Torture: Its Authorization, Practice and Legal Immunity

A legitimate question can be raised about why in a blog initially devoted to finding an alternative to Barack Obama’s renomination and now being switched to an exposition of why a restructured Deamocratic Party is needed to change the destructive course of the nation, why should there be an extensive treatment of torture, which was practiced by the United States before Barack Obama became president? There are three reasons at least to cover this 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 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.

President Obama tried to justify the decision not to prosecute any of the Bush administration officials on the basis that he wanted to look forward, not backward. In February 2009, Attorney General Eric Holder confusedly melded criminal activity and policy by saying, “We don’t want to criminalize policy differences that might exist.” The Nation magazine was editorially prompted to say that Holder’s statement “dismisses legitimate demands for accountability as mere partisan or ideological manuevers… .”

The key document providing legal cover for the widespread use of torture was written mostly by John Yoo and signed by Justice Department official Jay S. Bybee. The memo redefined 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 authorization to disregard virtually all previous known legal boundaries if national security demanded it. In addition, the White House legal counsel, Alberto Gonzales, weighed in with a memo in which he characterized the Geneva Conventions as “quaint” and out-of-date,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 interrogator 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 assaulted in front of him. A mock execution was even held.

A May 10, 2005 memo by Ray Bradbury, a Justice Department official, 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 left 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, Libya 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, the ancients were more humane and wise in the treatment of detainees.

Most tragically, a number of detainees have died in U.S. custody.

In July 2011, British Prime Minister David Cameron announced the commission of a three-member panel to investigate CIA prisoner transfer policies to determine British complicity in the secret rendition program. Not too long before Cameron annnounced the investigation, the U.S. Justice Department announced 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 techniques 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 cover for what they were preparing to do.

In the movie, “Philadelphia,” the lawyer played by Tom Hanks is seeking legal 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 a total of 83 times and the other 183 times. The 92 videos were destroyed by the CIA but the Justice Department declined to prosecute any CIA official involved, even though the destruction seemed to be an open-and-shut case of obstruction of justice. Jose Rodriquez, the CIA’s top clandestine officer, knew that public knowledge of 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 legal reasoning, the Justice Department found only “poor judgment” and did not issue a sanction of any kind.

President Obama contends he has prohibited the use of torture by the U.S. 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 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 Obama has been unwilling to discuss Bagram on “state secrets” grounds. Not only is it likely that we are practicing torture in Afghanistan, but there are credible reports that we are covering up the Afghanistan government’s use of torture.

The authorization to use torture continues to exist in U.S. law. As part of 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.

The accounts of Larry Siems, who heads a website called The Torture Report, makes the point that torture was not just the case of a few bad apples or just a case of evil at the top. The practice of torture infected the U.S. government and the military commmand structure at all levels. New guidelines were drafted, debated, edited and circulated, only to have interrogators use a technique not listed, or even explicitly banned. Siems refers to a fixation on “bureaucratic truth,” which was meaningless to those outside the bureaucracy.

There are in The Torture Report documents, open admissions by interrogators that they were not primarily interested in gathering information. Thus, torture was frequently a case of forced nudity, sexual humiliation and threats of rape.

Also in Siems’ possession are many memos dissecting torture techniques and parsing existing law out of existence; moreover, the overall tone of the memos is that nothing terrible is happening.

                   What, Then, Should Be Done?

President Barack Obama should have thrown the full weight of his office behind the Interrogation and Detention Act, introduced some three years ago by Representative David Price. The bill would have repealed the Military Commissions Act of 2006 and endorsed the existing civilian and military justice systems as the most appropriate venues for prosecuting terrorists. At the time of the bill’s introduction, the military commissions system had achieved only three convictions in terrorism cases since 9/11, while civilian courts had convicted over 145 terrorists in the same time span. Personally, I strongly object to the too-easy acceptance of who should be defined as a terrorist. I concur with Dr. Martin Luther King Jr’s statement in his Riverside Church speech that governments are the greatest purveyors of violence.

Price’s bill would have closed Guantanamo Bay prison and established uniform, government -wide standards for interrogation that prohibit torture.

Price’s bill would also have enacted forward-looking proposals designed to strengthen intelligence collection, including the creation of a center of excellence in intelligence training and research, as recommended by the Intelligence Science Board, and the development of an expert cadre of career military interrogators.

 

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