I’ve mentioned here that William Lederer long ago (1960) predicted that the US would be more successful in the Cold War if we were more open, not less open, and noted that much “secret” government information is classified only to save officials and politicians from embarassment. The trend in the last eight years has been terrible, most notably with Bush’s executive order telling government agencies not to expend resources to answer Freedom of Information Act requests. Finally, 49 years after Lederer’s book, we have a president who has directed all government agencies that they should have a “presumption of openness” rather than one of secrecy. In other words, instead of a citizen needing to prove that a document should be public, the agency has to prove that a document should be secret.

This is huge and, I should add, a non-partisan issue. In general, liberals who believe in transparency in government and conservatives who believe government should be small and responsive have long complained about the expense, the inefficiency and the lack of transparency the policy of secrecy causes. Meanwhile, government officials who believe in strong government and strong executive power (that is, Bush, Cheney, Rumsfeld) have been in favor of a presumption of secrecy. So this is good news for true liberals and true conservatives, for civil libertarians and plain old libertarians.

See the Washington Post story, New Obama Orders on Transparency, FOIA Requests

Yesterday, ACLU lawyers encountered a recurring — and troubling — obstacle in our lawsuit seeking justice for torture victims caught up in the CIA’s extraordinary rendition program. But this time, the objections were not coming from the Bush administration.

To our surprise and disappointment, the new Justice Department urged a federal appeals court to dismiss our lawsuit charging a Boeing subsidiary with providing critical support for the CIA’s rendition program based on the same “state secrets” claim that the Bush administration had repeatedly invoked to avoid any judicial scrutiny of its actions. During the course of the argument, one judge asked twice if the change in administration had any bearing on the Justice Department’s position. The attorney for the government said that its position remained the same.

See also Justice Department Stands Behind Bush Secrecy In Extraordinary Rendition Case.

ACLU is asking that folks send a message to Senators Kennedy, Leahy, Specter and Representative Nadler

I should also say that I have no particular animosity towards the police. All but two of my experiences with the police have been positive and those were not that bad (though in both cases the cops abused their power and I wish I had gotten their badge numbers. Both should have been subject to formal reprimand, though not fired). That said, here’s a great lecture from a law professor and a police officer on why you should never talk to the police, even if you are innocent.

At least there’s the Democrats right? Now we have Nancy Pelosi, Speaker of the House, essentially the real current leader of the Democratic Party. Now we learn that here she is attacking the Bush administration for torture while back in 2002 she was briefed in detail on the torture techniques used by the CIA. According to the Washington Post report, an administration official who was present at the briefings said:

“In fairness, the environment was different then because we were closer to Sept. 11 and people were still in a panic,” said one U.S. official present during the early briefings. “But there was no objecting, no hand-wringing. The attitude was, ‘We don’t care what you do to those guys as long as you get the information you need to protect the American people.’ “

Fairness? Screw that! Like I said in the opening sentence, I do not care how close we were to September 11. I said earlier that I would not vote for Hillary Clinton because of her failure of moral courage on the Iraq vote. Now I feel like Nancy Pelosi and everyone who is tainted with anything like seeing torture briefings and not speaking out, voting to give Bush unlimited authority to use military force or any other action that makes them complicit in the debacle of the last seven years should just be kicked out of office.

“An evil exists that threatens every man, woman and child of this great nation. We must take steps to insure our domestic security and protect our Homeland.”

This quote, according to hundreds of pages on the web, is by Adolf Hitler from a 1933 (or 1932 or 1922 on some pages) announcement of the creation of the Gestapo. These pages all have two things in common:

1. They all compare Bush to Hitler
2. They never cite their source

As a geeky historian, I find the second more troubling than the first. In fact, the creation of the Gestapo (note the presence of uncited quotes in this article), which began piecemeal around Germany, culminated in the so-called Reichstag Fire Decree, which among other things

placed severe limitations on personal freedom, the right of free expression, the freedom of the press, and the freedom of assembly; it permitted the authorities to spy on people’s private communications through the post, telegraph, and telephone; it allowed the police to conduct search and seizure operations in private homes; andit enabled the police to arrest people and put them in protective custody without charging them with a specific offense[1]

It is, indeed, hard to avoid seeing the parallels with our government’s behavior since September 11. We have allowed our government to eavesdrop on phone conversations. We have permitted our elected officials to pass laws permitting the government to demand our purchasing records from bookstores (illegal search and seizure), which was largely solved by the bookstores refusing to make the information available, but the parallel is significant. We have also arrested people without charging them with a specific offense and we have allowed them to be tortured even if not guilty of a specific offense, because they might spill the beans about other threats to public security. So it is not amiss to compare the Gestapo to measures by the Bush administration. Obviously, one should not belabor the comparison: Bush is no Hitler. Bad as he is, Bush is nevertheless closer to Roosevelt than he is to Hitler. However, the utility of the comparison is not to paint Bush as a modern Hitler, which is ridiculous, but to point out how willing his is as a president and we are as a people to go down the same road that the Germans went down in return for a little security. A journey of a thousand miles begins with a single step, so it behooves us to make sure that the first step is in the direction of freedom, not totalitarianism. It is most certainly useful to see how dictators have taken control in the past so we can guard against it in the present, and in that light, Bush should make us afraid.

But what about the quote? It isn’t so far from the text of the special law of 26 April 1933 for the creation of the Secret State Police Office (Gestapa) that said it was necessary to create such a police force “In order to assure the effective struggle against all the efforts directed against the existence and security of the state.”[2] That gets at the essence of the quote, but it comes up short of being a parallel with the supposed Bush quote.

It may well be that the quote that is all over the net is accurate, but I would like to see one citation. Just one. At this point, most people object to my historian geekiness and say that the special law is “close enough” to the version on the net. But when we let the accuracy of our facts slide, we are also taking one step in the wrong direction. That journey of 1000 miles also ends in totalitarianism. The most important bulwarks we have against tyrants is that we do not let them control history. Stalin tried by airbrushing cosmonauts in and out of photos. The Roman Inquisition tried it by burning books. Open discourse based on verifiable facts is the bane of tyrants. Ultimately, it is more important than force of arms, because if you can twist history so that the people believe the Big Lie, you have no need of arms, but when the illusion of the Big Lie is broken on a broad enough scale, no amount of arms can restore the illusion.

When we parrot quotes that are parroted on the web by authors who are parroting others who can never cite their actual source, we go down that slope where we leave the realm of facts and enter the realm of myth, and the realm of myth is the favorite homeland of tyrants and demagogues everywhere. The land of myth is the one where we have a virtual paradise on earth if we could just get rid of the Jews. The land of myth is the one where Chinese peasants under Mao were living in a workers’ paradise and, as Jung Chang talks about in her wonderful memoir Wild Swans : Three Daughters of China, ended with Chinese children saving their pennies to send to the poor starving children in capitalist countries. The realm of fact is the one where at that very time, Mao was letting over one hundred million peasants starve to death in the name of an ideology. That’s why it matters whether your facts are checked or accepted on faith, whether your history is accurate and documented, or just “close enough”.

Sources

1. Eric A. Johnson, Nazi Terror : The Gestapo, Jews, and Ordinary Germans, p. 87. This is more or less a paraphrase of the decree itself, the text of which and translation is on the Wikipedia.
2.Robert Gellately, The Gestapo and German Society: Enforcing Racial Policy 1933-1945 (Clarendon Paperbacks), p. 29

This was brought to mind last week when Fresh Air replayed an interview with the televangelist D. James Kennedy on the occasion of his death. Asked the question of whether a judge who believes abortion is wrong should decide based on the law or based on his conscience, he invoked a simple analogy. He said that in Nazi Germany, Jews were denied all rights, including eventually the right to live, so there was no law against killing a Jew. Thus, a judge who threw out a murder case against someone who killed a Jew, or a million Jews, would be acting entirely within the law. By the principles of the Nuremberg court, however, the killer would be guilty of crimes against humanity and a judge who pushed, promoted and actively abetted these killings by his activities in his court might also be guilty depending on his actual actions and degree of complicity. According to the Nuremberg court, it was not just those who gave the orders or those who carried them out, but also those in between who greased the wheels who could be guilty of crimes against humanity. Furthermore, the fact that a crime is not punishable by internal law does not, according to Principle II, exempt a person from international law. The definition of crimes against humanity used in Nuremberg included "Murder, extermination, enslavement, deportation and other inhumane acts". They don’t specifically mention torture, but mass torture would not doubt constitute a crime against humanity (which does, by the way, have a connotation of scale that could not be realized through a single act against a single individual).

Now, let’s imagine that all the laws concerning crimes against humanity were applied not just to men in Germany and Serbia, but also to, well, Americans. This is totally abstract, though, right? Not exactly. Bush, Cheney, Rumsfeld, Gonzales and others worked hard to make torture possible. There is the nasty little matter of "aggressive" interrogation techniques like waterboarding which would, almost undoubtedly, meet the test as torture in almost any context except the fanatic milieu of the Bush administration. In the initial “torture memos” out of the White House Office of Legal Counsel, they defined torture as limited to something that caused major internal bleeding or organ failure and damage like that. This was an absurdity caused because the statutes against torture prohibit causing great pain, but failed to define pain. So they looked to totally unrelated and irrelevant statutes governing medical care which said that organ failure can cause great pain. This was absurd and allowed many practices that any reasonable court would find to be torture, as Gonzales successor found when reviewing the legal underpinnings of administration actions.

But let’s say they get away with torture actually committed by Americans (and they have and they will). There is also the dirty little matter of “renditions” where the US has turned over at least 150 foreign nationals, often in the absence of any damning evidence, to foreign governments known to practice torture during interrogations (Jordan, Syria, Egypt). Extraordinary rendition violates the UN Convention Against Torture which the US finally signed in 1992 after much hand-wringing and foot-dragging for fear of exactly this situation: that US officials would be culpable under the terms of the treaty (and justifiably so, it would appear, in light of recent events). In addition to the UN Convention Against Torture and the basic principles laid out by the Nuremberg trials, it turns out that one can also try to stop these practices through the Alien Tort Statute, passed by Congress in 1789 in order to guarantee foreign nationals access to the US court system. This, then is a long-standing protection in in international law and in US Statute, both clearly violated by the Bush administration and their helpers (is that me? I paid taxes).

Still think this is just abstract? The American Civil Liberties Union has recently brought suit against Jeppesen Dataplan, the company that aids and abets the CIA by providing flights for renditions and whose unfortunate motto in light of these accusations is: "Making Every Mission Possible". Apparently that includes CIA torture flights, flights that apparently the CIA did not think that more closely-watched institutions like the Air Force could make possible. The ACLU are presenting a case on behalf of a handful of unhappy Jeppesen passengers. These are people such as Abou Elkassim Britel, an Italian who was bound and blindfolded and flown from Pakistan to Morocco and held and tortured for eight months without being allowed to contact anyone. He has permanent damage to his left eye and other body parts and was never even charged with anything. Upon release, he was arrested by the Moroccans and sentenced to six years in prison. Binyam Mohamed was blindfolded, shackled and repeatedly had his head beaten against a wall until he bled. He was beaten to the point that several bones were broken. They put small cuts on his genitals and then poured stinging liquid over them. He is now held without charge at Guantanamo. So the ACLU is brigning suit against those who transported these victims at the behest of the CIA.

Is there precedent for trying people who organize transportation that contributes to crimes under international law? Well, yes, there is. Adolph Eichmann, Nazi transportation minister for Jewish affairs was treated to his own extraordinary rendition in 1962. Discovered in Argentina, the Israeli Mossad kidnapped Eichmann, drugged him, and smuggled him out of Argentina and off to Israel. There Eichmann was tried and exectued. There were some protests in the UN for the violation of Argentinian sovereignty, but more or less the incident was allowed to pass.

You might balk at equating Jeppesen Dataplan with the Nazi minister of transportation for Jewish affairs, but I would say it’s just a question is one of scale. Yes, scale does matter, but it reminds me of the joke where a man turns to a woman at a bar and asks if she would have sex with a stranger for ten million dollars.
“Sure, she says.”
“Well, then, will you have sex with me for $100?”
“Certainly not! Do you think I’m a whore?” she replied indignantly.
“My dear lady,” the man replies, “we’ve already established that you’re a whore. Now we’re just haggling over price.”

Is it necessary to say that it makes no difference whether or not these people are guilty or plotting terrorism or not? As John McCain said so brilliantly when criticizing the Bush administration for promoting torture, “This is not about who they are. This is about who we are.” The goal should not be first and foremost to protect our country, but first and foremost to have a country worth protecting. A country and government that does not protect civil liberties, engages in torture, approves torture at the highest levels, and has willing corporations who, for a few dollars, are willing to engage in crimes against humanity is, I’m sorry to say, not worth protecting. The country that government represents may be worth protecting, but not the government. As Mark Twain said: Loyalty to your country always. Loyalty to your government when it deserves it.

Is there a meaningful difference between a government that, at the highest levels, approves torturing a few hundred people and a government that, at the highest levels, approves torturing a few million people? On just that one criterion, I don’ think so. That isn’t to say that I think there is no difference between Eichmann and Jeppesen, no difference between the US and Nazi Germany. That would be an obscene trivialization of Nazi crimes and a gross exaggeration of the Bush administration crimes. And for a long time, that gap made me oppose impeachement and criminal prosecution Bush officials, but in pondering the Kennedy interview and thinking over Eichmann and Nuremberg, I’ve changed my mind. I now feel that if we have a country worth protecting, we need to prove it by holding people at the highest levels accountable for their crimes against humanity.

Dear Representative Radanovich,

I recently read an article in the New York Times entitled “The Cost of Doing Your Duty.” The article details how

“Lt. Cmdr. Charles Swift was assigned to represent Salim Hamdan, a Yemeni citizen accused of being a high-ranking member of Al Qaeda — for the sole purpose of getting him to plead guilty before one of the military commissions that President Bush created for Guantánamo Bay. Instead of carrying out this morally repugnant task, Commander Swift concluded that the commissions were unconstitutional. He did his duty and defended his client.”

Lt. Cmdr. Swift has been denied promotion which means that in the Navy’s “up or out” system, he will be forced to retire (according to the article anyway). As established since the Nuremberg trials, the first duty of all soldiers is to obey the constitution, law and their moral conscience rather than blindly doing their duty when asked to do something that is wrong and unconstitutional.

Based on the information I have, Swift is a true American hero, a soldier who took the hard road of doing the right thing in the service of his country and, like the New York Times, I wonder whether he is being punished for doing something that was right, but unpopular.

I would hope that someone in your office could investigate Lt. Cmdr. Swift’s situation and verify that he was fairly treated and that he was not denied promotion as a means of retribution.

Sincerely,

Thomas A. Lambert.

Write to your representative at Congress.org

The president proposed that in place of the vague language of the Decalogue, that US forces be bound by a new code that would spell out exactly which acts constituted coveting thy neighbor’s wife and killing. “Just because a few thousand people end up dead, does that mean they were killed?” asked the president. He proposed language that would make it clear that US forces acting on command of a superior officier in a combat situation would not be in transgression of the Ten Commandments. Similarly, soldiers and presidents who copped a look at the cute butt of another man’s wife would not necessarily be in violation of the Decalogue. Asked specifically about oral sex, the president replied “See, now that’s why we need this spelled out. We think that oral sex with another man’s wife would be covered under the the ‘thou shalt not covet’ rule, but the previous administration had a different interpretation of that particular rule.”

Snow cited many examples of plots that were only uncovered when more aggressive techniques were employed. Soon after taking up the struggle against witchcraft, inquisitors of the papal inquisition found a woman who confessed to giving birth to a monster after having intercourse with a demon. Furthermore, plague spreaders posed a major threat throughout Europe as well. The same investigative process uncovered many cases of plague-spreader cells that made pacts with the Devil to spread plague and kill Christians. Snow noted that just as extreme danger from terrorists using biological weapons called for severe solutions in the sixteenth century, so to does it in the twentieth century. “Because of the will of inquisitors and civil authorities to track down these covens and cells, we no longer worry about plague spreaders and witches who have made pacts with Satan to kill Christians.” It would be naive, Snow added, to think that such hardened witches and Satanists would have given themselves up to simple questioning. “Then, as now, the safety of God-fearing people and liberals too, depended on aggressive interrogations to uncover plots to have sex with the Devil, eat Christian babies and use biological weapons. Can we really afford to turn our backs on what worked in the Middle Ages.”

See also: Does Torture Really Work? – Newsweek – MSNBC.com

One thing that was lacking from the national reporting, however, is some comparative data to show just how abberant the American situation is. To put it in the proper perspective, consider this:

• The three largest prison populations exist in United States (2.2 million), China (1.55 million not counting those awaiting trial and those in “administrative detention”) and Russia (0.76 million).
• The United States has 738 prisoners per 100,000, whereas the next highest nations have 532 (tie with Belarus, Russia and Bermuda).
• There has been a huge growth in female incarceration in the mountain states and a large percentage of these offenders are in prison for crimes relating to the use of crystal meth.
• Some countries who are similar to the US economically and culturally, nevertheless have quite different rates of incarceration (per 100,000):
  • Canada: 116
  • Australia: 117
  • New Zealand: 168
  • England and Wales: 142
  • Scotland: 132
  • Northern Ireland: 72
  • Ireland: 85
  • Italy: 98
  • France: 91
  • Germany: 96

Sources (open in new windows):

• Abstract of Bureau of Justice Statistics report on “Prison and Jail Inmates at Midyear 2005″.
• Full report (PDF) of Bureau of Justice Statistics report on “Prison and Jail Inmates at Midyear 2005″ (actually a 13-page press-release, but it’s as detailed as most people would want).
• The Sentencing Project issues page on incarceration.
• Roy Walmsley, World Prison Population List (sixth edition), International Centre for Prison Studies.
• U.N. Urges Closure of Guantanamo Detention Facility