Monday, September 10, 2007

Andrew Sullivan Gets Sloppy

Surfing around I became aware Andrew Sullivan wrote a piece for the Atlantic that is become infamous on the left side of the Net. It's titled "Verschärfte Vernehmung" and it breathlessly concludes:
Critics will no doubt say I am accusing the Bush administration of being Hitler. I'm not. There is no comparison between the political system in Germany in 1937 and the U.S. in 2007. What I am reporting is a simple empirical fact: the interrogation methods approved and defended by this president are not new. Many have been used in the past. The very phrase used by the president to describe torture-that-isn't-somehow-torture - "enhanced interrogation techniques" - is a term originally coined by the Nazis. The techniques are indistinguishable. The
methods were clearly understood in 1948 as war-crimes. The punishment for them was death.
To arrive at this startling indictment, Sullivan quotes from a Gestapo memo on "sharpened interrogation":

4. The sharpening can consist of the following, among other things, according to circumstances: simplest rations (bread and water); hard bed; dark cell; deprivation of sleep; exhaustion exercises; but also the resort to blows with a stick (in case of more than 20 blows, a doctor must be present)

Sullivan also mentions that "waterboarding" and hypothermia were later added to the roster. He lists several accounts from Norway, where hypothermia and other "enhanced interrogation" techniques were used, described as torture, and death sentences handed down.

Sullivan wants to draw specific attention to the definition of torture handed down by the Norwegian court:
Notice the classic, universal and simple criterion used to define torture in 1948 (my italics): "In deciding the degree of punishment, the Court found it decisive that the defendants had inflicted serious physical and mental suffering on their victims, and did not find sufficient reason for a mitigation of the punishment in accordance with the provisions laid down in Art. 5 of the Provisional Decree of 4th May, 1945. The Court came to the conclusion that such acts, even though they were committed with the connivance of superiors in rank or even on their orders, must be regarded and punished as serious war crimes."
Sullivan's point is clear: these activities are so heinous as to be indefensible, condemned historically as capital crimes.

But the conclusion of the Norwegian court was in fact, quite the opposite.

Following the link Sullivan provides, the study reveals that the Norwegian Court was considering violations of Norwegian law by German occupiers:
Art. 228. He who commits an act of violence against another person or in any other way inflicts bodily harm on him, or is an accomplice to such an act, will be fined or sentenced to imprisonment for a period of up to six months. If the act has resulted in some injury to body or health or considerable pain, a term of up to three years imprisonment can be inflicted and up to five years if the act resulted in death or grave injury. . . .
Art. 229. He who causes harm to another person’s body or health, or ;puts another person into a state of helplessness, unconsciousness or any similar state, or who is an accomplice to such an act, will be punished by a term of up to three years and up to six years if the act has resulted in sickness or disability to work lasting more than two weeks, or permanent injury, and up to eight years if the act has resulted in death or considerable injury to body or health. . . .
Art. 232. If an act mentioned in Arts. 228-231 was premeditated and carried out in a particularly painful way or by means of poison or other similar substances which are highly dangerous to the health, or with a knife or other particularly dangerous
instrument, a term of imprisonment must always be inflicted. Life imprisonment may be inflicted for crimes against Art. 231 carried out under the same conditions. For crimes against Arts. 228-229 the term of imprisonment fixed by those paragraphs can be increased by a term of up to three years.
The presiding Norse judge, Larssen, applied the logic of a Judge Skau in a previous case, that violations of Norse law by the occupying power were punishable retroactively as war crimes.

Skau, in handing down death sentences for crimes for which prewar statute provided merely imprisonment of four to six years, or in lethal cases, life, engaged in a breathtaking piroutte of legal activism: The Norse government being in exile, had been forced to take a hiatus on the passage of criminal law. Had the government been aware, prewar, of the wartime excesses of the Quisling regime, it would have been harsher on violation of the three Articles. And in any event, since these crimes were committed in time of war, they were war crimes; and since previous armies historically punished war crimes with death, they were now (in 1948 Norway) punishable by death, despite the lesser statutory penalty.

So that's the historical record behind Sullivan's "reporting": A judge found these actions punishable by a retroactive, blanket death penalty provision, when committed by German occupiers. It was not the horror of "torture" in and of itself that drew the death sentence, but its role as a crime of conquerors against a vanquished people. The Norse made clear, in fact, that there could possibly be a mitigation of the offense.

It would be hard for them to be more contrary to Sullivan's own position on Bush's "torture".

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