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Torturing The Constitution, An Ongoing Series.

by Patrice Ayme Thu May 7th, 2009 at 07:44:25 PM EST

In the hope of deepening the debate on torture, I span three millennia of civilization, to find little known, but drastic, anecdotical and general logics, to support the case for the exemplary prosecution of American torturers.



FULL SPEED BACKWARDS: In 2004, under Bush's neoconservative propaganda, U.S. citizens were opposed, 2 to 1, to torture on terrorists (although they knew it occurred). In April 2009, five years later, about half, or more supported torture, and found 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 for changing 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 .

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 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 1939 to 1944.)

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

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 was not opened yet. But it needs to be open. Fighting outlaws of some distant land in the mountains of central Eurasia is harder to justify than fighting outlaws in the United States of America, after they kidnapped the Constitution and submitted it to torture. In one case some obscure Qur'an inspired "law" of some sort of Islamist republic is contested by some hillbillies, in the other 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 death 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 "Caracole" (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. The same was done in the USA; so by torturing, employees of the American people such as Bush, violated international and national law.

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, caliming 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.

The "don't ask, don't tell method" of governing with horror, terror, torture and extermination has a modern variant. 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).

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.

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 they 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 them anymore than he could kill disbelievers, although he described in gory details the fatal injuries he wanted to inflict 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 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 time, then what?

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 became 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 their 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.

Interestingly, American forces did not just smother suspects to death, and broke 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. 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 reason).

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

Patrice Ayme


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 falimiar 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 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 governement of a republic, takes a great multigenerational risk.

  1. 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.

  2. 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.

  3. 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.

Well from a brief look,

  1. The Romans didn't forbid torture, some legal testimony was not considered true unless it occurred under torture

  2. The French republic did tolerate torture, in fact several of the techniques used by the Nazis appear to have been learned from French Police.

Any idiot can face a crisis - it's day to day living that wears you out.
by ceebs (ceebs (at) eurotrib (dot) com) on Fri May 8th, 2009 at 06:51:01 PM EST
Until well into the Second century of the Principate (the fascist empire). I was relating lack of torture to the concept of republic. I agree fascit regimes have to legalize torture.

Torturing slaves under questioning in Rome was systematic, and a bit of formality. But they were not citizens. That slavery was crazy and self defeating is another problem. The Franks outlawed it in 650 CE (for... all citizens, defined as Christians and Jews).

My essay made clear that the important notion is not to officially tolerate with implicit legalization. If the police, in a republic, kills someone, there is an inquiry. Even the French police, you may be surprised to learn this.

It should be the same with torture. Torture, like shit, happens. Differently from the later, in a republic, the former necessitates an inquiry. Or then one gets in Roman imperial territory.


Patrice Ayme Patriceayme.com Patriceayme.wordpress.com http://tyranosopher.blogspot.com/

by Patrice Ayme on Fri May 8th, 2009 at 08:38:34 PM EST
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