Friday, November 21, 2008


Article 1
1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.
Article 2
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

--United Nations Convention Against Torture
Each component of the definition emphasizes that torture is not the mere infliction of pain or suffering on another, but is instead a step well removed. The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result. If that pain or suffering is psychological, that suffering must result from one of the acts set forth in the statute. In addition, these acts must cause long·term mental harm.

--Office of Legal Counsel, United States Department of Justice, John Yoo, author

Jane Mayer, a reporter for the New Yorker, chronicles the Bush Administration's weird obsession with physical forms of interrogation (colloqually known as "torture") in The Dark Side: The Inside Story of How the War on Terror Became a War on American Ideals. The story is scary, not only from a humanitarian standpoint but also from the standpoint of an attorney who gives a hoot about the constitutional structure of the U.S. government.

Vice President Cheney initiated the process that resulted in a network of secret prisons and secret torture on September 11, 2001, when he held a videoconference with some of the lawyers who established the dubious legal framework for the Bush Administration's torture program. Cheney's general counsel, David Addington, was the ringleader of the lawyers. He was assisted by John Yoo at DOJ's Office of Legal Counsel and William Haynes, general counsel at the Department of Defense. Yoo in particular was important as the advisory opinions of the Office of Legal Counsel are binding on the Executive Branch. These three lawyers frequently met with then-White House general counsel Alberto Gonzales, who is portrayed as weak-willed and pliable in Mayer's book. Although Cheney was the mastermind of the torture program, he had the enthusiatic support of President Bush, then-CIA Director George Tenet, and then-National Security Advisor Condoleeza Rice. Attorney General John Ashcroft was appalled, and he was deliberately kept "out of the loop," even though John Yoo was his employee. Secretary of State Powell was equally appalled. However, neither man resigned over the matter.

Cheney, Addington, Yoo, and Haynes operated from an underlying theory that the President has near-absolute power in his tole as commander in chief, with no oversight by, or interference of, the Legislative or Judicial Branches of government--one memorandum went so fas as to claim that the President may initiate military attacks against terrorists inside the United States, regardless whether innocent third parties may be killed or injured. They also operated from the belief that traditional interrogation tactics were insufficient to extract accurate information from terrorists, and that torture was required to obtain this objective. Everything I've ever read about police techniques suggests that torture results in information that is almost never accurate, and the FBI opposed torture largely for that reason. On the advice of Cheney's group of lawyers, Presidnet Bush nullified the Geneva Conventions as to suspected members of Al Qaeda and the Taliban and redefined torture to exclude most forms of torture. They also worked at coming up with a location where the U.S. could house terror suspects outside the legal jurisdiction of the U.S.

The results were a wide-randing "rendition" program in which the CIA used a fleet of corporate jets to fly suspected terrorists to countries less squeamish about torture than Western democracies are; an in-house CIA torture training program; a network of secret CIA prisons in Eastern Europe; the Guantanamo Bay detention facility; and the supsension of the writ of habeas corpus for terror-suspect detainees. That the United Staes would engage in such a thoroughly reprehensible program is shocking; that members of the bar eagerly provided rationale for this program by subverting the structure, spirit, and letter of the Constitution they are sworn to support and uphold shames the legal profession. Mayer emphasizes just how far outside the mainstream Cheney's group really was by discussing how some CIA officers and conservative Republican DOJ attorneys who opposed the use of torture attempted to reverse some of the extremist policies. Almost as shocking as the program is the complete impotence of the coequal Legislative branch of the U.S. Government; it's as if the Democratic House and Senate were content to let the clock run out on the Bush Administration instead of raising holy hell. The coequal Judicial Branch, however, took a stand and issued three Supreme Court opinions regarding the procedural rights of Guantanamo detainees.

Mayer's book details the treatment of detainees, some of whom were actual terrorists, some of whom were not. The CIA was not trained in torture, so it hired a pscyhologist who, strangely, reverse engineered a North Korean program designed to elicit false confessions and employed it in hopes of obtaining true ones. Mayer references reports from the Red Cross and a retired CIA officer commisioned by the U.S. Government, both of which concluded that the interrogation techniques being used indeed constituted torture--and that this torture constituted war crimes. She also references reports indicating that the majority of Guantanamo detainees had nothing to do with Al Qaeda or terrorism; rather, they were extremist Muslims who were in the wrong place at the wrong time. Regardless whether detainees were terrorists or not, IMHO, the United States should never, ever employ torture. It doesn't work, and it puts us on a slippery slope that slides down into the same moral muck and mire where Al Qaeda dwells.

The Obama Administration is likely to end the torture program; whether the new administration also ditches the Bush Administration's aggressive view of Executive Branch power remains to be seen. I seriously doubt that Bush or Cheney are likely to be prosecuted for war crimes--the U.S. is far too powerful for any other countries to risk that, and this country certainly doesn't need the distraction during a recession--but wouldn't it be hilarious for Obama to pardon them on his first day in office, with no further explanation?

1 comment:

Stephen said...

The entire torture matter is a national shame. If it were not torture, they would not have had such a high drop out rate from the training program.

I remain appalled and feel those in charge should be prosecuted for war crimes.