Posted by: N.S. Palmer | January 15, 2009

What to Do with Tortured Prisoners?

By N.S. Palmer, Ph.D.

Today’s New York Times featured a roundtable discussion about what to do with prisoners that the Bush-Cheney regime has tortured. It was prompted by Pentagon official Susan Crawford’s public statement that she had dismissed charges against one prisoner because he had been tortured.

The roundtable’s participants included two law professors, a human-rights activist, and a Bush-Cheney apologist from National Review magazine, which I used to like before it donned a brown shirt and started heiling den Fuhrer.

The participants all had interesting things to say, but they missed what I regard as the most obvious solution to the problem.

As I noted in a previous article, I don’t believe that the United States should follow its Constitution in every area. However, war and peace are one area where the document has held up quite well over the centuries.

All of the hand-wringing about how legally to detain people fighting the United States would be unnecessary if the government simply followed its Constitution:

  1. Go to Congress and get a declaration of war against a specific, definable enemy for a specific, definable conflict.
  2. For the duration of the conflict, imprison any captured enemy combatants as prisoners of war. Treat them as we would want American prisoners of war to be treated. By all means, question them, but do not torture them or subject them to other forms of abuse.
  3. Fight and win the war.
  4. When the war is over, either charge the prisoners if they committed crimes outside the law of war, or release them.

That approach not only solves the legal problem of detaining combatants, but solves the problem of dictatorial “war powers” claimed by the president, vice president, and their administration. The problem with the Bush-Cheney administration’s claims about its “war powers,” apart from the fact that its claims are insanely broad, anti-American, legally groundless, and clearly unconstitutional, is that Bush and Cheney’s “war on terror” will never end. Instead of a temporary expansion of government power to deal with a crisis situation, Bush and Cheney envisioned a permanent expansion of power to crush honest Americans under an iron boot of surveillance, fear, and oppression.

The Roman Empire had a more sensible solution. When it faced a mortal threat — whether military or otherwise — the Senate would appoint a “dictator” to deal with the problem. The dictator had almost absolute power in his area, but was appointed for a specific amount of time (usually one year) and was given authority to deal only with a specific problem. When the dictator’s term was over or the problem was solved, the dictatorial powers ended.

All of that is quite obvious unless one’s real goal has less to do with “fighting a war” than with establishing a permanent American dictatorship.

As for what to do with prisoners that the Bush-Cheney regime has already tortured or abused, release them and:

  • Keep an eye on them in case they decide to take revenge on innocent Americans.
  • Give them standing to file charges (both civil and criminal) against the people who authorized and committed acts of torture. The people who authorized torture deserve the severest possible punishment. The people who committed acts of torture cannot claim, as their defense, that “they were only following orders.” That defense wasn’t acceptable when the Nazis made it in the Nuremberg trials after World War II, and it’s not acceptable now.

Copyright 2009 by N.S. Palmer. May be reproduced as long as copyright notice and URL ( are included.

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