Balkinization  

Sunday, July 20, 2008

UK Parliament report: The U.S. tortures and cannot be trusted when it denies it

JB

The Human Rights Annual Report 2007 released Sunday by the UK House of Commons Foreign Affairs Committee states that "the UK can no longer rely on US assurances that it does not use torture, and we recommend that the Government does not rely on such assurances in the future." (Hat tip: Jurist)

From the report at p. 25:

52. There appears to be a striking inconsistency in the Government’s approach to this matter. As noted above, it has relied on assurances by the US Government that it does not use torture. However, it is evident that, in the case of water-boarding and perhaps other techniques, what the UK considers to be torture is viewed as a legal interrogation technique by the US Administration. With the divergence in definitions, it is difficult to see how the UK can rely on US assurances that it does not torture. As Amnesty International argues, “what the USA considers torture does not match international law”.86 Human Rights Watch adds that “President Bush’s statements on torture need to be considered in the light of the memoranda from his legal advisers that re-defined torture so narrowly as to make the prohibition virtually meaningless.”87

53. We conclude that the Foreign Secretary’s view that water-boarding is an instrument of torture is to be welcomed. However, given the recent practice of water-boarding by the US, there are serious implications arising from the Foreign Secretary’s stated position. We conclude that, given the clear differences in definition, the UK can no longer rely on US assurances that it does not use torture, and we recommend that the Government does not rely on such assurances in the future. We also recommend that the Government should immediately carry out an exhaustive analysis of current US interrogation techniques on the basis of such information as is publicly available or which can be supplied by the US. We further recommend that, once its analysis is completed, the Government should inform this Committee and Parliament as to its view on whether there are any other interrogation techniques that may be approved for use by the US Administration which it considers to constitute torture.


Comments:

It's pretty pathetic that the UK parliament has to be the one investigating to get to the truth about the state of the law and practice of torture by the United States. It shows that the US congress is too scared or incompetent to do its job.
 

Its laughable that the British Parliament is sniffing in our general direction given the history of its own intelligence services in this regard. Take this hypocrisy for what very little it is worth.

This reminds me of a scene from the movie Casino Royale. "M" storms out of a Parliament hearing on a news story that James Bond shot down a terrorist bomb maker in cold blood at an embassy into which the terrorist sought refuge. In a tirade to an aide, "M" says:

Who the hell do they think they are? I report to the Prime Minister and even he's smart enough not to ask me what we do. Have you ever seen such a bunch of self-righteous, ass-covering prigs? They don't care what we do; they care what we get photographed doing.

Indeed.
 

With a view toward avoiding the nihilism inherent to much of the reaction to this, the Brits would seem to have been complicit if not participants in some of what this report details. This doesn't invalidate the conclusions to me, but it does make me wonder if they will be investigating any of their own or the US. They would most certainly have information of use to the Hague.
 

This reminds me of a scene from the movie...

Doesn't it! Just like the War On Terror reminds me of Jack Bauer. Now there was a real man!
 

Naw. The character of Jack Bauer is what the paranoid fantasies of the Hollywood left imagine an intelligence agent to be. The reality is far more mundane and less murderous.
 

Um, Bart, are you claiming that James Bond is any more realistic than Jack Bauer?
 

This comment has been removed by the author.
 

EL:

Hardly. The bit of dialogue I quoted was useful because it pithily summed up the hypocrisy of ass covering prig politicians in the real life Parliament and Congress.
 

I was just wondering when Bart might post something pithy to rationalize a serious subject. Freaky!

I think we've turned a corner when Bart admits that people in power in the US and UK have something to hide when it comes to torture, though.
 

"Bart" DeDicta:

Its laughable that the British Parliament is sniffing in our general direction given the history of its own intelligence services in this regard. Take this hypocrisy for what very little it is worth.

This reminds me of a scene from the movie Casino Royale. "M" storms out of a Parliament hearing on a news story that James Bond shot down a terrorist bomb maker in cold blood at an embassy into which the terrorist sought refuge. In a tirade to an aide, "M" says....


Uhhh. Real world to "Bart": That's Hollywood. You know, fiction. Kind of like "24".... Oh. Waidaminnit....

Cheers,
 

The character of Jack Bauer is what the paranoid fantasies of the Hollywood left imagine an intelligence agent to be. The reality is far more mundane and less murderous.

Hey Bart. I don't mean to be snotty but that's an egregiously ill-informed remark which, let's face it, is a specialty of yours.

Here's a snippet from Jane Mayer's New Yorker piece on Joel Surnow:

Not long ago, Surnow threw (Rush) Limbaugh a party and presented him with a custom-made “24” smoking jacket.
 

However, given the recent practice of water-boarding by the US, there are serious implications arising from the Foreign Secretary’s stated position
 

The Human Rights Annual Report 2007 released Sunday by the UK House of Commons Foreign Affairs Committee states that "the UK can no longer rely on US assurances that it does not use torture, and we recommend that the Government does not rely on such assurances in the future
 

As soon as the Parliament would like to discuss the interrogation techniques used by MI6 and the SAS and their active cooperation with the CIA and SF, one might take their shock! shock! at learning about the CIA's methods as something more than hypocritical political CYA akin to the EU's faux outrage over the rendition of terrorists out of their countries with their cooperation.

What is humorous is that this political CYA is aimed at many of you and you accept it at face value every single time.
 

Actually, the nature of the CYA is more complicated than that. The question about the cooperation with the American renditions by each European country can lead to different answers. There is a geometry of complicity that may include only a few people or may go to the highest levels of a given country. I have no doubt that members of the House of Commons making the report might be persons who were outside the loop and that gives them the ability to speak so forthrightly. On the other hand, I can not wait for the day that the tentacles of the rendition policy are exposed from the US end with their consequences for each of the persons' who were complicit in Europe. Let the European people then decide what to do with these Europeans who acted hypocritically.
Best,
Ben
 

I don't think this can be interpreted as CYA, exactly. What it recognizes is that it can no longer be denied, in the UK, that US detainees may be subject to torture. Any UK official who turns a person over to the US may now be subject to legal action under UK law, if I understand UK laws correctly.

It really can't be denied in the US, either, but here, since the rule of law no longer applies to the executive, it doesn't matter.
 

We have written a letter to Prosecutor Luis Moreno-Ocampo of the International Criminal Court, asking for him to begin an investigation of the U.S. government for the crimes of torture, and cruel, inhuman, and degrading treatment of prisoners under its control.

The letter is at Humanity Against Crimes: http://humanityagainstcrimes.blogspot.com
We have set up a click for signing the letter (adding names to it), that preserves the internet privacy of the people signing, if desired. We will take the final list of names and add them to the hard copy of the letter which we will then mail to the Hague. We feel that the time has come to do what is necessary to stop the abuse, even if we need to look outside the U.S. for help. We have specifically asked the Prosecutor to examine the Congress and their inability or unwillingness to act, since they are the prosecuting body for the executive branch and are therefore bound by both Geneva and CAT to investigate, prosecute and punish.

If you could take a look at our letter, and maybe add your names to it? We are also encouraging those with credentials, especially lawyers and physicians, to write their own letters if they feel so inclined. And if you do like the letter, please pass the word along.
 

In the UK parliamentary system, oversight committees, such as the Foreign Affairs Committee work, very hard to achieve consensus on their reports and therefore the findings of this report are of some significance.

Such annual reports on human rights issues are certainly not “Cover your Ass”. If the report is considered in total, readers will find that it is much more concerned with putting pressure on UK government officials not to seek the “easy way out” on human rights commitments. For example, much of the report is concerned with the policy of deportations to other countries known to practice torture, the Committee being highly critical of the acceptance of assurances from quite a number of countries – including Jordan and Libya.

It is doubtless very embarrassing for the Government to have an oversight committee make the same kind of criticisms about assurances from USA, an ally with whom we have co-operated more closely than any other European state.

Were I a US Citizen, I would be concerned, that my country’s assurances on non-torture were being called into question in the parliament of an ally.

The full report also follows up on earlier reports on matters such as the so-called “extraordinary rendition” (the Bush Administration’s term for state sanctioned kidnapping) where there is little doubt that the Blair government relied far too much on the previous practice where official US flights were allowed into UK airspace and permitted to land and take off without any immigration or customs control on the passengers> It is, however, true that the UK used to be able to presume that our most important ally would not abuse such courtesies between sovereign states – sadly, no more.

And yes, there is much circumstantial evidence that in relation to “extraordinary renditions” officials of other EU states were even more actively complicit. Some officials are being prosecuted in Italy on just that basis, and if and when the full truth comes out, other heads may well roll in others.

It was to be expected that a certain ‘loathsome spotted reptile’ would suggest that the UK also practices torture and inhuman treatment.

To quote from the Report:-

“54. The FCO report emphasises that "torture is one of the most abhorrent violations of human rights and human dignity, and its use is absolutely prohibited under international law". Accordingly, the Government never uses it for "any purpose", its use is "unreservedly condemned" and the UK seeks "its eradication". However, the report notes comments made by this Committee and others over the ethical dilemma of using intelligence that may have been gained from the use of torture to prevent future terrorist activity. Where "intelligence bears on threats to life", the report argues that it would be "irresponsible to reject it out of hand", however it was obtained.”

Sadly, there have been some examples of abuse of prisoners in Iraq by UK forces, dealt with in with a number criminal prosecutions, not all of which have been successful.

There have also been civil suits against the government in the UK Courts, the latest of which led to very substantial damages being paid by the Ministry of Defence to the victims and/or their families.

A public enquiry into such abuses chaired by a Judge is yet to come.

The difference is, perhaps, that our Courts have held that the European Convention on Human Rights as well as the Torture Convention both govern the treatment of prisoners by UK forces in Iraq/Afghanistan. As our courts have held, just about all the techniques described by the Bush Administration term of “enhanced interrogation” are unlawful. Therefore the Committee is only reflecting the fact that if the Government gets these matters wrong, there may well be consequences in the Courts.

Finally, I note Ondelette’s wish that the ICC prosecutor could do something. Unfortunately, unless the UN Security Council refers the case of a non-signatory to the Rome Statute to the ICC, the Prosecutor is powerless – and with the USA having a veto, no referral of US persons will take place. See paragraphs 40-41 of the Committee Report

“40. A further impediment to international justice is the continued opposition of major countries to the principles behind the ICC. Out of the permanent five members of the UN Security Council, only the UK and France are State parties to the Rome Statue of the ICC, with the United States, Russia and China remaining outside the system.[61] Given the particular role afforded to the Security Council by the Rome Statute (it has the power to refer crimes committed in states that have not ratified the Rome Statute to the Prosecutor of the ICC[62]), the lack of support by these key countries can only hamper the advancement of international justice. Whilst the Security Council did, exceptionally, refer the situation in Darfur to the ICC, it does not look likely that it will do so in the equally disturbing cases of Burma or Zimbabwe. Without this support, there is little that can be done in international criminal law to hold President Robert Mugabe or the Burmese junta to account. The mechanisms are in place, but the political will is not.
41. We conclude that the progress made by the International Criminal Court is to be welcomed. However, international criminal law will only be effective in preventing human rights abuses if applied in a systematic and consistent way. We recommend that the Government should continue to urge the next President and Congress of the United States to accede to the Rome Statute of the ICC. We further recommend that the Government should seek to extend the ambit of the role of the ICC so that any individual who clearly and deliberately commits gross life-taking and life-threatening violations of human rights can be brought before it.”


All is not however lost. Several human rights organisations are awaiting the day when certain US persons will no longer have immunity and might be subject to legal process were they to travel outside the USA.

However, I would hope that a future US Administration would prefer to deal with the ‘dirty linen’ of the Bush Administration in a domestic forum.
 

Mourad -- the ICC Prosecutor has investigated the U.S. for war crimes before, on the subject of the Iraq War in 2006. They concluded they could not proceed due to there not being evidence of a plan or policy for the abuses there.

If the Congress is negligent of its duties under the CAT, which requires investigation, prosecution, and punishment, then another forum must be sought, no matter how many obstacles. An investigation by the Prosecutor will have impact, even if it requires further steps to succeed as a war crimes trial. And the Congress will not like being told they are complicit. Furthermore, a determination that the U.S. is not fulfilling its duties in prosecuting war crimes is a green light for other countries do prosecute and seek extradition.

Internationally, they are complicit, since not prosecuting shields the perpetrators. The abuse has not ended either, so they are facilitating further commissions of crimes.

That last, alone, is enough reason why no matter how much we would like this to be resolved domestically, it must be resolved any way that puts an end to it, at this point.
 

mourad said...

The full report also follows up on earlier reports on matters such as the so-called “extraordinary rendition” (the Bush Administration’s term for state sanctioned kidnapping) where there is little doubt that the Blair government relied far too much on the previous practice where official US flights were allowed into UK airspace and permitted to land and take off without any immigration or customs control on the passengers> It is, however, true that the UK used to be able to presume that our most important ally would not abuse such courtesies between sovereign states – sadly, no more.

And yes, there is much circumstantial evidence that in relation to “extraordinary renditions” officials of other EU states were even more actively complicit. Some officials are being prosecuted in Italy on just that basis, and if and when the full truth comes out, other heads may well roll in others.


This claim is almost as amusing as our Democrat politicians claiming they were "fooled" into voting for the Iraq War.

Are you really so naive as to believe that your PM, MI6 and SAS did not know what was going on in the War on Terror in which the Brits are the next most active participants after the United States?

As I post above: What is humorous is that this political CYA is aimed at many of you and you accept it at face value every single time.

It was to be expected that a certain ‘loathsome spotted reptile’ would suggest that the UK also practices torture and inhuman treatment.

To quote from the Report:- “54. The FCO report emphasises that "torture is one of the most abhorrent violations of human rights and human dignity, and its use is absolutely prohibited under international law". Accordingly, the Government never uses it for "any purpose", its use is "unreservedly condemned" and the UK seeks "its eradication". However, the report notes comments made by this Committee and others over the ethical dilemma of using intelligence that may have been gained from the use of torture to prevent future terrorist activity. Where "intelligence bears on threats to life", the report argues that it would be "irresponsible to reject it out of hand", however it was obtained.”

Nod, nod, wink, wink... Maj. Renault anyone?

The difference is, perhaps, that our Courts have held that the European Convention on Human Rights as well as the Torture Convention both govern the treatment of prisoners by UK forces in Iraq/Afghanistan. As our courts have held, just about all the techniques described by the Bush Administration term of “enhanced interrogation” are unlawful. Therefore the Committee is only reflecting the fact that if the Government gets these matters wrong, there may well be consequences in the Courts.

What is this if not CYA?

In any case, this observation does touch upon a major reason the EU cannot properly defend itself. EU law treats this war as a criminal justice matter and only permits the EU governments to react to enemy attacks after they have nearly reached fruition or have already occurred under highly restrictive circumstances. This is why the EU has in fact knowingly and intentionally cooperated in the US rendition program to remove terrorists and their supporters from their countries. Indeed, I would not be surprised to learn that the EU is still skirting their nominal human rights laws to cooperate with the United States while giving lip service to these silly self imposed restrictions.

In stark contrast, the United States decided after 9/11 to treat this as a war Doug Feith's book War and Decision provides an illustrative anecdote. In a White House strategy session after 9/22, the Secretary of the Treasury reported that his progress toward tracking al Qaeda financing was being slowed by objections of his staff lawyers. Mr. Bush cut him off and said to tell the lawyers that we are at war and we will do what is necessary to get the terrorists' money. The result was the system which successfully tracked and seized enemy accounts across the world, at least until the NY Times disclosed the program to al Qaeda.
 

Mourad, I was hoping you'd give us your thoughts on this.

Since you're here, I have an unrelated question. My understanding is that the British Prime Minister position developed from the Treasury. Technically speaking, was the Treasury a Secretary of State position, or did that title only refer to the Foreign and Domestic Secretaries?

Thanks in advance for your help.
 

In stark contrast, the United States decided after 9/11 to treat this as a war Doug Feith's book War and Decision provides an illustrative anecdote

How can one tell that Doug Feith is lying? His lips are moving.
 

Is what the Brits are saying is that the lying denials used to be believable but now are not? They aren't saying whether they actually believed them only that they can no longer appear to pretend to believe them. That's the English way.
 

Mark: Re Secretaries of State.

This is a ministerial post which evolved from the position held by Henry VIII's Secretary, Thomas Cromwell, who took over the administration after the fall of Sir Thomas More.

Gradually the post evolved and there were generally just two Secretaries of State, the Home Secretary and the Foreign Secretary.

Now there are quite a number, but by a legal fiction, the role of Secretary of State is considered indivisible and any one Secretary of State may act when the need arises without any need for a formal delegation of powers.

The position of Prime Minister evolved from the Treasury. There was a practice of putting some offices "into commission" -that is to say a number of people were charged collectively with executing the office: Eg the office of Lord High Admiral was put into commission for very long period and one had the "Lords of the Admiralty" (ie a committee) charged with executing the office. Likewise with the office of Treasurer. That office is still "in commission" and the technical post held by the Prime Minister is First Lord of the Treasury.

The office of Prime Minister itself only really evolved because George I did not speak sufficient English to preside over the meetings of his cabinet.

Such are the accidents of our haphazard constitutional evolution.
 

HWST 297-2008 Spring KCC asked:

"Is what the Brits are saying is that the lying denials used to be believable but now are not?"

I think there is a principle in international relations that when a sovereign government which is also a close ally gives an assurance, that word is to be believed until the contrary is shown. For example, we have at present no death penalty in the UK and it is not UK policy to extradite a person to the USA if he is at risk of capital punishment.

Therefore, before agreeing to extradition the Secretary of State requires assurances that the accused will not be subjected to the death penalty if convicted.

Until recently, extradition of suspected terrorists has also been permitted based on assurances that the persons would not be subject to torture or inhuman and degrading treatment.

What the Committee is suggesting is that such assurances should no longer be treated at face value, because public statements that the USA does not engage in such conduct have now been shown to be untrue.

I regard it is very sad indeed that matters have reached such a state of affairs and I hope the next Administration will do something effective to restore the word of the United States to good standing.
 

Thanks Mourad. That was pretty much how I understood it, but I wanted to be certain.
 

As Bart de Palma well knows, I do not subscribe to the view that the USA is at war in the legal sense.

Your country with the regrettable complicity of the Blair government did mount an unlawful invasion of Afghanistan and subsequently of Iraq. Both were unlawful as a matter of international law.

I believe that UN authority was available for intervention in Afghanistan, but the USA did not take up the offer because it was already conspiring to invade Iraq.

But that is water under the bridge because both wars ended some time ago. The USA is now theoretically assisting sovereign allies.

For me the expression "war on terrorism" is an oxymoron of the same kind as "principled argument from Bart de Palma".

There is a need to combat terrorism and the extremism which gives rise to it.

If the USA had not under Reagan created and caused the recruitment of the "mujahidin" to fight a proxy war with the Soviets in Afghanistan, we would not be in the situation we are today, still less if the USA had provided monies for a modern school system in Pakistan rather than propping up military dictators such as Zia-ul-Haq - himself an islamist - not to mention Musharaff.

As ye sow, so shall ye reap - and the world is now reaping the harvest of Neocon policies under Reagan - the Bush harvest is yet to come.

And if Bart, the loathsome spotted reptile, thinks the war is being won, he is living in cloud-cuckoo-land. But then he's a Neocon - so what can one expect.
 

Mourad:

... who took over the administration after the fall of Sir Thomas More.

He didn't fall. He was pushed.

Cheers,
 

Arne:

Catholics, of course, hold More to be a saint and martyr because his faith stopped him from accepting the Anglican compromise (incidentally only one of the hierarchy of bishops stood firm).

So he died for his faith, as "the King's good servant, but God's first".

One might logically consider many Taliban to be unwilling to compromise their faith too.

Faith considerations are so inconvenient for bureaucrats in the mould of Master Cromwell as they are for today's Bush Administration apparatchiks
 

Mourad and Ondelette: the ICC is not the only game in town that could trap unwary American war criminals. Remember the flap last October when a human rights NGO filed charges against Donald Rumsfeld under French law while he was attending some meeting in Paris? Remember Garzón's Spanish arrest warrant for Pinochet, that led to his arrest in London and a landmark judgement of the House of Lords allowing his extradition? One purpose of the ICC is to put some order into a situation where anybody can have a go at torturers, as modern pirates.
 

JamesW:

I'm aware of that, and in our construction of the letter to the Prosecutor, we remind him that he can begin an investigation on his own, we don't say he could or could not press charges (more because we weren't totally sure). That he has in fact done previously on a set of issues regarding Iraq (his 2006 letter in response is cited in our letter to him).

We are really hoping that the threat of an international community closing in on it would spur the Congress to do its job, and that failing that, a clear opinion from the Prosecutor on whether or not the U.S. intends to act would serve as the necessary piece of the puzzle for foreign governments, if he cannot act on his own. There needs to be a decision on that of some kind. Actually, anywhere we can get such a decision would be as good, we just decided to take this route because we didn't need to be someone special. We've had a rough time getting help from real live lawyers, who tend to be cautious. I'm cautious by nature too, but in this instance I think trying even slim chance tickets is worth it. We decided to get signatures to bolster the seriousness of our plea for help. The last time the prosecutor decided not to act, he gave a very clear opinion as to what he had found and what the obstacles were. They were only that the grave crimes lacked a plan or policy. This time they have them, if he issues a clear statement again, other countries which need to know be assured as to whether the U.S. intends to act will have a written document. If the fear of such a document produces movement on this side of the Atlantic, so be it.

The letter is there until Friday, then we will mail it. If the Prosecutor tells us he can't do it, we will keep trying to find somebody who can, or maybe the Congress will make the evolutionary leap to subphylum Vertebrata.
 

James W:

You are certainly correct. Offences against the Torture Convention are ius cogens crimes indictable before any jurisdiction.

There are civil rights groups in Europe collecting evidence as it comes out and quite a few public prosecutors who have an interest.

But in Europe at any rate, I do not think there is a single prosecution authority which has the sort of spare funds in its budget for a real investigation into all the ramifications of what appears to have been a very large conspiracy.

There is also the political dimension - which strictly speaking should not influence prosecutors - but would inevitably impact.

Thus, while there are warrants out for some CIA names who participated in unlawful kidnap operations in Italy and there may be warrants awaiting other unwary travellers outside the USA, I am still of the view that the best outcome would be a proper investigation within the USA.

One wonders whether there will be a rash of pardons at the end of this Administration. Although those pardons would not be effective outside the USA, I wonder about the utility of impeachment.

One of the best tools may yet be impeachment if only because impeachment survives pardon and disqualifies from holding any federal office. It might therefore be effective to keep the unworthy out of government and judicial posts.

Whatever the process, it seems to me that the health of the US democracy is going to depend on decisions taken in the early days of the next administration.
 

Mourad said:

It might therefore be effective to keep the unworthy out of government and judicial posts.

... so we don't get the likes of John Negroponte and Otto Reich welcomed back with open arms and hurrahs all around by the next maladministration. You'd think that there's plenty of qualified people to choose from to serve in gummint without having to dip into the pool of convicted felons and enablers of mass murder and torture.....

Cheers,
 

Barfer barfed:

"In stark contrast, the United States decided after 9/11 to treat this as a war Doug Feith's book War and Decision provides an illustrative anecdote."

How can one tell that Doug Feith is lying? His lips are moving.

# posted by Bartbuster


That's a half-truth, Bartbuster --

There are two kinds of lying:

1. Commission -- telling a known falsehood; and,

2. Omission -- withholding a known truth.

How can one tell Feith is lying? His lips are or are not moving.
 

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