Category Archives: Iraq Atrocities

Gonzales Admits CIA At Liberty to be Inhumane

Just as Marty Lederman has been saying,

The New York Times > Washington > Gonzales Says '02 Policy on Detainees Doesn't Bind C.I.A.: Officers of the Central Intelligence Agency and other nonmilitary personnel fall outside the bounds of a 2002 directive issued by President Bush that pledged the humane treatment of prisoners in American custody, Alberto R. Gonzales, the White House counsel, said in documents released on Tuesday.

I don't care how they parse it: waterboarding — that's repeated near drowning — is torture in my book.

Posted in Iraq Atrocities | Comments Off on Gonzales Admits CIA At Liberty to be Inhumane

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.

Posted in Iraq Atrocities | 5 Comments

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.

Posted in Iraq Atrocities | 2 Comments

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.

Posted in Iraq Atrocities | Comments Off on Stay Tuned For Hell To Freeze Over

(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.

Posted in Iraq Atrocities | 6 Comments