Cheney’s ‘Torture Works’ Argument Is a Red Herring
Wednesday, August 26, 2009 at 9:21 am
No matter how much former Vice President Dick Cheney insists that torturing prisoners in secret CIA prisons worked (and Spencer has already laid out the huge holes in that argument) — he and his fellow Republicans who still stand by their “enhanced interrogation techniques” can never prove that using less abusive techniques would not have worked. And for the question of whether the Attorney General must investigate the interrogators who committed unlawful abuse or the senior officials who ordered or approved it, the intelligence produced is irrelevant.
The Washington Post notes today in a story setting out Cheney’s arguments that an Aug. 31, 2006 memo from Steven Bradbury, then-acting assistant attorney general in the Justice Department’s Office of Legal Counsel, said his legal conclusions relied in part on assurances from CIA general counsel John Rizzo that “interrogations conducted pursuant to the program have led to specific, actionable intelligence about terrorist threats to the United States and its interests.”
Rizzo may well have said that, but even if it were true, that doesn’t make the techniques used legal. And it certainly doesn’t bolster Cheney’s argument now that an investigation is not warranted.
A look at those legal memos of 2006 and 2007 released on Monday reveal that the government’s lawyers went out of their way to twist and turn and manipulate the applicable law to approve the techniques that they were already using, notwithstanding the fact that by 2006, the law had changed. Congress had specifically outlawed abusive interrogations, and the Supreme Court had ruled, contrary to the Bush administration’s claims, that Common Article 3 of the Geneva Conventions applies to “war on terror” detainees.
So much for former Attorney General Alberto Gonzales’s idea that the Geneva Conventions were a “quaint” relic of the past.
In Hamdan v. Rumsfeld, the court ruled that the basic protections apply to all prisoners, even in an unconventional international conflict such as the one against al-Qaeda and the Taliban. And Congress, which by that time had grown concerned about reports of abuse and deaths of detainees in U.S. custody, in 2005 passed The Detainee Treatment Act, or DTA, prohibiting the “cruel, inhuman, or degrading treatment or punishment” of detainees and providing for “uniform standards” for interrogation.
Oddly, however, the arguments of the Justice Department’s lawyers justifying the techniques in existence remained essentially the same.
Take the July 20, 2007 OLC opinion on interrogation techniques, released for the first time on Monday. The memo defines techniques like prolonged sleep deprivation for up to 96 straight hours (or 180 hours in a 30-day period) while forced to stand, shackled, in diapers (and eventually in one’s own feces); which can be used in combination with restriction to a 1,000-calorie-a-day diet (half the normal minimum) and “corrective techniques” such as the “facial hold,” “facial slap,” and “abdominal slap”; as not violating Congress’s ban on “cruel, inhuman or degrading treatment” and not violating Common Article 3′s requirement that prisoners be treated “humanely.”
How does it do that? Largely by saying that to violate the laws, the techniques must cause “serious” mental or physical harm, and the lawyers just didn’t think that the sort of mental or physical pain involved here was “serious” enough. That’s because, just as the lawyers defined “waterboarding” in the past to not cause serious harm because the harm was not prolonged for years — or at least it wasn’t when used on soldiers undergoing SERE training — this sort of prolonged-standing, half-starved sleep deprivation in diapers wasn’t going to cause “prolonged” or “severe” harm either. I don’t know how you prove that, but the lawyers seem to have just decided it.
“It’s an attempt to analyze the interrogation techniques under a different sets of norms,” American Civil Liberties Union national security project lawyer Alex Abdo explained to me yesterday. “But it’s surprising how little the analysis in this memo changed from the past memos, notwithstanding the passage of the DTA and the Supreme Court’s decision in Hamdan.”
“At the end of the day, it seems fairly commonsensical that you can’t beat up someone for information, and yet this memo contemplates that,” Abdo says. “It’s dodging bullets fired at the CIA by Congress and the Supreme Court.”
Cheney thinks this and other memos dodged those bullets effectively, and the investigation should end there. But for those who find it cavalier the way the Justice Department decided that obviously painful, physically destructive and likely terrifying interrogation techniques were not “serious” enough to fall under the prohibitions against cruel, inhuman and degrading treatment, then who ordered those techniques to be used, how they were used and why they were approved might merit further inquiry.
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