Supreme Court Ruling Means Torture May Return → Washingtons Blog
Supreme Court Ruling Means Torture May Return - Washingtons Blog

Monday, December 14, 2009

Supreme Court Ruling Means Torture May Return

The Supreme Court has just ruled that four Guantanamo prisoners cannot sue the government for torture. The Center for Constitutional Rights notes:

It is an awful day for the rule of law and common decency when the Supreme Court lets stand such an inhuman decision. The final word on whether these men had a right not to be tortured or a right to practice their religion free from abuse is that they did not. Future prospective torturers can now draw comfort from this decision. The lower court found that torture is all in a days’ work for the Secretary of Defense and senior generals. That violates the President’s stated policy, our treaty obligations and universal legal norms. Yet the Obama administration, in its rush to protect executive power, lost its moral compass and persuaded the Supreme Court to avoid a central moral challenge. Today our standing in the world has suffered a further great loss.
As Raw Story notes, this means that torture could return.

In fact, torture is a violation of both international and American law. Specifically, the Geneva Convention makes it illegal to inflict mental or physical torture or inhuman treatment.

Torture Is Still - In Fact - Illegal

As I pointed out in 2005:

The War Crimes Act of 1996, a federal statute set forth at 18 U.S.C. § 2441, makes it a federal crime for any U.S. national, whether military or civilian, to violate the Geneva Convention by engaging in murder, torture, or inhuman treatment.

The statute applies not only to those who carry out the acts, but also to those who ORDER IT, know about it, or fail to take steps to stop it. The statute applies to everyone, no matter how high and mighty.


Indeed, even the lawyers and other people who aided in the effort may be war criminals; see also this article , this one, and this press release.
The Military Commissions Act of 2006 limited the applicability of the War Crimes Act, but still made the following unlawful: torture, cruel or inhumane treatment, murder, mutilation or maiming, intentionally causing serious bodily harm, rape, sexual assault or abuse.

Is Torture a Necessary Evil?

Let's not let a little bit of law get in the way. Many would say that torture is a necessary evil to defend our national security.

But as I have previously demonstrated:
  • Torture has also been used throughout history as a form of intimidation, to terrorize people into obedience, not for gathering information

Moreover, the type of torture used by the U.S. in the last 10 years is of a special type. Senator Levin revealed that the U.S. used torture techniques aimed at extracting false confessions.

McClatchy fills in some of the details:

Former senior U.S. intelligence official familiar with the interrogation issue said that Cheney and former Defense Secretary Donald H. Rumsfeld demanded that the interrogators find evidence of al Qaida-Iraq collaboration...

For most of 2002 and into 2003, Cheney and Rumsfeld, especially, were also demanding proof of the links between al Qaida and Iraq that (former Iraqi exile leader Ahmed) Chalabi and others had told them were there."

It was during this period that CIA interrogators waterboarded two alleged top al Qaida detainees repeatedly — Abu Zubaydah at least 83 times in August 2002 and Khalid Sheik Muhammed 183 times in March 2003 — according to a newly released Justice Department document...

When people kept coming up empty, they were told by Cheney's and Rumsfeld's people to push harder," he continued."Cheney's and Rumsfeld's people were told repeatedly, by CIA . . . and by others, that there wasn't any reliable intelligence that pointed to operational ties between bin Laden and Saddam . . .

A former U.S. Army psychiatrist, Maj. Charles Burney, told Army investigators in 2006 that interrogators at the Guantanamo Bay, Cuba, detention facility were under "pressure" to produce evidence of ties between al Qaida and Iraq.

"While we were there a large part of the time we were focused on trying to establish a link between al Qaida and Iraq and we were not successful in establishing a link between al Qaida and Iraq," Burney told staff of the Army Inspector General. "The more frustrated people got in not being able to establish that link . . . there was more and more pressure to resort to measures that might produce more immediate results."

"I think it's obvious that the administration was scrambling then to try to find a connection, a link (between al Qaida and Iraq)," [Senator] Levin said in a conference call with reporters. "They made out links where they didn't exist."

Levin recalled Cheney's assertions that a senior Iraqi intelligence officer had met Mohammad Atta, the leader of the 9/11 hijackers, in the Czech Republic capital of Prague just months before the attacks on the World Trade Center and the Pentagon.

The FBI and CIA found that no such meeting occurred.

In other words, top Bush administration officials not only knowingly lied about a non-existent connection between Al Qaida and Iraq, but they pushed and insisted that interrogators use special torture methods aimed at extracting false confessions to attempt to create such a false linkage. See also this and this.

Paul Krugman summarized eloquently summarized the truth about the type of torture used:

Let’s say this slowly: the Bush administration wanted to use 9/11 as a pretext to invade Iraq, even though Iraq had nothing to do with 9/11. So it tortured people to make them confess to the nonexistent link.

There’s a word for this: it’s evil.
Illegal ... check. Unnecessary ... check.

Why hasn't America banned torture?


  1. America has "banned" torture. But according to the Bush administration's interpretation of the presidential powers, ANYTHING that interferes with the president's ability to do his job the way he wants to can be ignored as a threat to national security. America has always held international law to be non-binding, and after watching the events of Copenhagen, I think this is a trend that will continue.

    I think that this would be an entirely different issue if the command to torture had come from any desk but the president's. Presidents in America enjoy a number of benefits that might be classified as extra-judicial. No president (after becoming president) has ever been prosecuted for crimes by any entity other than congress, and never after term completion.

    In this case it would be very difficult to hold anyone accountable without holding the president accountable. A president is much more likely to get a pardon from his successor (or have his crimes ignored completely) than a subpoena to a war crimes tribunal.

    All of this still begs the question: why Iraq? We're still buying oil from them at not a discounted price. Was it to ensure access to and security of their oil fields? Was it an offensive projection into the middle east for some kind of strategic positioning? If Bush was pushing this hard to establish grounds for invasion, there was something specific he wanted there, something worth billions of dollars in military operations, as well as the credibility of the US and its intelligence services. At least, we would hope that such a cost-benefit analysis was made.

  2. Enhanced Interrogation Techniques, waterboarding, sleep deprivation, isolation, extended confinement, stress positions, good-cop/bad cop, and creative story telling.

    Some of these are clearly torture, and some are not, but I don't trust Congress to create a bright line rule in such a murky area. Some of these are used in ordinary police work, and the courts have upheld them. Keeping a suspect awake for 18 hours may be torture in some cases, and not in others. What about the junkie that is so doped up he thinks snakes will kill him if he goes back to the cell. Is that torture?

    The best policy is to curb the interrogation techniques of domestic law enforcement so that evidence is not excluded, but give a freer hand for use with prisoners of war to use the above methods.

    If a method only yields bad information, then experienced interrogators will not use them. If overzealous interrogators get to out of hand, then a civil lawsuits should be used to rebalance the system.

    Any legal ban would create a grey area in which interrogators would fear to tread, and would likely as not be pulled into the criminal justice system to make it even harder to catch crooks.

  3. As I said and you wouldn't post meanspiritedness is in Duhmerica's DNA.

  4. In the past we have executed people for torturing American POW and have signed treaty after treaty pledging not to do it. So any splitting of hairs of who has the power and who doesn't is missing the point. We have given our word by signature to abstain from torture. To argure wether it works or not or is needed or not is immaterial. As retired military I would not serve in a service that tortured.

  5. What a digusting distortion of the facts.

    I read your Mclatchy link. The first thirteen paragraphs tell the tale of torture to extract al Qaida links to Iraq as told by one man. Then there is this:

    ***Others in the interrogation operation "agreed there was pressure to produce intelligence, but did not recall pressure to identify links between Iraq and al Qaida," the report said.***

    IE, most folks agreed there was pressure for intel (how could there not have been?) yet no one else remembers that that intel had to be about Iraq-al Qaida.

    Great post. About nothing.


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