These DOJ lawyers are obviously tasked with chore: Go out and find us a justification to cover the torture we perpetrated. If a certain "Bart" suddenly stops haunting these comment threads, it's because they are finally running out of true-believers willing to behave unethically for them.
 

Convention Against Torture

Article 2
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.


3. An order from a superior officer or a public authority may not be invoked as a justification of torture.


..and there ya have it ... bolding is mine ...
 

Of course. Restricting torture to "exceptional circumstances" is like telling yourself you won't have a drink unless you really, really need one, or that you won't have sex until you meet that very special person.
 

i'd add that i for one am growing very weary of this administration's lawyers... who ..rather than exercising their sworn obligation to "protect.. defend and preserve" the constitution of the united states and further to "see that the laws are faithfully executed" keep getting sidetracked into devising cheesy little schemes and exceptions to abrogate and/or skirt the law rather than to honor and uphold it...

imo.. it's time for the appropriate authorities .. the legal bars .. to start sending "cease and desist" or "face the consequences of your sleaziness warnings" out to this collective of scofflaws and enablers.

and that's not to condemn all lawyers by any means .. just this bunch of brazen hacks who can't seem to understand their true client is the people and the constitution of the united states .. not the president..

just my layman's two cents worth ..
 

about the 8th Amendment and 5th Amendment on detainees not yet sentenced:

115. Although the Eighth Amendment does not apply to "pre-trial detainees", i.e., persons lawfully arrested but not yet convicted and sentences, the courts have ruled that such individuals enjoy equivalent protection under the Fourteenth Amendment with regards to conditions of detention. "[S]tates may not impose on pre-trial detainees conditions that would violate a convicted person's Eighth Amendment rights." Hamm v. DeKalb County, 774 F.2d 1567, 1573-74 (llth Cir. 1985) cert.denied 475 U.S. 1096 (1986). See also Graham v. Connor, 490 U.S. 386 (1989) (the Due Process Clause of the Fourteenth Amendment protects a pre-trial detainee from the use of force that amounts to punishment); Bell v. Wolfish, 441 U.S. 520 (1979); Ingraham v. Wright, 430 U.S. 651 (1977). In Lancaster v. Monroe County, Ala., 116 F.3d 1419 (llth Cir. 1997), a federal court of appeal stated that the minimum standard of medical care owed to a pre-trial detainee under the Fourteenth Amendment is the same as that required under the Eighth Amendment for a convicted prisoner."

116. The Fifth Amendment safeguards the right of an individual not to be compelled to testify against himself or herself. The Fourteenth Amendment's Due Process Clause protects against tortious acts employed with the intent of compelling confessions through fear of hurt, ill-treatment, or exhaustion. Adamson v. California,332 U.S. 46 (1947)."

The above long quote from the US Report to UNCAT October 15, 1999. CAT/C/28/Add.5

The 1999 State Department and the 2008 OLC seem to be on slightly different pages with the State Dept a little less misleading and more generous with the legal citations that point to more humane treatment.

The Yugoslavian case is misquoted and definitely represents some diligent research into the tiny number of cases that might support the OLC's position. It is rather like the global warming "controversy" If one looks hard enough one can find countervailing peer-reviewed journal articles. But one has to look fairly hard.
 

Jkat,

Appreciate your quote from the CAT,

Here is what we reported to the UNCAT back in 1999:

from the CONSIDERATION OF REPORTS SUBMITTED BY STATE PARTIES UNDER ARTICLE 19 OF THE CONVENTION, Initial reports of States parties due in 1995, Addendum UNITED STATES OF AMERICA [15 October 1999]

UNCAT CAT/C/28/Add.5

pages 4 and 5:

"Torture is prohibited by law throughout the United States. It is categorically denounced as a matter of policy and as a tool of state authority. Every act constituting torture under the Convention constitutes a criminal offense under the law of the United States. No official of the Government, federal, state, or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification for torture. United States law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a "state of public emergency") or on orders from a superior officer of public authority, and the protective mechanisms of an independent judiciary are not subject to suspension."

page 13:

"In 1994 Congress enacted a new federal law to implement the requirements of the Convention Against Torture relating to acts of torture committed outside United States territory. This law....extends United States criminal jurisdiction over any act of (or attempt to commit)torture outside the United States by a United States national..."
 

Good points. And timely. Thank you.

This is not a legal point, but I find it closely related: Bush is the same guy who condemned, in no uncertain terms, moral
relativism:


Washington Post column

The hypocrisy of Bush's Department of "Justice" arguments now therefore reeks beyond what I would have thought even possible.
 

thanks for that michael ..
 

What is desperate or deceptive about this paragraph from the Benczkowski letter?

At the same time, some prohibitions under Common Article 3, such as the prohibition on "outrages upon personal dignity," do invite the consideration of the circumstances surrounding the action. As we noted in our previous letter, a general policy to shave detainees for hygienic and security purposes would not be an "outrage upon personal dignity," but the targeted decision to shave the beard of a devout Sikh for the purpose of humiliation and abuse would present a much more serious issue. In such an example, the identity of the detainee and the purpose underIying the act clearly would be relevant. Similarly, the fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation and abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act. That said, even if an act were motivated by such a compelling government interest, it still would be necessary to consider the nature of the act itself, such as "the duration of the treatment, its physical or mental effects," and the like. Aleksovski' 53. Under this analysis, some acts would clearly be deemed outrageous regardless of the identity of a detainee or any information he may possess. Executive Order 13440 provides specific examples of such acts, such as forcing an individual to perform sexual acts, threatening an individual with sexual mutilation, or using an individual as a human shield. See Exec. Order 13440 § 3(b)(i)(E).

While I agree that citation to obscure foreign ICTY opinions to interpret US law can be considered a questionable and even desperate practice, I do not see how Benczkowski is misleading in his citation to the Aleksovski opinion.

Benczkowski is not citing Aleksovski for DOJ's own proposition "that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation and abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act."

Quite to the contrary, Benczkowski cites Aleksovski for the proposition that "it still would be necessary to consider the nature of the act itself, such as "the duration of the treatment, its physical or mental effects" to conclude that "some acts would clearly be deemed outrageous regardless of the identity of a detainee or any information he may possess."
 

jkat:

The provisions of the CAT do not apply to interpretation of GC Common Article 3.
 

Bart,

I am quoting from the Sept. 27, 2007 letter, which contains Benzczkowski's most detailed analysis. His March 2008 letter is merely a brief recap of the previous letter.

You can read the letter 2007 letter, which is linked in the post.

Note that, IMMEDIATELY following the language setting out each of the two tests I address, Banczkowski cites the court's opinion. "See...

He is clearly indicating that the tests come from the opinion. There is no other way to read this.

That is deceptive because the court set out no such tests (as I show with the full quotes).

It's a flat out misrepresentation of the court's opinion.

Brian
 

Professor Tamanaha:

Thanks for clarifying to which letter you were referring. The earlier letter is a bit confusing. However, the later letter from which I quoted clarifies Benczkowski's intent and addresses your complaint about the use of the citation.
 

Bart,

It is charitable for you to call the first letter "confusing." In fact, however, it is quite clear--and clearly deceptive.

As to whether the second letter modifies the first in a way that removes the deceptive references to the case, I'm not buying it.

He continues to rely upon the earlier letter (Thrice saying: "As we explained in our earlier letter..."), and he continues to rely upon the same "all the circumstances" analysis, which is plainly a false representation about what the court held.

But I understand why you are making your argument-.

Brian
 

okay .. i need some guidance here..

since we (USA) are signatories to the UNCAT ..and since we have codified it's requirements into US statute law .. and since Art.2.2 strictly prohibits exigent redefinitions .. what difference does it make if we use the GC common art. 3 ..

my question is ..i suppose.. if we have statute law which prohibits torture of any detainee in our custody by any US national or agent thereof.. what difference does it make if the administration finds what it chooses to define as an exception concerning the requirements under GC art.3 ..

if in fact the enhanced interrogation supposedly allowed by the exception applied from GC3 is still prohibited under UNCAT .. ??

any help out there ??
 

since we (USA) are signatories to the UNCAT ..and since we have codified it's requirements into US statute law .. and since Art.2.2 strictly prohibits exigent redefinitions .. what difference does it make if we use the GC common art. 3 ..

Bart is trying to explain to you that, provided the torturer explains first to his victim that his torture is pursuant to CA3 and not the CAT, then it's legal.

Really, I don't see what's so hard about this.
 

Stealing isn't really stealing if you are really hungry, either. And rape isn't really rape if you really need to get laid, I suppose.
 

I appreciate the efforts of the many fine lawyers posting here who daily demonstrate the flawed and frankly dishonest reasoning of the administration and it's apologists.
One test I'd recommend anyone (Bart included) use to determine whether an 'enhanced interrogation technique' is criminal or not is to ask themselves if it's a method they'd want one of their children to endure should they be SUSPECTED of a transgression, detained, and questioned in a similarly 'aggressive' manner. States that employ such methods seem to have a tendency to use them against their citizens.
 

i too appreciate the many fine contributors here .. i learn a great deal reading this blog .. and thank y'all for the clarification .. i thought i smelled the pungent odor of bull dung .. but conformation is always nice to have ...
 

that'd be 'confirmation' ..dratted typos ...
 

Dear Professor Tamanaha:

While I agree that the DOJ person, Benczkowski relies on a disgracefully dishonest interpretation of the Alexsovski case, I hardly think that it is seemly to describe any decision of the UN International Criminal Tribunals as “obscure”.

They are authoritative judgments finding real people guilty or not guilty on actual as opposed to theoretical facts.

The tribunal Appeal Chambers in particular are pretty high-powered. In the case of Zlatko Aleksovski, his case was considered on appeal by an Appeal Chamber consisting of 5 judges: 4 of whom were common lawyers: the late Sir Richard May (UK) as Presiding Judge, Judge David Hunt (Australia) who as Mr Justice Hunt was from 1991 to 1998 Chief Judge of the NSW Supreme Court sitting almost full time in the Court of Criminal Appeal (a court which hears 50% of the criminal appeals in Australia), Judge Patrick Robinson (Jamaica) and Judge Florence Ndepele Mwachande Mumba (Zambia). The 5th member of the panel was the late Professor Wang Tieya, an eminent Chinese Jurist of the post Mao overture – one of the first Chinese to come for post graduate study at the London School of Economics and who had a distinguished subsequent career in both China and the West. Hardly ‘obscure’ jurists.

Judgments of these tribunals are treated by the UK Courts as having great authority.

It is useful to record just who Alexsovski was and what he was alleged to have done – all set out in the indictment. He was the warden of a prison. There were two categories of offence charged but he was only convicted of the lesser offence:

“Count 10: a VIOLATION OF THE LAWS OR CUSTOMS OF WAR (outrages upon the personal dignity) as recognised by Articles 3, 7(1) and 7(3) of the Statute of the Tribunal.”

This case is therefore very useful in that it looks at the conduct of a person in charge of a detention facility (and therefore has obvious implications for persons in authority at UK/US-run facilities).

It is worth going back to the text of Common Article 3: Two distinct categories of conduct are prohibited:
by 1(a) “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture”;
By 1(c) “outrages upon personal dignity, in particular humiliating and degrading treatment”;

The 1(c) charges considered had great similarities with the “enhanced interrogation techniques” which the DOJ is seeking to defend.

Focusing on the “outrages upon personal dignity charge” it is worth noting the following facts found by the trial Court:-

“190. The searching of some detainees accompanied by threats, the noise and screams relayed over the loudspeaker and the nocturnal visits of the soldiers to the cells clearly constituted serious psychological abuse of the detainees.

203. Many witnesses said that they had heard the screams of people being beaten but most acknowledged that they had not observed anything. As stated above, Witness Garanovic thought that the screams came from a loudspeaker. This was meant to have a psychological effect on the prisoners.

204. The Trial Chamber considers that the limited uncorroborated testimony in respect of the first detention period did not demonstrate that significant physical and psychological abuse occurred during that time. The Trial Chamber holds that only a few cases of mistreatment by out of control HVO soldiers were proved. Testimony of acts of violence during the second detention period, however, was heard much more frequently and the witnesses corroborated one another. In the opinion of the Trial Chamber, the assertion that Muslims detained during the second period were subjected to serious psychological and physical mistreatment has been proved.“

The accused was convicted and sentenced to 2½ years, but both prosecution and defence appealed.

The Appeal Chamber’s Judgment contains some useful statements as to the law:-

Mens Rea The Appeal Chamber held that it is not a requirement in “outrage” cases to prove discriminatory intent. Nor did the Appeal Chamber approve the finding of the trial court that it was necessary to show an intent to “humiliate or ridicule the victim”. Cited with approval was the Celebici Judgement in which the offence of inhuman treatment, punishable under Article 2(b) of the Statute as a grave breach of the Geneva Conventions, was described as constituting:

…an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.

Citing with approval the Furundžija Judgment, where Trial Chamber II held:

“The general principle of respect for human dignity is the basic underpinning and indeed the very raison d’etre of international humanitarian law and human rights law; indeed in modern times it has become of such importance as to permeate the whole body of international law. This principle is intended to shield human beings from outrages upon their personal dignity, whether such outrages are carried out by unlawfully attacking the body or humiliating and debasing the honour, the self-respect or the mental well-being of a person.”

the Appeal Chamber noted:

“That judgement makes no reference to a need to prove any discriminatory intent in establishing the offence of outrages upon personal dignity. It speaks of human dignity as being the important value protected by the offence, but does not find that this imposes a requirement of a specific state of mind, discriminatory or otherwise.”

Referring to the facts found by the Trial Chamber, the Appeal Chamber commented: “Under any circumstances, the outrages upon personal dignity that the victims in this instance suffered would be serious. The victims were not merely inconvenienced or made uncomfortable – what they had to endure, under the prevailing circumstances , were physical and psychological abuse and outrages that any human being would have experienced as such.”

Referring to an argument beloved of Bart de Palma about objective standards, the Appeal Chamber commented:

“Neither the Statute nor the Rules oblige a Trial Chamber to require medical reports or other scientific evidence as proof of a material fact. Similarly, the testimony of a single witness on a material fact does not require, as a matter of law, any corroboration. The only Rule directly relevant to the issue at hand is Rule 89. In particular, sub-Rule 89(C) states that a Chamber "may admit any relevant evidence which it deems to have probative value", and sub-Rule 89(D) states that a Chamber "may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial".
63. Trial Chambers are best placed to hear, assess and weigh the evidence, including witness testimonies, presented at trial. Whether a Trial Chamber will rely on single witness testimony as proof of a material fact, will depend on various factors that have to be assessed in the circumstances of each case. In a similar vein, it is for a Trial Chamber to consider whether a witness is reliable and whether evidence presented is credible. The Appeals Chamber, therefore, has to give a margin of deference to the Trial Chamber’s evaluation of the evidence presented at trial. The Appeals Chamber may overturn the Trial Chamber’s finding of fact only where the evidence relied on could not have been accepted by any reasonable tribunal or where the evaluation of the evidence is wholly erroneous.
64. The Appeals Chamber is of the view that the Appellant has failed to show that the Trial Chamber erred in its evaluation of the evidence. In the present case, the Trial Chamber’s reliance on witness testimonies without medical reports or other scientific evidence as proof of the suffering experienced by witnesses, has not been shown to be either wrong as a matter of law, or unreasonable. Similarly, despite not having been presented with any specific reasons why the Trial Chamber should have rejected the testimony of more witnesses, the Appeals Chamber is satisfied that the Trial Chamber did not err in the exercise of its discretion when it evaluated the testimony of the various witnesses. The Trial Chamber accepted such testimony as sufficient and credible, as it was entitled to do. The Trial Chamber, therefore , applied the standard of proof beyond reasonable doubt, in relation to this ground of appeal, correctly.”

On a prosecution appeal against sentence the Appeals Chamber increased the sentence to 7 years.

What is now clear beyond peradventure, is that when the Bush Administration and the Blair Government decided to espouse the legally mistaken concept of the so-called “war on terror” and, so to speak, “take the gloves off”, they opened up a whole can of worms which are only now being played out in investigations, courts and tribunals around the world.

As an example of this from my own jurisdiction, UK forces were held to have breached the European Convention on Human Rights by the use of the very “enhanced interrogation” techniques now at issue. See: Ireland –v- The United Kingdom, Case No 5310/71. In that case, the ECHR found:-
“These methods, sometimes termed "disorientation" or "sensory deprivation" techniques, were not used in any cases other than the fourteen so indicated above. It emerges from the Commission’s establishment of the facts that the techniques consisted of:
(a) wall-standing: forcing the detainees to remain for periods of some hours in a "stress position", described by those who underwent it as being "spread eagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers";
(b) hooding: putting a black or navy coloured bag over the detainees’ heads and, at least initially, keeping it there all the time except during interrogation;
(c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise;
(d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;
(e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations.”

Do these techniques sound familiar ? The finding of the Court was:-
“Although the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment, although their object was the extraction of confessions, the naming of others and/or information and although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood.
The Court concludes that recourse to the five techniques amounted to a practice of inhuman and degrading treatment, which practice was in breach of Article 3 (art. 3).”

It now appears that British Forces in Iraq made use of these very techniques which had been banned since 1972. See the “Aitken Report: “An investigation into Cases of Deliberate Abuse and Unlawful Killing in Iraq in 2003 and 2004” UK Ministry of Defence 25 January 2008:-
http://www.mod.uk/NR/rdonlyres/7AC894D3-1430-4AD1-911F-8210C3342CC5/0/aitken_rep.pdf

It appears that someone in the UK Government apparently thought that the European Convention on Human Rights had no extra-territorial application. The lawyers representing the victims claim that:-
(i) Interrogators were trained in these techniques at the Joint Forces Interrogation Centre at Chicksands; and
(ii) In 2003 the UK Attorney-General advised that the ECHR restrictions did not apply in Iraq and over-ruled the advice of the Head of Army Legal Services.

Therefore it may have come as something as a shock to the UK government when the Court of Appeal held in Regina (Al-Skeini and Others) v. Secretary of State for Defence (6 Jan 2006):-
(i) that the Human Rights Act 1998 had extraterritorial effect where a public authority was found to have exercised extraterritorial jurisdiction on the application of state agent authority principles.
(ii) that the obligation on the United Kingdom to comply with well established international human rights standards would require, among other things, far greater investment in the resources available to the Royal Military Police than was available to them in Iraq and a complete severance of their investigations from the military chain of command.

The Al-Skeini case may go to the House of Lords because human rights abuses give rise to claims in damages against the state and the UK is a risk of some massive claims.

The issue of UK human rights abuse in Iraq is currently being investigated by the Joint Human Rights Committee of the UK Parliament.
 

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