opinion

Also in this section:

Bernal, Where is Panama headed?
G. W. Bush, Progress in Iraq
Mikulski, Remove the gag on the Iraq War debate
Wayne, Guantanamo and the semantics of terror
N. Jackson, Read and weep
Human Rights Watch, A Chilean judge's bad decision on Fujimori's extradition
Silié, Peace with poverty isn't peace
Pilgrim, Sao Paulo air crash raises deadly questions

Sánchez, Hispaniola as a major drug smuggling hub

Hill, Free trade and immigration

Gutman, Hugo Chávez is a disgrace

Shelton, A better plan for the canal's expansion

E. Jackson, Troubles at the alma mater

Sirias, The price of perfection

Read and weep

by Nicholas M. Jackson

According to former White House counter-terrorism advisor, Richard Clarke, one of President Bush’s first responses after the attacks on September 11, 2001 was to tell Secretary of Defense Donald Rumsfeld and Clarke, “I don't care what the international lawyers say, we are going to kick some ass.” Apparently, President Bush had already decided he wanted to fight the upcoming wars with new kinds of methods.

Now that the wars aren't going so well and Congress is intent upon investigating White House wrongdoing, there are some key documents President George W. Bush hopes you won’t read. Such as the US Constitution, particularly its inclusion of treaties in the Supremacy Clause at Article VI. Or a couple of Senate-ratified multilateral treaties found at 999 UNTS 171 and 1465 UNTS 113. Or the federal anti-torture statutes located at 18 USC, Sections 2340-2340B. It’s all boring to read, but devastating if you understand what is written.

Let us expand our attention spans a bit to look at what the international lawyers hoped to point out to President Bush when he contemplated going to war. Two of the first points international lawyers tried to raise would have been obscure treaty citations found at 999 UNTS 171 and 1465 UNTS 113. The first treaty, known as the “International Covenant on Civil and Political Rights” was signed by the United States on October 5, 1977 and ratified by the US Senate on June 8, 1992. Article 7 from this treaty says, “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.” Pretty clear isn’t it? Don’t torture.

Not so fast. In the treaty's reservations and declarations section the United States stated that the provisions found in Articles 1 through 27 of the Covenant were not “self-executing.” This declaration meant the International Covenant on Civil and Political Rights, including the anti-torture provision at Article 7, would not become a full part of US law until implementing legislation was passed by Congress and signed by the President. In case one cares to check, Article VI of the US Constitution provides that all fully implemented international treaties are part of the “supreme Law of the Land.”

The second treaty, found at 1465 UNTS 113, is called the “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” It was signed by the United States on April 11, 1988 and ratified by the US Senate on August 21, 1994. Unlike the first treaty’s single article addressing torture, this second treaty devotes itself comprehensively to preventing torture. Part of the definition for torture given in this treaty at Article 1, Subsection 1, is “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession.” Additionally Article 2, Subsection 2, in this treaty states, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

But once again, the United States issued a declaration stating that the provisions of Articles 1 through 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment were not self-executing.

On April 30, 1994 the anti-torture statutes found at 18 USC Sections 2340 to 2340B were enacted when the President signed the Foreign Relations Authorization Act, Pub L 103-236, into law. The legislative notes found with the anti-torture statutes provided, “The amendments made by this section shall take effect on the later of— (1) the date of enactment of this Act; or (2) the date on which the United States has become a party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.”

It is beyond dispute that the anti-torture statutes found at 18 USC Sections 2340 to 2340B are the implementing legislation for Article 7 of the “International Covenant on Civil and Political Rights” and the more comprehensive anti-torture provisions in the “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” The international treaties against torture the United States previously signed and ratified are now fully part of federal law.

The federal statute at 18 USC, Section 2340(1) provides that 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.” Section 2340A(a) provides, “Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.” And Section 2340A(c) states, “A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.”

What kind of conduct amounts to a conspiracy? According to the federal courts, a “conspiracy” is an agreement of two or more people to commit a crime, or an agreement to accomplish a legal end through illegal actions. Check out Gebardi v. US, 287 US 112, 53 S Ct 35, 77 L. Ed. 206 (1932) or Iannelli v. US, 420 US 770, 95 S Ct 1284, 43 L Ed 2d 616 (1975). Federal prosecutors regularly convict defendants on all manner of conspiracies, whether from conspiracy to import cocaine, conspiracy to violate securities laws, or conspiracy to engage in price fixing.

All this brings us to conspiracy to commit torture.

In his September 6, 2006 press conference President Bush told us that “the CIA used an alternative set of procedures” in its interrogation of terrorism suspects. The President claimed that the “procedures were designed to be safe, to comply with our laws, our Constitution, and our treaty obligations” and stated that the US Department of Justice had “reviewed the authorized methods extensively and determined them to be lawful.” Bush further stated that he could not reveal the procedures because it might help terrorists “learn how to resist questioning.” As an example of a successful CIA interrogation, President Bush discussed the case of Abu Zubaydah.

This reputed al-Qaeda operative was captured in Faisalabad, Pakistan on March 28, 2002. The 9/11 Commission Report refers to information gleaned from seven of Zubaydah's CIA interrogation sessions dating from his capture until April of 2004. This time period corresponds with then-White House Counsel Alberto Gonzales' notorious January 25, 2002 memorandum to the President on how to avoid treating al-Qaeda members as prisoners of war subject the the Geneva Conventions and how to avoid prosecution under the War Crimes Act. It corresponds with President Bush's February 7, 2002 agreement not to afford al-Qaeda members or the Taliban with Geneva Convention treatment and his Order to give such prisoners “humane treatment” except “to the extent appropriate and consistent with military necessity.” And it also corresponds with The Justice Department's infamous August 1, 2002 memorandum.

The August 1, 2002 memorandum, also known as the “Bybee Memo,” illegally and narrowly redefined torture to exclude acts which were not permitted under either US or international law. Here is an example of how then-Assistant Attorney General Jay Bybee regarded the pain interrogators might be allowed to inflict: "Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." And, according to the Bybee Memo, mental suffering did not amount to torture unless it resulted "in significant psychological harm of significant duration, e.g., lasting for months or even years."

Abu Zubaydah and numerous other detainees were tortured by the CIA, CIA contractors, and the US military. There was joint authorization between the CIA and the military that originated from the highest levels of the Executive Branch. By late 2004 there were numerous corroborating documents in public hands demonstrating high-level agreements to violate the War Crimes Act and the anti-torture provisions under US and international law. As the years passed, testimony from military courts-martial, other documents collected by investigative journalists and reports from human rights organizations have left little doubt that the United States engaged in torture and widespread detainee abuse. Many of the tortured and abused detainees have never been shown to be combatants or guilty of any crime. They have been released, sometimes after years of detention.

After the Abu Ghraib prisoner abuse scandal broke in the Spring of 2004, the initial cover story was that abuse of detainees was rare and the result a few “rotten apples.” However, it did not take long for dissident “insiders” and witnesses from the Bush administration or the military to leak credible and damaging information about systematic detainee abuse. The cover story itself began to smell rotten.

Congress tried to stop the torture. By late 2005, Arizona Senator John McCain had introduced the Detainee Treatment Act as a mechanism for bringing humane treatment to detainees. Vice President Dick Cheney lobbied so vigorously against McCain's bill that former CIA Director Stansfield Turner referred to Cheney as the “Vice President for Torture” during a November 17, 2005 television interview. Cheney's lobbying efforts failed and the Detainee Treatment Act of 2005 passed by a wide margin in Congress.

The key provision in the Detainee Treatment Act stated, "No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment." Anticipating another one of President Bush's infamous “signing statements”, the Act also stated, "The provisions of this section shall not be superseded, except by a provision of law enacted after the date of the enactment of this Act which specifically repeals, modifies, or supersedes the provisions of this section."

All for naught. President Bush went ahead and signed the bill containing the Detainee Treatment Act of 2005 at his Crawford, Texas ranch on December 30, 2005. And then Bush's press secretary quietly posted a superseding “signing statement” on the White House web site later that night. The statement indicated President Bush would not follow the provisions of the Detainee Treatment Act where he construed those provisions to be contrary to his constitutional authority "to supervise the unitary executive branch and as Commander in Chief."

Recently, it has become clear that President Bush operates in an increasingly encircled zone of immunity. He has tried to bolster the walls of immunity by measures such as widely expanding the definition of “executive privilege” to prevent loyal Bush “insiders” from testifying before Congress about any wrongdoing they saw or committed. He belatedly pushed out many dissident “insiders”, but not before the world had seen the leaked White House, Defense Department, and Justice Department memos that so easily and convincingly demonstrate a high-level conspiracy to commit torture.

President Bush's latest maneuver has been to issue a July 20, 2007 Executive Order rolling back some of the more controversial interrogation techniques that have been revealed in press reports. No doubt, conservative columnists friendly to President Bush will write praises about Bush's new stand against torture. Of course, other columnists probably will question the need for any such Executive Order when there already are two clear and explicit treaties with a matching set of federal statutes that ban torture. Maybe President Bush wants to say he is sorry and take back a lot of what he and his surrogates alleged he could do under his “unitary presidency.”

But whatever Bush supposedly takes back won't bring back Dilawar, the Afghan taxi driver beaten to death by US Army soldiers at the Bagram Collection Point Detention Center in Afghanistan on December 5, 2002. It won't bring back Iraq Major General Abed Hamed Mowhoush, suffocated by an Army interrogator at the Al-Qa'im Detention Facility on November 26, 2003. And it won't resurrect Manadel al-Jamadi who died on November 4, 2003 after being subjected to a “Palestinian hanging” in Abu Ghraib Prison by a CIA interrogator. They may not have been innocent lambs, but neither Dilawar nor Mowhoush nor Jamadi “confessed” anything before dying. The low-level people who got in trouble for these homicides were not really prosecuted for torture. Essentially, they were prosecuted for “negligent torture.” So much for the effectiveness of President Bush's “alternative set of interrogation procedures.” And so much for “taking it back.”

There may come a day when former White House Counsel Alberto Gonzales and former Deputy Assistant Attorney General John Yoo will read their indictments as war criminals. Some day may dawn when former Secretary of Defense Donald Rumsfeld and former Assistant Attorney General Jay Bybee read their arrest warrants for torture. Dick Cheney and George W. Bush may look to their legacies and read themselves historically branded as co-conspirators. They may read all these things --- and weep. But Americans should not weep with them. We have already cried for our dead and wounded. Americans need to move forward for a better future. And make sure torture is neither exported from, nor imported to, America.

Bernal, Where is Panama headed?
G. W. Bush, Progress in Iraq
Mikulski, Remove the gag on the Iraq War debate
Wayne, Guantanamo and the semantics of terror
N. Jackson, Read and weep
Human Rights Watch, A Chilean judge's bad decision on Fujimori's extradition
Silié, Peace with poverty isn't peace
Pilgrim, Sao Paulo air crash raises deadly questions

Sánchez, Hispaniola as a major drug smuggling hub

Hill, Free trade and immigration

Gutman, Hugo Chávez is a disgrace

Shelton, A better plan for the canal's expansion

E. Jackson, Troubles at the alma mater

Sirias, The price of perfection