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Richard Posner is a judge
on the United States Court of Appeal, 7th Circuit. Take note: this man
is a standing judge in the United States. If you were arrested and
tortured by the police, this man might end up hearing your appeal.
Richard Posner had just published a book
called "Not a Suicide Pact: the Constitution in a Time of National
Emergency". Okay, let's
start with the "National Emergency". Personally, I think that two
terrorist attacks in 10 years doesn't quite constitute a "National
Emergency". Posner thinks this emergency is so dire that the
government could and probably should suspend most civil rights, spy on
everybody, torture prisoners, and, if Congress would kindly agree to it,
allow the President to do whatever he thinks will attend to the emergency.
Now a reasonable person might ask what the
definition of "National Emergency" is. This is a very important
thing-- since Posner seems willing to embrace the most repulsive human
behaviour imaginable-- torture-- because we have one. A "national
emergency".
One would think it would
mean that the survival of the nation was at stake. Too melodramatic
for you? All right. One would think there would be sustained and
continuous attacks on American citizens. One might think there were
bombs going off in our streets, roving squads of masked, armed men,
kidnapping and torturing people. One might think the economy was
imploding under the pressure, that regional governments struggled to
function, that hospitals were over-crowded, that bomb-shelters were filled
to capacity, that people in the streets of Chicago, Seattle, Pittsburgh,
felt fearful of their personal safety because you never knew when another
terror attack would take place, that air traffic was snarled because of all
the bombs, that politicians were being assassinated....
Obviously, the nation
actually appears to be prosperous, peaceful, and orderly.
If our current state fits
Posner's definition of "National Emergency", it is easy to see that any
government could at any time, by his standards, declare a "National
Emergency" and invoke all those delicious powers to detain, spy, torture,
and arrest journalists.
I'm quoting from the review
in the New York Times: “coercive interrogation up to and
including torture might survive constitutional challenge as long as the
fruits of such interrogation were not used in a criminal prosecution.”
It's an odd rationale. If the "fruits" (one calls to mind Billie
Holiday's extraordinary "Strange Fruit", written by Abel Meeropol, who
adopted the children of Ethel and Julius Rosenberg, and that's another long,
long story...) ... where was I? Oh yes. If the "fruits" of
an interrogation using torture should not be used in a criminal
prosecution (of the person being tortured), as Judge Posner recommends--
think about this carefully if you think you are or should be a responsible
citizen-- then he is actually advocating the use of torture against people
who will never be adjudicated to be anything but innocent by any official,
legally constituted authority. Geez, it's hard to keep this simple.
Again, since these persons would never be legally convicted of any crime,
according this actual U.S. judge, what we have is a government that uses
force, that imprisons and tortures, whenever it feels the need to.
This government is unlimited and unaccountable.
The government, then, is committing crimes.
Posner is saying that he, as a judge, would excuse this government.
I am saying that this government cannot have any legal or moral legitimacy.
It may be overthrown. It should be overthrown and we should start over
again with something called a "democracy" and a "constitution".
What if a group of concerned citizens agreed with Mr. Posner, but decided
that it was necessary, for the survival of civil liberties, and
constitutional government, and human decency, to seize this
judge, hold him in a cell, and waterboard him day and night until he agrees
to rescind his expressed opinion? Why shouldn't they? Mr. Posner
has already provided the rationale. The safety of our freedoms and
liberties is at stake. There is no need for due process, or even for a
constitution, in this circumstance.
Mr. Bush is seeking legislation to cover his stinking tail
on the issue. He knows, better than anyone, that, until and unless
this legislation is passed, he has no legal cover. He only has friends
like Richard Posner. The only thing that makes feel better when I go to sleep
at night is the unfounded confidence that some day in the future--maybe even
the near future-- President Bush will be remembered sneeringly as the
President who tortured. Will a Democratic candidate for
president in two years stand boldly in front of the electorate and declare
loudly, clearly, and proudly, that his administration will never use
torture? And when is some politician going to summon the
guts to demand the impeachment of Richard Posner: how can you leave someone
on the bench who cannot imagine why it might be wrong to torture people?
Even if most Americans don't mind torturing people-- as
long as they don't have to conduct the messy, violent, repulsive acts
themselves, personally, with a cattle prod or whip-- it's quite another
thing to stand proudly in front of your neighbors and say, I voted for the
guy who tortures.
All contents © 2006 Bill Van Dyk All rights
reserved. |
