Torture is Back!

Torture is back! Press reports of secret memos in the Gonzalez Justice Department have rekindled the debate, which, as usual, continues to miss the point. That point being that in the end, it will be the Central Intelligence Agency that will be hung out to dry for torture allegations, both real or manufactured. Everybody else in the government will walk, or so they think.

Much has been written about the Bush administration and torture, to the point of stultifying repetitiveness. Torture doesn't work, most who know about these things, including myself, say -- and they're right, it doesn't. Torture demeans and irreparably damages the prestige and soft power of the world's oldest democracy, the editorial pages declare -- yep, they're right, it does. The Justice Department's secret memos allegedly supporting the use of tactics the civilized world calls torture are probably illegal, or at least immoral, congressional Democrats whine -- they probably are, but who listens to them? The administration continues to stonewall -- "this government does not torture people" is the message, and everybody stays on message.

The public yawns and the Democrats cower.

But below the noise level of the politics of torture and attacks on a discredited Justice Department, a new and important reality is working its way through the legal communities of the "civilized" world. It is this: the Bush administration, in its effort to immunize itself against future prosecution by changing the definition of war crimes for which U.S. government defendants may be prosecuted, has opened the door for such prosecutions outside the United States. Like a hacker at golf who blasts from fairway sand traps to knee-high rough, the administration is getting farther and farther "out of bounds."

The Military Commissions Act of 2006, railroaded through a rubber stamp Congress in September, 2006, and signed into law by the president in October, in effect, establishes that several categories of what were war crimes in the past, under Common Article 3 of the Geneva Conventions, can no longer be punished under U.S. law. This may have given some comfort to those who felt exposed to prosecution under existing U.S. law, but they should be wary of getting too complacent, particularly if they ever travel beyond the 12-mile limit of America's continental shelf.

The politicians may be marginally protected, as usual. But the men and women of the C.I.A. will be dangerously exposed and will have once again been left holding the bag.

The Defense Department has properly opted out of the torture business -- the military has declared it will operate under the Geneva Conventions, and the discussion ended there. But the CIA, according to press reports, has been exempted from such "quaint" rulings as Common Article 3 by a series of secret memos and judgments promulgated by the Department of Justice under Alberto Gonzales.

Under the current rules, according to press reports, the CIA may use "enhanced interrogation techniques" against detainees in the War on Terror. (This is a term, itself obviously tortured, that sounds only marginally better in the original 1940s German, "Verschärfte Vernehmung".) Reportedly, enhanced interrogation techniques include many measures forbidden under the War Crimes Act of 1996 and Common Article 3.

The administration denies this, but will not say what the enhanced techniques are. Against that opaque backdrop, it does not really matter whether CIA is torturing detainees at this point (or even if it has at any point); most of the member governments of such bodies as the International Court of Justice believe CIA engages in torture and there will be no lack of former detainees of the CIA making claims fueling those suspicions. Whether such claims are real or embellished will not matter.

Here is the crunch for the CIA: as eminent British lawyer Philippe Sands writes in his coming book, The Torture Team, "the simple fact of establishing immunity under the 2006 (Military Commissions) Act opens the door to investigations and possible prosecutions abroad. So long as the U.S. is able to investigate and prosecute grave breaches of Geneva (Conventions, Common Article 3), the courts of other countries would be likely to decline to exercise jurisdiction. With that possibility gone, the prospects for foreign investigation increase considerably, as Senator Pinochet found to his cost in 1999."

There are already more than two dozen CIA officers under indictment by an Italian court for the extraordinary rendition of Osama Mustafa Hassan Nasr (known as Abu Omar). Though the trial has been stayed, pending a ruling on Italian secrecy issues, this is still a very big deal. Just imagine the historical irony of the en masse indictment of 26 U.S. Government employees by a NATO ally!

Regardless of how the Italian court case plays out, it is only the beginning. One can expect a torrent of cases to be filed against the men and women of the CIA in the coming months and years. They'll have to get used to either staying pretty close to home, or taking their ski holidays in North Korea. Stepping off a plane anywhere in Europe will become a little dicey.

The CIA's men and women are putting themselves at enough risk already. They deserve better and we owe them more than this. The sway of feckless leadership at CIA has gone on long enough. It's time that the CIA takes the Defense Department lead and play by the rules again.

Milt Bearden retired from the Central Intelligence Agency in 1994, after thirty years in the CIA's clandestine services.

Comments

[coonce]

Did you watch The Colbert Report last night?

He hit it out of the ball game didn't he?

While the media's paying attention to the Pres Candidates POLL numbers, Lame Duck Bush is over here making sure he becomes Mighty Duck (changing definition of torture, changing rules, etc.)

This guy sure is able to say the truth and at the same time sound like a right winger.

Coonsey's View
http://www.freewebs.com/coonsey/

[Sundialsvc4]

The rest of the world has seen criminals like these before. And suffered mightily for it.

Even though the people of the United States might [be portrayed by their propaganda press as though they might...] be "deer in the headlights" about this, the rest of the world won't.

If the nation that dragged the world out of two world-wars now intends to be the cause of the third, then "so be it ... the answer is 'no.'"

[Purple Girl]

Considering this adminstration are the true 'enemy combatants" to US perhaps we need to start employing these techniques to get the proof we need to hang this admin. out to dry (along with their corp buddies). Also let's keep the laws Bushco has put in place until AFTER WE CONVICT & PUNISH THEM FOR TREASON?WAR CRIMES .
Friends- they know too much to be freely walking around Dubia in '09. They know all our strengths and weakness(which they've increased exponentially). time to make History once again- encourage the UN to bring war Crimes Charges against the Admin. Then perhaps Congress may start doing their job to Impeach them and all their appointees. Start with 'theystole the election in "00' and continue to the present day. We must untangle this web they have weaved (and are still weaving)

[attackthesource]

torture isn't an interrogation technique, it's used to make the population afraid to say or do anything that might bring them to the attention of the authorities. It's a social control technique.

[OrangeSam]

So very close to the definition of terrorism, no?

[gardengoddess]

Nowhere near the same, OrangeSam. Terrorism is a violent physical reaction to a political philosophy. That's why terrorism will never be defeated with guns and bullets. Terrorism doesn't try to control a society, it tries to use society to force a chance in political policy.

[pygmytyke]

I think Mr. Bearden is absolutely right.But why hasn't the CIA done what the Military has already done, ie, foreswear the idiotic practise of torturing people to get information?
The main problem is with the incompetent polical leadership of both party's. I am afraid if the CIA were to try and clean their own house of incompetents, our so-called political leadership would re-fill the place with Blackwater cowboys, or another mob of private security goons.

[RogerHWerner]

Where to begin without sounding hyper negative regards US intelligence activities­...I am not opposed to gathering intelligence clandestinely or otherwise. I would however argue that we pay too much for what we get in return; perhaps something a capitalist might understand.

Setting aside intelligence performance, I have to say that for someone with your credentials to imply that the Bush administration is doing things that were previously anathema to our government displays extraordinary ignorance or remarkable unwillingness to accept facts. The US government has condoned torture since the beginning of the Cold War and actively developed EST techniques and sensory deprivation during the 1950s. As a CIA operative, surely you know of MKUltra and its predecessors. My indirect exposure to torture came 1969-1970 when I lived on the same dormitory floor with a former US Army intelligence officer who told me during his numerous fits of despair the various interrogation techniques he personally used on Viet Cong that were not in accord with the Geneva Conventions on torture (Viet Cong = enemy combatants perhaps?).

In talking about the use of torture, you hit upon a most egregious and unique aspect of its criminal use by this administration and this should be a focus of any future discussions of the subject! Past administrations did everything possible to plausibly deny having anything to do with torture and typically used second and third parties to carry it out (third world dictators had their uses). We trained this dictatorships in torture techniques but were appalled by their actual use on human subjects..­.Bush and his people have brazenly endorsed what the rest of the world rejects and they have made great effort to justify their actions. That Bush and company have been able to get away with these nefarious deeds without facing US criminal sanctions doesn't speak well for our national mood and so I hope the international community reacts to US illegalities with strong legal sanctions.

[OrangeSam]

"I would however argue that we pay too much for what we get in return; perhaps something a capitalist might understand­."

Certainly, our Intel ROI is DOA.

[ChimpmasterDJ]

I'm sure Milt Bearden would agree with me that there's a completely disproportionate emphasis on sigint over humint, and sigint is VERY expensive.

Then again, it's easy to understand the drift towards gadgetry and complicated behemoth surveillance systems, because you buy hardware from contractors who can be relied upon to "share the pie" with "the right people". Whereas spreading these mountains of cash over the training and adequate compensation of thousands of intelligent people might achieve intelligence objectives, but does absolutely nothing for the politicians.

[gardengoddess]

the problem with ANY type of intelligence gained from torture, is it's completely unreliable. People will say anything to stop the torture. The best intelligence is gained by use of more intelligence, not more force.

[Hopalongpoppyseed]

These people who have done the torture will get no sympathy from me if they pay a price. They could have said no.

[realitytrumpsbull]

Well, I think if more people put their money where their mouth was, and added their names
to the impeachment petition, available at:
http://www.impeachbush.org , maybe then there'd
be a different outcome...­?

[KnoxBlues1]

Yes, Cheney-Bush should be impeached, convicted and removed from office, and then immediately extradited to The Hague to stand trial for war crimes.
I have signed the impeachment petition, and I have pledged to impeach:
http://www.pledgetoimpeach.org./index.html

[FearlessFreep]

Are you sure? The CIA seems to get away with everything.

[wldnswmmr]

I think this is a very clear discussion of a topic that is poorly understood in general, and a subject that will become of enormous importance in the years after Jan. 2009. I have little doubt that U.S. officials are going to find themselves in great legal jeopardy whenever they venture into civilized parts of the world (beyond the U.S. borders, in other words). Pinochet was ultimately released without prosecution, but I doubt that American officials are going to be so lucky. It will become a question of American response; we may see a whole series of Entebbe type rescues of defendants. By running Guantanamo, the U.S. has placed itself in the position of lacking a credible argument against the indeterminate detention of U.S. officials who are charged with war crimes by foreign governments. What I don't quite follow in the article is why CIA officers would be in special jeopardy, versus political figures. The exoneration provisions, within the USA, are broad-based, and obviously forgive a range of tortures that would obviously violate the Geneva broad standard, which Bush criticized as "vague." But I don't see how a CIA official could credibly claim to be an innocent violator of Geneva, if he finds himself in the dock of a Geneva signatory. It's actually pretty easy to stay within Geneva - avoid cruel, inhuman and degrading practices, broadly defined, and stop all the nonsense about "organ failure" and the rest of it. If the CIA chose not to do so, they deserve their coming miseries. Quid pro quo.

[Peabodies]

Gotta start somewhere -- Blackwasser and like mercenaries. NOW. Vilify, denigrate, protest, shut them down before they take over, HERE.