The Washington Independent
The Washington Independent

The New York Times as Torture Apologist (UPDATED)

The New York Times’ front-page story Sunday reporting the unanimous agreement among Justice Department lawyers that the “harsh” interrogation techniques

Iram Martins
News
Last updated: Jul 31, 2020 | Jun 08, 2009

The New York Times’ front-page story Sunday reporting the unanimous agreement among Justice Department lawyers that the “harsh” interrogation techniques approved by the Office of Legal Counsel for use by the CIA were legal relies on the classic journalistic “battle of the experts”: one “outside” expert says the CIA interrogation techniques like slamming, sleep and food deprivation and stress positions were clearly lawful; another says that “at least waterboarding” was not.

The approach is disingenuous and misleading for a number of reasons I’ll get into below. And the effect is to offer an excuse for those officials who approved what many real experts on the international and domestic laws against torture and cruel treatment have been saying for years are clearly illegal.

After discussing the recently-obtained e-mails, apparently revealed during the much-anticipated investigation by the Justice Department’s Office of Professional Counsel, here’s The Times’ attempt at stepping back and putting the situation in context:

Some outside experts agree that the language of the 1994 [anti-torture] law is strikingly narrow. “There’s no doubt whatsoever that a great deal of coercive treatment that most people would call torture is not prohibited by the federal antitorture statute,” said Benjamin Wittes, a Brookings Institution scholar who has studied interrogation policy.

But many believe that even under that law, the Justice Department should have recognized that waterboarding, at least, was torture. To argue otherwise, said Brian Z. Tamanaha, a St. John’s University law professor who has studied the interrogation memorandums, required “extraordinary contortions in language and legal analysis.”

Setting aside the obvious problem of approaching such a serious issue by just cherry-picking one expert from each side, this sets up the legal issue incorrectly, and relies on an outside “expert” on legal compliance who doesn’t even have a law degree.

Sure, Benjamin Wittes, a Washington Post editorial writer before moving to Brookings, has written about law as a journalist and opinion writer; but Wittes is neither a lawyer nor a law professor — usually the bare minimum required to qualify someone as an expert on the laws of war, interrogation and torture. Shouldn’t the one expert cited by the so-called paper of record as saying the manipulative abuse of prisoners by the CIA was undoubtedly legal at least have the requisite educational background to offer the opinion?

Maybe Wittes is a brilliant autodidact. But there’s an obvious problem with his whole analysis. The law is not nearly so narrow as Wittes and The Times’ article portray it.

As anyone who’s read either the Convention Against Torture or the 1994 U.S. law implementing it knows, interrogation techniques don’t have to rise to the level of “torture” to be unlawful.

Human Rights First – a collection of actual legal experts on international human rights law – explains on its Website: “Even if the practices alleged in the recent press reports do not constitute ‘torture,’ article 16 of the Torture Convention obliges states not to commit “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture.”

When the U.S. Senate ratified the treaty in 1994 and adopted a parallel domestic law, it included this reservation:

“[T]he United States considers itself bound by the obligation under article 16 to prevent cruel, inhuman or degrading treatment or punishment’, only insofar as the term cruel, inhuman or degrading treatment or punishment’ means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.”

In other words, it prohibits the sorts of things that the U.S. Constitution would prohibit doing to prisoners here in the United States.

Can one really say that “there’s no doubt whatsoever” that the interrogation techniques used by the CIA would not violate that ban?  Is it even conceivable that U.S. courts would allow federal officials to use those techniques on U.S. prisoners held in the United States? Didn’t the Bush administration create the prison at Guantanamo Bay precisely because it wanted to avoid constitutional obligations?

If The Times is going to take up this serious issue on its front page, then it should take the topic seriously enough not to act as an apologist for Justice Department lawyers, but to present it honestly, accurately, and with real expertise.

UPDATE: For more on the misleading Times’ story and a close reading of the Jim Comey e-mails, check out these excellent posts from Glenn Greenwald and Marcy Wheeler.

2nd UPDATE: I’d like to make a clarification. Upon reflection, I think I was too hard on Wittes here. I read his quote, in the context in which it was presented in The Times’ story, as saying that the harsh but less-than-torture techniques discussed in the article were undoubtedly lawful, which is, of course, a matter in much dispute.  After re-reading his statement, it seems that he was saying only that many interrogation techniques that Americans would ordinarily think of as torture don’t rise to the level of being defined as “torture” as set out in the 1994 federal anti-torture statute, 18 U.S.C. 2340. And that’s correct.

My point was a larger one, and was directed at The Times, not at Wittes. The article sets him up as an expert to make the point that the Bush administration lawyers reportedly made (though that in itself is a matter of some contention), which is that, as Times reporters Scott Shane and David Johnston put it, “the methods themselves were legal.”

But as I point out above, saying that they don’t rise to the legal definition of “torture” does not mean that they’re legal. Even if Bush administration lawyers thought they were, there are many very learned, respected and legitimate experts who disagree. And The New York Times should have noted that, instead of using a quote that makes a very narrow point to suggest a far broader conclusion.

*TWI is on Twitter. Please follow us here. *

Iram Martins | Personal trainer. Aspiring sommelier. Brunch critic who works part-time. When I'm not competing, you'll find me at dog beaches with my black lab or sipping drinks at the best bars in town. I like to fly a lot.

Related

Rep. Paul Ryan to deliver SOTU response

Chairman of the House Budget Committee Rep. Paul Ryan (R-Wis.) will deliver the Republican response to the State of the Union Tuesday, according to Mike Allen

Rep. Paulsen allies with medical device industry to relax FDA oversight

Source: Flickr; Republicanconference (www.flickr.com/photos/republicanconference) On the heels of the Minnesota Independent story last week about U.S. Rep. Erik Paulsen’s cozy financial relationship with the medical device industry, the New York Times reported Tuesday that some health professionals are alarmed by Paulsen’s push to relax Food and Drug Administration (FDA) oversight

Rep. Paulsen touts balanced budget constitutional amendment

In a post for the conservative blog True North , U.S. Rep

Rep. Patrick McHenry: Please, Conservatives, Fill Out Your Census Forms!

The conservative congressman from North Carolina, a constant critic of the census -- one of the people who sounded the alarm about politicization when the

Rep. Paulsen, Karl Rove the latest to get ‘glittered’

Rep. Erik Paulsen and former Bush staffer Karl Rove were both showered with glitter at the Midwest Leadership Conference Friday

Rep. Perlmutter to hold constituent meet-up in grocery store

Colorado Congressman Ed Perlmutter will hold a Government in the Grocery constituent meet-up this evening from 5-7 at the Safeway at 38th and Wadsworth in Wheat Ridge. The address is 3900 Wadsworth. The meeting, where Perlmutter typically sits at a folding table and talks to whomever shows up, is free and open to the public

Rep. Perlmutter criticizes House measure that would eliminate 800K federal jobs

Congressman Ed Perlmutter today issued a scathing statement criticizing the House of Representatives for passing a spending bill that could put nearly a million federal employees out of work. The Colorado delegation voted strictly on party lines, with all four Republicans voting in favor of the bill and the three Democrats voting in opposition. Perlmutter’s statement: “My number one priority is to get people back to work because that’s the best thing we can do to pay our debt and move forward toward economic stability

Rep. Pete Stark Won’t Dignify Constituent by, er, Micturating Upon His Leg

In the tradition of Rep. Barney Frank (D-Mass.), California Democratic Rep. Pete Stark revealed at a recent town hall gathering that there are limits to what

Rep. Peace, ACLU seek investigation of soldier’s allegations of racial discrimination in Afghanistan

Both Rep. Steve Pearce (R-NM) and the American Civil Liberties Union agree: There needs to be an investigation into Spc.

© Copyright 2021 The Washington Independent All Rights Reserved

Terms & Privacy | twi.news@washingtonindependent.com