a citizen’s journal by Thomas Nephew

Clearly coercive moral clarity

Posted by Thomas Nephew on January 16th, 2009

As is well known, the Washington Post’s Bob Woodward reported the verdict of Judge Sue Crawford (a lifelong Republican, as it happens) about U.S. treatment of “20th hijacker” Mohammed al Qahtani:

“We tortured [Mohammed al-]Qahtani,” said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. “His treatment met the legal definition of torture. And that’s why I did not refer the case” for prosecution.

The significance is that this is possibly the first time the word “torture” has been used by a U.S. government official to describe what was done.  Also significant: Crawford’s judgment was about the overall treatment, rather than separate components that might not themselves rise to the level of torture:

“The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge” to call it torture, she said.”

Much of this shouldn’t be allowed even *un*persistently — “sustained isolation, sleep deprivation, nudity and prolonged exposure to cold.” But it’s sadly a step forward for the discussion to move past the insulting “is waterboarding torture?” question.

Should there be a special prosecutor for Bush administration war crimes?*  Of course. And I don’t so much want the (ethically challenged) people who did the dirty work.  As the United States insisted sixty years ago in US v. Altstötter, I want the people prosecuted who ordered them to do it or gave those orders legal cover.  David Cole (Georgetown Law) points out there’s actually little choice from a legal standpoint:

The Convention Against Torture not only prohibits torture under all circumstances, but obligates signatory nations – including the United States – to refer cases of torture for investigation for potential prosecution. Criminal prosecution of the top wrongdoers seems highly unlikely at this point, but the latest admission calls for, at a minimum, appointment of an independent counsel or the convening of a commission to fully investigate the facts and identify those responsible for the crimes that can no longer be denied.

Longtime accountability crusaders Dahlia Lithwick and Philippe Sands concur in a Slate article:

The former chief judge of the United States Court of Appeals for the Armed Forces and general counsel for the Department of the Army has spoken. Her clear words have been picked up around the world. And that takes the prospects of accountability and criminal investigation onto another level. For the Obama administration, the door to the do-nothing option is now closed. That is why today may come to be seen as the turning point.

Meanwhile, our outgoing President had the gall to proclaim this in a farewell speech last night:

America must maintain our moral clarity.

Such as it is.

* The link leads to a proposal for just that, by Bob Fertik of, in an online idea run-off organized by Sadly, Fertik’s proposal fell 19 votes short of being among the top 10 ideas to be presented to the Obama administration.

3 Responses to “Clearly coercive moral clarity”

  1. Nell Says:

    Crawford is not only a Republican but is described as “a Cheney loyalist” in the Post’s cast of characters for the ‘Angler’ series. She served under him in four positions at the Pentagon.

    For that reason, I remain suspicious, and am entertaining motivations beyond the natural human urge to disassociate oneself from a monster. Plausible as that is.

  2. Thomas Nephew Says:

    Well, there could be the “force a pardon” angle implicit in the simple equation set up above:
    a) there was torture
    b) the Convention vs torture obligates investigation for potential prosecution
    c) therefore, those ordering the torture must be investigated
    d) therefore (Bush et al think), they must be pardoned

    Though many of Crawford’s words seem too heartfelt and on point to be calculated, maybe she was somehow “released” to say them. I guess I don’t know, but I think she’s for real and not part of a plan.

  3. the talking dog Says:

    This is one of those rare situations where we will soon know the answer; there either will be, or won’t be, a pardon for prior conduct associated with doing Bush/Cheney’s bidding in “the war on terror,” and it will be issued by 12 noon on Tuesday, period.

    Operating in favor of the pardons coming are Cheney’s bizarre confessional tour, and now, his associate Ms. Crawford using “the T word”. Against it are the already apparent Congressional amnesty in the Military Commissions Act, and the fact that a pardon would acknowledge that, in fact, crimes were committed.

    I had been reasonably sure a pardon of some kind was coming; now I’m less sure, as, with each passing hour, we run out of time for it.

    Political reality is that no one important will ever go to jail… but we know something has to be done. We’ll all wait and see how this turns out…

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