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June 15, 2004
Torture, Laws and Memos
Last week there has been a spate of leaked memos and revelations. I think all but the journalists closely covering the subject are a bit confused. I’ve certainly been overwhelmed. This weekend I spent some time trying to read and collate the memos and reports.
The short of it is this: sometime during the Afghanistan War, the administration lawyers decided that the President was authorized to set aside any and all domestic and international laws in his capacity as commander-in-chief and that underlings who were following his orders could claim immunity based on that authority, or on the “necessity,” “following orders,” or “bad legal advice” defenses.
The memos both argue that torture is legal and that, after sufficient definitional summersaults, the concept of torture doesn’t really exist. The DOD then proceeded to draw up lists of what was allowed, what was allowed with permission, and what was not allowed. The use of torture started during the Afghanistan war, continued in Guantanamo, Baghram and elsewhere, and quickly spread in Iraq where the Red Cross reported that 70 to 90 percent of the detained were swept up by mistake. The lists of allowable actions seem to have influenced the prevalence of certain acts but the message seems to have been “do whatever you have to do” -- of course, it was soon extended into “do whatever we feel like doing.”
Thus, a combination of instructions and encouragement as well as an environment of legal immunity and impunity resulted in the very predictable consequence of widespread torture, abuse and mistreatment.
The biggest surprise seems to have been the photographs:
People are running around with digital cameras and taking these unbelievable photographs and then passing them off, against the law, to the media, to our surprise, when they had not even arrived in the Pentagon.
I would argue that this shows lack of understanding of the American society on Rumsfeld’s part, if he is genuinely surprised. We don’t exist unless filmed. And as the president recently demonstrated by insisting that he would not return Saddam Hussein’s pistol to the people of Iraq --it’s U.S. government property, he said-- our actions don’t count without some souvenirs to show back home to folks.
The authors of these memos seem to be aware that, one way or another, these acts would become known. They clearly have the possibility of future prosecutions --and how to avoid them-- foremost in their minds. As a result, the legal advice sometimes borders on the absurd:
[The Pentagon memo] lays out defenses that government officials could use should they be charged with committing torture, such as mistakenly relying in good faith on the advice of lawyers or experts that their actions were permissible
The first memo to have surfaced dates from January 9, 2002 -- it’s written by the Justice Department's Office of Legal Counsel (OLC) and concludes that:
"Neither the War Crimes Act nor the Geneva Conventions" would apply to the detention conditions of Al Qaeda or Taliban prisoners at Guantanamo Bay Cuba. The memo includes a lengthy discussion of the War Crimes Act, which it concludes has no binding effect on the president because it would interfere with his Commander in Chief powers to determine "how best to deploy troops in the field." (The memo, by Justice lawyers John Yoo and Robert Delahunty, also concludes—in response to a question by the Pentagon—that U.S. soldiers could not be tried for violations of the laws of war in Afghanistan because such international laws have "no binding legal effect on either the President or the military.")
Note that it argues that even U.S. laws, such as the War Crimes Act, “have no binding effect on the president.” All hail the king.
A few weeks later, on January 25, 2002 White House counsel Alberto Gonzales, widely rumored to be a future Supreme Court Justice nominee, wrote a four page memo to the president arguing the pros and cons of applying the third Geneva Convention on the Treatment of Prisoners of War (GPW) to Taliban and Al Qaeda fighters. One of the main reasons for not applying the GPW, Gonzales argues, is that this “substantially reduced the threat of domestic criminal prosecution under the War Crimes Act (18 U.S.C. 2441).” Note that this is a domestic law enacted in 1996, prohibiting the “commission of a war crime by or against a U.S. person, including U.S. officials.” War crimes were defined as grave breach of the GPW or any violation of “common article 3” -- such as “outrages against personal dignity.”
Gonzales’ curious reasoning was that if we decree that GPW does not apply then we cannot be prosecuted for violating the GPW.
Later, Gonzales ridiculed the idea that his memo and the treatment of Iraqi prisoners could be linked: “If you were to ask soldiers in the field if they ever heard of my draft memo,” [Gonzales] said, “they would have said, ‘What?’”
Moving along, on August of 2002, the Justice Department advised the White House that torturing al Qaeda terrorists in captivity abroad ‘may be justified,’ and that international laws against torture ‘may be unconstitutional if applied to interrogations’ conducted in President Bush's war on terrorism. The memo was written by the Justice Department's office of legal counsel in response to a CIA request for legal guidance. The memo argued that “arguments centering on ‘necessity and self-defense could provide justifications that would eliminate any criminal liability’ later. This memo also continues the chain of tortured arguments about what was not torture. For something to be torture, the memo argued it “must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”
The Post which published the memo quoted expert who noted that this is, of course, in contradiction with all existing interpretations international and domestic law as well as Army’s own guidelines:
By contrast, the Army's Field Manual 34-52, titled "Intelligence Interrogations," sets more restrictive rules. For example, the Army prohibits pain induced by chemicals or bondage; forcing an individual to stand, sit or kneel in abnormal positions for prolonged periods of time; and food deprivation. Under mental torture, the Army prohibits mock executions, sleep deprivation and chemically induced psychosis.
Of course, we know that some prisoners were indeed killed by torture in Abu Ghraib and elsewhere.
That memo also defines away “mental torture”:
Of mental torture, however, an interrogator could show he acted in good faith by "taking such steps as surveying professional literature, consulting with experts or reviewing evidence gained in past experience" to show he or she did not intend to cause severe mental pain and that the conduct, therefore, "would not amount to the acts prohibited by the statute."
Then, on March 2003, the Pentagon drafted a memo which was based on the reasoning of the earlier Justice Dept. memos -- this one was obtained by the Wall Street Journal. Here’s some excerpts from the WSJ article:
Bush administration lawyers contended last year that the president wasn't bound by laws prohibiting torture and that government agents who might torture prisoners at his direction couldn't be prosecuted by the Justice Department. The report outlined U.S. laws and international treaties forbidding torture, and why those restrictions might be overcome by national-security considerations or legal technicalities. The president, despite domestic and international laws constraining the use of torture, has the authority as commander in chief to approve almost any physical or psychological actions during interrogation, up to and including torture, the report argued. Civilian or military personnel accused of torture or other war crimes have several potential defenses, including the "necessity" of using such methods to extract information to head off an attack, or "superior orders," sometimes known as the Nuremberg defense: namely that the accused was acting pursuant to an order and, as the Nuremberg tribunal put it, no "moral choice was in fact possible." A military lawyer who helped prepare the report said that political appointees heading the working group sought to assign to the president virtually unlimited authority on matters of torture -- to assert "presidential power at its absolute apex," the lawyer said.
We also know that the highest level officer who we know directly ordered torture is Lt. Gen. Ricardo S. Sanchez, who was the commander of the ‘multinational’ forces in Iraq:
Lt. Gen. Ricardo S. Sanchez, the senior U.S. military officer in Iraq, borrowed heavily from a list of high-pressure interrogation tactics used at the U.S. detention center in Guantanamo Bay, Cuba, and approved letting senior officials at a Baghdad jail use military dogs, temperature extremes, reversed sleep patterns, sensory deprivation, and diets of bread and water on detainees whenever they wished, according to newly obtained documents.”
Sanchez had earlier denied authorizing such methods, during his testimony to the Senate Armed Services Committee:
SEN. MARK DAYTON (D), MINNESOTA: Then the police were to put a hood on his head and take him to an isolated cell through a gauntlet of barking dogs. There the police were to strip-search him and interrupt his sleep for three days with interrogations, barking and loud music, according to Army documents. The plan was sent to you -- is that one of the 25 requests for additional interrogation techniques that you approved? LT. GEN. RICARDO SANCHEZ, COMMANDER, MULTINATIONAL FORCE-IRAQ:: Sir, first of all, you stated that I issued an order that I specifically put key cell blocks under Colonel Pappas. I never issued such an order. DAYTON: OK, and... SANCHEZ: Secondly... DAYTON: The article's incorrect? That I... SANCHEZ: Sir, I never issued such an order. DAYTON: I regret the... SANCHEZ: And secondly, that request never made it to my headquarters -- or to me, personally, rather. DAYTON: So there wasn't memo on November 19th, to place -- from your office -- to place these cell blocks under Colonel Pappas? SANCHEZ: No, sir, I never issued such an order. DAYTON: All right. SANCHEZ: And that specific request for interrogation methods -- that never... DAYTON: Let me see that one. SANCHEZ: ... never got to the CJTF-7 commanding general's level, and I never approved any interrogation methods other than continued segregation. DAYTON: Thank you.
And currently, the official line of denial seems to be that we decreed these acts to be legal and that’s that. In fact, President Bush has been pointedly refusing to directly condemn torture and, sounding very briefed, he has been invoking the “it’s all legal 'cause we said so” defense whenever pushed:
Q: What we've learned from these memos this week is that the Department of Justice lawyers and the Pentagon lawyers have essentially worked out a way that U.S. officials can torture detainees without running afoul of the law. So when you say that you want the U.S. to adhere to international and U.S. laws, that's not very comforting. This is a moral question: Is torture ever justified? BUSH: Look, I'm going to say it one more time. Maybe I can be more clear. The instructions went out to our people to adhere to law. That ought to comfort you. We're a nation of law. We adhere to laws. We have laws on the books. You might look at these laws. And that might provide comfort for you. And those were the instructions from me to the government.
Somehow, I'm less than comforted.
Posted by zeynep at June 15, 2004 11:48 AM
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Comments
I, too, am less than comforted. Just last week during the hysteria to canonize Ronald Reagan, who progressives universally view as one of our worst presidents ever, I experienced a mild case of sleep deprivation. I suppose the reason for this was that I was so upset about the revisionist application of events that occurred during the two Reagan presidential terms. Two nights in a row I awoke in the middle of the night and could not go back to sleep. On Monday-Tuesday I only slept for 4 hours, and on Tuesday-Wednesday I only slept a total of 3 hours. During the daytime hours on Wednesday I was so sensitive to any sound that I could not even stand to listen to my music which ordinarily I find very soothing. I couldn't even listen to quiet music. The bass lines went right through me and I had to turn my CD player off. The notion that somehow sleep deprivation and subjugation to loud sounds is not a form of torture in complete nonsense.
In addition the use of psychological abuse and harrassment is an old tactic in the military. When I was drafted into the U.S. Army in 1966 as a 22 year old and went through basic training at Fort Lewis, Washington I and my fellow inductees were routinely subjected to mental harrassment and abuse. This consisted of name-calling, shouting and screaming, being awakened in the middle of the night for no reason, being forced to stand without moving for prolonged periods, being forced to skip meals and perform KP (mess hall) duties for very minor indiscretions or failures to obey and cow to whatever imbecelic orders we were being given by the DI's (drill instructors) who were virtually without exception military career people with very little formal education.
The Pentagon lawyers who tried very hard to define torture out of existence are every much as criminal as the men in the Bush administration who are setting the table for these highly illegitimate and immoral behaviors. That John Yoo is a law professor at UC Berkeley's Boalt Hall scares the shit out of me. What in the world is he teaching to those students!!?? In trying to defend himself Mr. Yoo said, "I'm a very conservative professor. I am use to the criticism." To which I would respond that conservative is one thing, but fascism is quite another. John Yoo and the other lawyers who advised Bush that he can commit any crime he wants in the name of so-called national security should be held accountable for their outrageous advice. If that means being criminally charged so be it. It is time for all of us to hold these criminals in the Bush Administration accountable for their copious crimes.
Once again thank you Zeynep for putting this all together so succintly.
Sincerely,
Old & In The Way
Posted by: Phil Cicchi at June 15, 2004 06:15 PM
I've really been wondering myself about the kind of training these soldiers actually get. I mean, if these were special forces trained to be very brutal I'd feel inclined to blame their training. But I doubt these people got substantial brainwashing or any training of any depth. What's at work here?
Posted by: zeynep at June 17, 2004 01:11 AM