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More Thoughts on the Torture Prosecution

by Professor Will Huhn on August 26, 2009

in Wilson Huhn

     One of the persons who is dearest to me sent me a long critique of Eric Holder's decision to investigate whether or laws were broken when C.I.A. agents or contractors utilized unauthorized interrogation techniques.  My answer to this loved one is below.

Dear ____

     With respect to the decision of the Attorney General to launch a preliminary investigation into whether laws were broken in connection with the C.I.A.'s treatment of prisoners in the war on terror, if your premises were correct then your conclusions would be justified, but I think that several of your assumptions are incorrect. Here is the link to the heavily redacted Inspector General's report of May 7, 2004. At page 102 of the report in paragraph 258 the IG concluded that "unauthorized, improvised, inhumane, and undocumented interrogation techniques were used."  Based simply upon what is disclosed in this report it is apparent that C.I.A. interrogators deviated in pretty serious ways from what had been authorized by the White House and the Justice Department.  For instance, some suspects were waterboarded hundreds of times. Other incidents included mock executions, threatening suspects with guns and power drills, and threatening to rape or kill their family members.

     While useful information was obtained from the "high-value" suspects, it may be that all of it was obtained through the use of traditional techniques, and that the torture was employed after this information was obtained because interrogators felt that the prisoners were still holding back. The IG specifically found that interrogators were flying blind in this respect – they did not have competent analysis to back up their belief that the prisoners had additional information. Finally, the IG concluded that no information regarding "imminent" attacks was ever obtained through the use of "enhanced interrogation techniques."

     Contrary to what you believe it is crystal clear that the Geneva Convention does apply to these and other prisoners in the war on terror. In the case of Hamdan v. Rumsfeld the Supreme Court ruled that, at a minimum, Common Article 3 of the Convention applies to these prisoners. As you know, the Geneva Convention prohibits not only torture but also treatment which is cruel, humilitating, or degrading.  Some have argued that waterboarding, the cold cell, and chaining prisoners in a standing position for seven days at a time wearing only a diaper is not torture, but it is hard to argue that it is not at least cruel, humiliating, or degrading.  Here is the link to Common Article 3.

     Some of the interrogation techniques that were used, particularly waterboarding, are life threatening. It has been reported that one of the three "high-value" detainees had to be resuscitated, and after that occurred Justice Department lawyers ordered that a resuscitation team must be present during waterboarding.  We simply don't know all the facts yet.  Of the 21 pages on waterboarding in the IG Report, 20 are blacked out. I think that both you and I should suspend judgment on the question of whether crimes were committed until we find out everything that happened.  For example, some sources who claim to have seen the full report indicate that the IG was very concerned because several detainees who were tortured cannot be accounted for. If that is the case do you not believe that it would justify further investigation? Would you still oppose the investigation of this matter if it turns out that some prisoners died during interrogation? At a minimum, let's find out what happened.

     As for your historical analysis, until the Bush administration this country not only refused to countenance torture, America led the world in making torture a crime and outlawing other forms of cruelty under international law.  George Washington and Abraham Lincoln ordered that prisoners not be tortured during the Revolution and the Civil War. (It is true that Lincoln did suspend habeas corpus in Maryland when mobs were burning bridges linking Washington, D.C. to the northern states, as well as during similar circumstances in other states – it is also true that Congress ratified those decisions. No-one was tortured.)  Under Teddy Roosevelt the army prosecuted American officers who used waterboarding on Fillipino prisoners.  After World War II Truman ordered the trial of Nazi and Japanese officers who committed acts of torture including waterboarding, and the Nuremburg Trials established the principle that the excuse "I was just following orders" is not a lawful defense under international law.  Truman also spearheaded the drafting of the Geneva Convention. In addition, during the Truman administration Eleanor Roosevelt served as chair of the committee that drafted the United Nations Declaration on Human Rights. Finally, almost everyone would agree that the massacres of civilians at No Gun Ri in Korea and Mai Lai in Vietnam were in fact war crimes and cannot serve as a legal justification for the conduct of the Bush administration in its treatment of prisoners.

     Until now the American stance against torture has been completely bipartisan.  The Geneva Conventions were ratified in 1955 during the Eisenhower administration.  In 1984 President Ronald Reagan signed a treaty, the United Nations Convention Against Torture and other Cruel, Inhuman, and Degrading Treatment (CAT), which not only prohibits these kind of interrogation techniques for any reason whatsoever even if they are ordered or authorized by superior officers or domestic law, but it also requires member states to prosecute offenders, and if they do not, it gives every signatory state the power to prosecute state actors who engaged in torture, no matter where in the world the torture occurred. The United States' Reservation to CAT expressly defines "cruel, inhuman, or degrading treatment" as conduct that would be unlawful under the Fifth, Eighth and Fourteenth Amendments of the Constitution of the United States. This doesn't require the government to give prisoners Miranda warnings or obtain search warrants to discover evidence against them, but it does require that we treat prisoners in the war on terror the same as we do prisoners who are being held for trial or who have been convicted of a crime. Essentially, if the Constitution would prohibit an F.B.I. agent or a county sheriff from using particular interrogation techniques or from housing the prisoner under certain conditions, then the CAT treaty would prohibit the C.I.A. or army interrogators from engaging in the same conduct. Here is the link to CAT.  Here is the link to the U.S. Reservation on CAT.

     Finally, in his report the C.I.A. Inspector General cast doubt on the legal advice that the agency had received from Bush administration lawyers, stating:  "The EITs (enhanced interrogation techniques) used by the Agency under the CTC program are inconsistent with the public policy positions that the United States had taken regarding human rights."  The IG proceeded to cite several instances in which the Bush adminstration itself had condemned torture and mistreatment, and cited the Fifth, Eighth, and Fourteenth Amendments to the Constitution.

     As noted above, the C.I.A. Inspector General for the Bush Administration expressly found that some of the interrogation techniques which were used were unauthorized and that C.I.A. agents or those working under their control faced legal responsibility. In the face of that finding the Attorney General had no choice but to open an investigation.

     One could call for the repeal of federal laws like the War Crimes Act and the Torture Act and the Prohibition on Cruel, Inhuman, or Degrading Treatment.  One could argue that we should renounce the Geneva Convention and the Convention Against Torture . One could argue that the 2004 IG report was factually inaccurate and that none of these events occurred. But if the IG report is correct, then our country has a clear responsibility under CAT to investigate whether violations of that treaty occurred, and if we don't, then every other signatory country has the right to investigate and prosecute violations.

    As for the effect of this investigation on the C.I.A., it is not clear that it will have a demoralizing effect. Vice-President Richard Cheney was the worst domestic political opponent that the C.I.A. has ever had – he disclosed the identity of the C.I.A.'s leading undercover anti-nuclear proliferation secret agent; he suppressed views that were contrary to his opinion that Saddam Hussein possessed weapons of mass destruction; and he advanced false accusations that al-Qaeda had links to Saddam Hussein. The use of "enhanced interrogation techniques" are largely attributable to the efforts of him and his attorney, David Addington. The persons who were selected to carry out the interrogations were not C.I.A. agents but rather two Navy contractors who had no experience interrogating prisoners. The only expertise they had was in conducting brief, one-time exercises in waterboarding Navy SEAL trainees. I doubt that the C.I.A. will shed any tears for those contractors or any of the higher-ups who tried to make them torture prisoners. There may be many C.I.A. officers who agree with the C.I.A.'s own Inspector General that these interrogation methods are in stark contradiction to America's dedication to principles of human rights.

     As for the larger political picture, I really don't care what the political ramifications are, and it is clear that the Attorney General also has a solemn duty not to take political considerations into account. Let the cards fall where they may. If the American people choose to condone torture by voting the Democrats out of office because of this investigation then so be it.

{ 1 comment }

Deborah Campbell August 27, 2009 at 5:08 pm

With all due respect Professor Huhn…What types of interrogation and of whom were exactly authorized by the White House and the Justice Dept? Do you really consider threatening with a drill, and scaring someone into THINKING their mother is going to be raped, to be torturous? Is humiliation really torture? Not exactly the same thing as burning, mutilating, and killing 3000 Americans in one shot, or cutting off a head of a soldier, someone's son, on live tv. These were not prisoners of war who massacured. How exactly would the Geneva convention then apply? What you call torture, of terrorists, people who deliberately attack and kill civilians, is not ok, but defending and justifying the killing of babies who have survived botched abortions, as Barack Obama has, IS ok? I don't believe condoning torture is the message the American people will be trying to give by voting democrats out of office, but rather the belief in their lack of regard for the safety of our troops and our country that these radical liberals are causing by revealing our security strategies. Is this truly worth pursuing, and why? Is it not completely for political reasons? What about all past administrations? When does it end and how does an administration proceed in the future – afraid of taking necessary actions to protect our country?

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