Thursday, September 21, 2006

The Torture Chorus

Marty Lederman

The Bush Administration is having a bit of a rough time just now rounding up sufficient votes for its legislation to permit the CIA's use of cruel treatment in breach of the Geneva Conventions.

No wonder, what with the fierce opposition of Senators McCain, Warner and Graham, along with five former Chairmen of the Joint Chiefs of staff -- Gen. Colin Powell, Gen. John Vessey, Gen. John Shalikashvili, Admiral William Crowe and Gen. Hugh Shelton -- and dozens more retired military leaders and former top officials from the State Department and CIA, and with the pointed warning of the current head Army uniformed lawyer, Maj. Gen. Scott C. Black, that “further redefinition of Common Article 3 is unnecessary and could be seen as a weakening of our treaty obligations.”

So the Administration is understandably anxious to marshall support on behalf of its position, too.

But its public support hasn't been quite what they (presumably) had hoped for.

For example, as Brian notes below, the Traditional Values Coalition is pushing the not-so-veiled argument that torture is the Christian way, euphemistically explaining that our rules for interrogation must "catch-up" with the new forms of war (that "the lines must be redrawn"), and encouraging "all of our supporters and affiliated churches to contact their elected representatives and let them know we support President Bush's efforts to update our methods of interrogating terrorist detainees."

The Wall Street Journal is already looking back wistfully to the days when torture was the norm, candidly expressing its "fear" that techniques such as stress positions, sleep deprivation, and temperature extremes "are a thing of the past."

Then there's Republican Rep. Lynn Westmoreland of Georgia, who told a Chamber of Commerce luncheon that he "voted for torture," only to later concede that perhaps he ought to have spoken more with greater circumspection: "Maybe I shouldn't have said I voted for torture. I should have said I voted against the anti-torture bill."

Thomas Sowell, meanwhile, lashes out at the likes of McCain and Powell, characterizing those opposed to the authorization of cruel treatment as being squeamish, confused, suicidal, and weak, and lacking "the clarity and the courage to go all-out in self-defense against those who are going all-out to destroy us."

John Yoo has weighed in with a more general defense of the President's and Vice President's ultra-Executivist designs. But he didn't help his, or their, cause any by making jump-the-shark claims such as:

-- that "the founders intended that wrongheaded or obsolete legislation" would be "checked by presidential action" (a presidential "dispensing" power that has been long, and uncontroversially, been rejected out-of-hand);

-- that when FISA and other statutes were enacted in the 1970's, there were "no serious national security threats to United States soil"; and

-- that the Court's decision in Hamdan -- in which the Court held that the President had violated congressionally enacted statutes -- was more a rebuke of the Congress than of the President.

Now, enter Brad Berenson, former attorney under Judge Gonzales in the Office of the Counsel to the Preisdent. Berenson is generally very thoughtful and articulate, more often than not the (relative) voice of pro-government reason in debates about the Administration's more aggressive assertions of executive prerogative in the war against Al Qaeda. But in his recent interview on NPR's To the Point, it appears he wasn't quite on script in defending the Administration's draft cruelty legislation.

For example, in response to the McCain/Warner/Graham argument that if the U.S. "clarifies" its interpretation of Common Article 3 in a manner that will be rightly viewed throughout the world as a breach of that treaty obligation, it would undermine international compliance with Geneva, much to the detriment of our own detained personnel, Berenson duly invokes the White House line that "there’s a central line of fallacy in that line of argument" because "Common Article 3 would never apply to our own soldiers in the conduct of a war. Our soldiers fight according to the laws of war; they comply with the international laws of armed conflict. And as such, when they’re captured they’re entitled to POW status and the treatment afforded to lawful combatants –- POWs under the Geneva Conventions."

This argument isn't terribly persuasive. Basically, what Berenson is saying is that it doesn't matter if Congress adopts an implausible interpretation of Common Article 3, as long as we construe the rest of the Geneva Conventions properly, because U.S. troops are covered by those other provisions. But of course once the greatest superpower on the planet feels free to conspicuously turn an important Geneva protection on its head, the sanctity of Geneva as a whole -- reasonable interpretation of all of its provisions -- would be up for grabs by every country, whenever exigencies appear to call for such creative misreadings.

Alex Chadwick, however, interrupted Berenson with a more fact-specific, practical interjection: "But you know, they’re not just soldiers out there in the war on terror; there are also agents . . . who work for the CIA."

To which Berenson responded: "That’s true." And those people always have and continue to take extraordinary risks on the public’s behalf, and when they are captured they are treated far worse than our soldiers."

In other words: Yup, under the Administration's view, we could no longer expect nonuniformed detained U.S. personnel to be able to rely on even the mininal protections of Common Article 3.

That's comforting.

But it's not the most alarming part of the Berenson interview.

Earlier, Berenson offered the now-boilerplate White House talking point that Common Article 3 standing alone is allegedly too vague, and that the President's bill has the virtue of limiting the application of Common Article 3 to the protections provided under the U.S. Constitution (namely, the "shocks the conscience" test of the Fifth Amendment).

Chadwick chose to press Berenson on this lawyer's distinction to see how it would play out in operation:

"Let me ask you a specific question. There are reports that the CIA in its interrogations would strip a prisoner naked and lead him around by a leash. . . . Would that be legal [under the President's bill], or not?"

BERENSON: "Well, that illustrates the precise problem the President is trying to solve. There are probably a substantial number of people around the world, countries around the world, tribunals around the world, that would say that would be a violation of Common Article 3 of the Geneva Conventions. If that’s true, then as a matter of domestic law the CIA agent who has led the terrorist suspect around that way has committed a felony under the War Crimes Act. And that’s what the President doesn’t want. And under U.S. constitutional standards, that probably would not be unlawful, but you would have to analyze it much more carefully than just an off-the-cuff response."

Think about that remarkable response for a minute. Berenson is lobbed a softball question about how a particularly reprehensible technique, prohibited by current law, would be treated under the Administration's proposed statutory amendment.

Berenson does not say that it's a ridiculous hypo because no U.S. interrogator would ever consider using such a technique. To the contrary: It "illustrates the precise problem the President is trying to solve"!

And he does not say, as one might expect, "Don't worry, Alex: Such conduct would shock anyone's conscience, even the Vice President's, and so 'Walking the Dog' would remain illegal, even under the White House standard."

Instead, he responds that:

1. The technique would probably be permitted under the President's bill; but

2. It would depend on all the circumstances of the particular case. (Imagine the OLC memo parsing the particular variables: How long was the leash? Was the detainee asked to bark? Had the detained previously been forced to answer questions while stripped naked? Etc.)

That is to say: It appears that the President is fighting tooth and nail for the legal authority . . . . to be able to lead naked prisoners around by a dog leash.

Yeah, that's undoubtedly the message the White House was hoping to convey . . . .

Of course, this happens to have the great virtue of being true. Berenson is too candid and honest for his own good (or for that of the White House, anyway). As he explains, currently such grotesque behavior, like the other CIA techniques the President wishes to preserve (threats, Long Time Standing, Cold Cell, etc.), is quite clearly barred by Common Article 3. (Those "substantial number of people around the world" in this case are right!) But "that’s what the President doesn’t want." And so under the President's bill, the legal question would be obscured -- made much less certain ("you would have to analyze it much more carefully than just an off-the-cuff response").

As noted above, one might reasonably think that such conduct would shock the conscience, and thus be unconstitutional, even under the President's proposed legal floor. But that would be underestimating the ingenuity of the Administration's lawyers, who apparently have difficult-to-shock consciences, and who would no doubt figure out some way to conclude, as Berenson does, that "under U.S. constitutional standards" such conduct -- like hypothermia, stress positions, and threats of death to one's family members -- "probably would not be unlawful."

* * * *

For quite a while now, I've been arguing in this space that if the United States is to engage in such conduct, it should only do so pursuant to specific and forthright legal authorization, after open public debate about whether we should go down this road -- rather than pursuant to secret lawyers' memoranda in which ordinary terms such as "torture," "humane," and "cruelty" are construed in quite unnatural ways.

Well, I've gotten my wish: Now we're having that public debate -- of a sort. (Many participants remain reluctant to say clearly what it is that they're debating.) I can't say that it's been very ennobling or inspiring . . . although there's still hope, depending on how it is ultimately resolved.

But it certainly is revealing . . . .


It is important to get this debate into the open. Ifthe US's government changes the interpretation of the Geneva Convention (which I vehemently oppose), it should it up front and not be disingenious about it. Make sure the world hears you, Marty

There are premises which, when refuted, obviate the rest of the conversation. For instance, in reference to the Traditional Values Coalition example of "public support" it must be pointed out that there is no "new form of war." There is nothing new about guerrilla tactics. There is nothing new about suicide bombers. There is nothing new about hijacking planes. The September 11, 2001 attacks did not usher in a new kind of war. And as long as we fail to refute this premise we find our selves endlessly embroiled in the all manner of truly damning conversations, such as how much torture should be allowed "under the new conditions," or how little due process should be accorded "for this new kind of war."

There is no novelty to the conflict at hand. The so-called "Global War on Terror" is not a war, not in the sense of the word used in the Constitution.

Take away this one premise, about the aptness of the war metaphor to the task of bringing the organizers of the September 11, 2001 attacks to justice and what is left? Law. Ours and that of nations all over the globe hold it a crime to steal planes, destroy buildings, murder civilians in cold blood. And with the international good will we enjoyed on September 12, 2001, we could have expected quite a bit of help enforcing those laws and bringing bin Laden and others to justice.

But on September 18, 2001 we took the first step toward throwing away that good will, and it has been downhill ever since; that was the day we passed the Authorization for Use of Military Force, legislatively embodying the fallacious elevation of the rhetoric of war into the unconstitutional granting of war powers to the President absent a bona fide armed struggle between nations.

It is a conversation stopper; remove this one flawed premise, that we are in some kind of new, or any kind of Constitutionally recognizable war, take away that cornerstone of the administration's arguments rationalizing it's opportunistic exploitations of the September 11, 2001 tragedy, and watch all the other arguments collapse. Enjoy for a moment the awkward silence that follows, then fill that silence with discussion of how to fix the damage we've done in the five years we've let this tragically flawed premise stand.

Los Angeles Times --

September 16, 2006
By Julian E. Barnes,1,5330582.story

Q: Critics of the president's plan have said that redefining Geneva would put U.S. troops at risk. Has Common Article 3 ever protected an American service member?

A: Yes. In 1993, the United States invoked Common Article 3 protections for Chief Warrant Officer Michael J. Durant, who was captured by Somali warlords. Because he was not the prisoner of a government and because Somalia was embroiled in a civil war, traditional Geneva prisoner-of-war protections did not apply. Although Durant had been roughly treated initially, the militants ultimately decided to observe Common Article 3 and allowed the Red Cross to visit Durant.

Q: Would Common Article 3 protect U.S. forces in current conflicts?

A: Yes. Common Article 3 would protect a U.S. soldier captured by a rebel group in Afghanistan, the Philippines or Colombia -- if the captors observed it.

Does anyone seriously believe that it's consistent with due process or the 8th A to treat a common thief like the CIA treats suspected terrorists? Where does the Administration get the chutzpah to claim that they want to apply "constitutional" standards to detainees?

While it's understandable that the administration and general public would get frustrated with the idea of honoring rules that our current opponents don't honor, the idea of throwing out Common Article 3 or reinterpreting the Geneva Convention to minimize our required adherence to it is a short-sighted gambit with serious long-term consequences. Yes, the current insurgent groups we fight against don't honor the Geneva Convention. They're also not national entities, or (in most cases) entities sponsored by nations, whom the Geneva Convention was meant to regulate. Future wars will likely be fought against different opponents, under different circumstances. Essentially throwing out the Geneva Convention may have a negligible effect on this war, against an enemy that does not recognize those statutes (where reciprocity is not likely to be much of a factor), but would likely have a much more detrimental effect in a future war, against a national opponent, in which U.S. prisoners are taken. That's what many of the president's opponents are attempting to say.

Reinterpreting the Geneva Convention to allow us to differentiate in our treatment of prisoners based on the type of war we fight is a very dangerous, arbitrary, and short-sighted precedent to set, and one which the president and his advisors do not seem to appreciate. The president's proposal isn't bad just because it allows's bad because it lacks vision and perspective.


Check this out:

Wouldn't that be weird if one of those agencies was like 100% ideological Republicans, but made itself look like a bunch of swank hippies in front of the media.

"The changes of the 1970’s occurred largely because we had no serious national security threats to United States soil"

I guess Yoo forgot all about the cold war. Those soviet ICBMs were not any kind of threat to US soil at all, really. We were in a cold war with them for the sheer fun of it.

Berenson also provides a useful service in debunking another Administration talking point-- about unlawful combatants-- that has been around since soon after September 11. And that is that all American combatants are lawful combatants.

In fact, plenty of American combatants are unlawful combatants. Not only CIA personnel, but just any spies from any agency who take precautions to conceal their identity. And, of course, special forces officers who conceal themselves among the civilian propositions.

When people say "the Geneva Conventions don't apply to unlawful combatants" (the position rejected by the Hamdan Court), what they are really saying is that quite a few American fighters are subject to cruel and inhumane treatment, unfair military trials, and even, perhaps, summary execution.

Get real with the LAT quote. Do you really belive it was the Somali warlord's strict, uniform "observance" of CA3 that saved Durant? Or was it the fear of provoking massive US retaliation? Don't confuse the two.

Maybe you should ask some of the warlord's domestic enemies, who should also come under CA3. Or the civilians they were murdering and starving to death. That's why the UN was there in the first place.

Too bad they killed so many of them before you could ask.

From the NYTimes today about an agreement on the Detainee Bill at

"Mr. Frist said the agreement had two key points. "Classified information will not be shared with the terrorists" tried before the tribunals, he said, according to Bloomberg News. And "the very important program of interrogation continues."

It was not immediately clear how Democrats — who have largely stood aside while the Republicans feuded — would react to the compromise."

Torture is a Christian value! And note the Democrats - full of principle - just sit on the sidelines.


Earlier, Berenson offered the now-boilerplate White House talking point that Common Article 3 standing alone is allegedly too vague....

But it doesn't stand alone.

Under Ronald Reagan, the USA signed the UN Convention Against Torture, which is specific:

For the purposes of this Convention, the term "torture" means 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, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. [Part 1, Article 1, section 1.]

(Notice that "organ failure" and "death" are not requirements.)

This is not at all vague: Bush's "aggressive methods" clearly are torture.

Further relevant excerpts:

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.

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

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.

Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.

Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.

Each State Party shall ensure in its legal system that the victim of any act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation.

Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings....

The Bush Administration's actions are already flagrant violations of this signed and ratified treaty, which under the US Constitution is part of "the supreme law of the land".

"But that would be underestimating the ingenuity of the Administration's lawyers, who apparently have difficult-to-shock consciences, ..."

This is what is so odd about the rhetoric coming from the administration's supporters: they are substituting something reasonably clear for something very ambiguous. And since both the Bush and McCain Bill will prevent any detainee from challenging one's detention or one's treatment while being detained, the administration's interpretation -- which probably deems anything short of a nuclear holocaust not to be a shock to the conscience -- will be unchallenged.

What a joke!

Leading some guy around naked on a leash is torture? Come on!

When it comes to getting information, to saving lives, I don't care what ahppens to any of these AQ guys. If we have to flay his skin in acid, so be it. If we have to have him watch real time on a satellite as his children are fed to alligators, so be it. If we have unleash fire ants on his genitals, so be it.

And all these liberal babies whining about cold rooms, standing up and belly slapping.

It's odd that the same liberals who will fight to death to defend the right of women to torture their own children and plunge scissors in to the base of their skulls and suck out their brains with a vacuum are the same ones fighting to the death to protect terrorist animals from getting their just desserts.

As always, it is nice to see what the opposition is up to.

I ahve enough faith thta the public will continue to stand behind the President.

Well, "Sarah," you'll be sorry to learn one of the prisoners we captured in a raid in Iraq, Ahmed Al-Karbala, has confessed under torture that you are an undercover Al Qaida operative, a member of a team well advanced in planning another terrorist attack against the Homeland...

No, you can't see the evidence against you. No, you can't have a lawyer. No, your family will be given no notification as to why you have disappeared from your house. No, you won't ever get a trial.

Yes, those are electrical clamps. No, on the advice of his lawyer John Yoo, the President has determined that applying them to various sensitive parts of your body is not "torture."

Now will you freely confess and tell us who your Al Qaida associates are? Or will we be forced to use "alternative" interrogation techniques to pry the information out of you?

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تقدم شركة الكمال خدمات مرنة ومخصصة بأسعار في متناول الجميع، كما توفر فريق عمل مدرب مهنيا يصل منزلك في سيارة شركة الكمال للتنظيف مع جلب وتوفير المعدات والمواد اللازمة لتنظيف منزلك، شركة تنظيف بالدمام عند تعاقدك مع شركة الكمال للتنظيف فأنت لست مجرد عميل كأحد العملاء، فعلى الرغم من قيامنا بتنظيف مئات المنازل والشقق ب يوميا ولكننا عند قيامنا بتنظيف منزلك فمنزلك هو الوحيد الذي نهتم به.
شركة تنظيف فلل


وتعتمد خدمة شركة الكمال للتنظيف بالرياض على آلية التنظيف من أعلى إلى أسفل دون التغاضي عن أية تفاصيل ونصل إلى الأركان والزوايا التي يصعب تنظيفها وتتضمن الخدمات شركة تنظيف شقق بالدمام 1. تنظيف دقيق للحمامات والمطابخ. شركة تنظيف مجالس بالدمام 2. تنظيف وغسل الحوائط والأرضيات.
شركة تنظيف سجاد وموكيت بالدمام 3. إزالة الغبار من اللوحات والصور والمصابيح وإزالة الأتربة الملتصقة بالمراوح والستائر والنوافذ والأثاث.وتنظيف الخزان جيدا وتعقيمه
شركة تنظيف خزانات بالدمام 4. البحث عن كل التسربات الموجوده فى المنزل
شركة كشف تسربات المياه بالدمام 5. استخدام احدث الاجهزه للكشف عن التسربات
شركة كشف

تسربات بالدمام
استخدام افضل عمليات العزل للخزان شركة عزل خزانات بالدمام لدينا عمال رائعون ومميزون فى مكافحة وابادة الحشرات نهائيا شركة مكافحة حشرات بالدمام واستخدام اجود انواع المبيدات الحشريه الغير ضاره للبيئه شركة رش مبيدات بالدمام وجود اسطول كبير من السيارات لنقل العفش والاثاث
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اقوى المعدات واحدث سيارات شفط البيارات وافضل العمال لحل مشكلة طفو المجارى شركة تسليك مجارى بالدمام


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