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n 1: (logic) a statement that is necessarily true; “the statement `he is brave or he is not brave’ is a tautology”
  2: useless repetition; “to say that something is `adequate enough’ is a tautology”

It’s not torture because they say it isn’t torture.

I’ve written about this before. It is frustrating and deeply troubling that I find myself compelled to write about torture again and again.

Billmon, Stare Decisis, June 15, 2004:

….a small clique of legal extremists who are determined to throw themselves, and their country, into the same stinking mire, regardless of the risks….”

Press Briefing by Dana Perino
James S. Brady Briefing Room
October 5, 2007
12:39 P.M. EDT

….With that, I’ll take your questions.

Q I wanted to ask about the President’s statement this morning on the interrogation method. He said — he repeated, obviously, what he did yesterday, that the government doesn’t torture — the U.S. government doesn’t torture people. But these memos make it sound like the definition of what’s permissible is so expansive that you could say we don’t torture and almost anything could be true falling into that. What do you say to that?

MS. PERINO: Well, what I say is the United States’ policy and our laws is not to torture. We meet the laws and we also meet our international obligations. There’s a public document that interprets the statute that is from the Office of Legal Opinion, from the Justice Department. It’s on the website for anybody to read. Any additional documents are classified for a reason, because they have to deal with interrogation techniques.

How convenient on the second point.

Okay, I did what Dana Perino in all her high dudgeon suggested. I went to the Department of Justice web site to look for this office. I found the Office of Legal Counsel and started looking at opinions. Nothing relevant in 2007 or 2006. I found an opinion on Military Commissions [pdf] from 2005. Still not relevant. Thanks a lot Dana, for the precision of your words.

Finally, I found it. LEGAL STANDARDS APPLICABLE UNDER 18 U.S.C. §§ 2340-2340A from 2004. As the memo parses (be appalled, go read it), one can’t really specifically define torture, but you’ll know it when you experience it.

One can even read the footnotes.  2 It has been suggested that the prohibition against torture has achieved the status of jus cogens (i.e., a peremptory norm) under international law.

That footnote is an important one. It appears to be an acknowledgment of the peremptory norms of International Law – jus cogens and non-derogation. This is outlined in the Vienna Convention on the Law of Treaties (which went into force internationally on January 27, 1980 – the United States has not signed nor ratified this treaty)

….Article 53. Treaties conflicting with a peremptory norm of general international law (jus cogens).  A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character….

The 2004 memo makes reference to the “August 2002 memorandum”. Interestingly, that particular memo doesn’t appear to be on the website.

Let’s look at U.S. Law. Title 18, Part I, Chapter 113C, Section 2340.

(1) ”torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control; (2) ”severe mental pain or suffering” means the prolonged mental harm caused by or resulting from – (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and (3) ”United States” includes all areas under the jurisdiction of the United States including any of the places described in sections 5 and 7 of this title and section 46501(2) of title 49.

That’s pretty damn straightforward if one can read English. They don’t want lay people (or lazy reporters) to look at what the law says because they’re very afraid that someone would read plain English. Not to mention, point out that their emperor has no clothes and that they’re full of it.

The United States signed and ratified the International Covenant on Civil and Political Rights (ICCPR), a treaty:

Article 4. 1 . In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision. 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

Article 7. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

No derogation allowed in subjecting another person to cruel, inhuman, or degrading treatment. No derogation.

Dana Perino, October 5, 2007 – continued

….What the President said today is, yes, we do interrogate al Qaeda terrorists. These are people who intend to harm us. We do not torture them. And the appropriate members of the Congress were briefed, and there has been no changes from that December 2004 opinion that everyone has available to them — in addition to the briefings that the Hill has had.

Q Any of the briefing — any of the members of Congress who have been briefed, are those the same ones who are complaining about the —

MS. PERINO: Intelligence Committee members were briefed.

Q And so they’re saying — one of their complaints obviously is that these memos were done in secret, they’re secret memos. So you’re saying that’s not true because they’ve been briefed?

MS. PERINO: Well, they have been briefed to appropriate members of Congress on the Intelligence Committee. But they are classified for a reason and they are secret — I think the word “secret” is getting a little bit too much — it takes on the aura of mystery — but one of the reasons they are secret is because they need to be. They need to be cloaked in the classified system so that we can keep that information private so that we’re not signaling to our enemies exactly what our techniques are. And that’s why they’re — they’ve been classified, and that’s why they were briefed to the intelligence community, because it’s an intelligence community program.

Q So where is the line between harsh but legal interrogation, and torture?

MS. PERINO: The experts have debated that. They have come up with an opinion. It is there for everyone to see —

Q But where does the President put it?

MS. PERINO: The President — I’m not going to get into specifics. I’m not going to get into specific tactics.

Q But wait a minute, this is the whole issue right here. What is the President’s policy? What’s his thoughts? I mean, I think a lot of —

MS. PERINO: I told you what the policy is. The policy is that the United States does not torture. And you — it’s interesting to me

Q We’re not going to further define what that word “torture” means. And I think that’s what — that’s the question.

MS. PERINO: Look, there has been an executive order that we’ve put out. There has been the — the Military Commissions Act. There is the Detainee Treatment Act. There is this opinion that I just talked about. We have talked about this a lot. There is a lot of information out there as to how the United States is going to deal with this. The policy of the United States that the President follows is not to torture people. No matter what they will do to us, we will not torture them.

Q Is it possible, Dana, that there are actions that we’re talking about that some people — whether it’s waterboarding, or head-slapping, or anything — that some people look at and say, harsh but legal, and other people look at and say, torture?

MS. PERINO: As I said yesterday, I am not saying that reasonable people couldn’t look at something and disagree when it comes to legal opinion. But the legal opinion of the United States is that we do not torture. The statutes have been interpreted, the committees have been briefed. And I believe that the members that have been briefed are satisfied that the policy of the United States, and the practices, do not constitute torture.

Q But, Dana, what have they been briefed on? Have they actually — if they haven’t actually seen, like, the 2005 legal opinion, they’ve just been briefed in general — you’re selecting what they’re —

MS. PERINO: What I can tell you is I have been assured that they have been fully briefed.

Q Fully briefed on the actual memos?


Q And, okay, so then why are people like Senator Jay Rockefeller, who’s the Chairman of the Intelligence Committee, saying, I’m getting more information from The New York Times than the White House?

MS. PERINO: I don’t know — I don’t know, but I checked and I am confident that the members were briefed.

Q When you say they’re briefed, Dana, do you mean they are shown the techniques, they have the techniques explained to them, they understand what the techniques are?

MS. PERINO: I don’t know. These are held in a classified setting. They’re classified for a reason. And I — so I don’t know what they are shown.

Q And when you say they were briefed on the memos, did they see those memos, or were they just —

MS. PERINO: I don’t know. I don’t know. I have been told they were fully briefed. And we have — we feel confident that the information they were provided gives them the information that they need.

I’m going to go to Kelly. I’ll come back.

Q Given the persistent questions that even after these briefings to Congress, whether they were shown the documents or just explained more broadly, would the President be open to having a wider range of members of Congress given access to this? Because as Jim points out, it’s about that definition. Is it the cumulative effect of various techniques — those done simultaneously — is there a point at which that becomes torture?

MS. PERINO: I guess we could — we will take the request. There has been an ongoing debate for years, well before our administration, about the request for more information between the executive branch and Congress. And we ourselves here in this administration have dealt with a lot of document requests on a variety of topics, including this one.

On the Terrorist Surveillance Program, we did provide more information. That was after a long, negotiated discussion. And if there are requests from the committee, I am sure that this White House will take them very seriously, and so will Fred Fielding.

Q And do you acknowledge the sort of perception that the matter in the minds of some in Washington had been sort of resolved with the additional legislative action that was taken in the court and so forth, and then when this comes up again, it raises —

MS. PERINO: But there’s been no change —

Q The people apparently are not reassured that there’s been no change.

MS. PERINO: Well, I am telling you there has been no change and the appropriate members of Congress have been fully briefed on the program.

Q Dana, why did the President feel the need today to weigh in on the subject of the CIA interrogation program in what was ostensibly to be a statement on the economy? Did he feel that the disclosures about the harsh treatment of detainees were somehow casting the administration in a bad light?

MS. PERINO: I think he wants to make sure that the American people know that, first and foremost, he’s going to do everything he can within the law to make sure that they are protected from terrorists who want to harm us. And secondly, he wanted to make sure people knew that we do not torture anybody. No matter what they would do to us

Q Just him saying it doesn’t mean it —

MS. PERINO: — the laws are that we do not torture. And many people — there are many safeguards in all of these programs, and that from career individuals to political appointees, who are well aware of what this program is, how it is executed, and they are confident and they are assured that there is no torture.

I think the President today wanted to make sure that, given that there is so much interest, going on two days, that he had an opportunity when he — when he saw members of the press, that he take that opportunity to remind everybody of — we are in a war.

One of the things he’s really concerned about is that every day that we get farther away from 9/11, that people will start forgetting the threats that we’re under, and al Qaeda is very serious, they’re very patient. And the best source of information about how they’re trying to harm us is from the terrorists themselves. And that’s why we created the interrogation program, and it has saved lives.

Q But, Dana, Republicans, like Colin Powell, John McCain, have said that if torture is going on, that could be detrimental to the United States around the world. So why leave any ambiguity out there? Why not let —

MS. PERINO: I think the key word is “if,” and I don’t think there is ambiguity. We are not torturing.

Q You said there’s no shift in policy —

MS. PERINO: Well, what would make it better, what would make it better, that we should tell everybody exactly what we have?

Q Not everybody — not everybody.

MS. PERINO: You want to know the techniques that we use so we can tell exactly al Qaeda what we’re going to do? That’s absurd.

Q No, but these members of Congress — not us, these members of Congress have security clearances; they see classified information all the time.

MS. PERINO: And the intelligence community was fully briefed.

Q They’re saying that they did not — they were not fully briefed. You’re saying “fully briefed.” That’s your definition of fully briefed, just like it’s your definition of torture. Jay Rockefeller, the Chairman of the Intelligence Committee, is saying they haven’t seen the memos. So how can they be fully briefed if they haven’t seen the memos? And why did you keep them secret if there’s nothing in there that you’re trying to hide?

MS. PERINO: The memos — they are applications that fall within the law, which is to not torture. It is absolutely important — it’s critically important that we keep this information secret. It is secret for a reason. We don’t go around classifying things just for the — willy-nilly. You do it for a reason. And I would object to anyone saying that this President would not do whatever needs to be done within the law to make sure that people are taken care of. And we have worked with Congress —

Would you, or we as a nation, classify what was going on as torture if it was applied to us or to an American citizen by some other nation or non-American entity? Would we all be outraged? You bet. Would it be legal in the United States if a police officer or investigator applied it to you or someone in your family – or one of your neighbors? It’s that simple. There is no ambiguity in the simple language of the federal statute [pace – the language in treaties]. Perpetuating the myth of ambiguity or esoterica only serves to give them and others of their ilk the illusion of deniability.

Principles of International Law Recognized in the Charter of the Nüremberg Tribunal and in the Judgment of the Tribunal, 1950.

Principle I

Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.

Principle II

The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.

Principle III

The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.

Principle IV

The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

Principle V

Any person charged with a crime under international law has the right to a fair trial on the facts and law.

Principle VI

  The crimes hereinafter set out are punishable as crimes under international law:

  (a) Crimes against peace:
  (i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
  (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).

  (b) War crimes:
  Violations of the laws or customs of war include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.

  (c) Crimes against humanity:
  Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connexion with any crime against peace or any war crime.

Principle VII

Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.