Seven years ago, the C.I.A. requested a series of memoranda from the
Office of Legal Counsel at the U.S. Department of Justice. It is the O.L.C.'s job to provide legal advice to the executive branch, and in this case the authors, Jay Bybee and Steven Bradbury, worked in concert with several other top lawyers, including John Yoo, William Haynes, and David Addington. Bybee is now a Justice of the Ninth Circuit Court of Appeal, and Yoo is Professor of Law at Boalt Hall, Berkeley. Last Thursday morning, the Obama administration released four of the memos, each stamped "Top Secret," along with a statement from the President promising that no one would be prosecuted for any of the actions described.
Each memo is a detailed analysis of the meaning of "suffering" and "torture" in law. They discuss the treatment already given to specifically named prisoners, like Abu Zubaydah, and plans for future abuse. The first memo has a brief menu of the forms of abuse to be sanctioned, including "Walling," "Stress Positions," "Sleep Deprivation," "Insects Placed in Confinement Box," and "the Waterboard." Most of these are exactly what you'd think. Sleep deprivation lasts "up to eleven days." Walling means slamming a prisoner face first into a wall with a plastic collar to prevent evidence of the torturers hands. The waterboard is another word for what used to be called Water Torture. The Red Cross calls it "suffocation by water" in their confidential 2007 report about C.I.A. interrogation, but it's the same thing. (“Simulated drowning” is an evasive misnomer. That is like saying that prolonged choking is “simulated asphyxiation”. It is actual drowning, as many who have been waterboarded, like Christopher Hitchens have noted, and it shops just short of your death from suffocation.) One CIA prisoner was waterboarded eighty-three times
in a month, another one hundred and eighty three.
Placing insects inside a coffin-sized box is pretty chilling. Near the end Nineteen Eighty-Four, O'Brien puts a cage on Winston's head full of rabid rats behind a small gate. This is effectively what the United States did to Khalid Sheik Mohammed and Abu Zubaydah. It takes a special sophistry to argue that these "techniques" are not torture. I would call that sophistry “counseling an offence”, but I’ll get to that later. (I hesitate to even call them “techniques.” This Orwellian euphemism, which is common even in the Washington Post, the New York Times, and the international press, is
probably used because calling someone a torturer would be a defamatory
implication of a specific crime.) Justice Antonin Scalia was similarily weasely in a
This reading would have been news to Jefferson, Madison, and Adams, who all loathed torture and thought their Constitution outlawed it. George Washington famously prohibited torture during the Revolutionary War, even though the English were doing it. He wrote in a charge to the forces under his command in 1775, “"Should any American soldier be so base and infamous as to injure any [prisoner]. . . I do most earnestly enjoin you to bring him to such severe and exemplary punishment as the enormity of the crime may require. Should it extend to death itself, it will not be disproportional to its to its guilt at such a time and in such a cause... for by such conduct they bring shame, disgrace and ruin to themselves and their country."
As Jane Mayer noted in her book "The Dark Side," many of the tortures used by the CIA were adapted from resistance training given to U.S. servicemen, which was in turn based upon the methods of Soviet, Chinese, and North Vietnamese forces during the Cold War. Psychologists hired on contract by the Department of Defense copied wholesale the tortures of some of the twentieth century’s most despotic regimes and gave them euphemistic psychological names, like “fear up harsh.” The tortures were used first by the CIA in its black sites, then at Guantanamo Bay, and then, when Gen. Geoffrey Miller became commandant of Abu Ghraib, the tortures were introduced into Iraq and Afghanistan. Secretary of Defense Rumsfeld and VP Cheney explicitly authorized this dissemination. You can read all about this in the http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf”>Senate Armed Services Committee’s report (Chaired by Carl Levin, Ranking Member John McCain). The United States successfully prosecuted Japanese military officials for some of these acts, including waterboarding, after the Second World War (See, e.g.
Drop", Judge Evan Wallach, Columbia Journal of Transnational Law,
Vol. 45, No. 2).
All the documents have lengthy footnotes and interesting redactions.
An example footnote: "The detainee's hands are manacled together and the arms placed in an outstretched position-- either extended beyond the head or extended to either side of the body-- and anchored to a far point on the floor in such a manner that the arms cannot be bent or used for balance or comfort. At the same time, the ankles are shackled together and the legs are extended in a straight line with the body and also anchored to a far point on the floor in such a manner than the legs cannot be bent or used for balance or comfort." One of the redactors made a mistake, and neglected to cover a name in a short footnote describing an interrogation. The name was Hassan Ghul, a 'ghost detainee' whose whereabouts are unknown since his capture by the U.S. in 2004. The Red Cross did not interview him, and the C.I.A. refuses to comment on his whereabouts.
The mention of his name in the memo is one of the only signs that he was still alive in 2005.
These memos complement others written by John Yoo advising the
Department of Defense about their liability under the Geneva Conventions. Yoo concluded that the President's power as Commander in Chief rendered any breaches of the Conventions lawful. Likewise the numerous provisions of the U.S. Code that prohibit torture (including
crime liability.) This kind of reading of the law
reminiscent of the Nazi legal philosopher Carl Schmitt.
I’d briefly note that Mayer broke all this more than three years ago, in a series of New Yorker articles culminating in her book. Anytime you hear someone say “disclosing these techniques makes America less safe” be sure to tell them that the book’s been available on Amazon for two years.
What can be done about this? Well, there are plenty of laws against torture: U.S. criminal and civil laws, ratified international conventions, and foreign criminal laws of extraterritorial application. Those who ordered the tortures should be brought to justice. If some of them, like VP Cheney, wish to plead necessity, they can try. When men of honor break the law in service of what they think is the greater good, they should be willing to take the punishment they knew was theirs. Good luck to them: the law states,
and they well knew, that necessity is not a defence to any of the laws
against torture. And it isn’t just the higher-ups that should be prosecuted. In Nuremburg, we established the principle that “just following orders” is no defence, and that principle was specifically written into the torture laws. Emergency and state of war are no defence, either.
Ultimately, President Obama is responsible for administering justice. If he thinks that the authors and interrogators acted within the law, he should pardon them and face the political consequences. Right now the country has given up on the rule of law. There is no incentive for anyone in government to act lawfully. Want to wiretap without a FISA warrant, even though the court has granted more than 99% of requests? Go ahead! There will be no penalty. Congress will rewrite the law to make your actions retroactively legal. Want to torture prisoners? Have fun! We will decline to prosecute, even though we’re legally bound to do so by the CAT. To make it crystal clear to Professor Klar: if Obama does not prosecute the torturers, he will lose my support.
So what else can we do?
Four of the authors are under preliminary indictment for torture in
Spain, but a formal charge is unlikely:
We should prosecute the torturers under Canadian law. Canadian Crown Prosecutors and Ministers of Justice have a duty to uphold the Criminal Code. These memos describe in minute detail exactly the sort of conduct prohibited by s. 269.1 (not to mention enactments of various international conventions.) Section 269.1 of the Code allows for prosecution of foreign officials, peace officers, or armed forces personnel for torture, which the statute defines as, "any act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person." The defences for the crime are sharply limited. It is no defence, for example, "that the accused was ordered by a superior or a public authority to perform the act or omission that forms the subject-matter of the charge or that the act or omission is alleged to have been justified by exceptional circumstances, including a state of war, a threat of war, internal political instability or any other public emergency." The Code also provides that: notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission that, if committed in Canada, would constitute an offence against, a conspiracy or an attempt to commit an offence against, being an accessory after the fact in relation to an offence against, or any counselling in relation to an offence against, section 269.1 shall be deemed to commit that act or omission in Canada if… (e) the person who commits the act or omission is, after the commission thereof, present in Canada.
The memos are documentary evidence verifying the oral testimony of
detainees to the ICRC and the officials quoted by Mayer. Taken together with the Yoo memos and the Senate Armed Services Committee Report, this evidence is sufficient to ground a charge under the Code.
Read the ICRC report and the Bybee memo and decide for yourself. They
are a very difficult read. Like the black maps of an old evil. It's hard not to be sick reading them, not only because of the inhuman conditions they describe, but because the authors are free, powerful men. No one has been punished, and unless we do something, no one will.
Mr. Matheson is a law student in the Faculty of Law, University of Alberta
Scott,
ReplyDeleteThank you for this excellent summary. I share your outrage but not your enthusiasm for the extraterritorial application of Canadian law. The application of international law would seem to have more legitimacy.
Ron C
Hi Ron,
ReplyDeleteThe big problem with that is the lack of legitimacy of international courts. The U.S. hasn't even signed on to the I.C.C., and even if it did, appeals go to the Security Council, where they have a veto. I can't really see how another international body could prosecute. Which body?
If you meant that we (Canadians?) should prosecute Americans for torture directly, or for failing to do investigate themselves-- a breach of the Convention Against Torture-- I'm not sure that's really possible. I think the barest pantomime of investigation would suffice to meet the treaty obligation. And the enforcement regime in CAT is pretty weak. International committee, totally lame, &c &c. So I'm open to suggestions on how international law could help, but it doesn't look good.
Scott
Scott,
ReplyDeleteThis is as fine a short summary of the torture issue as I have read and the only one I've read to address the matter from the perspective of Canadian law.
I have only a minor quibble. Technically, it would not be up to Obama, but up to Eric Holder as U.S. Attorney General to determine whether or not to commence proceedings against the officials and personnel involved with the torture, or, if Holder felt that there was too much real or apparent political conflict, to appoint a Special Prosecutor.
I only bring up the quibble because there was already too much (alleged) political interference in the operations of the Attorney General by the prior administration. This is most apparent in the investigation into the firing of a whole raft of prosecutors, allegedly on the basis that these prosecutors exercised their judgment too independently of the wishes of the Bush administration. Its alleged that a number were fired because they refused to give the investigation of alleged electoral irregularities of successful democrats sufficient priority in the allocation of resources. Obama should distance himself personally from the deliberations and I was under the impression that Obama has begun to do this.
Very interesting post!
ReplyDeleteVery interesting post!
ReplyDeleteScott,
ReplyDeletePerhaps you're right, and criminal prosecution under international law is not feasible. But the extraterritorial application of Canadian criminal law, notwithstanding enabling provisions in the Criminal Code, is a bad idea unless a particular case can be made for relevance to Canadian interests. Setting aside the practical and political barriers to such action, the problem, in principle, is that this would, by extension, suggest that any nation's criminal law could be applied to individuals in any other nation. So Canadians, for example, could be prosecuted by foreign authorities for offences relating to religion, sex, drugs etc. that might not even be offences under Canadian law. Canadian law should be enforced in Canada. Where appropriate -- perhaps with respect to the events you have described -- the Canadian government should urge Americans to enforce American law in America.