The Tortured Law on Torture

Ah yes, those torture confessions have proved so useful. That, at least, was the claim of our president in justifying one of the most egregious assaults ever on this nation's commitment to the rule of law. But now comes news that charges have been dropped against the so-called Sept. 11 attacks' 20th hijacker, one of dozens so identified, because the "evidence" he supplied under torture and later recanted is not credible enough to go to trial.

That fact, of course, will not compel President Bush to cut the tortured prisoner loose. After all, Saudi citizen Mohammed al-Qahtani has only been held in confinement for more than six years without being charged with a crime, and without being allowed to confront his accusers in a court of law.

The fact that the information produced is worthless--as evidenced by Qahtani, once driven insane, naming everyone around him in the camp as a major al-Qaida operative--will not deter those who condone torture. But others expert in these matters, including presumptive Republican presidential nominee John McCain, will recoil from such tactics.

It was the treatment of Qahtani and other prisoners, as witnessed by horrified U.S. Navy Department investigators at Guantanamo, that got the attention of the Navy's then-General Counsel Alberto J. Mora. In one of those all too rare examples of true heroism that makes one proud to be an American, Mora challenged the Bush administration to practice the human rights standards that America proclaims to the world. But Bush would stay true to his own values: "Any activity we conduct is within the law," Bush stated in November 2005, adding, "We do not torture."

What was it then? As the New Yorker's Jane Mayer reported in 2006, citing the Army's own interrogation logs, Qahtani, in addition to being subjected to documented beatings and other physical abuse, was put through an S&M routine calculated to drive him mad, which it accomplished:

"Qahtani had been subjected to 160 days of isolation in a pen perpetually flooded with artificial light. He was interrogated on 48 of 54 days, for 18 to 20 hours at a stretch. He had been stripped naked; straddled by taunting female guards, in an exercise called 'invasion of space by a female;' forced to wear women's underwear on his head, and to put on a bra; threatened by dogs; placed on a leash and told that his mother was a whore.'"

Quite an advertisement for the American way of life. Should we expect the rest of the world to boycott the Olympics when we next get to host the Games? Others might question why the Third 1949 Geneva Convention's prohibition against "outrages upon personal dignity, in particular humiliating and degrading treatment," doesn't apply to the United States.

The failure to elicit any usable incriminating information from Qahtani once again supports the view of most experts that torture is not only morally repugnant, it is in fact counterproductive to getting at the truth.

But this didn't trouble John Yoo, then the Justice Department lawyer who wrote the infamous Bybee memo on torture, named after Yoo's boss, Jay S. Bybee, who was rewarded for his leadership with a judgeship on the Ninth Circuit Court of Appeals in Los Angeles. Yoo, the best recent example of what the great anti-Nazi writer Hannah Arendt once referred to as the "banality of evil," teaches law at UC Berkeley when not touring the country to argue that if an action does not produce death through organ failure it can't be torture. Audiences tend to clap politely and observe that while they don't agree with him, he is, as I was told by a UCLA professor after such an appearance, "a very bright fellow."

On Feb. 6, 2003, as Qahtani was being led around on a leash, Yoo visited Mora in his Pentagon office. Mora later told the New Yorker writer Mayer that he asked Yoo, "Are you saying the president has the authority to order torture?" Yoo answered with a clear "yes." Following that stellar legal advice, then-Defense Secretary Donald Rumsfeld, with Yoo's encouragement, officially approved "hooding," "exploitation of phobias," "stress positions," "deprivations of light and auditory stimuli" and the other horrors that the scandals of Abu Ghraib and Guantanamo would burn into the legacy of the United States.

Robert Scheer's new book, "The Pornography of Power: How Defense Hawks Hijacked 9/11 and Weakened America," will be published June 9 by Twelve.

Comments

[Babzter]

Torture is the fruit of the poisonous tree. John Yoo planted and nurtured that tree. It is appalling that he still hollds his position at Berkeley.

I wrote the following letter (my second) to Dean Edley, in response to his weak ramblings about "academic freedom,":
__________­__________­__________­__________­__________­_____

Thank you for responding to my request that you fire John Yoo.

The concept of “academic freedom” is not new to me, and I wholly support its protection; however, it does not extend to situations where a professor becomes an accessory to a crime before the fact.

I assume you have read the relevant memos in which Yoo specifically twisted legal definitions to allow senior officials to break domestic and international law. That he did not physically commit the actual crime is irrelevant. What he did was tantamount to a commanding officer telling his soldiers to commit war crimes,, and he is just as guilty. Were he an average, middle-class person, he would have been arrested and tried for promoting illegal acts.

Your rationalization may allow you to keep Mr. Yoo on your staff, but it disrespects the law, and you are supporting the continuing torture of “detainees”. You share Mr. Yoo's guilt--anyone in a position to prevent these terrible crimes is also an accessory. You may one day be asked why you did not intervene, and your response will define who you are.

__________­__________­__________­_

His email address is: edley AT law.berkeley.edu

[chalcogens1]

The Geneva conventions do not have any cracks through which people fall through and disappear. Either you are a privileged belligerant and entitled to POW status, or you are an unprivileged belligerant (unlawful combatant), you are covered under the civilian treaty. The term "unlawful enemy combatant" is a meaningless conflation.

One of many problems with the neocons' arguments is that they don't explain what to do about those swept up in the confusion of war. That our policies in Afghanistan made such mistakes virtually inevitable is self-evident. That is why the universal human right of habeas corpus is so vital. The arguments above about Al Qaeda surrendering are meaningless when one realizes that many at Guantanamo and elsewhere are not members of Al Qaeda or even of the Taliban.

Some of the techniques used against al Qatani might be considered cruel and inhumane treatment and others are torture. In his book Alfred McCoy has implied that the law has been a little bit behind the curve in recognizing what is sometimes called touchless torture (sleep deprivation, extremes of heat and cold, etc) for what it really is: menticide. Moreover, those who draw a distinction between what is torture and what is cruel and inhumane treatment (in order to clam that the US does not engage in torture) beg the question of why our nation is doing either one.

[egal]

What's most frustrating is that we knew in advance that this was going to be the result of torture.

We are subject not merely to restrictions upon what is self-evidently torture, but also to restrictions upon the demeaning and dehumanization of prisoners, both for humane and military reasons.

Militarily, torture tends to make people talk, but it almost inevitably makes them say what they think we want to hear rather than the truth. The innocent will confess and name nonexistent co-conspirators either to make the pain stop or as a result of being so psychologicall ruined that they come to believe they DO know what their tormenter demands to be told even though they don't.

The president didn't care about the military studies proving conclusively that torture is unproductive. He didn't care that we would be violating the Geneva Convention and addendums, nor that our kindness to our enemies was one of the biggest reasons the first war in Iraq concluded so rapidly (the other major one was the number and strength of our troops and equipment).

There are few things that have been as harmful to our military, our nation, and the fight against terrorism as thus gratuitously utilizing torture (this administration has done all of the others, as well). We've known since Vietnam that torture result in useless falsitudes, and have been aware all along during this war that we can't use what the tortured tell us because it's just desperate lies.

Now we reap....

[Berettasskeeter]

I'm sorry. In your list of things to which he had been subjected, I saw no torture, but only stress. Try to stick with dictionary definitions. Here's Merriam-Webster:
1 a: anguish of body or mind : agony b: something that causes agony or pain
2: the infliction of intense pain (as from burning, crushing, or wounding) to punish, coerce, or afford sadistic pleasure
3: distortion or overrefinement of a meaning or an argument : straining
Semper fi

[egal]

Any qualified Interrogator can tell you that the way they used those stressors qualifies as torture. More pertinent, however is your inexplicable conclusion that being beaten and psychologically tormeted somehow doesn't qualify as torture. Such actions are very blatantly (and very extreme) torture.

And if you somehow don't think physical and mental abuse taken to the extreme clearly outlined above is bad enough--and it is, unless you are of the opinion that the experts on interrogation are somehow less informed than yourself--you should read the studies done on imprisonment. Being held for so long without cause and without opportunity for defense or bail or any other legally mandated and humanely necessitates options would still be torture.

Going the extra length and continuously depriving him during that unjust and lengthy period of his natural freedoms, choices in what he eats and when, ability to enjoy the outdoors, religious freedoms, and any hope of being freed even if it is proven that he has no knowledge of or connection to the terrorism for which he is ostensibly being held, is alone sufficient to be torture.

[fred123]

egal

I disagree with your basic premise - true, any of the techniques Scheer describes, when taken to an extreme, could meet the legal definition of torture, but none of those techniques is torture when used in accordance with the limitations and restrictions specified in the military field manuals.

The problem is that you've defined "torture" down so much that the word is meaningless. Look, about the most generous thing we could do to the al-Quiada detainees is classify them as POWs under Geneva Convention 4. But even if we gave them the rights of Convention 4, by your standards we would still be "torturing" them because we would still be holding them for an indefinate, and probably lengthy period of time (duration of hostilities). You set the bar for "torture" so low no nation on earth could ever meet it.

[TRex86]

Reading Beretta and Fred makes me sick at heart. By their account (and John Yoo's) McCain wasn't tortured in the Hanoi Hilton.
Once upon a time America held the high moral ground. No more. What's doubly tragic is that the threat of terrorism is all psychological. Al Qaeda has no capability to inflict major damage on our country. Of course, they don't need to destroy us; we're doing it ourselves.
Of all the egregious failures of the Bush administration this one puts us in league with the devil.
Jail to the Chief--and his evil minions.

[indypete]

Tell ya what, Beretta... come to my house and I'll tie you to a chair and smack you around a bit, keep you awake for days, waterboard you, all that fun stuff, then you can let me know what constitutes torture. In fact, I'll guarantee that within minutes you'll be convinced you're being tortured. You'll say anything you think I want to hear. And I've never done it so don't even know how to do it like the pros. Semper fi my ass. Anybody who condones anything like this or bothers to nitpick about it is a worthless piece of shit.

[indypete]

I can't figure out why anybody would use torture for anything other than inhumane punishment anyway. It doesn't take a rocket scientist to realise that you'll say anything the inquisitor wants to hear just to get him to stop what he's doing. Hell, I'd confess to Kennedy's assasination just to get my coat back on a cold day! And I was in London when it happenned... And I was only ten years old!

[CMLA]

Exellent post Robert.

[CMLA]

Great post as always Robert !

[Taylorn]

You can vote on the torture law HR 4114 and have your vote sent to your representatives on Govit.

http://www.govit.com/h_r_4114/to_modify_certain_provisions_of_law_relating_to_torture

[fred123]

Taylorn,

You do realize that the interrogation techniques Scheer described meet the restrictions of the DOD's Interrogations Manuals. I think all HR 4114 does is restrict non-DOD agencies (like the CIA) to use only these techniques.

[Taylorn]

I believe HR 4114 restricts the DOD to use the "Army Field Manual" for the legal interrogation techniques.

Are "hooding," "exploitation of phobias," "stress positions," "deprivations of light and auditory stimuli" part of the Army Field manual?

Excerpt from HR 4114 ----------------

prohibit any person in the custody or control of the United States (under current law, the Department of Defense) from being subject to any treatment or technique of interrogation not authorized by and listed in the U.S. Army Field Manual on Intelligence Interrogation.

[FirstShirt]

A rhetorical and perhaps ethical and moral dilemma: If you could prevent another 9/11 by the use of torture would you do it?

[Necron99]

Sure. You got me.

Please identify ONE single instance of an actual "ticking clock" situation in which torture saved the day...you've got the whole history of the species to work with...better get digging.

[FirstShirt]

I don't deny it. And I will take a pass on what would be an interesting, if depressing, study. Just one of those group ethical discussion questions. I respect your answer and I think it points to the fact that our morals and ethics are relative to the situation. We wish it weren't true but perhaps it is. Kind of like Peter denying Jesus three times.

[Paul]

Wrong question.

Would you use the information you obtained by torture if it was what you wanted to hear?

What if the information obtained by torture was acted upon, but being flawed, caused you to spend your resources in such a way that you could have prevented a 9/11 event, but did not.

Will terrorists full of phony plots be sent to the US for the purpose of confessing under torture and thus causing us to spread our resources too thinnly to detect and foil the real plots?

If torture can force anyone to confess to anything, how will civil liberties be protected?

We lose far more than we gain by using torture - it is a dead-end.

[indypete]

"...Will terrorists full of phony plots be sent to the US for the purpose of confessing under torture and thus causing us to spread our resources too thinnly to detect and foil the real plots? "

Excellent point. Art imitates life (or is it the other way round)... I'm reminded of a scene in a war movie when the boss of the commando infiltrators leaves an injured man behind with bogus information to create just such a scenario. (I think it was "Where Eagles Dare"... I seem to remember Richard Burton in charge. Could be wrong, of course, might have been "Guns of Navarone").

[wiltmellow]

This is the precognitive fallacy which, unbelievably, people find valid. How do you know you prevent another 911? How can you ever be certain that you prevented something that hasn't happened?

Let's put the question differently. If I can prevent you from killing my family by torturing you, would you consider that a "moral" dilemma? Suppose I simply kidnapped you (civilian rendition) and tortured you until you confessed that you planned to kill my family. Would I be able to argue, credibly, in front of any sane judge, that I knew you planned to kill my family and therefore prevented a crime?

Speculating about what someone might do gives you no special rights over them. None!

The fact that our government seriously makes this argument reveals more about our government than about the intentions of "terrorists". Anybody -- absolutely anybody -- can be accused of plotting nefarious deeds. Torturing anyone for any reason is barbaric and criminal; justifying that torture on the basis of imaginary crimes uncommitted legitimizes ANY and ALL criminal activity.

[fred123]

Wiltmellow
I agree with you on this one - the speculated urgency of the information does not justify torture. The only thing I would question is that you keep returning to the idea that the information would be presented to a judge for use in a trial. I don't think that's what most people have in mind - more along the lines of "where' the bomb?" then when you get the answer you send people to check it out. I would be very suspicious of information from coercive interrogation in a courtroom scenario. Military intelligence analysts are used to dealing with information of unknown reliability, and interrogation results are much more useful. But even so ... it just isn't worth it.

Be advised, most of the techniques Scheer mentions are pretty standard military techniques, and don't come close to the legal definition of torture. Which of the above techniques do you consider torture?

[greenmonk]

This is the answer that I believe every Presidential candidate should give to that question.

"This is a TV show scenario which has NEVER happened in real life, and has an infinitely small percent of a chance of ever happening. And I will make certain that torture is clearly NOT a legal option for American federal agents.

That said, IF all the stars lined up one day and we had a Jack Bauer type of federal agent leaning over a detainee, with 10 minutes to go before the bomb went off, and they needed to know the location, AND they had tried ever other option, go ahead and pull his fingernails out!

After the fact, if it is shown that 'Jack', through acting illegally actually got a quick confession somehow from a committed Islamic terrorist at the last second and he prevented another 9/11, he would be issued a speedy Presidential pardon. But that wouldn't alter the law against torture as a principle for 99.999% of the time.

Thank-you and God bless America"

[fred123]

I think there's a basic misconception on what the military and CIA interrogations were for - the purpose was to produce actionable intelligence -infomation that can be analyzed and used for future operations. Any use of this information in a criminal prosecution was an afterthought, and not a very important one from my point of view. You see, I'm under the impression that we're fighting a war, and these guys are enemy combatants. Whether we convict them of any crime in a court of law is immaterial. We can (and should) hold them for the duration of the "War on Terror" - Qahtani gets out of Guantanamo when we get a surrender document signed by what's left of al-Quaida's leadership.

BTW, your argument about the Geneva Conventions also misses the point. Of course the Conventions apply to us, and we follow them when they apply. The point in Qahtani's case is that the protections of Conventions 3 and 4 don't apply to the al-Quaida terrorists, because the Conventions' wording does not include them in the description of protected persons. Oh, and before you bring it up, remember that we did not sign up to the 1977 Protocals to the Geneva Conventions. These did extend protections to irregular combatants, and the US specifically rejected them because of that.

[knighthowl]

I can only say that you must be out of your mind.

[fred123]

Knighthowl,
I am honestly interested in what led to your comment - is it my interpretation of the requirements of the Geneva Conventions? I think I presented a pretty standard interpretation.
Was it the idea that we could hold captured enemy combatants indeffinately without any criminal charges? In Hamden vs Rumsfeld, the US Supreme Court stated it as a given that we do have that legal power. Or was it the statement that most interrogations to date were for intelligence purposes, and not to collect evidence for a criminal trial? That's been statedbefore and its pretty common sense (military interrogation manuals are written around getting intelligence information, not getting admissable confessions after all)

So, what specifically are you taking exception to?

[newpantaloons]

You, sir, need to get your priorities straight about what it means to be an "American", not to mention a fellow 'human being' that is living on this planet with other fellow human beings. Perhaps you need to study the 'teachings' of Jesus Christ. Maybe you are 'too intelligent' to believe in that ''hocus pocus'', but, in any case, the the teachings make compassionate sense, as does the "Golden Rule".

So, you happen to believe "we're fighting a war", do you? Well, in case you haven't been paying attention, the so-called "War on Terror" has been put on a back burner by your 'Fuhrer' and the 'War for Oil' is the now the one sucking up all the 'attention'. Radical Islamist came over here and blew up buildings in New York, killing 3000 citizens and we are calling them 'terrorists' for it (rightfully so), but our government and your 'Fuhrer' went to a sovereign COUNTRY and blew it completely apart, killing over a MILLION of their citizens. They call US the "terrorists". Do you get the connection here? Or, are you too busy using your 'intellect' to justify your 'Fuhrer's' actions. You know, Hitler was considered a very 'intelligent' man, too.

[fred123]

Interesting position, newpantaloons - if I understand you right we should base our policy in this area on the "teachings of Jesus Christ" and the "Golden Rule" rather than on US law and international treaties. Other than this being naive, I thought the normal Progressive position was that religious beliefs should not be used to make public policy.

I also thought that there was a general debate rule that the first party to dredge up Nazi comparisons has probably run out of reasonable positions, and has lost the argument.

[wldnswmmr]

Your analysis, while confident, is neither accurate nor up to date. I would suggest that you read the Supreme Court's decision in Hamdan vs. Rumsfeld, decided quite a while ago. This was the great hope of the Bush Administration, that al Qaeda members could be placed in a special category of non-persons who were not covered by Common Article 3. Bush & Co. wanted to exempt the military commissions, as then constituted, from the due process requirements of CA3. Lo and behold, the S. Ct. held otherwise, which meant that the phrase "conflict not of an international character" had been read exactly backwards by the Bushies. This led to the frantic efforts of Bush to include exoneration provisions in the Military Commissions Act prior to the swearing in of the new Democratic Congress. A compliant Congress gave him his get out of jail free card. I think you can be assured that Bush does not share your easygoing certainty that we can torture al-Qaeda members without consequences.

[fred123]

wldnswmmr - you might want to go back and review that decision again - It certainly did not give Hamdan, or any other detainee, specific status as a POW (Geneva Convention 3) or as a resident of an occupied area (Convention 4). It only stipulated that the tribunals at Guantanamo should be regularly constituted courts as required by Common Article 3, based on the SC decision on what a conflict "not of an international character" meant. The standard definition before Hamdan was that this refered to a civil war, a conflict contained within one nation's boundries. The SC decided that it also applied to a war in which one party (al-Quaida) was not a "nation" no matter where in the world hostilities occured. An interesting decision, but it did not give Hamdan status as a Geneva Convention protected POW. No one seriously made that argument, and the SC did not rule on it.

Just out of curiosity, which of the interrogation techniques described by Scheer do you consider torture - was it the "invasion of space by a female" or the calling "his mother a whore"? Is any uncomfortable interrogation technique torture?

[dwillisno1]

Once again, the point is: "torture is not wrong because it is prohibited by the Geneva Conventions, it is prohibited by the Geneva Conventions because it is wrong."

[zjr909]

When all is said and done (and it probably won't be long), the United States will come out way ahead of the pack - in the historical competition for the grand prize: the most evil nation that ever existed on earth. We even surpass the previous record holder - Nazi Germany. Why? Because, unlike Germany, we were never reduced to absolute nothingness by the rest of the world, as Germany was after World War One. We have absolutely no earthly excuse for the horrors we've inflicted on the peoples of this planet. It was pure evil fueling every single atrocity. But wait, some will say: we have not killed six million people (actually closer to twelve million: how quickly we forget the Gypsies). To which I can only reply: prove that we haven't. Just because we've "nickled and dimed" our victims to death doesn't mean they were not legion. And, all the while, we continue patting ourselves on the back for being the greatest, most generous, most compassionate people who ever lived. That hubris alone ought to tell you something.

[knighthowl]

No sane person could have more disdane than I do for the Bush administration. In my opinion then, you have slipped from the ranks of the sane.

To begin with, Germany was never reduced to absolute nothingness after WWI. If she had been, how would she have been able to create the most powerful army on earth by the mid 1930s? While Germany was treated harshly and unfairly, how on earth would that justify the atrocities committed by her leadership?

Having admitted that Germany killed 12 million people - which itself is an understatement since you only count those executed as opposed to those killed as a result of war, you ridiculously argue that we may have been as bad and say that we must "prove that we haven't." Of all the people on the planet, only you have suggested that this is even possible. Please consider therapy.

[Economike]

Before I read this piece I would have agreed with you. The fact that the government is condoning S&M, and driving prisoners insane in my opionion puts them on a par with the Nazi's. At the very least you have to admit that it the same style of behaviour. What sane person could live with himself after supporting this behavior?