Balkinization: Oh, and by the way, we tortured people

Oh, and by the way, we tortured people

Yesterday, CIA Director Michael Hayden confirmed that the CIA used waterboarding on three subjects.

Hayden told lawmakers the agency had not used waterboarding in almost five years, publicly confirming information that was first reported by ABC News last year. He asked the lawmakers not to create new laws that would limit CIA interrogators. "One should not expect them to play outside the box because we've entered a new period of threat or danger to the nation, OK? So there's no wink and nod here," he said. "If you create the box, we will play inside the box without exception."

Translation: we waterboarded, and we may want to do it again, and wouldn't like to break the law, so don't prohibit it.

The problem is that waterboarding is already in violation of the anti-torture statute and the war crimes statute. The only reason the Administration won't admit that is because of self-serving OLC opinions that twisted the law precisely to avoid concluding that the Administration engaged in torture and war crimes.

As Marty has pointed out, Attorney General Mukasey's argument last week that waterboarding is not torture is based on OLC opinions that willfully distort statutory language. They argue that for something to be torture, it is not enough that it is intended to inflict severe physical or mental suffering, as the torture statute provides; it must also inflict prolonged physical suffering, a requirement absent from the text. Thus, under the OLC's reasoning, not only is waterboarding not torture (because it causes suffering so severe no one can stand it for very long), electric shocks to the genitals are not torture.

This additional requirement is made up out of whole cloth, and it has been constructed precisely to conclude that waterboarding is not torture. This is not an interpretation on which reasonable minds can differ; it is an unreasonable interpretation that has been chosen precisely to absolve the executive of criminal responsibility and accountability under the torture statute (and the war crimes statute, even after it was limited by the Military Commissions Act of 2006). The executive has acted as a judge in its own case in a way that absolves it of having to obey the law. Perhaps the CIA doesn't want to play outside the box. But the Administration has simply built it a new box to play in.

It is worth recalling that at his recent hearings Attorney General Mukasey refused to explain the legal basis for why the CIA interrogation techniques (including waterboarding) are not illegal, arguing that the legal explanations themselves are classified, so that no one can know what the laws are.

Mukasey's performance reflects two major rule of law concerns about the Bush Administration's policies. As readers of this blog know, I've long argued that the rule of law is not simply a formal legal requirement that like cases be treated alike, but rather a set of political values that must be realized in institutions of law. They include the principle that laws should be designed to restrain the arbitrary exercise of power, that no one should be be a judge in their own case, that executive officials should be accountable for their acts, and that laws should be public and applied fairly and impartially. These political values, which legal institutions should seek to implement, are principles and not rules; they do not determine the scope of their own extension and application, and therefore how best to implement them can be controversial. Nevertheless, they are central to having a government under law. The contortions the Administration has gone through to first to hide the existence of waterboarding, and then to justify it, well demonstrate how it has violated these principles.

Posted 8:14 AM by JB [link]

Comments:

As I understand it (an understanding mostly based on reading Professor Lederman's posts), the OLC position is that while infliction of sufficient physical pain, however brief, constitutes torture, severe physical suffering requires a temporal element. So that a shock to the genitals would qualify as torture under the OLC opinion.

# posted by

mls : 9:35 AM

How can suffering not have "a temporal element"?

# posted by

Henry : 9:58 AM

Yesterday, CIA Director Michael Hayden confirmed that the CIA used waterboarding on three subjects:

Hayden told lawmakers the agency had not used waterboarding in almost five years, publicly confirming information that was first reported by ABC News last year. He asked the lawmakers not to create new laws that would limit CIA interrogators. "One should not expect them to play outside the box because we've entered a new period of threat or danger to the nation, OK? So there's no wink and nod here," he said. "If you create the box, we will play inside the box without exception."

Translation: we waterboarded, and we may want to do it again, and wouldn't like to break the law, so don't prohibit it.

The problem is that waterboarding is already in violation of the anti-torture statute and the war crimes statute. The only reason the Administration won't admit that is because of self-serving OLC opinions that twisted the law precisely to avoid concluding that the Administration engaged in torture and war crimes.

Actually, neither Congress nor the Executive acts like they believe the torture statute violates waterboarding or that they really want to ban waterboarding.

Congress has known about waterbording for years and expressly or implicity approved it. When given the opportunity to amend the law to expressly ban waterboarding, Congress voted the bill down.

Hayden is apparently attempting to head off another such effort.

# posted by

Bart DePalma : 10:02 AM

So, the Thirteenth Amendment forbids slavery, but it doesn't *expressly* forbid enslaving *black* people.

Obviously, the failure of the Congress to approve an amendment specifically forbidding the enslavement of black Americans, means that enslaving blacks is legal.

(/bart)

# posted by

Anderson : 10:11 AM

the Thirteenth Amendment forbids slavery, but it doesn't *expressly* forbid ...
.
I'd use "indentured servitude" here, and argue that indentured servitude isn't slavery.

# posted by

cboldt : 10:15 AM

No Bart, they're just criminals who are LYING to shield themselves from prosecution.

The latest PEGC Update has been posted on the PEGC website HERE with relevant reporting and analysis.

And it isn't just the waterboarding either, it's the coercive methods, detentions, kangaroo courts, kidnappings, murders, the obstruction of justice, and the conspiracy.

All that, and a criminal war of aggression in Iraq.

# posted by

Charles Gittings : 12:19 PM

ASHCROFT APPROVED WATERBOARDING

The Associated Press reports today that White House spokesperson Tony Fratto “said waterboarding’s use in the past was also approved by the attorney general.” Attorney General John Ashcroft must have approved the technique, since the waterboarding took place in 2002 and 2003, making him potentially liable for torture and war crimes.

Fratto made this admission about Ashcroft as part of the White House’s recent push to publicly defend waterboarding as both legal and justified. However, in doing so, Fratto has confirmed that the administration’s defense of the CIA’s use of torture is based upon the fact that the waterboarding was approved at the highest levels (maybe the president signed off on it too?). As Senator Sheldon Whitehouse (RI) noted when questioning Attorney General Michael Mukasey last week, this amounts to nothing more than the Nuremberg defense (i.e. claiming that what one did was not illegal simply because one was ordered to do it). The Nuremberg defense was rejected at the time of the Nazi trials. In U.S. and international law, no one is required to follow an unlawful order. On the contrary, an unlawful order must be resisted.

Human Rights Watch’s terrorism and counterterrorism director, Joanne Mariner, described Hayden’s testimony in Congress yesterday as “an explicit admission of criminal activity” and called for an investigation. Senator Richard Durbin (IL) has also called for an investigation. Congress must push for a special prosecutor if it wants the investigation conducted seriously, since Mukasey has demonstrated his lack of will and ability to take on the issue of torture responsibly. That argument is developed more here: http://blogs.law.harvard.edu/stoptorture/2008/02/05/cia-confirms-torture-of-three-detainees-special-prosecutor-needed/

# posted by

Harvard Anti-Torture Coalition (www.stop-torture.org) : 12:56 PM

Never mind the waterboarding. By at least some accounts, the "enhanced interrogation techniques" include this:

Here is my story. On December 31, 2003, I boarded a bus in Ulm, Germany for a holiday in Skopje, Macedonia. When the bus crossed the border into Macedonia, Macedonian officials confiscated my passport and detained me for several hours. Eventually, I was transferred to a hotel where I was held for 23 days. I was guarded at all times, the curtains were always drawn, I was never permitted to leave the room, I was threatened with guns, and I was not allowed to contact anyone. At the hotel, I was repeatedly questioned about my activities in Ulm, my associates, my mosque, meetings with people that had never occurred, or associations with people I had never met. I answered all of their questions truthfully, emphatically denying their accusations. After 13 days I went on a hunger strike to protest my confinement.

On January 23, 2004, seven or eight men entered the hotel room and forced me to record a video saying I had been treated well and would soon be flown back to Germany. I was handcuffed, blindfolded, and placed in a car. The car eventually stopped and I heard airplanes. I was taken from the car, and led to a building where I was severely beaten by people's fists and what felt like a thick stick. Someone sliced the clothes off my body, and when I would not remove my underwear, I was beaten again until someone forcibly removed them from me. I was thrown on the floor, my hands were pulled behind me, and someone's boot was placed on my back. Then I felt something firm being forced inside my anus.

I was dragged across the floor and my blindfold was removed. I saw seven or eight men dressed in black and wearing black ski masks. One of the men placed me in a diaper and a track suit. I was put in a belt with chains that attached to my wrists and ankles, earmuffs were placed over my ears, eye pads over my eyes, and then I was blindfolded and hooded. After being marched to a plane, I was thrown to the floor face down and my legs and arms were spread-eagled and secured to the sides of the plane. I felt two injections, and I was rendered nearly unconscious. At some point, I felt the plane land and take off again. When it landed again, I was unchained and taken off the plane. It felt very warm outside, and so I knew I had not been returned to Germany. I learned later that I was in Afghanistan.

Once off the plane, I was shoved into the back of a vehicle. After a short drive, I was dragged out of the car, pushed roughly into a building, thrown to the floor, and kicked and beaten on the head, the soles of my feet, and the small of my back. I was left in a small, dirty, cold concrete cell. There was no bed and one dirty, military-style blanket and some old, torn clothes bundled into a thin pillow. I was extremely thirsty, but there was only a bottle of putrid water in cell. I was refused fresh water.

That first night I was interrogated by six or eight men dressed in the same black clothing and ski masks, as well as a masked American doctor and a translator. They stripped me of my clothes, photographed me, and took blood and urine samples. I was returned to my cell, where I would remain in solitary confinement, with no reading or writing materials, and without once being permitted outside to breathe fresh air, for more than four months. Ultimately, I was interrogated three or four times, always by the same man, with others who were dressed in black clothing and ski masks, and always at night. The man who interrogated me threatened me, insulted me, and shoved me. He interrogated me about whether I had taken a trip to Jalalabad using a false passport; whether I had attended Palestinian training camps; and whether I knew September 11 conspirators or other alleged extremists. As in Macedonia, I truthfully denied their accusations. Two men who participated in my interrogations identified themselves as Americans. My requests to meet with a representative of the German government, a lawyer, or to be brought before a court, were repeatedly ignored.

In March, I, along with several other inmates, commenced a hunger strike to protest our confinement without charges. After 27 days without food, I was allowed to meet with two unmasked Americans, one of whom was the prison director and the second an even higher official whom other inmates referred to as “the Boss.” I pleaded with them to either release me or bring me to court, but the American prison director replied that he could not release me without permission from Washington. He also said that I should not be detained in the prison. On day 37 of my hunger strike I was dragged into an interrogation room, tied to a chair, and a feeding tube was forced through my nose to my stomach. After the force-feeding, I became extremely ill and suffered the worst pain of my life. [see here and here for more on force-feedings]

Near the beginning of May, I was brought into the interrogation room to meet an American who identified himself as a psychologist. He told me he had traveled from Washington D.C. to check on me, and promised I would soon be released. Soon thereafter, I was interrogated again by a native German speaker named “Sam,” the American prison director, and an American translator. I was warned that as a condition of my release, I was never to mention what had happened to me, because the Americans were determined to keep the affair a secret.

On May 28, I was led out of my cell, blindfolded and handcuffed. I was put on a plane and chained to the seat. I was accompanied by Sam and also heard the voices of two or three Americans. Sam informed me that the plane would land in a European country other than Germany, because the Americans did not want to leave clear traces of their involvement in my ordeal, but that I would eventually continue on to Germany. I believed I would be executed rather than returned home.

When the plane landed, I was placed in a car, still blindfolded, and driven up and down mountains for hours. Eventually, I was removed from the car and my blindfold removed. My captors gave me my passport and belongings, sliced off my handcuffs, and told me to walk down a dark, deserted road and not to look back. I believed I would be shot in the back and left to die, but when I turned the bend, there were armed men who asked me why I was in Albania and took my passport. The Albanians took me to the airport, and only when the plane took off did I believe I was actually returning to Germany. When I returned I had long hair and beard, and had lost 40 pounds. My wife and children had left our house in Ulm, believing I had left them and was not coming back. Now we are together again in Germany.

But, inexplicably, U.S. courts have said that el-Masri can't even testify as to what he claims in court; all court proceedings must be banned because the gummint doesn't want to confirm or deny that they did these things (which are clearly torture and CIDT if they occurred as alleged. If they didn't do this, then they should stand up in court and say so, and let a jury decide who's more believable. If they did, then the DoJ ought to be prosecuting someone for these crimes.

While it's convenient to focus on waterboarding, since that's been so well established as torture over the millennia (and even prosecuted by the U.S. for such), it's really not hard to say that the type of treatment that el-Masri allegedly recieved is torture as well. If so, Hayden's "we only waterboarded three, and they're the big three 'baddies'" is just persiflage intended to deflect from what the actual sitation is.

Cheers,

# posted by

Arne Langsetmo : 1:07 PM

If so, Hayden's "we only waterboarded three, and they're the big three 'baddies'" is just persiflage intended to deflect from what the actual sitation is.

The Wall Street Journal today editorializes that Hayden's admission that three people were waterboarded "shreds whatever is left to the so-called torture narrative, according to which the Bush Administration has engaged in widespread, needless and systematic torture of detainees."

# posted by

Henry : 1:18 PM

Now that they've admitted it, can we at least stop pretending waterboarding has to remain classified because it would tip off Al Qaeda to talk about it?

# posted by

Dilan : 1:39 PM

dilan:

Now that they've admitted it, can we at least stop pretending waterboarding has to remain classified because it would tip off Al Qaeda to talk about it?

No. The "state secrets" defence is still needed to protect, against all enemies military and judicial, the United States .... gummint. See, e.g., the Reynolds case.

Cheers,

# posted by

Arne Langsetmo : 2:16 PM

Henry:

The Wall Street Journal today editorializes that Hayden's admission that three people were waterboarded "shreds whatever is left to the so-called torture narrative, according to which the Bush Administration has engaged in widespread, needless and systematic torture of detainees."

Instead of shredding, how about this being the trial balloon to see if "just a little" will get through the sniff test?

# posted by

Fraud Guy : 3:43 PM

FWIW, I take on the essential rationalisation for waterboarding here on my blog (again). Hayden and McConnell get to the gist of the argument, I think, and I outline the high points thoroughly.

Cheers,

# posted by

Arne Langsetmo : 3:49 PM

CORRECTION: The transcript of the White House press briefing is out now. Assuming that transcript to be correct, White House spokesperson Tony Fratto stated that Department of Justice (DOJ) lawyers approved waterboarding, but not necessarily, as the Associated Press had reported, that “waterboarding’s use in the past was also approved by the attorney general.” Regardless of whether John Ashcroft himself approved the torture (and he may well have since important opinions of the Office of Legal Council should get reviewed by the Attorney General), DOJ lawyers apparently did, making them potentially liable for torture and war crimes.

# posted by

Harvard Anti-Torture Coalition (www.stop-torture.org) : 4:10 PM

"These are the times that try men's souls."

~ Thomas Paine, OAM (original anti-monarchist)

remarkable (and tragically, monumentally sad) how the putative champions of moral absolutism and Constitutional fundamentalism have fallen, so precipitously, so deeply, into this morass of moral and legal relativism:
"9/11 changed everything."

the abominable savagery of that day has become the "normative" backdrop -- exploding more than those airplanes, those buildings, those thousands of lives.

if THEY can do THAT; if they want to go all 7th-century on us, well:

"We also have to work, though, sort of the dark side, if you will."

the pinnacle advances of 20th-century jurisprudence, hard-won by the "greatest generation" and their immediate heirs -- "univeral" laws regarding the preservation and advance of peace and human rights: vapor.

some of those ancillary addenda to that fading, hand-scrawled parchment of 1787; even some of its core (Article 2), founding edicts: obviated.

700-plus years of nearly unbroken fidelity to the Magna Carta: suspended.

and neatly folded in to our crimes against peace; our complicity in defiling and debasing our own identity; our pyrrhic tilt away from "the rule of law" and toward "the law of the jungle:" an oil grab. "exploit the crisis!" [crisis=opportunity]

we'll make a show of cloaking our exercise of military power in universal pieties (i.e.: a tapestry of lies); yet knowing, with adamantine clarity (as we often have), that our armies are instruments of "market penetration;" knowing what Marine General Smedley Butler knew: "War is a Racket." (seems corporations, like other tribes, have "long memories," and can harbor simmering resentments for many years: former principals of the Iraq Petroleum Company -- booted by Iraq's Ba'athists in '72 - marshal their will; soldiers, in the subsequent invasion, name forward bases after them; and their bag men, er, "lawyers" march in.)

* * * *

Six Questions for Alex Gibney, Producer of the Oscar-Nominated ‘Taxi to the Dark Side,' by Scott Horton

# posted by

manonfyre : 6:43 PM