V.Torture: Its Authorization, Practice and Legal Immunity

A legitimate question can be raised about why in a blog dedicated to finding a alternative to Barack Obama’s renomination should there be such an extensive treatment of torture, which was almost entirely practiced before Obama came into office. There are three reasons, at least, to cover the topic: 1) the widespread and horrible nature of the physical and psychological punishment administered to detainees makes manifest how awful a decision it was for the Obama administration not to prosecute any of those who authorized or carried out the torture; 2) there are good reasons to believe that President Obama has not ended either the legal basis nor the actual practice of torture; and 3) the use of torture is one of the most universally condemned crimes in the world, isolating the United States for its tolerance of it.

The key document providing legal cover for the widespread use of torture by U.S. interrogators was the infamous memo of August 1, 2002, written mostly by John Yoo and signed by Justice Department official, Jay S. Bybee. The memo redefined the crime of torture to make it all but impossible to commit.  The memo said that torture required the intent to inflict suffering “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Mental suffering had to “result in significant psychological harm” and be of significant duration, e.g., lasting for months or years.

Meanwhile, in the White House, Vice President Cheney’s chief of staff, David Addington, was strongly proposing that the president, as commander-in-chief, had the authority to disregard virtually all previous known legal boundaries if national security demanded it. In addition, the White House’s chief legal counsel, Alberto Gonzalez, weighed in with a memo in which he characterized the Geneva Conventions as “quaint” and out-of-date.

The catalog of permitted damage to the human body and mind under “enhanced interrogation” is long and bone-chilling. An article in the August 26, 2009 Washington Post sets forth the CIA’s instructions for breaking a detainee’s will. “After removing the hood, the interrogator opens with a slap across the face — to get the detainee’s attention — followed by other slaps.” Next comes the head-slamming or “walling,” which can be tried once “to prove a point,” or repeated again and again. “Twenty or thirty times consecutively” is permissible.

The CIA Inspector General’s report released August 24, 2009 was excerpted in an August 25, 2009 Associated Press article: “The interrogators slapped prisoners, held a handgun to one’s head, used power drills to make threats and left even shackled and naked detainees in frigid cold until they cooperated.” A detainee was told his mother would be sexually attacked in front of him. A mock execution was even held.

A May 10, 2005 memo by Justice Department official, Ray Bradbury, describes nudity as designed to cause psychological discomfort; sleep deprivation may be scheduled, allowing the subject only two or three feet of movement; and abdominal slaps are O.K. if delivered with the back of an open hand.

Under CIA control a dozen detainees were sleep deprived for 48 hours and three for more than 96 hours. One detainee was kept awake for six days and was chained to the walls and floor of a cell. Sleep deprivation beyond 48 hours is known to produce hallucinations and makes the subject highly suggestible.

The State Department regularly lists sleep deprivation as a form of torture in its annual report on human rights abuses. Iran, Syria and Indonesia have been cited as using the practice.

Even in the Middle Ages, sleep deprivation was not practiced, because the illusions and delusions it caused were apt to produce false confessions, rather than real ones. In some ways, it seems, the ancients were more humane and wise than our modern society in the treatment of detainees.

Besides the serious physical and psychological damage inflicted on detainees, several of them have died in U.S.custody.

The next blog will began with an examination of international repercussions of the practice of torture by the United States.

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