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On Monday afternoon, February 18th, I presented a paper at an academic conference – “Terrorism and Justice: The Balance for Civil Liberties” sponsored by the Institute of Justice and International Studies at the University of Central Missouri in Warrensburg. What follows is, largely, the content of my presentation on a panel titled “Torture and Interrogation”. My presentation included material I had previously posted on the subject over the past four years. True to form, the administration and its enablers kept providing me more material up to the last minute.

A Small Clique Of Legal Extremists Who Are Determined To Throw Their Country Into A Stinking Mire…

Robert Bolt – A Man For All Seasons:  A Play In Two Acts

…William Roper: So, now you’d give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: I’d cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned round on you, where would you hide, Roper, the laws all being flat? This country ‘s planted thick with laws, from coast to coast – man’s laws, not God’s – and if you cut them down – and you’re just the man to do it – d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake…

I open with an excerpt from a play. I am a “lay person”, so my viewpoint is a little different.

President Bush Holds Press Conference Following the G8 Summit

International Media Center

Savannah, Georgia – June 10, 2004 – 3:27 P.M. EDT

…Q Mr. President, I wanted to return to the question of torture. What we’ve learned from these memos this week is that the Department of Justice lawyers and the Pentagon lawyers have essentially worked out a way that U.S. officials can torture detainees without running afoul of the law. So when you say that you want the U.S. to adhere to international and U.S. laws, that’s not very comforting. This is a moral question: Is torture ever justified?

THE PRESIDENT: Look, I’m going to say it one more time. If I — maybe — maybe I can be more clear. The instructions went out to our people to adhere to law. That ought to comfort you. We’re a nation of law. We adhere to laws. We have laws on the books. You might look at those laws, and that might provide comfort for you. And those were the instructions out of — from me to the government…

[emphasis added]

As a lay person I thought, “Okay, maybe I should look for some comfort”. Several years later the administration was again asked about this:

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…

[emphasis added]

I thought, “Okay, I’ll look at the law and our international obligations”.

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.

[emphasis added]

United States Constitution, Article VI

….and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land….

This is a practical clause. If we had no way to enforce our treaties in our laws no one would make treaties with us.

Universal Declaration of Human Rights

advisory declaration adopted by

the United Nations General Assembly (December 10, 1948)

Article 2

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 3

Everyone has the right to life, liberty and security of person.

Article 4

No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Article 5

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6

Everyone has the right to recognition everywhere as a person before the law.

[emphasis added]

The Universal Declaration of Human Rights was presented after World war II. Its provisions made their way into the International Covenant on Civil and Political Rights, and as such, were ratified as norms of international law by the majority of civilized states in the world.

International Covenant on Civil and Political Rights

– in force September 8, 1992

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.

Article 16. Everyone shall have the right to recognition everywhere as a person before the law.

[emphasis added]

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment  – in force November 20, 1994

Article 3 . 1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

Article 4. 1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.  2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

Article 16. 1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.

2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion.

[emphasis added]

The United States signed and ratified both the Convention Against Torture and the International Covenant on Civil and Political Rights.

Vienna Convention on the Law of Treaties

– entered into force internationally on January 27, 1980

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.

[emphasis added]

The United States has not ratified nor signed this treaty, supposedly because its contents were already accepted norms of international law.

In the Aftermath of World War II the United States was a participant in the Nüremberg Tribunal

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 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 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.

[emphasis added]

The Memorandum for Alberto R. Gonzales, Counsel to the President of August 1, 2002 (the so-called “Bybee Memo”) goes to great lengths to narrowly define torture, create a “defense” defense, and to further assert the unitary executive (that the President determines what is “the law”). The memo signed by Jay Bybee, then an assistant Attorney General and now a judge on the 9th Circuit Court of Appeals, was reportedly the work of John Yoo, now a law professor at the University of California, Berkeley. There is no mention of the International Covenant on Civil and Political Rights in this memo.

“Severe pain” for the purpose of the “Bybee Memo” is defined as that which would cause organ failure or death.

The American Academy of Physical Medicine and Rehabilitation provides a pain level chart. The word “severe” first appears on the pain level chart starting at level 4 on a scale from 0 to 10.

LEGAL STANDARDS APPLICABLE UNDER 18 U.S.C. §§ 2340-2340A

MEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL
issued on December 30, 2004 (the so-called “Levin Memo”) states: “…This memorandum supersedes the August 2002 Memorandum in its entirety…”

Footnotes 1 and 2 of the “Levin Memo” refer to the International Covenant of Civil and Political Rights and the prohibition of torture as a peremptory norm of international law, respectively. Further, the conclusion of the “Levin Memo” removes the “defense” defense:

Two final points on the issue of specific intent: First, specific intent must be distinguished from motive. There is no exception under the statute permitting torture to be used for a “good reason.” Thus, a defendant’s motive (to protect national security, for example) is not relevant to the question whether he has acted with the requisite specific intent under the statute. See Cheek v. United States, 498 U.S. 192, 200-01 (1991). Second, specific intent to take a given action can be found even if the defendant will take the action only conditionally. Cf., e.g., Holloway v. United States, 526 U.S. 1, 11 (1999) (“[A] defendant may not negate a proscribed intent by requiring the victim to comply with a condition the defendant has no right to impose.”). See also id. at 10-11 & nn. 9-12; Model Penal Code § 2.02(6). Thus, for example, the fact that a victim might have avoided being tortured by cooperating with the perpetrator would not make permissible actions otherwise constituting torture under the statute. Presumably that has frequently been the case with torture, but that fact does not make the practice of torture any less abhorrent or unlawful.

[emphasis added]

In the Aftermath of World War II the United States was a party in the prosecution of war crimes for the “Tokyo War Crimes
Trial”. In the judgment of the tribunal:

Slide21

“…In particular, acts of inhumanity to prisoners which are forbidden by the customary laws of nations as well as convention are to be prevented by the Government having responsibility for the prisoners…”

Michael Mukasey, in his confirmation hearings to become Attorney General, had difficulty with the concept of “waterboarding” as torture:

Michael Mukasey Attorney General Confirmation Hearing

October 18, 2007

SEN. SHELDON WHITEHOUSE (D-R.I.): So is waterboarding constitutional?

MR. MUKASEY: I don’t know what’s involved in the technique. If waterboarding is torture, torture is not constitutional.

SEN. SHELDON WHITEHOUSE (D-R.I.): If water-boarding is constitutional is a massive hedge.

MR. MUKASEY: No, I said, if it’s torture. I’m sorry. I said, if it’s torture.

SEN. SHELDON WHITEHOUSE (D-R.I.): If it’s torture? That’s a massive hedge. I mean, it either is or it isn’t. Do you have an opinion on whether waterboarding, which is the practice of putting somebody in a reclining position, strapping them down, putting cloth over their faces and pouring water over the cloth to simulate the feeling of drowning — is that constitutional?

MR. MUKASEY: If it amounts to torture, it is not constitutional.

SEN. SHELDON WHITEHOUSE (D-R.I.): I’m very disappointed in that answer. I think it is purely semantic.

MR. MUKASEY: I am sorry….

[emphasis added]

And yes, the United States waterboarded people:

AWOL military justice

Why the former chief prosecutor for the Office of Military Commissions resigned his post.

By Morris D. Davis

December 10, 2007

Los Angeles Times

I was the chief prosecutor for the military commissions at Guantanamo Bay, Cuba, until Oct. 4, the day I concluded that full, fair and open trials were not possible under the current system. I resigned on that day because I felt that the system had become deeply politicized and that I could no longer do my job effectively or responsibly…

…I had instructed the prosecutors in September 2005 that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned…

 [emphasis added]

I believe this was one of the first public admissions that our government waterboarded people “under cover of law”. Note the use of “aggressive interrogation techniques” rather than calling it torture.

No one wants to label it what it actually is:

Senate Judiciary Committee hearing

“The Legal Rights of Guantanamo Detainees”

Brigadier General Thomas W. Hartmann, the legal adviser at Guantanamo Bay

December 11, 2007

…GRAHAM: You mean you’re not equipped to give a legal opinion as to whether or not Iranian military waterboarding, secret security agents waterboarding downed airmen is a violation of the Geneva Convention?

HARTMANN: I am not prepared to answer that question, Senator…

[emphasis added]

Meanwhile, the Army thought that it needed to emphasize that “waterboarding” people is not a good idea:

U.S. Department of Defense

Office of the Assistant Secretary of Defense
(Public Affairs)

Presenter: Pentagon Press Secretary Geoff Morrell November 14, 2007

…Q  The alert that went out reminding military personnel about the military ban on waterboarding — was that in response to any specific event or specific comments by military personnel that made you think you needed it? I mean, most notably, General Honore’s comments about waterboarding from last week — was this a response to those comments?

MR. MORRELL: Yeah, I think that went through — I think that was an Army mandate, if I’m not mistaken. But I do not know what precipitated them or prompted them to choose to remind their personnel of the fact that waterboarding is a practice that is forbidden under the Army Field Manual. But I think it is — I wouldn’t read anything into it, but I think it’s always worthwhile to remind our men and women in uniform — and all those who work for us, for that matter — what the rules are and what they aren’t. And the rules forbid such practices throughout the U.S. military…

[emphasis added]

The 1992 Army Field Manual on Intelligence Interrogation [pdf] provides for “two tests”:

Slide26

If you think that someone who you act upon believes it’s a violation of their rights, or if you believe that the act, when applied to an American prisoner, would violate their rights, then don’t cross that line.

The director of the CIA admits that individuals were waterboarded:

CIA says used waterboarding on three suspects

Tue Feb 5, 2008 6:13pm EST

By Randall Mikkelsen

Washington (Reuters)

“…Waterboarding has been used on only three detainees,” Hayden told the Senate Intelligence Committee. It was the first time a U.S. official publicly specified the number of people subjected to waterboarding and named them…

A senior intelligence official said after the hearing that it was unclear whether the CIA could legally use waterboarding in the future, given changes in U.S. law. The Bush administration says it neither uses nor condones torture…

[emphasis added]

Unclear? Waterboarding was never legal in the past 60 years.

As for admitting evidence obtained by waterboarding into a trial? There’s no hesitation now on the part of the prosecution:

U.S. Department of Defense

Office of the Assistant Secretary of Defense (Public Affairs)

Presenter: Legal Advisor to the Convening Authority in the DoD Office Of Military Commissions Brig. Gen. Thomas Hartmann February 11, 2008

….Q   Can you tell us, was any of the information that was derived from aggressive — from aggressive interrogations of either KSM or any of the other five defendants used in preferring these charges?

GEN. HARTMANN: I don’t know the answer to that question. The prosecutors will make a determination about what evidence they are going to produce in the case in chief. I haven’t seen the files yet, and they will — that will identify to us what evidence is used. But let me be clear: We are a nation of law and not of men. And the question of what evidence it will be admitted, whether waterboarding or otherwise, will be decided in the courts, in front of a judge, after it’s fought out between the defense and the prosecution in these cases. That’s the rule of law, that’s the procedure that Congress has provided to us, and that’s what we will use to finally answer these questions…

…Q   But just based — excuse me, a follow-up. But just based on your own legal expertise, is that kind of evidence normally permissible against the defendant if it’s — if it’s achieved through duress?

GEN. HARTMANN: Well, I’ll answer the same question. It’s not — this issue is not based upon my legal experience. This issue is based upon the rule of law.  And the military judge will decide if this evidence is going to be admitted. That’s the procedure we have set up. That’s the American standard of justice, that the court decides, the judge d
ecides…

[emphasis added]

Let’s look to the past:

Changi Prison, October 1943

… The Japanese were trying to establish that there was a spy organization in Changi Prison which received and transmitted by radio telephony, which had established contacts in the town for the purpose of sabotage and [12937] stirring up of  anti-Japanese feeling, and which collected money from outside for this purpose. In fact, there was no organization, no radio transmission and no attempt to promote anti-Japanese activities outside the Camp…[12939]

…Usually interrogations started quietly and would continue as long as the inquisitors got the expected answers. If, for any reason, such answers were not forthcoming, physical violence was immediately…

…[12940] employed. The methods used were:

(1) Water Torture. There were two forms of water torture. In the first, the victim was tied or held down on his back and a cloth placed over his nose and mouth. Water was then poured on the cloth

International Military Tribunal for the Far East – Proceedings, p. 12,936.

[emphasis added]

Waterboarding was torture.

And this:

(7) Threats to families. Threats were also made to take action against the family of the victim (the wives of some Internees were believed to be in Japanese custody in other parts of Asia)…

International Military Tribunal for the Far East – Proceedings, p. 12,943.

[emphasis added]

Title 18, Part I, Chapter 113C, Section 2340

“…(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…”

Note the date of the following:

   05-4148-cv

   Higazy v. Millenium Hotel and Resorts


   UNITED STATES COURT OF APPEALS

   FOR THE SECOND CIRCUIT

   ________________________

   August Term, 2005

   (Argued: June 23, 2006 Decided: October 19, 2007)

   ….[page 7]This opinion has been redacted because portions of the record are under seal. For the purposes of the summary judgment motion, Templeton did not contest that Higazy’s statements were coerced….

The court issued an opinion the day before and withdrew it, forgetting that the Internet is forever:

   05-4148-cv

   Higazy v. Millenium Hotel and Resorts
[pdf]

   UNITED STATES COURT OF APPEALS

   FOR THE SECOND CIRCUIT

   ________________________

   August Term, 2005

   (Argued: June 23, 2006 Decided: October 18, 2007)

…alleges that during the polygraph, Templeton told him that he should cooperate [REDACTED TEXT BEGINS], and explained that if Higazy did not cooperate, the FBI would make his brother “live in scrutiny” and would “make sure that Egyptian security gives [his] family hell.” Templeton later admitted that he knew how the Egyptian security forces operated: “that they had a security service, that their laws are different than ours, that they are probably allowed to do things in that country where they don’t advise people of their rights, they don’t – yeah, probably about torture, sure.”

Higazy later said, “I knew that I couldn’t prove my innocence, and I knew that my family was in danger.” He explained that “[t]he only thing that went through my head was oh, my God, I am screwed and my family’s in danger. If I say this device is mine, I’m screwed and my family is going to be safe. If I say this device is not mine, I’m screwed and my family’s in danger. And Agent Templeton made it quite clear that cooperate had to mean saying something else other than this device is not mine.”

Higazy explained why he feared for his family:

The Egyptian government has very little tolerance for anybody who is – they’re suspicious of being a terrorist. To give you an idea, Saddam’s security force – as they later on were called his henchmen-a lot of them learned their methods and techniques in Egypt; torture, rape, some stuff would be even too sick to….My father is 67. My mother is 61. I have a brother who developed arthritis at 19. He still has it today. When the word ‘torture’ comes at least for my brother, I mean, all they have to do is really just press on one of these knuckles. I couldn’t imagine them doing anything to my sister.

And Higazy added:

[L]et’s just say a lot of people in Egypt would stay away from a family that they know or they believe or even rumored to have anything to do with terrorists and by the same token, some people who actually could be -might try to get to them and somebody might actually make a connection. I wasn’t going to risk that. I wasn’t going to risk that, so I thought to myself what could I say that he would believe. What could I say that’s convincing? And I said okay.

[REDACTED TEXT ENDS]

[emphasis added]

It was a false confession, coerced by the state when others were threatened with torture.

Back to waterboarding:

The witness saw Chinese, Malay and Indian prisoners tortured and stated that three Chinese died after undergoing water torture.

International Military Tribunal for the Far East – Proceedings, p. 12,959.

(5) The prisoner was blindfolded, then a large quantity of water slowly poured into his mouth and nostrils, so that the prisoner suffocated.

International Military Tribunal for the Far East – Proceedings, p. 12,982.

MR. JUSTICE MANSFIELD: These documents describe the torture of the witnesses by… who beat and kicked them and ordered them to be tortured by the water method.

International Military Tribunal for the Far East – Proceedings, p. 13,186.

When…did not succeed in getting anything out of me, he gave me the water test. ..I was tied to the bench with my hands cuffed on my back. At a certain moment my agony was such that I broke the handcuffs…

International Military Tribunal for the Far East – Proceedings, p. 13,684.

…Professor DE VRIES suffered the watertest 22 times during a period of 2 months, and his interrogation amounted to 500 hours in toto. Prosecution document 5750.

International Military Tribunal for the Far East – Proceedings, p. 13,686.

TORTURE

Various tortures were administered during interrogation, the main one being ‘Water Torture,’ which is done by laying a person flat on a bench with his head overhanging one end. A funnel is then placed in the mouth and water forced into the abdomen and the lungs. The torturer then jumps on the stomach of his victim, producing a drowning sensation.

International Military Tribunal for the Far East – Proceedings, p. 14,168.

The water treatment consisted of lashing a man down face up across the desk top.  A bath towel  is then so rolled as to form a circle around his nose and mouth, and a five-gallon can of water, which was generally with the vilest of human refuse and other filth, such as kerosene, was then put handy. The man was then [14182] questioned, and if he did not respond, the water was poured into the space made by the bath towel, forcing the prisoner either to swallow and…

…inhale the vile concoction or to strangle himself. This is kept up, questioning between doses, until the man is at a point of unconsciousness. Shortly
before unconsciousness is reached, the man is frequently beaten across the belly with a small iron rod.. After consciousness has left, he is usually suspended by the heels from a tackle overhead and the water allowed to drain out of him. When he has sufficiently recuperated, the treatment is resumed.

International Military Tribunal for the Far East – Proceedings, p. 14,181.

Waterboarding is torture.

And, interestingly enough, we judged others for hiding prisoners from the ICRC:

The Government actively concealed the ill-treatment to which prisoners of war and civilian detainees were being subjected by refusing visits by representatives of the Protecting Power designated by the Allies

International Military Tribunal for the Far East – Judgement, p. 49,751.

[emphasis added]

Red Cross Monitors Barred From Guantánamo

By William Glaberson

Published: November 16, 2007

New York Times

A confidential 2003 manual for operating the Guantánamo detention center shows that military officials had a policy of denying detainees access to independent monitors from the International Committee of the Red Cross.

The manual said one goal was to “exploit the disorientation and disorganization felt by a newly arrived detainee,” by denying access to the Koran and by preventing visits with Red Cross representatives, who have a long history of monitoring the conditions under which prisoners in international conflicts are held. The document said that even after their initial weeks at Guantánamo, some detainees would not be permitted to see representatives of the International Red Cross, known as the I.C.R.C.

It was permissible, the document said, for some long-term detainees to have “No access. No contact of any kind with the I.C.R.C….”

Camp Delta Standard

Operating Procedures (SOP)


Headquarters, Joint Task Force – Guantanamo (JTF-GTMO)

Guantanamo Bay, Cuba

23 March 2003

[as leaked]

17-4. Levels of Visitation

All detainees will have a level of ICRC contact designated for them. These different levels are as follows:

a. No Access: No contact of any kind with the ICRC. This includes delivery of ICRC mail.

b. Restricted: ICRC is allowed to ask the detainee about health and welfare only. No prolonged questions.

c. Unrestricted: ICRC is allowed full access to talk to detainees.

d. Visual: Access is restricted to visual inspection of the detainee’s physical condition. No form of communication is permitted. No delivery of ICRC mail.

[emphasis added]

Note that the document is labeled “UNCLASSIFIED//FOR OFFICIAL USE ONLY”.

Who is a person under the law?

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2007 Decided January 11, 2008

No. 06-5209

SHAFIQ RASUL ET AL.,

APPELLANTS/CROSS-APPELLEES

v.

RICHARD MYERS, AIR FORCE GENERAL ET AL.,

APPELLEES/CROSS-APPELLANTS

Consolidated with

06-5222

Appeals from the United States District Court

for the District of Columbia

(No. 04cv01864)

SHAFIQ RASUL

The plaintiffs concede that the “torture, threats, physical and psychological abuse inflicted” on them, which were allegedly approved, implemented, supervised and condoned by the defendants, were “intended as interrogation techniques to be used on detainees.” Compl.  141. In fact, as the district court correctly noted, “the complaint alleges torture and abuse tied exclusively to the plaintiffs’ detention in a military prison and to the interrogations conducted therein.” 414 F. Supp. 2d at 34. Under Ballenger, then, the underlying conduct-here, the detention and interrogation of suspected enemy combatants-is the type of conduct the defendants were employed to engage in. Just as the telephone conversation in Ballenger, the mattress delivery in Lyon and the removal of clothes from the washing machine in Thompson was each part of the employee’s job description or assignment, the detention and interrogation of suspected enemy combatants is a central part of the defendants’ duties as military officers charged with winning the war on terror. See Ballenger, 444 F.3d at 664; Lyon, 533 F.2d at 652;…

…Johnson, 434 A.2d at 409. While the plaintiffs challenge the methods the defendants used to perform their duties, the plaintiffs do not allege that the defendants acted as rogue officials or employees who implemented a policy of torture for reasons unrelated to the gathering of intelligence. Cf. Penn Cent., 398 A.2d at 32; Boykin, 489 A.2d at 564. Therefore, the alleged tortious conduct was incidental to the defendants’ legitimate employment duties

….We believe that RFRA’s use of “person” should be interpreted consistently with the Supreme Court’s interpretation of “person” in the Fifth Amendment and “people” in the Fourth Amendment to exclude non-resident aliens. Because the plaintiffs are aliens and were located outside sovereign United States territory at the time their alleged RFRA claim arose,26 they do not fall with the definition of “person.” Accordingly, the district court erred in denying the defendants’ motion to dismiss the plaintiffs’ RFRA claim….

[emphasis added]

“…they do not fall with the definition of ‘person’…”

“Everyone shall have the right to recognition everywhere as a person before the law.”

Article 16, International Covenant on Civil and Political Rights  – in force September 8, 1992

Article 6, Universal Declaration of Human Rights – December 10, 1948

Hannah Arendt wrote in Eichmann in Jerusalem: A Report on the Banality of Evil of “…the lesson that this long course in human wickedness had taught us-the lesson of the fearsome, word-and-thought-defying banality of evil…”

Torture has some advocates in American public opinion:

Kansas City Star

Wednesday, November 21, 2007

Letters

Limited use of torture

…Instead of prohibiting torture, we should regulate how and when it can be used. It should only be used on people we are sure have important information and should be restricted to methods that don’t inflict permanent damage…

tiny URL

Kansas City Star

Wednesday, February 13, 2008

p. B12

Voices

Why are some people and leaders concerned about waterboarding al-Qaida detainees? These people are avowed to kill Americans. Whether it is

one or a million Americans, whatever can be done to save innocent lives is justified.

[emphasis added]

Kansas City Star

Sunday, February 17, 2008

Letters

Waterboarding

If “waterboarding” interrogation techniques would have been used prior to, and prevented, the Sept. 11 attack, I think that most Americans would, however reluctantly, agree that the end justifies those means.

But given the level of outrage that has resulted from the technique’s use after the sneak attack, one can only imagine what the outcry would have been if that attack could have been prevented, would never have occurred, and we would not have that context against which to weigh justification for the technique.

Then again, how do we know that a subsequent attack has not been thwarted?

[emphasis added]

Oh, we do have a lengthy historical and legal context to weigh justification for the technique, just not in the direction the letter writer thinks.

As a people, where did
we get these banal justifications for torture?

Supreme Court Associate Justice Antonin Scalia

“Law in Action”, BBC Radio 4

February 12, 2008

…this idea of ticking bomb torture. It’s predicated on the basis that you got a plane with nuclear weapons flying toward the White House, you happen to have in your possession – hooray! – the person that has the key information to put everything right, and you stick a needle under his fingernail – you get the answer – and that should be allowed?

SCALIA: And you think it shouldn’t?

BBC: All I’m saying about it, is that it’s a bizarre scenario, because it’s very unlikely that you’re going to have the one person that can give you that information and so if you use that as an excuse to permit torture then perhaps that’s a dangerous thing.

SCALIA: Seems to me you have to say, as unlikely as that is, it would be absurd to say that you can’t stick something under the fingernails, smack them in the face. It would be absurd to say that you couldn’t do that. And once you acknowledge that, we’re into a different game. How close does the threat have to be and how severe can an infliction of pain be?

There are no easy answers involved, in either direction, but I certainly know you can’t come in smugly and with great self-satisfaction and say, “Oh, this is torture and therefore it’s no good.” You would not apply that in some real-life situations. It may not be a ticking bomb in Los Angeles, but it may be: “Where is this group that we know is plotting this painful action against the United States? Where are they? What are they currently planning?

[emphasis added] partial transcript

Attorney General Michael Mukasey

“NewsHour”, PBS

February 11, 2008

…MICHAEL MUKASEY: My position is that I haven’t been asked to make any ruling on the legality or illegality of waterboarding.

What I indicated to Congress in my hearing was that, because waterboarding is out of the CIA program now, in order for it to be re-introduced, that would have to be done at the request of the director of the CIA who, together with the director of national intelligence, would have to come to me with a program, a description of the circumstances, of the limits, of the safeguards.

And that would have to be evaluated not only against the laws that obtained back at the time that it was done, but against all the new statutes that have been passed.
And there have been new statutes passed by Congress since the last time this was done, which, according to the director of the CIA, was 2003.

We’ve since had the Military Commissions Act, the Detainee Treatment Act, and an executive order that was authorized by Congress that set out what would be violations of what’s called Common Article 3. All of those are overlaid over the prior law…

…And if the technique were to be re-introduced, the circumstances of it being re-introduced, as well as its legality under all of those statutes, would have to be re-evaluated from the ground up.

JIM LEHRER: But as we sit here now, you agree with Director Hayden that it is not — right now, it is not legal under current statute?

MICHAEL MUKASEY: Right now, it’s not legal, simply because it’s not part of the program. And in order for it to become part of the program, its legality would have to be passed on.

[emphasis added]

It’s not legal because torture is a crime against humanity.

Lieberman says some waterboarding OK

by Peter Urban  02/15/2008 01:39:42 AM EST

Connecticut Post

Connecticut Sen. Joe Lieberman reluctantly acknowledged Thursday that he does not believe waterboarding is torture…

…In the worst case scenario – when there is an imminent threat of a nuclear attack on American soil – Lieberman said that the president should be able to certify the use of waterboarding on a detainee suspected of knowing vital details of the plot.

“You want to be able to use emergency tech to try to get the information out of that person,” Lieberman said. Of course, Lieberman believes such authority has limits. He does not believe the president could authorize having hot coals pressed on someone’s flesh to obtain that information.

…The difference, he said, is that waterboarding is mostly psychological and there is no permanent physical damage. “It is not like putting burning coals on people’s bodies. The person is in no real danger. The impact is psychological,” Lieberman said…

[emphasis added]

“…the lesson that this long course in human wickedness had taught us-the lesson of the fearsome, word-and-thought-defying banality of evil…” Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil

How do we hold people accountable?

International Criminal Court

Rome Statute of the International Criminal Court

The ICC is a court of last resort.  It will not act if a case is investigated or prosecuted by a national judicial system unless the national proceedings are not genuine, for example if formal proceedings were undertaken solely to shield a person from criminal responsibility.  In addition, the ICC only tries those accused of the gravest crimes.

[emphasis added]

The United States is not a party to the ICC. Afghanistan is.

Judgement on the Interrogation Methods applied by the GSS. The Supreme Court of Israel, sitting as the High Court of Justice.

6th of September, 1999

The General Security Service (hereinafter, the “GSS”) investigates individuals suspected of committing crimes against Israel’s security. Is the GSS authorized to conduct these interrogations? The interrogations are conducted on the basis of directives regulating interrogation methods. These directives equally authorize investigators to apply physical means against those undergoing interrogation (for instance, shaking the suspect and the “Shabach” position). The basis for permitting such methods is that they are deemed immediately necessary for saving human lives. Is the sanctioning of these interrogation practices legal? – These are the principal issues presented by the applicants before us…

….This decision opens with a description of the difficult reality in which Israel finds herself security wise. We shall conclude this judgment by re-addressing that harsh reality. We are aware that this decision does not ease dealing with that reality. This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual’s liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties….

[emphasis added]

“Stare Decisis”

Billmon (anonymous blogger) [link no longer available]

June 15, 2004.

….You can certainly argue whether the Israeli Supremes went far enough. But what I find most striking are not the legal issues involved, but rather the enormous contrast in intellectual intent between what the Israeli high court and the Bush Justice Department have been trying to do. The Israeli justices, for all their hypocrisy, were attempting to extend the rule of law into areas that have traditionally been regarded as the exclusive doma
in of the national security state. The Bush legal team is boldly and arrogantly trying to do the opposite.

It’s the difference between a legal system that has been trapped in a moral cesspool for almost 60 years, and desperately wants to get out, and a small clique of legal extremists who are determined to throw themselves, and their country, into the same stinking mire, regardless of the risks.”

[emphasis added]

And the leader of our government?

“…To the critics, I ask them this: when we, within the law, interrogate and get information that protects ourselves and possibly others in other nations to prevent attacks, which attack would they have hoped that we wouldn’t have prevented…?”  George W. Bush, BBC broadcast, February 14, 2008, – “London bombs justify ‘torture’, says Bush”, The Guardian, Friday, February 15, 2008

Article 7. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. International Covenant on Civil and Political Rights – in force September 8, 1992

There is no exception under the statute permitting torture to be used for a “good reason.” Thus, a defendant’s motive (to protect national security, for example) is not relevant to the question whether he has acted with the requisite specific intent under the statute….Thus, for example, the fact that a victim might have avoided being tortured by cooperating with the perpetrator would not make permissible actions otherwise constituting torture under the statute. Presumably that has frequently been the case with torture, but that fact does not make the practice of torture any less abhorrent or unlawful. “Levin Memo”, December 30, 2004

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