V. Torture: Its Authorization, Practice and Legal Immunity (continued)

In July 2011, Prime Minister David Cameron of Great Britain announced the commission of a three-member panel to investigate CIA prisoner transfer policies to determine British complicity in the secret U.S. rendition program. Not too long before Cameron announced the investigation, the U.S. Justice Department reported that it would not prosecute CIA agents who carried out torture because they were relying on the August 2002 memo, which allowed virtually any coercive technique short of causing organ failure or death. It is the case, however, that training of CIA agents in methods of torture had started about eight months before the torture memo was issued, meaning that the CIA wanted legal cover for what it was preparing to do.

In the movie, “Philadelphia,” the lawyer played by Tom Hanks is seeking advice from the lawyer played by Denzel Washington. Hanks believes that his law firm is discriminating against him because he, Hanks, has AIDS. Washington says, “Explain it to me like I’m a fourth grader.” Instead of relying on highly strained legal reasoning to spare CIA interrogators from criminal charges, perhaps the Justice Department should have shown a fourth-grade class a video of “Enhanced Interrogation” methods in practice and then asked the class members if they felt the subjects were enduring torture.

The CIA had 92 videos of waterboarding being performed on two “high-value” targets: one boarded 83 times and the other 183 times. The 92 videos were destroyed by the CIA official involved, even though the destruction seemed to be a virtual open and shut case of obstruction of justice.

Jose Rodriquez, the CIA’s top clandestine officer, knew that the destruction of the waterboarding tapes would be “devastating to the CIA.”

In the case of Yoo and Bybee and their fourth-grade or lower level of reasoning, the Justice Department found only “poor judgment” and did not issue a sanction of any kind.

President Obama contends that he has prohibited the use of torture by the United States government. Yet that may be a lie, because the Associated Press broke a story in April 2011 in which both government officials and military sources confirmed that there are secret jails in Afghanistan. Detainees are usually held for 14 days but they can be held for up to nine weeks. The AP’s sources said there are 20 temporary sites in Afghanistan.

Obama criticized the old network of secret CIA prisons but human rights groups contend that harsh treatment bordering on inhumane is being carried out at these Afghanistan sites. Detainees have described being forced to strip naked and being kept in solitary confinement in cold, windowless cells, with the lights on 24 hours.

Bagram Air Force base in Afghanistan has long been reported to be a torture center but President Obama has been unwilling to discuss Bagram on “state secrets” grounds. According to Jeremy Scahill, who outed Blackwater’s dark secrets, there is a CIA detention center in the basement of a key Somali security facility.

Besides the reported presence of U.S.-run torture facilities in Afghanistan, the U.S. may be covering up Afghan-run torture chambers. A report released on October 10, 2011 by the United Nations Assistance Mission in Afghanistan, charges the Afghanistan intelligence agency and police force have been “systematically” torturing detainees, including children, at a number of jails. Interviews were conducted with 379 pre-trial detainees and convicted prisoners at 47 different facilities.

Systematic torture was found at five National Directorate of Security (NDS) facilities and multiple, credible allegations of torture at two others — 17 other facilities are still being investigated.

Beyond physical mistreatment, which included sexual humiliation, many prisoners also said they were held beyond the maximum duration allowed by law and denied family visits.

The head of the United Nations in Afghanistan, Steffen al-Mistura, denied that torture was institutional nor government policy and the Afghan government also rejected the claims.

The authorization to use torture continues to exist in U.S. law. As part of the legislation passed to allow the use of military commissions, a provision was included to allow the president to authorize the CIA to use interrogation methods, which, under the rubric of the Geneva Conventions, are defined as torture.

What Should Obama Do or Have Done

President Obama should press for the rewriting of the Military Commissions Act of 2006 to remove the provision giving the president the power to authorize torture. Besides removing any legal authorization for torture, Obama must vigorously investigate and close down any U.S.-run facility in which torture is being administered. Finally, if any branch of the Afghan government is employing torture for whatever reason, that would one more reason to pull U.S. troops out of Afghanistan.


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