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They hurt America by criticizing activities that never took place.

Given the brevity of the candidates’ remarks, it is hard to say. Beyond celebrating their apparent unanimity on the fact that torture had occurred, neither candidate said what he thought should be done as a consequence. But Barack Obama’s repeated and emphatic statements of approval for McCain on the subject can be interpreted as a sort of “wink, wink, nudge, nudge” to his core electoral base of Bush-haters. The latter have made no secret of their fervent desire to see “the worst president ever” and several of his closest aides frog-marched off to court — preferably, an international one — to face charges for any number of alleged “crimes.” The campaign to try Bush administration officials specifically on torture charges reached a provisional highpoint this past summer with the release of a widely publicized report titled Broken Laws, Broken Lives by the NGO Physicians for Human Rights and the publication in quick succession of two books on the subject with curiously similar subtitles: Philippe Sands’s Torture Team: Rumsfeld’s Memo and the Betrayal of American Values and Jane Mayer’s The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals.*

In the midst of all the noise about alleged “torture” by the Bush administration, however, the American media were strangely silent about an obviously relevant and in Europe widely discussed judgment by the European Court of Human Rights. The judgment concerned the notorious case of Magnus Gäfgen, a young German man who was arrested in October 2002 on suspicions of having kidnapped an 11-year-old boy. Two German police officials have admitted to threatening Gäfgen with violence if he did not divulge the boy’s location. Gäfgen was told that a “special officer” was on his way that would “make him feel pain like he had never felt before,” as Gäfgen himself recalled the conversation. Faced with the prospect, Gäfgen talked. The police found the boy: dead.

In its June 30 judgment in the case of Gäfgen v. Germany, the European Court of Human Rights found that the actions of the two German police officials did not constitute torture. (The full judgment is available here. A detailed analysis by the present author is forthcoming in Policy Review magazine.) The finding is especially relevant, since the threatening of physical harm happens to have been one of the “Category III” techniques that Donald Rumsfeld refused to permit army interrogators to employ in questioning al-Qaeda-linked detainees. If this technique is not considered to be torture, then obviously all “less harsh” techniques ought not to be so considered either. The Court did find that the actions of the German officials toward Gäfgen constituted “inhuman treatment”: a lesser category of offense in international law. But the Court ruled that in light of “mitigating factors” — e.g., the officials’ desire to save the child’s life — a German court had acted properly in merely issuing the two men a “warning” [Verwarnung]. The German court refused to apply punishment and neither man today has a criminal record.

Undoubtedly realizing that their candidate cannot win the election without the votes of many ordinary Americans who are more concerned about bread-and-butter economic issues than about exacting revenge on the Bush administration, the Obama campaign has largely soft-pedaled the “torture issue.” But in light of the pressure from the Democratic base and especially from Obama’s European allies and sponsors, it is not hard to imagine that Bush administration officials would in fact face trial on torture charges under an Obama presidency. If this should transpire, one can well wonder whether they will be shown as much indulgence as the German officials were in the Gäfgen case. After all, the Bush administration was merely trying to save American lives.

*As so happens, the Mayer volume is published by an imprint of the same publisher that made Barack Obama a rich man: the Random House division of the privately owned German media giant Bertelsmann. For Bertelsmann’s impact on American politics, see my earlier PJM report here. The Sands volume is published by the Macmillan imprint of the Holtzbrinck publishing group: yet another privately owned German publishing giant that has had a major influence on the terms of American political debate. Holtzbrinck’s FSG imprint is, for instance, the publisher of Walt and Mearsheimer’s The Israel Lobby and U.S. Foreign Policy. As has been extensively documented on the blog David’s Medienkritik, Holtzbrinck’s flagship German publication, the intellectual weekly Die Zeit, has for many years now been one of the principal purveyors in Germany of anti-American bile and inflammatory charges against the Bush administration. There is also, incidentally, a significant European connection to Physicians for Human Rights: it is one of three “partner” organizations involved in an “anti-torture” project that received nearly €1 million in financial support from the European Commission in 2003. A follow-up project received another nearly €1 million in 2005. (See European Instrument for Democracy and Human Rights [EIDHR], contract no. 99040.)

John Rosenthal’s writings on European politics and transatlantic relations have appeared in English, French, and German in such leading publications as Policy Review, Les Temps Modernes, and Merkur. He holds a PhD in philosophy and he taught political philosophy and classical German philosophy before turning to journalism. More of his work can be found at Transatlantic Intelligencer.

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