Krugman’s New York Times piece this morning, Ayme. Nice site you have here. You may be certain I’ll be back.

    Cheers!

    Tom Degan
    http://www.tomdegan.blogspot.com

    Like

  2. Tom Degan Says:

    By the way, Patrice,

    This article appeared this morning on AlterNet. I thought it to be very inspiring. Here’s a link:

    The Good Times are Over

    All the best,

    Tom Degan

    Like

  3. Mahalo Says:

    I agree, in fewer words of course. The equivocation about recent US torture programs has to stop. It was wrong, a crime. I’m willing to let the attorney general take the time to bring charges. It’s really up to him to do the right thing. I want Cheney behind bars.

    Like

  4. JMG Says:

    Patrice,

    Clearly, Rice acted as an apologist for some stupid Bush policies including this one. For this she has no excuse, whether there’s an oil tanker named after her or not. Attempting to create a legal justification for torturing was stupid because it did not gain more or better confessions, it only paved the way for the embarrassing situation the gov’t has now of trying to excuse the behavior it should not have sanctioned in the first place. It only served to excite some hard-line senior level CIA managers who thought it would produce better confessions because they had convinced themselves that additional attacks on the U.S. were imminent. If you hold Bush responsible because he was Commander in Chief – you should look at all of the other stupid things he did as CiC. It is a long list. The main problem was that Bush and his cadre of so-called experts, by sanctioning torture gave up the high moral ground that they had claimed to occupy in their war against terrorism.

    Like

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