Category Archives: Iraq Atrocities

A Bit Late, What?

I would have found this much more convincing if he could have brought himself to say this live last week. Or, better yet, about two years ago.

Politics News Article | Alberto Gonzales, seeking to win Senate confirmation as President Bush's attorney general, declared that any torture by American personnel would be unlawful, according to written responses released on Tuesday to questions by senators.

“As the president has made clear, the United States will not engage in torture and U.S. personnel are prohibited from doing so,” Gonzales wrote in response to a question by assistant Senate Democratic leader Richard Durbin of Illinois.

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We’re Just Cruel, Inhuman and Degrading

Marty Lederman has another in his series of extraoridanry posts on the legal regulation of US torture and torture-like activiites. Here's one of the key legal points:

The problem, which I've tried to explain in somewhat soporific detail in posts here, here, here, here, here and here, is that Congress (at the urging of Presidents Reagan and George H.W. Bush) has defined the term “torture” exceedingly narrowly—so narrowly, in fact, that OLC has concluded it does not cover techniques such as waterboarding, threats of live burial, and threats of rendition to nations that do torture. Those forms of highly coercive interrogation, going just up to the line of “torture” without going over, are generally unlawful, not

because they are “torture,” but because they fall within the category of conduct denominated “cruel, inhuman and degrading (“CID”) treatment,” i.e., conduct that “shocks the conscience” and hence would violate due process if it occurred within the U.S. Such CID treatment is categorically off limits to the military by virtue of the Uniform Code of Military Justice and the President's directive that the military treat all detainees “humanely.” Such CID treatment is also categorically prohibited — even for the CIA — with respect to detainees protected by the Geneva Conventions; and such CID treatment would (by definition) be unconstitutional — even for the CIA and even as applied to Al Qaeda detainees — here in the U.S.

But the Administration has concluded the CID treatment is not unlawful when the CIA interrogates Al Qaeda suspects outside U.S. jurisdiction.

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Stay Tuned For Hell To Freeze Over

Words I never thought I would write dept: Andrew Sullivan's Sunday NYT book review article on American torture is … brace yourself … remarkably sensible:

The critical enabling decision was the president's insistence that prisoners in the war on terror be deemed ''unlawful combatants'' rather than prisoners of war. …

The president's underlings got the mixed message. …

What's notable about the incidents of torture and abuse is first, their common features, and second, their geographical reach. No one has any reason to believe any longer that these incidents were restricted to one prison near Baghdad. They were everywhere: from Guantánamo Bay to Afghanistan, Baghdad, Basra, Ramadi and Tikrit and, for all we know, in any number of hidden jails affecting ''ghost detainees'' kept from the purview of the Red Cross. They were committed by the Marines, the Army, the Military Police, Navy Seals, reservists, Special Forces and on and on. …

Whether we decide to call this kind of treatment ''abuse'' or some other euphemism, there is no doubt what it was in the minds of the American soldiers who perpetrated it. They believed in torture. And many believed it was sanctioned from above. …

Who was responsible? There are various levels of accountability. But it seems unmistakable from these documents that decisions made by the president himself and the secretary of defense contributed to confusion, vagueness and disarray, which, in turn, led directly to abuse and torture. The president bears sole responsibility for ignoring Colin Powell's noble warnings. …

Worse, the president has never acknowledged the scope or the real gravity of what has taken place. His first instinct was to minimize the issue; later, his main references to it were a couple of sentences claiming that the abuses were the work of a handful of miscreants, rather than a consequence of his own decisions. …

And the damage done was intensified by President Bush's refusal to discipline those who helped make this happen. A president who truly recognized the moral and strategic calamity of this failure would have fired everyone responsible. But the vice president's response to criticism of the defense secretary in the wake of Abu Ghraib was to say, ''Get off his back.'' In fact, those with real responsibility for the disaster were rewarded. Rumsfeld was kept on for the second term, while the man who warned against ignoring the Geneva Conventions, Colin Powell, was seemingly nudged out. … Alberto R. Gonzales, who wrote memos that validated the decision to grant Geneva status to inmates solely at the president's discretion, is now nominated to the highest law enforcement job in the country: attorney general. The man who paved the way for the torture of prisoners is to be entrusted with safeguarding the civil rights of Americans. It is astonishing he has been nominated, and even more astonishing that he will almost certainly be confirmed.

But in a democracy, the responsibility is also wider. Did those of us who fought so passionately for a ruthless war against terrorists give an unwitting green light to these abuses? Were we naïve in believing that characterizing complex conflicts from Afghanistan to Iraq as a single simple war against ''evil'' might not filter down and lead to decisions that could dehumanize the enemy and lead to abuse? Did our conviction of our own rightness in this struggle make it hard for us to acknowledge when that good cause had become endangered? I fear the answer to each of these questions is yes.

I'm not saying that those who unwittingly made this torture possible are as guilty as those who inflicted it. I am saying that when the results are this horrifying, it's worth a thorough reassessment of rhetoric and war methods. Perhaps the saddest evidence of our communal denial in this respect was the election campaign. The fact that American soldiers were guilty of torturing inmates to death barely came up. It went unmentioned in every one of the three presidential debates. John F. Kerry, the ''heroic'' protester of Vietnam, ducked the issue out of what? Fear? Ignorance? Or a belief that the American public ultimately did not care, that the consequences of seeming to criticize the conduct of troops would be more of an electoral liability than holding a president accountable for enabling the torture of innocents? I fear it was the last of these. Worse, I fear he may have been right.

OK, one might have preferred to see this before the election, but better late than later.

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(Much of) The Right Wing Is Now In Denial on Torture

At the AALS last week, I heard a (formerly) respected law professor announce to a room that he had looked carefully and he didn't see any evidence of systematic torture by the US. It was — although he didn't use these words — the 'few bad apples' all over again. At least a few of us in the packed room expressed our shock audibly — which isn't something you usually get at such a polite, even staid, event.

There's clearly a lot of this denial going around, which is why Marty Lederman's latest item demolishing the “best defense of the administration’s record on torture” is well worth reading.

In her article, MacDonald agrees that the 2002 OLC Memo was “hair-raising,” and “understandably caused widespread alarm.” She argues, however, that the OLC Memo “had nothing to do” with the interrogation “debates and experiments unfolding among Pentagon interrogators in Afghanistan and Cuba,” and had no connection to the abuses at Abu Ghraib, or to the extreme methods of military interrogation that have been alleged at Guantanamo and elsewhere. MacDonald further argues that, in contrast to the CIA, Pentagon officials have not come close to violating the law; that the military’s techniques have been “light years from real torture”; that the interrogation policies in Cuba and Afghanistan are “irrelevant” to what happened in Abu Ghraib; and that, in fact, the Armed Forces have been unduly hamstrung by a culture of legalism that is an unfortunate byproduct of “fanatically cautious” Pentagon lawyers steeped in the outmoded ways of the Geneva Conventions.

This version of the story appears to be selective, at best.

There's clearly much here that's not fully in the open, notably the extent to which the Torture Memos were driven by a need to attempt to justify CIA abuses which had already happened.

But given the number of reports we do have of overly coercive questioning to say the least, no one should be allowed to claim that there wasn't some sort of pattern and practice at work, creeping its way from the CIA to other interrogation centers, destroying whatever moral authority the US might hope to claim, inflaming the locals against us, and creating a new cadre of detainees (and families) who will hate us and try to destroy us.

Whether it also will make a mockery of the concepts such as the rule of law that we try to teach our students still remains to be seen.

Posted in Guantanamo, Iraq Atrocities | 3 Comments

What Alberto Gonzales Doesn’t Get

Initial Report of the U.S. to the UN Committee Against Torture (October 15, 1999) [emphasis added]:

Torture is prohibited by law throughout the United States. It is categorically denounced as a matter of policy and as a tool of state authority. Every act constituting torture under the Convention constitutes a criminal offense under the law of the United States. No official of the government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture. U.S. law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a “state of public emergency”) or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension. The United States is committed to the full and effective implementation of its obligations under the Convention throughout its territory.

Alberto Gonzales's confirmation hearing (Jan 5, 2005):

SEN. LEAHY: … I asked a specific question: Does the president have the authority, in your judgment, to exercise a commander-in-chief override and immunize acts of torture?

MR. GONZALES: With all due respect, Senator, the president has said we’re not going to engage in torture. That is a hypothetical question that would involve an analysis of a great number of factors.

Everyone except the most craven administration apologists understands the only acceptable answer is that not even the President can authorize torture. A lawyer who doesn't understand this is at best a fool or a knave. If he's a government official, however, there are other, far baser, options.

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Gonzales, Damned By His Own Words

An excerpt from the Gonzales hearing:

SEN. LEAHY: I just want to know: Did you agree — I mean, we could spend an hour with that answer, but I'm trying to keep it very simple. Did you agree with that interpretation of the torture statute back in August 2002?

MR. GONZALES: If I may, sir, let me try to — I will try to — I'm going to give you a very quick answer, but I'd like to put a little bit of context. There obviously — we were interpreting a statute that had never been reviewed in the courts, a statute drafted by Congress. We were trying to — interpretation of a standard by Congress. There was discussion between the White House and the Department of Justice as well as other agencies about what does this statute mean. It was a very, very difficult — I don't recall today whether or not I was in agreement with all of the analysis, but I don't have a disagreement with the conclusions then reached by the department. Ultimately it is the responsibility of the department to tell us what the law means, Senator.

SEN. LEAHY: Then do you agree today that for an act to violate the torture statute, it must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death?

MR. GONZALES: I do not, sir. That does not represent the position of the executive branch. As you know —


SEN. SPECTER: Well, let him finish his answer.

SEN. LEAHY: But it was the position in 2002.

SEN. SPECTER: Wait a minute, Senator Leahy. Let him finish his answer.

MR. GONZALES: Senator, what you're asking the counsel to do is to interject himself and direct the Department of Justice, who is supposed to be free of any kind of political influence, in reaching a legal interpretation of a law passed by Congress. I certainly give my views. There was, of course, conversation and a give-and-take discussion about what does the law mean. But ultimately — ultimately by statute the Department of Justice is charged by Congress to provide legal advice on behalf of the president. We asked the question. That memo represented the position of the executive branch at the time it was issued.

SEN. LEAHY: Well, let me then ask you: If you're going to be attorney general, and I'll accept what you said, then let's put on the hat, if you're going to be confirmed as attorney general. The Bybee memo concludes that a president has authority as commander in chief to override domestic and international law as prohibiting torture and can immunize from prosecution anyone — anyone — who commits torture under his act; whether legal or not, he can immunize them.

Now, as attorney general, would you believe the president has the authority to exercise a commander-in-chief override and immunize acts of torture?

MR. GONZALES: First of all, sir, the president has said we're not going to engage in torture under any circumstances. And so you're asking me to answer a hypothetical that is never going to occur. This president has said we're not going to engage in torture under any circumstances, and therefore, that portion of the opinion was unnecessary and was the reason that we asked that that portion be withdrawn.

SEN. LEAHY: But I'm trying to think what type of opinions you might give as attorney general. Do you agree with that conclusion?

MR. GONZALES: Sir, again —

SEN. LEAHY: You're a lawyer, and you've held a position as a justice of the Texas Supreme Court, you've been the president's counsel, you've studied this issue deeply. Do you agree with that conclusion?

MR. GONZALES: Senator, I do believe there may come an occasion when the Congress might pass a statute that the president may view as unconstitutional. And that is a position and a view not just of this president, but many, many presidents from both sides of the aisle.

Obviously, a decision as to whether or not to ignore a statute passed by Congress is a very, very serious one, and it would be one that I would spend a great deal of time and attention before arriving at a conclusion that in fact a president had the authority under the Constitution to —

SEN. LEAHY: Mr. Gonzales, I'd almost think that you'd served in the Senate, you've learned how to filibuster so well, because I asked a specific question: Does the president have the authority, in your judgment, to exercise a commander-in-chief override and immunize acts of torture?

MR. GONZALES: With all due respect, Senator, the president has said we're not going to engage in torture. That is a hypothetical question that would involve an analysis of a great number of factors.

And he wants to be Attorney General of the United States.

Continue reading

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Marty Lederman on the Torture Memos

Marty Lederman, formerly of the OLC, has an important series of posts on the torture memos, including a discussion of the latest effort from the Justice Department, issued late in Dec. 2004.

Part 1, Part 2, Part 3, Part 4

Here's a sample,

it becomes clear that perhaps the most important part of the new Levin Opinion is footnote 8, which reads: “While we have identified various disagreements with the August 2002 Memorandum, we have reviewed this Office's prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum.” In other words, despite its admirable and considerable repudiation of the 2002 OLC Opinion, the new OLC Opinion does not in any significant way affect what the CIA has already been specifically authorized to do. And the Administration has concealed from the public (and perhaps from the Congress, too?) the extreme forms of interrogation—just short of the strict statutory standard of “torture”—that the CIA presumably is authorized to use upon detainees overseas.

And, from the conclusion,

There are extremely strong arguments that if they approved or used certain of these techniques, military officials and other personnel have violated the law—including the UCMJ, article 16 of the CAT, the Geneva Conventions (as to detainees protected by those treaties), and the President’s directive that detainees be treated “humanely”—wholly apart from the torture statute that the OLC Opinions discuss. (Indeed, from the time of the 2001 enactment of the USA PATRIOT ACT until the enactment of the 2005 Defense Authorization Act this past October 28th, the torture statute itself did not even apply to GTMO because of a technical jurisdictional provision.)

And, in any event, if those recent accounts are correct about what the Pentagon has actually approved and implemented at Guantanamo, then the President’s assurance that all Armed Forces detainees be treated “humanely,” and that the military does not engage in cruel, inhuman and degrading treatment, ring hollow.

It is a very salutary development that OLC has finally construed the torture statute with the care and judgment that typically characterizes OLC’s best work, and that the Administration has reiterated the Nation’s commitment that torture is never legal, not even for “a good reason.” But that is only half the story. The other half remains untold. We are yet to have an informed public debate about what forms of conduct OLC has sanctioned as lawful, about what forms of interrogation and coercion this nation does permit, and about what is, in fact, being done in our name. If we are to have such a debate, the Administration would have to be much more forthcoming with explanations of which ostensibly “humane” treatments have been approved for military interrogators at Guantanamo and elsewhere, and would have to provide some information concerning the forms of inhumane treatment the CIA has been authorized to use (subject, of course, to redaction where there are legitimate and compelling needs for classification).

If we begin such a debate, here's one modest question to consider: Would it be too much to ask that Congress approve—and the President sign—a statute that would unambiguously prohibit all U.S. personnel, everywhere in the world, from engaging in cruel, inhuman, and degrading treatment—including, at a minimum, conduct that would shock the conscience, and thus violate the Due Process Clause, if it occurred within the U.S.?

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