rssHearing Lays Groundwork for Torture Prosecutions
Thursday, May 14, 2009 at 6:00 am
- 20 Comments
Sen. Sheldon Whitehouse (WDCpix)
A Senate panel appeared to lay the groundwork on Wednesday for a possible prosecution of former Bush administration officials for the torture and abuse of detainees in the “war on terror,” despite strong opposition from Sen. Lindsey Graham (R-S.C.). Specifically, findings by several testifying witnesses that Bush administration lawyers deliberately distorted the law in drafting legal memoranda that offered legal cover for “enhanced interrogation” policies could support future criminal prosecution.
The Office of Legal Counsel memos defining and justifying torture and other abusive interrogation techniques — the so-called “torture memos” — are “a legal train wreck,” testified David Luban, a professor of legal ethics at Georgetown University, to the Senate Judiciary Committee’s Subcommittee on Administrative Oversight and the Courts. “The torture memos fall far short of candid advice and independent professional judgment,” he said. They “cherry pick the law” and “read as if they were reverse engineered to reach a predetermined outcome.” If that outcome was unlawful, then the lawyer has crossed an ethical line.”The rules of professional ethics forbid lawyers from counseling or assisting clients in illegal conduct,” he said.
Illustration by: Matt Mahurin
Although Luban’s testimony was directed at the ethical implications of the legal conclusions drawn by recently released Bush-era memos and whether the lawyers drafting them acted in “good faith,” a finding that the lawyers knowingly helped White House officials engage in illegal conduct could also support criminal liability of both the lawyers and the policymakers who instructed them.
That the OLC lawyers never once cited the case of United States v. Lee, for example, in which the Reagan administration’s Justice Department prosecuted a Texas sherriff who had waterboarded suspects to extract confessions, is revealing, said Luban. The case, decided by the United States Court of Appeals for the Fifth Circuit in 1983, refers to waterboarding as “torture” at least a dozen times. It is “the single most relevant case on water torture” in United States jurisprudence, said Luban. (Sen. Sheldon Whitehouse (D-R.I.), who has cited the case frequently in previous statements, in separate questioning agreed.) The authors of the Office of Legal Counsel memos, while relying on an obscure Medicare reimbursement law to define torture extremely narrowly, as Whitehouse pointed out, ignored the most obvious and readily accessible recent U.S. federal case law on torture. “It’s hard to avoid concluding that they did not mention it because it cast doubt on their legal conclusions,” said Luban.
The memos authorize conduct that “comes very close to President Nixon’s statement that when the president does it, it’s legal,” said Luban. Only President Nixon was saying it as a throwaway line when put on the spot in an interview with a journalist; the claim wasn’t written as an authoritative memo interpreting the law, Luban said.
Philip Zelikow, the former counselor to Secretary of State Condoleeza Rice who in 2005 wrote a memo objecting to the OLC interpretations, which was ignored, similarly testified that “the OLC interpretation of U.S. Constitutional Law in this area was strained and indefensible. . . . I could not imagine any federal court in America agreeing that the entire CIA program could be conducted and it would not violate the American constitution,” he said, adding: “If the CIA program passed muster under an American constitutional compliance analysis, then a program of this kind would pass American constitutional muster if employed anywhere in the United States on American citizens.”
Not all of the witnesses at the subcommittee hearing agreed that the OLC conclusions were indefensible.
Jeffrey Addicott, a professor at St. Mary’s University School of Law, testified that “in my legal opinion the so-called enhanced interrogation program did not constitute torture under international law.” Addicott relied on the opinion of the European Court of Human Rights in the case of Ireland v. UK, in which the use of prolonged stress positions, sleep deprivation and other techniques similar to those used by the CIA were found to be “inhuman and degrading, but not torture,” said Addicott. That case was also cited by OLC lawyer Jay Bybee in an August 1, 2002 memo. Although the court did not discuss waterboarding, Addicott testified that to any “reasonable mind” waterboarding wouldn’t constitute torture, either.
If it were torture, however, the Bush administration officials would be out of luck, Addicott continued. “Those who order, approve or engage in torture must be criminally prosecuted,” he said. “There is no way out of this. We have to prosecute under the torture convention. We can’t say, on the one hand, those people engaged in torture and not do anything. On the other hand, if we say they do not rise to level of torture then we’re not under any international obligation to prosecute.”
Addicott did not mention, however, that the United Nations Convention Against Torture — the same convention cited by Addicott — signed by Ronald Reagan and implemented by U.S. federal law, forbids not only “torture” but “cruel, inhuman and degrading treatment”, which must also be prosecuted under the law. And it was the definition of cruel, inhuman and degrading treatment, in particular, that gave rise to the objections of Zelikow and others.
That’s because, as later OLC memos acknowledged, the cruel, inhumane and degrading treatment, according to the reservations included when the United States signed the anti-torture treaty, is to be interpeted in accordance with the U.S. Constitution. If the actions would be prohibited under the substantive due process clause of the Constitution’s Fifth Amendment, or by the Eighth Amendment’s prohibition on Cruel and Unusual Punishment, then it would be likewise prohibited — and must be prosecuted — under the U.S. anti-torture statute.
Although the European Court of Human Rights’ interpretation of international law does not constitute a definitive interpretation of U.S. Constitutional law, it hardly bolsters the case against prosecution to cite that court’s conclusion that the techniques used by the UK — and similar techniques used by the CIA — were “inhuman and degrading,” although not torture.
The next witness, although stating that he agreed with Graham’s view that mistakes should not be criminalized, ultimately provided more support for prosecution than against it. Robert Turner, associate director for the Center for National Security Law at the University of Virginia, testified that “under international law we are bound by Common Article 3 of the Geneva Conventions. All detainees are entitled to humane treatment.” Whether the abuse rises to the level of torture, then, is essentially irrelevant.
Indeed, Turner, a former lawyer in the Reagan White House, made that same argument in a July 2007 op-ed he coauthored in The Washington Post titled “War Crimes and the White House.” Common Article 3, he wrote, prohibits ” ‘at any time and in any place whatsoever’ any acts of ‘violence to life and person’ or ‘outrages upon personal dignity, in particular, humiliating and degrading treatment.’ ”
Yet the White House had in 2007 issued an executive order declaring that “the CIA program ‘fully complies with the obligations of the United States under Common Article 3,’ provided that its interrogation techniques do not violate existing federal statutes (prohibiting such things as torture, mutilation or maiming) and do not constitute ‘willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency.’”
“In other words, as long as the intent of the abuse is to gather intelligence or to prevent future attacks, and the abuse is not ‘done for the purpose of humiliating or degrading the individual’ — even if that is an inevitable consequence — the president has given the CIA carte blanche to engage in ‘willful and outrageous acts of personal abuse,’ ” he wrote.
Turner and his co-author, P.X. Kelley, a retired Marine Corp. general, argued that this interpretation of the law was not in “good faith” as required: “It is clear to us that the language in the executive order cannot even arguably be reconciled with America’s clear duty under Common Article 3 to treat all detainees humanely and to avoid any acts of violence against their person.”
Although in his op-ed Turner was saying that the United States’ interrogation tactics violated international law, at Wednesday’s hearing, he adopted the position of Senator Graham, saying: “It appears that some good people made some very bad decisions.”
As Graham put it in his concluding remarks, “I’ve always believed that when you engage in harsh interrogation techniques like waterboarding, eventually it comes back to bite you. And it has. But the people devising these techniques were not criminals. They were Americans who were afraid,” he said.
Now, Graham said, “I’m so afraid that what we’re doing here today is going to chill out the legal advices to come in the future…and that we’re putting men and women at risk in a future prosecution or civil lawsuit who did nothing but do their best to protect this nation.”
The interrogators, lawyers and policymakers who authorized the interrogation techniques were, in essence, good people who did bad things, he said.
Fortunately, neither Congress nor any future prosecutors will be asked to decide the moral integrity of those who devised and approved of abusive, inhuman and degrading interrogation tactics. They need only determine whether those individuals broke the law.
20 Comments
Comment posted May 14, 2009 @ 5:41 am
It's nice that Zelikow is now mouthing the right lines, but let's not forget his role in stealing from us our sovereignty in the form of the truth of our time.
Zelikow's 9/11 report was a whitewash. As the Executive Director, he strangely failed to keep phone logs for the commission. It's impossible to know if anyone, Karl Rove for example, had improper contacts and influence.
http://www.democracynow.org/2008/2/7/the_9_11_c…
PZ keeps pointing to Democratic Party-vetted people to bolster his argument with “bipartisanship,” even though Lee Hamilton still has the stench of our Central American massacres. We're expected to have forgotten that like Zelikow seems to have.
Isn't this an estoppel argument? The Mysterious Dr.Z: What do you mean, my farts stink? I have reports from CIA that say they don't, and now CIA is under criminal investigation, so even if I do stink, which of course I suspected, why didn't CIA tell me?
DEMOCRACY NOW!: Did you ask them?
Philip Zelikow: “Um, I did not, but that wasn't uh, I wasn't the person who was pushing the issue directly with Tenet. That was more the job of my bosses on the commission, Tom Kane and Lee Hamilton and other commissioners. Um, it was….”
He's XO of the BushCo damage control team, so what's he do about being stonewalled by CIA? He complains vociferously in writing, but not a peep in person?
No, he says, that was the duty of his bosses, Kean&Hamilton, the two-headed bipartisan hydra. Look, he asked CIA lots of questions. In writing. The Bush Justice Department was supposedly investigating CIA, presumably for being such poor correspondents. And besides, they told him not to look, what could he do?
Zelikow himself said, one “can only assume that they had something they wished to UH something they didn't want the commission to know.”
How could poor Zelikow know that his shit stinks? You don't seriously expect him to trust his own senses, do you? That would be madness!
~~~~~~~~~~~~~~~~~~~~~~~~~
AMY GOODMAN: Did you know that these questions were obtained under duress, under torture?
PHILIP ZELIKOW: We did not know that. We could see that they were extremely reluctant to tell us about the circumstances, and therefore we could only assume that they felt they had something that they wished—they didn’t want the Commission to know about.
AMY GOODMAN: Did you ask if they were obtained through torture?
PHILIP ZELIKOW: We asked how they were obtained.
AMY GOODMAN: And what were you told?
PHILIP ZELIKOW: It was—we were told we can’t go in—we can’t tell you that. And we asked those questions—that’s why when the disclosure came out about the CIA tape recordings, people immediately said, “Well, did the Commission asked for information of this kind?” And we immediately prepared a report, which I did, actually, for Tom Kean and Lee Hamilton, which has been leaked to the New York Times and is available on the internet, that details exactly how thoroughly we questioned CIA about the information surrounding these interrogations. And CIA’s alleged withholding of information from us is currently one of the subjects of the federal criminal investigation that’s now underway.
~~~~~~~~~~~~~~~~~~~~~~~~
Zelikow later repeats that bit about the leak, as if citing a reference. Is that how they do things at UVirginia, where he's supposedly a professor of history?
And here's his fig leaf for torture: the infamous text box of page 146, in which he tried to bury his report's reliance on evidence manufactured to order by torture:
~~~~~~~~~~~~~~~~~~~~~~~~~~~
Detainee Interrogation Reports
Chapters 5 and 7 rely heavily on information obtained from captured al Qaeda members. A number of these “detainees” have firsthand knowledge of the 9/11 plot.
Assessing the truth of statements by these witnesses–sworn enemies of the United States–is challenging. Our access to them has been limited to the review of intelligence reports based on communications received from the locations where the actual interrogations take place. We submitted questions for use in the interrogations, but had no control over whether, when, or how questions of particular interest would be asked. Nor were we allowed to talk to the interrogators so that we could better judge the credibility of the detainees and clarify ambiguities in the reporting. We were told that our requests might disrupt the sensitive interrogation process.
We have nonetheless decided to include information from captured 9/11 conspirators and al Qaeda members in our report. We have evaluated their statements carefully and have attempted to corroborate them with documents statements of others. In this report, we indicate where such statements provide the foundation for our narrative. We have been authorized to identify by name only ten detainees whose custody has been confirmed officially by the U.S. government.*
____________
*Those detainees are Khalid Sheikh Mohammed, Abu Zubaydah, Riduan Isamuddin (also known as Hambali), Abd Rahim al Nashiri, Tawfiq bin Attash (also known as Khallad), Ramzi Binalshibh, Mohamed al Kahtani, Ahmad Khalil Ibrahim Samir al Ani, Ali Abd al Rahman al Faqasi (also known as Abu Bakr al Azdi), and Hassan Ghul.
~~~~~~~~~~~~~~~~~~~
It's now known that we waterboarded KSM and AZ. SO, all of a sudden, PZ favors finding out what he covered up before? BS.
~~~~~~~~~~~~~~~~~~~~~~~~~~
See also http://rawstory.com/08/news/2009/05/13/report-m…
“Much of the material cited in the 9/11 Commission’s findings was derived from terror war detainees during brutal CIA interrogations authorized by the Bush administration, according to a Wednesday report.
“More than one-quarter of all footnotes in the 9/11 Report refer to CIA interrogations of al Qaeda operatives subjected to the now-controversial interrogation techniques,” writes former NBC producer Robert Windrem in The Daily Beast. “In fact, information derived from the interrogations was central to the 9/11 Report’s most critical chapters, those on the planning and execution of the attacks.”
“… [Information] derived from the interrogations is central to the Report’s most critical chapters, those on the planning and execution of the attacks,” reported NBC. “The analysis also shows – and agency and commission staffers concur – there was a separate, second round of interrogations in early 2004, done specifically to answer new questions from the Commission….”
~~~~~~~~~~~~~~~~~~~
In other words, Zelikow used evidence manufactured to order by torture.
Pingback posted May 14, 2009 @ 4:43 pm
[...] in Bush Administration, Congress, Torture at 1:42 pm by LeisureGuy Interesting analysis by Daphne Eviatar of the Washington Independent: A Senate panel appeared to lay the groundwork on [...]
Pingback posted May 15, 2009 @ 4:14 am
[...] Interesting analysis by Daphne Eviatar of the Washington Independent: A Senate panel appeared to lay the groundwork on Wednesday for a possible prosecution of former Bush administration officials for the torture and abuse of detainees in [...]
Comment posted May 15, 2009 @ 7:31 am
Senator Graham's apologies and Dick Cheney's public relations tour sound as if they have already proceeded to the mitigation phase of a sentencing hearing. Given the growing chorus for investigations and prosecutions, perhaps this is good practice, especially in Cheney's case.
The rather irrelevant argument that torture “works” (save it for mitigation) gets an examination in my latest essay “Torture Guarantees.”
Pingback posted May 15, 2009 @ 10:14 am
[...] Interesting analysis by Daphne Eviatar of the Washington Independent: A Senate panel appeared to lay the groundwork on Wednesday for a possible prosecution of former Bush administration officials for the torture and abuse of detainees in [...]
Comment posted May 15, 2009 @ 11:46 pm
The “TortureGate” saga interlocks directly with the 9/11 saga…
The perpetrators (perpetraitors?) of both had to get convictions of arab Muslims so as to close the 3000+ murder cases which are still OPEN on the FBI's books…
Hence the “necessity” of torturing fake “confessions” out of Khalid Sheikh Mohammed et. al.
Of course, the whole “TortureGate” saga is in gross breach of the US War Crimes Act [1996] which enacts the Geneva Conventions into IS Federal Law.
The United States of America is a nation governed in accordance with the Rule of Law: It should be better understood, that “The Rule of Law” is the direct opposite of a Police State…
I filed formal complaints against Ashcroft et. al. with the Washington DC Field Office as of 2004.
The only result was that the offside front wheel of my Ford Capri 2.8i Injection Special was shot out with a Zinc Fragmentation bullet in the M4 at 4 in the morning, putting the car instantly into the Central Divide steel cables at 80 mph…..
It took calls to 15 FBI offices to find one that was willing to take the statement….
And why, pray, is my memo to the Ersatz 9/11 Commission “Missing”? With the two video attachments showing how the towers were brought down by Controlled Demolition?
Inquiring minds will want to know the answers…
Tony Hollick
Comment posted May 16, 2009 @ 10:28 am
Lets see… Its not torture if you are not in fear of dying. Its not torture if a prostitute lawyer says its not torture. Its not torture if the results of the torture were good. Its not torture if the Democrats knew it was being used. Its not torture if the President says the CIA that waterboarded one man 183 times in one month was under orders. Who gave the orders the Marquis de Sade? Sorry that's beside the point if the orders were lawful…
Can anyone looking at the photos of Abu Ghraib say they were not inhuman and degrading?
If you answer yes, then ask to see the hundreds of photos that the President refused to release in violation of a COURT ORDER. No man is above the law, except the President. The Prisoners, detainees sorry, must be below the law then.
I have an idea, we can't show the world the photos, we better not have public trials of the Prisoners. We probably should not let the public see the detainee trials. Since the President Promised to do away with the military tribunals and did, lets invent a new and improved version of the illegal military tribunals. That will let Obama reinstate them with “good” reason.
What reason you say? I don't know it must be that the military wants them so we won't be appalled by the actions of the military. Of course one good way to clean up all this muck would be the light of day, but that is not apparently the goal. It appears the goal is to try the villains and get them out of the news. Certainly the goal is not open court justice. That would show the world that all this was just an aberration, and we are stopping it. Maybe the goal is to get them convicted and let the news cycle move on….
Comment posted May 31, 2009 @ 9:49 am
All will know Obama IS SOFT On FEDERAL CRIMES By Politicians If he fails to Prosecute Torturers.
It will Also be obvious that Obama supports a dual standard of Justice for Americans.
We must push him to Prosecute before it is too late.
SIGN THE PETITION To Prosecute Them For Torture
AT ANGRYVOTERS dot ORG
Over 250,000 have signed
Join them and call yourself a Patriot
Comment posted May 31, 2009 @ 4:49 pm
All will know Obama IS SOFT On FEDERAL CRIMES By Politicians If he fails to Prosecute Torturers.
It will Also be obvious that Obama supports a dual standard of Justice for Americans.
We must push him to Prosecute before it is too late.
SIGN THE PETITION To Prosecute Them For Torture
AT ANGRYVOTERS dot ORG
Over 250,000 have signed
Join them and call yourself a Patriot
Comment posted August 5, 2010 @ 1:08 pm
It will Also be obvious that Obama supports a dual standard of Justice for Americans.
Comment posted August 20, 2010 @ 8:52 am
We must push him to Prosecute before it is too late.
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