Have things really gotten that bad? →
U.S. government is cruel, despotic, a threat to people →
U.S. torture policy →
evading legal prohibitions / White House approval
[I]nterrogators used graduated levels of force, including a technique known as “water boarding,” in which a prisoner is strapped down, forcibly pushed under water and made to believe he might drown.
These techniques were authorized by a set of secret rules for the interrogation of high-level Qaeda prisoners, none known to be housed in Iraq, that were endorsed by the Justice Department and the C.I.A.…
The C.I.A. has been operating its Qaeda detention system under a series of secret legal opinions by the agency’s and Justice Department lawyers.
Those rules have provided a legal basis for the use of harsh interrogation techniques, including the water-boarding tactic used against Mr. Mohammed.
One set of legal memorandums, the officials said, advises government officials that if they are contemplating procedures that may put them in violation of American statutes that prohibit torture, degrading treatment or the Geneva Conventions, they will not be responsible if it can be argued that the detainees are formally in the custody of another country.
The Geneva Conventions prohibit “violence to life and person, in particular … cruel treatment and torture” and “outrages upon personal dignity, in particular, humiliating and degrading treatment.”
Regarding American anti-torture laws, one administration figure involved in discussions about the memorandums said:
“The criminal statutes only apply to American officials.
The question is how involved are the American officials.”
The official said the legal opinions say restrictions on procedures would not apply if the detainee could be deemed to be in the custody of a different country, even though American officials were getting the benefit of the interrogation. “It would be the responsibility of the other country,” the official said. “It depends on the level of involvement.”
You want a picture uglier than leering military prison guards turning loose their dogs on a naked cowering prisoner?
Uglier than masked jihadists sawing off the neck of a civilian contractor?
Try picturing a bunch of lawyers sitting around trying to find the loopholes in the torture prohibitions of the Geneva Conventions.
Lawyers don’t come cheap, and from the looks of the articles I’ve excerpted above, the Pentagon, the Justice Department and the C.I.A. each have their own set of eager loophole-hunters.
Keep those taxes coming.
Once again, Seymour Hersh at The New Yorker has got the goods.
While the rest of us have been speculating about how the contempt for the Geneva Conventions shown by higher-ups in the Bush administration led to the abuses at Abu Ghraib, Hersh has tracked down the actual step-by-step cause and effect.
It’s more direct than you might have suspected.
(Update: The Pentagon denies it but this seems to be one of those denials where only an exaggerated straw-man version of Hersh’s story is being denied:
“No responsible official of the Department of Defense approved any program that could conceivably have been intended to result in such abuses as witnessed in the recent photos and videos.”
Hersh is saying that officials [“responsible” is certainly an ambiguous modifier here] approved programs and a reckless lack of oversight over those programs in a way that could certainly be expected to result in abuses such as the ones at Abu Ghirab.
The phrasing “could conceivably have been intended to result in such abuses” is of the same species of legalese that convinces Rumsfeld that there’s got to be a torture loophole somewhere.)
So where are all those lawyers finding their Geneva Convention loophole? Apparently it’s in Article 5 of Convention IV:
Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.
Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.
In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention.
They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.
This section seems mostly designed to prevent captured members of an ongoing resistance from using their rights under the Geneva Conventions to continue to coordinate with and share intelligence with their comrades.
If you read it generously, though, it’s carte blanche.
If you can say with a straight face that it would be “prejudicial to the security” not to torture your “individual protected person… definitely suspected of or engaged in activities hostile to the security of the State” then, voila! — you’re free to haul out the thumbscrews.
Just be sure to treat them “with humanity” (and we all know what humanity is like).
What a nice little loophole.
It’s hard to imagine anyone you couldn’t throw to the wolves with this little clause if you just interpreted it this way.
After all, you wouldn’t want to torture them in the first place if you didn’t suspect them of activities hostile to the security of your State.
Can you imagine the glee of the lawyers who found this? “Hey!
It says here we have to treat our prisoners well unless we suspect them of being hostile to us!” There’s a place on our Supreme Court for brilliant legal minds like that.
Because that’s what the Geneva Conventions are all about — protection for those prisoners of war you don’t suspect of being on the other team.
I wondered where the loopholes were found in the International Convention Against Torture. Well, it turns out that there are some — in fact, the United States, when it ratified the convention, wrote its own set of loopholes in.
That’s thinking ahead for you!
The quest for loopholes and immunity continues.
I’ve brought up in recent Picket Line entries how lawyers have seized on vaguely-worded exceptions and caveats in the Geneva Conventions and the International Convention Against Torture to explain why torture’s not illegal when we do it.
It turns out that it’s much easier to give yourself immunity from war crimes prosecution than to just not commit war crimes in the first place.
Who knew?
The best thing I’ve seen written lately about Abu Ghraib is The Logic of Torture by Mark Danner in The New York Review of Books.
Danner does a good job of summarizing what we know about the treatment of prisoners in Iraq, Afghanistan, Gitmo, etc. and how this relates both to changing government policy and to the science of coercive interrogation and torture as it was developed by the CIA in .
The current U.S. government, Danner says, “made a series of decisions about methods of warfare and interrogation… [that] transform[ed] the United States from a nation that did not torture to one that did.
And the decisions were not, at least in their broad outlines, kept secret.
They were known to officials of the other branches of the government, and to the public.”
This is the start of an article from today’s Wall Street Journal that I’ll interrupt below for a tangent, although it’s worth your time to follow the link and read the rest.
Bush administration lawyers contended last year that the president wasn’t bound by laws prohibiting torture and that government agents who might torture prisoners at his direction couldn’t be prosecuted by the Justice Department.
The advice was part of a classified report on interrogation methods prepared for Defense Secretary Donald Rumsfeld after commanders at Guantanamo Bay, Cuba, complained in that with conventional methods they weren’t getting enough information from prisoners.
The report outlined U.S. laws and international treaties forbidding torture, and why those restrictions might be overcome by national-security considerations or legal technicalities.
In a , draft of the report reviewed by The Wall Street Journal, passages were deleted as was an attachment listing specific interrogation techniques and whether Mr. Rumsfeld himself or other officials must grant permission before they could be used.
The complete draft document was classified “secret” by Mr. Rumsfeld and scheduled for declassification in .
The draft report, which exceeds 100 pages, deals with a range of legal issues related to interrogations, offering definitions of the degree of pain or psychological manipulation that could be considered lawful.
But at its core is an exceptional argument that because nothing is more important than “obtaining intelligence vital to the protection of untold thousands of American citizens,” normal strictures on torture might not apply.
The president, despite domestic and international laws constraining the use of torture, has the authority as commander in chief to approve almost any physical or psychological actions during interrogation, up to and including torture, the report argued.
Civilian or military personnel accused of torture or other war crimes have several potential defenses, including the “necessity” of using such methods to extract information to head off an attack, or “superior orders,” sometimes known as the Nuremberg defense: namely that the accused was acting pursuant to an order and, as the Nuremberg tribunal put it, no “moral choice was in fact possible.”
I’ve seen this weird backwards-world description of the so-called “Nuremberg defense” pop up a in a couple of places lately.
The description in this Wall Street Journal article is typical.
It’s grotesquely ironic, since the principles adopted by the war crimes trials in Nuremberg were designed precisely to dismiss this sort of “following orders” defense.
Calling this the “Nuremberg defense” is kind of accurate, in that it was a popular excuse attempted as a defense at the trials.
But the way this term is being used now carries the implication that this defense was enshrined as a valid one by the Nuremberg tribunal — when exactly the opposite is true.
Here’s the part of the Nuremberg principles from which the Journal’s quote about moral choice comes:
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.
This was clarified elsewhere in the Nuremberg judgment:
As you can see, it says exactly the opposite of what the Wall Street Journal describes as the “Nuremberg defense” — and the legal position of the Dubya Squad’s lawyers.
Over at The Whiskey Bar, Billmon reports about Mary L. Walker, who headed the team of lawyers that authored the report I discussed yesterday — the one saying that torture, even murderous torture, isn’t illegal if the president says it’s important.
Ms Walker, apparently, has a strongly-rooted Christian faith:
“When God is the center of your life and everything you do revolves around His plans for you and the world, then that is when life really gets exciting.”
“It’s a travesty to be in a place of strategic importance to the world as a business or political leader and not allow God to accomplish the truly significant through you.”
“Making moral decisions in the workplace where it is easy to go along and get along takes courage.
It takes moral strength and courage to say, ‘I’m not going to do this because I don’t think it’s the right thing to do.’
I don’t believe I would have the courage to live that way if I was not personally connected to the God of the universe.”
The Senate Judiciary Committee had a chance to grill Attorney General Ashcroft yesterday about the notorious torture-is-legal memo.
This would have been a good opportunity for the Dubya Squad to repudiate the memo’s conclusions about the power of the president to nullify laws and treaties, and about the legality of torture, if they cared to.
When asked whether the administration had decided that torture was legal and had approved of its use, the closest thing to a denial that Ashcroft came up with was this: “I want to confirm that the president has not directed or ordered any conduct that would violate the Constitution of the United States, that would violate any one of these enactments of the United States Congress or that would violate the provisions of any of the treaties as they have been entered into by the United States, the president, the administration and this government.”
All of which sounds good… until you realize that the memo in question was arguing that torture, when done with presidential approval, did not violate the Constitution, United States law, or any of the country’s treaty obligations because the president’s directives in the conduct of war are a higher law than any of these.
So instead of being denials, Ashcroft’s remarks are really just slippery.
When asked whether his department will prosecute Americans who commit torture, Ashcroft responds: “The Department of Justice will both investigate and prosecute individuals who violate the law” (emphasis mine), again begging the same question.
(However, he did say directly at one point that the president had not issued an order immunizing interrogators of Al Qaeda suspects from prosecution “based on the tactics they use.”)
Ashcroft even gave a strange back-door defense of the core argument of the memo: that the commander-in-chief’s war-conducting mandate puts him and those under his command above the law.
This happened when Ashcroft was defending his decision not to release the text of the memos to Congress.
In the course of this defense he read a quote* that he’d brought along from Frank Murphy, whom Franklin Roosevelt appointed as his Attorney General in .
Ashcroft:
He [Murphy] explained in part refusing to give his opinion to the Senate, citing what was already long-established practice of attorneys general in .
He put it this way.
And I’m quoting.
While the constitutional powers of the president in time of war, now the quote starts, “have never been specifically defined and, in fact, cannot be, since their extent and limitations are largely dependent on conditions and circumstances.
The right to take specific action might not exist under one state of facts, while under another it might be the absolute duty of the executive to take such action.”
I’m not doing anything other than to say that there is a long-established policy reason grounded in national security that indicates that the development and the debate of hypotheses and practice of what can and can’t be done by a president in time of war is not good government.
And so it goes for the length of Ashcroft’s answers — denials that the administration is doing anything outside the law, in the shadow of a memo that has concluded that nothing the president does or orders done in the furtherance of his war-conducting mandate can be outside the law.
The Committee’s chair, Senator Hatch, gave Ashcroft a little verbal wink in his concluding remarks: “You’ve had to be very careful with what you’ve said here today,” Hatch said.
“And I fully understand why.
And I think any reasonable person who looks at it understands why, too.”
I think I understand.
I can’t get past the fact that this is the product of a “working group” of lawyers, all of them highly educated, presumably intelligent, decent hardworking Americans who love their country.
And, not one of them resigned their post rather than participate in creating a legal justification for torture.
And, it was not just an abstraction to them; they went into great detail about the precise amount of pain that was to be allowed.
There are long passages in which the meaning of “severe pain” is discussed, the effect of long term mental damage is assessed and where the justification of the infliction of long term damage is defined as a matter of intent rather than result.
Maybe it’s true that “not one of them resigned,” but there were some people who were very aware of the horror they were being asked to participate in.
That’s how these memos got leaked to the press and to human rights groups.
What was the process by which they came to these dry legalistic definition of when, how and where one is allowed to inflict terrible pain as long as it doesn’t reach the level of intensity that would accompany serious physical injury or organ failure?
Did they discuss this around a conference table over a take-out Chinese dinner?
Did they all nod their heads and take notes and write memos and have conference calls and send e-mails on the subject of what exactly the definition of “severe pain” is?
Did they take their kid to school on the way to the meeting in which they finalized a report that says the president of the United States has the unlimited authority to order the torture of anyone he wants?
Did they tell jokes on the way out?
According to this Washington Post article, the White House has finally started to back down a bit from the “torture is peachy when we say so” stand.
In addition, they plan to release more of the memos in their torture-and-interrogation collection — and they hope by this to show that the awful ones we’ve seen and heard about aren’t a sample that accurately represents White House policy.
However, the documents also seem to confirm that the Dubya Squad were playing fast-and-loose with its treaty obligations and with its stated pledges to treat prisoners humanely.
The current incarnation of the Post article begins:
“President Bush claimed the right to waive anti-torture laws and treaties covering prisoners of war… and Defense Secretary Donald Rumsfeld authorized guards to strip detainees and threaten them with dogs, according to documents released .”
Even the right-wing Drudge Report, usually the first place to find the hopeful White House spin on a story, puts these revelations in its headline.
all I have is an update on the whole torture policy issue.
If you’re sick of hearing about it, move along.
The White House has finally started being significantly more direct and revealing about its views on the matter, and so there’s a lot that’s come out in the last couple of days that helps to clarify some of the things I’ve discussed here over the last few weeks.
’s release of documents related to the White House deliberations on the permitted extent of detention and interrogation methods is being criticized for being selective, which it does seem to be.
However it appears to me to be a significant and real backing-down from the “torture isn’t evil when we do it” position — significant in part because the Dubya Squad has had other opportunities recently to explicitly disavow torture and they instead put on a verbal dog-and-pony show to get around giving a straight answer.
Now, while occasionally the language gets slippery, the answers for the most part are much straighter.
Here are some quotes from White House Counsel Alberto Gonzales at a press briefing held yesterday:
[President Bush has] made it clear, in the war against al Qaeda and its supporters, the United States will follow its treaty obligations and U.S. law, both of which prohibit the use of torture.
And this has been firm U.S. policy since the outset of this administration and it remains our policy today.
I will reemphasize today that the President has not authorized, ordered or directed in any way any activity that would transgress the standards of the torture conventions or the torture statute, or other applicable laws.
The President has given no order or directive that would immunize from prosecution anyone engaged in conduct that constitutes torture.
All interrogation techniques actually authorized have been carefully vetted, are lawful, and do not constitute torture.
[T]his briefing does not include CIA activities.
I will say that all interrogation techniques authorized for use by the Agency against the Taliban and al Qaeda and in Iraq are lawful and do not constitute torture.
But to disclose anything more would be irresponsible during this period of ongoing conflict.
I want to reaffirm yet again that the United States has very high values.
We do not engage in torture.
We are bound by the convention against torture, as ratified by the United States.
Whatever broad language might be included in this legal memo, the United States government has never authorized torture in reliance on the argument that the convention against torture, or the torture statute are somehow inapplicable to the current conflict.
To the contrary.
All interrogation techniques authorized for use against the Taliban and al Qaeda and in Iraq have been carefully vetted and determined to not constitute torture under the definition provided by Congress and the convention against torture, as ratified by the United States.
Now it’s still possible that Gonzales is just lying — it’s not like it would be unheard of for someone from the Dubya Squad to just toss out a stream of fibs — but these tightly-worded denials are certainly a step up from the weaselly non-denials we’ve heard up ’til now, even if you can’t necessarily take them at face value.
Under questioning, Gonzales backed down a bit from the last statement I quoted: that the White House is using the definition of torture “provided by Congress and the convention against torture” — responding to a question by saying instead that “[t]he definition of torture that the administration uses is the definition that Congress has given us in the torture statute and the reservation of the torture convention” (emphasis mine).
This should raise some eyebrows, because the legal memos used this same set of Congressional language to conclude that torture had to be extremely severe (“equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death”) and done with a primary intent to torture in order to earn the name “torture.”
Gonzales went on to summarize this definition as: “a specific intent to inflict severe physical or mental harm or suffering.
That’s the definition that Congress has given us and that’s the definition that we use.”
He dodged a follow-up question on this, referring to another briefing that the Justice Department would give (but that I can’t find a transcript for).
So although this press briefing represents progress towards a “zero tolerance” policy towards torture, it still seems to leave the door open for things that most of us would consider to be torture (particularly if we were on the receiving end) but that don’t meet this narrower definition.
Pointedly not disavowed was the legal opinion that the president could — by invoking what was being called “the Commander-in-Chief override power” — approve torture, Congress and its definitions be damned.
In place of this, the speakers at the press briefing repeatedly said that the president has not in fact actually exercised this theoretical torture imprimatur.
Of course now we know that all of this was fundamentally dishonest and that the White House was in fact authorizing the torture of its prisoners.
It seems that there just weren’t enough loopholes in the anti-torture rules the United States government was somehow tricked into enacting.
So Congress and the Dubya Squad hope to drill a new one.
The ACLU managed to get the U.S. government to cough up more documents about its torture policies.
And the New York Times got some interviews with people who’ve seen Guantánamo from the inside.
No surprise that among the things they’re hiding there is torture.
Did I say “torture?” I must have meant abuse, which, as Zeynep Toufe of Under the Same Sun notes, seems to be the officially-agreed-upon euphemism for torture-when-we-do-it.
I suspect that guidance has been given, but that the Dubya Squad learned a lesson about not putting such things down on paper.
If there is anyone left who was unconvinced that the United States practices torture by deliberate policy, but who is susceptible to evidence, I’d like to welcome that person to the ranks of the disgusted and disillusioned.
The Washington Post signals that perhaps the time has come for even the Washington Post to start taking the U.S. torture policy seriously.
Their editorial yesterday is titled War Crimes and reads in part—
Since the publication of photographs of abuse at Iraq’s Abu Ghraib prison in the spring the administration’s whitewashers — led by Defense Secretary Donald H. Rumsfeld — have contended that the crimes were carried out by a few low-ranking reservists, that they were limited to the night shift during a few chaotic months at Abu Ghraib in , that they were unrelated to the interrogation of prisoners and that no torture occurred at the Guantanamo Bay prison where hundreds of terrorism suspects are held.
The new documents establish beyond any doubt that every part of this cover story is false.…
[T]he appalling truth is that there has been no remedy for the documented torture and killing of foreign prisoners by this American government.
I reported recently that the CIA had been ordered to comply with a FOIA request for information about torture and abuse of detainees.
Well, as it turns out the CIA has a few tricks left in its secrecy basket and is going to keep fighting against disclosure.
I discussed the reopening of the debate about torture and the larger implications of our loss of the consensus that torture is wrong.
I speculated:
From here it can go in two directions — either the Dubya Squad will become more brazen about torture as the public adopts a “what’s the big deal” attitude and the nominal opposition decides it’s not an issue that polls well… or the Dubya Squad will be forced to tighten up its secrecy and hypocrisy in the face of public revulsion and opposition protest…
Well, I sure pegged that one right.
While I was composing my screed, the U.S. Department of Justice was releasing a brand new torture memo.
Which direction is the Dubya Squad trying to push with this new memo — the brazen or the hypocritical? normalizing torture or keeping it hidden?
The first thing to notice is the timing of the memo’s release to the public — on .
Clearly the Dubya Squad didn’t want to make much of a splash.
To the extent that they’ve tried to word the memo in such a way that it suggests a spin to the news media, that spin is this:
The Bush administration has backed down from an memo that claimed the only acts prohibited by anti-torture laws are those that cause “excruciating and agonizing” pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”
So at first glance, this appears to be good news.
Given my “brazen” vs. “hypocritical” dichotomy from yesterday, the Dubya Squad has chosen the latter, which, under the circumstances, seems like a good thing.
The new memo does in fact:
repudiate the conclusion from the memo that “severe pain” to meet the threshold prohibited by the anti-torture laws and treaties “must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”
back down from the conclusion that in order to be prohibited, mental pain and suffering must be additionally shown to be “prolonged mental harm” that must be “of significant duration, e.g., lasting for months or even years” and suggests for instance that post-traumatic stress disorder might qualify as such harm
back down from the conclusion that to be considered torture, the “precise objective” of an act must be to cause a prohibited level of pain (rather than the pain being the foreseeable by-product of some technique intended for some other purpose) — “We do not believe it is useful to try to define the precise meaning of ‘specific intent’… In light of the President’s directive that the United States not engage in torture, it would not be appropriate to rely on parsing the specific intent element of the statute to approve as lawful conduct that might otherwise amount to torture.”
The memo is still an ugly one, and a humane person will cringe while reading its extensive splitting of hairs about what distinguishes “severe” from “excruciating and agonizing” pain, for instance.
Its perspective remains “how much abuse can the administration get away with inflicting under the law” as opposed to “how much abuse can the Department of Justice prevent or prosecute by using the law.”
You won’t see any Department of Justice memos that interpret anti-terrorism laws from the point-of-view of someone trying to figure out how much terrorism they can commit before running afoul of the law.
Such memos would all be written from the perspective of trying to figure out just how much terrorism-related activity they can plausibly investigate and prosecute under anti-terrorism statutes.
If the Dubya Squad actually opposed torture, this is how their Justice Department would approach the anti-torture laws.
The tone of the exercise is a sort of grudging admission that U.S. law does in fact prohibit torture followed by an attempt to find that lowest permissible point of brutality below which nobody may legally go.
If there is another memo that says “whatever this maximum permissible brutality level may be, the United States has and will enforce an expectation of behavior that is far more humane” I am not aware of it.
The memo is also pretty narrow in scope.
It really only deals with interpreting the law that Congress passed as its attempt to get the U.S. into compliance with the United Nations Convention Against Torture.
Other aspects of the earlier controversial memos and directives are not addressed.
Perhaps this is just the first of a number of new memos, but it leaves unanswered, for instance, questions about the Dubya Squad’s current position on the expansive “Commander-in-Chief override” that theoretically gives the president authority to ignore all laws and treaties in the course of his war-making authority.
Also, a footnote mentions in passing that the anti-torture law under discussion “applies only to conduct occurring ‘outside the United States’ ” and nowhere does the memo try to resolve the Dubya Squad’s schizophrenic position on the status of Gitmo in this regard.
Interrogators torture in an attempt to cause sufficient anguish to a captive that the captive will betray friends and causes, confess secrets, and/or perform other acts that the captive would not do except in an attempt to end the suffering.
It is possible that a captive will do such things voluntarily, or through friendly persuasion or argument, or in order to be released from captivity or in exchange for money or certain privileges.
If such things do not do the trick, a captor can choose to give up the attempt gracefully if reluctantly, or may choose to start on the road to torture — trying to make the conditions of captivity increasingly intolerable until they pass the threshold of resistance.
The Dubya Squad is trying to preserve their ability to cause enough anguish to overcome the most resistant captive without having to call what they are doing “torture” — as if “torture” could be best defined by something other than the level of anguish it causes.
It is like trying to define murder without referring to the death of the victim — which could be convenient if you’re trying to find some way to make a victim die without wanting to be accused of murdering him.
How often will new revelations about the sick U.S. torture policies come to light in , I wonder.
Sometime after Mohamed al-Kahtani was imprisoned at Guantánamo around , military officials believed they had a prize on their hands — someone who was perhaps intended to have been a hijacker in the plot.
But his interrogation was not yielding much, so they decided in to try a new tactic.
Mr. Kahtani, a Saudi, was given a tranquilizer, put in sensory deprivation garb with blackened goggles, and hustled aboard a plane that was supposedly taking him to the Middle East.
After hours in the air, the plane landed back at the United States naval base at Guantánamo Bay, Cuba, where he was not returned to the regular prison compound but put in an isolation cell in the base’s brig.
There, he was subjected to harsh interrogation procedures that he was encouraged to believe were being conducted by Egyptian national security operatives.
The account of Mr. Kahtani’s treatment given to The New York Times recently by military intelligence officials and interrogators is the latest of several developments that have severely damaged the military’s longstanding public version of how the detention and interrogation center at Guantánamo operated.
Interviews with former intelligence officers and interrogators provided new details and confirmed earlier accounts of inmates being shackled for hours and left to soil themselves while exposed to blaring music or the insistent meowing of a cat-food commercial.
In addition, some may have been forcibly given enemas as punishment.
While all the detainees were threatened with harsh tactics if they did not cooperate, about one in six were eventually subjected to those procedures, one former interrogator estimated.
The interrogator said that when new interrogators arrived they were told they had great flexibility in extracting information from detainees because the Geneva Conventions did not apply at the base.
Military officials have gone to great lengths to portray Guantánamo as a largely humane facility for several hundred prisoners, where the harshest sanctioned punishments consisted of isolation or taking away items like blankets, toothpaste, dessert or reading material.
Maj. Gen. Geoffrey D. Miller, who was the commander of the Guantánamo operation , regularly told visiting members of Congress and journalists that the approach was designed to build trust between the detainee and his questioner.
“We are detaining these enemy combatants in a humane manner,” General Miller told reporters in .
“Should our men or women be held in similar circumstances, I would hope they would be treated in this manner.”
His successor, Brig. Gen. Jay W. Hood, told reporters in that he was “satisfied that the detainees here have not been abused, they’ve not been mistreated, they’ve not been tortured in any way.”
Journalists who were permitted to view an interview session from behind a glass wall during General Hood’s tenure were shown an interrogator and detainee sharing a milkshake and fries from the base’s McDonald’s and appearing to chat amiably.
It became apparent to reporters comparing notes in , however, that the tableau of the interrogator and prisoner sharing a McDonald’s meal was presented to at least three sets of journalists.
The Drudge Report is trying to spin today’s news as if it deflects the blame for the Dubya Squad’s torture policy from Attorney General nominee Alberto Gonzales.
“Paper: Gonzales drafts ghost-written by Cheney lawyer,” says Drudge.
Nice try, but the news actually ties Gonzales closer to the torture memos than before:
[The CIA] asked for a legal review — the first ever by the government — of how much pain and suffering a U.S. intelligence officer could inflict on a prisoner without violating a law that imposes severe penalties, including life imprisonment and execution, on convicted torturers.
The Justice Department’s Office of Legal Counsel took up the task, and at least twice during the drafting, top administration officials were briefed on the results.
White House counsel Alberto R. Gonzales chaired the meetings on this issue, which included detailed descriptions of interrogation techniques such as “waterboarding,” a tactic intended to make detainees feel as if they are drowning.
He raised no objections and, without consulting military and State Department experts in the laws of torture and war, approved an memo that gave CIA interrogators the legal blessings they sought.
…it goes on…
Gonzales approved in — after limited consultation — an Office of Legal Counsel memo suggesting various stratagems that officials could use to defend themselves against criminal prosecution for torture.
Drafted at the request of the CIA, which sought legal blessing for aggressive interrogation methods for Abu Zubaida and other al Qaeda detainees, the memo contended that only physically punishing acts “of an extreme nature” would be prosecutable.
It also said that those committing torture with express presidential authority or without the intent to commit harm were probably immune from prosecution.
The memo was signed by Jay S. Bybee, then an assistant attorney general and now a federal appellate judge, but written with significant input from [John] Yoo, whom Gonzales had tried to hire at the White House and later endorsed to head Justice’s legal counsel office.
During the drafting of the memo, Yoo briefed Gonzales several times on its contents.
He also briefed Ashcroft, Bellinger, Addington, Haynes and the CIA’s acting general counsel, John A. Rizzo, several officials said.
At least one of the meetings during this period included a detailed description of the interrogation methods the CIA wanted to use, such as open-handed slapping, the threat of live burial and “waterboarding” — a procedure that involves strapping a detainee to a board, raising the feet above the head, wrapping the face and nose in a wet towel, and dripping water onto the head.
Tested repeatedly on U.S. military personnel as part of interrogation resistance training, the technique proved to produce an unbearable sensation of drowning.
State Department officials and military lawyers were intentionally excluded from these deliberations, officials said.
Gonzales and his staff had no reservations about the legal draft or the proposed interrogation methods and did not suggest major changes during the editing of Yoo’s memo, two officials involved in the deliberations said.
The memo defined torture in extreme terms, said the president had inherent powers to allow it and gave the CIA permission to do what it wished.
, its conclusions were cited approvingly in a Defense Department memo that spelled out the Pentagon’s policy for “exceptional interrogations” of detainees at Guantanamo Bay, Cuba.
Mr. Gonzales, who faces criticism from Democrat senators over a memo he wrote seeking to clarify whether the Geneva Conventions apply to terror suspects, refused to answer further questions from committee members at his confirmation hearing.
White House spokesman Trent Duffy said President Bush hopes Senators will, at least, treat Mr. Gonzales according to Article 14 of the Third Geneva Convention, which states: “Prisoners of war are entitled in all circumstances to respect for their persons and their honour.”
Mr. Gonzales’ refusal to answer Senators’ questions did not affect the committee’s inquiry, which consists primarily of speeches to a gathering of journalists.
But seriously, folks… today’s Picket Line collects some of what this confirmation hearing has brought out.
A former attorney-advisor at the White House Office of Legal Council, Marty Lederman, has written up an excellent series of discussions of how the new torture memo differs from the old one and why either was written in the first place.
Lederman concludes that all of the torture-condemning pronouncements from the White House, all of Alberto Gonzales’s assurances, and all of the recent anti-torture legislation from Congress have been carefully worded to specifically preserve the ability of agents from the Central Intelligence Agency to legally subject detainees to cruel, inhuman and degrading treatment.
Would it be too much to ask that Congress approve — and the President sign — a statute that would unambiguously prohibit all U.S. personnel, everywhere in the world, from engaging in cruel, inhuman, and degrading treatment — including, at a minimum, conduct that would shock the conscience, and thus violate the Due Process Clause, if it occurred within the U.S.?
, I reported on a press conference in which Alberto Gonzales delivered the first attempt by the Dubya Squad to back away from its torture memos.
I wrote, in part:
Gonzales backed down a bit from [his statement] that the White House is using the definition of torture “provided by Congress and the convention against torture” — responding to a question by saying instead that “[t]he definition of torture that the administration uses is the definition that Congress has given us in the torture statute and the reservation of the torture convention” (emphasis mine).
This should raise some eyebrows, because the legal memos used this same set of Congressional language to conclude that torture had to be extremely severe (“equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death”) and done with a primary intent to torture in order to earn the name “torture.”
Gonzales went on to summarize this definition as: “a specific intent to inflict severe physical or mental harm or suffering.
That’s the definition that Congress has given us and that’s the definition that we use.”
He dodged a follow-up question on this, referring to another briefing that the Justice Department would give (but that I can’t find a transcript for).
I’d hoped that I would be able to locate a transcript of this briefing so that I could post a follow-up here, but I haven’t. Now I know why:
Balkinization has another informed and thorough reality check about the U.S. torture policy.
In this episode, Marty Lederman tries to strike the killing blow to the undead “a few bad apples” theory of what’s been going on in Abu Ghraib, Gitmo, and just about everywhere else U.S. boots are landing these days.
In “Selling Indulgences,” David Luban has this observation about the lawyers who made the case for torture:
[W]hat happens when the client doesn’t want candid advice?
When the client says, in effect, “Give me a legal opinion saying I can do what I want to do”?
Lawyers confront such requests every day — but if the lawyer does the client’s bidding, she has crossed the fatal line from adviser to accomplice.
No longer an adviser or advocate, the lawyer now becomes an absolver or indulgence-seller.
There is some historical precedent here — Martin Luther launched the Reformation because early-Renaissance popes were selling papal dispensations to sin along with indulgences sparing sinners the flames of hell or a few years of purgatory.
Rodrigo Borgia once arranged a papal dispensation for a French count to sleep with his own sister.
It was a good career move: Borgia later became Pope Alexander Ⅵ, while Jay Bybee merely ended up on the Ninth Circuit Court of Appeals.
The New Yorker remains very much on-the-case, and has released a set of correspondence between Justice Department torture policy advocate John C. Yoo and William Taft Ⅳ of the State Department, who wanted the U.S. to honor the Geneva Conventions.
Also run over by the White House torture policy blitz were lawyers from the military, whose objections were overruled.
Some of those vulnerable to the U.S. torture policy are youths, including Omar Khadr, who has been in U.S. custody since he was captured in Afghanistan at age 15.
“I submit,” submits libertarian Anthony Gregory, “that, overall, and despite the ambivalence some libertarians might have toward the issue, torture is actually worse than rent control.”
