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.
Delay in Gonzales’ Confirmation
Nan Aron, President of Alliance for Justice says, The Senate Judiciary Committee will likely hold a vote on the nomination of Alberto Gonzales soon after the inauguration. Ms. Aron stated that two issues have delayed the SJCs vote:
1) Mr. Gonzales evasive testimony during the SJCs January 6th hearing he failed to answer critical questions about whether the president has the power to authorize his subordinates to violate U.S. criminal laws and torture detainees (a blueprint for dictatorship), and he did not explicity repudiate waterboarding and other interrogation techniques that amounted to torture; and
2) Bush administration stonewalling on documents the White House has still not released documents necessary to evaluate Gonzales role in formulating policies relating to the treatment of detainees and the applicability of the Geneva Conventions.
Add to this Gonzales’ role in development of CIA torture policies.
THE MORAL HIGH GROUND?
By William Fisher
Here is a sure-fire nomination for the most outrageous quote of the week: Accusations that we are torturing people tend to be mythology.
These are the words of an un-named Egyptian official questioned by The Washington Post about prisoner abuse.
Here are the facts of the case The Post was enquiring about. The reader can decide who was doing what to whom.
An Egyptian-born Australian citizen, currently a prisoner at the U.S. Naval base at Guantanamo Bay, Cuba, charges that the US Government forcibly transferred him to Egypt, where he was tortured for six months. He has petitioned a US Federal Court to block plans to send him back to an Egyptian prison a second time.
Mamdouh Habib alleges that while in Egyptian custody he was hung by his arms from hooks, repeatedly shocked, nearly drowned and brutally beaten. He contends that under US and international law, he cannot be sent back. The US accuses Habib of training and raising money for al Qaeda, and say he had advance knowledge of the Sept. 11, 2001, attacks. Australian media report that in 2001, authorities there cleared him of having terrorist connections.
In a surprise announcement on January 11, the Pentagon said they would release Habib and four remaining British men on the grounds that ”the governments of the United Kingdom (Britain) and Australia have accepted responsibility for these individuals and will work to prevent them from engaging in or otherwise supporting terrorist activities in the future.” US authorities obviously do not want this case aired in any US court.
But Habib intends to pursue his legal action against the US Government. What Habib is challenging is a highly secret US practice: the outsourcing of torture. The practice is known as rendering. It involves transferring detainees to countries where there are no de facto restrictions on prisoner abuse. It is used to obtain confessions and intelligence under duress, or because there is insufficient evidence to try them in US courts.
Egypt, Saudi Arabia, Syria and Yemen, are high on the list of destinations. And for good reason. Their practices of torture and death in detention have been widely criticized by international and indigenous human rights advocates for many years, and by the US State Department in successive editions of its Annual Report on Human Rights. Because of their close strategic relationship, Egypt has been a CIA favorite.
According to terrorism expert Peter Bergen, a fellow of the New America Foundation and adjunct professor at Johns Hopkins University’s School of Advanced International Studies, Egypt routinely tortures political prisoners, untroubled by fears that other Arab leaders will seriously condemn such actions.
This view is shared by Human Rights Watch. In a briefing paper entitled Egypts Torture Epidemic, HRW says, Torture in Egypt is a widespread and persistent phenomenon. Security forces and the police routinely torture or ill-treat detainees, particularly during interrogation.
The Egyptian Organization for Human Rights (EOHR) in Cairo reports that Deaths in custody as a result of torture and ill-treatment have shown a disturbing rise. Egyptian human rights organizations report at least ten cases in 2002 and seven in 2003. There were four deaths in custody during the September-November 2003 period alone.
US Congressional testimony confirms that the Central Intelligence Agency (CIA) engages in renditions. However, the Bush Administration says it always seeks diplomatic assurances from foreign governments that they will treat the captives humanely. Advocacy groups such as Human Rights Watch and Amnesty have found that such assurances are routinely violated.
According to a memorandum filed in US District Court in the District of Columbia, Habib was arrested in Pakistan in October 2001. He claims that three Americans interrogated him over a period of weeks. He says he was then taken to an airfield where he was beaten by Americans. One cut off his clothes, while another placed a foot on his neck “and posed while another took pictures,” the document says.
Court papers allege he was then flown to Egypt, and spent six months in custody. During interrogations, Habib alleges he was suspended from hooks, with his is feet resting on the side of a large cylindrical drum attached to wires and a battery. “When Mr. Habib did not give the answers his interrogators wanted, they threw a switch and a jolt of electricity” went through the drum, it says. “The action of Mr. Habib ‘dancing’ on the drum forced it to rotate, and his feet constantly slipped, leaving him suspended by only the hooks on the wall . . . This ingenious cruelty lasted until Mr. Habib finally fainted.”
At other times, the petition alleges, he was placed in ankle-deep water that his interrogators told him “was wired to an electric current, and that unless Mr. Habib confessed, they would throw the switch and electrocute him.” Habib says he gave false confessions to stop the abuse.
The legal authority for renditions is based on an Executive Order signed by President Bill Clinton, and reportedly summarized in a 2002 memo entitled “The President’s Power as Commander in Chief to Transfer Captive Terrorists to the Control and Custody of Foreign Nations.” According to The Washington Post, knowledgeable US officials said White House counsel Alberto R. Gonzales participated in its production.
During Mr. Gonzaless Senate confirmation hearings on his nomination to be the next Attorney General, Sen. Patrick Leahy, a Democrat from Vermont, criticized the Bush Administration for refusing a Congressional request to make the memo public. But an August 2002 Justice Department opinion defines torture narrowly and concludes that the president could legally permit torture in fighting terrorism. The Senate hearings confirmed that Gonzales asked for and helped draft the memorandum.
Shortly before Gonzaless confirmation hearings began, the Justice Department replaced the 2002 memo after two years on its website as official government policy. The new version follows the provisions of the UN Convention Against Torture, which prohibits torture without exception.
During his confirmation hearing, Mr. Gonzales was asked by Senator Dick Durbin, a Democrat from Illinois, if it would be illegal for the US to turn a prisoner over to a country that would torture him. Mr. Gonzales said: “Under my understanding of the law, we have an obligation not to render someone to a country that we know practices torture. He said It would be illegal if US officials were involved.
Only one other court case has challenged rendering. It was brought by the Syrian-born Canadian citizen, Maher Arar, who claims he was detained at New Yorks Kennedy Airport after arriving from Tunisia enroute to his home in Canada, and shipped off the Syria, where he alleges he was imprisoned and tortured for ten months before being set free without charge. The case is now pending.
In continuing this obscene practice, the US is once again shooting itself in the foot. There are three reasons. First, in a time when the entire world is wired, it is no longer possible to keep secret operations secret for very long. Second, many old hands at the CIA believe rendering to be a waste of resources; torture consistently yields unreliable confessions. Finally, America likes to believe it occupies the moral high ground in just about everything; there is nothing moral about torture, whether at Abu Ghraib or Guantanamo Bay, or in Cairo or Riyadh, or Sana´a.
William Fisher has managed economic development programs in the Middle East for the US State Department and the US Agency for International Development, and served in the international affairs area in the Kennedy administration.