Saturday, March 13, 2010
What Torture Is, Why It's Illegal and Not "Poor Judgment"
Saturday 13 March 2010
by: Andy Worthington, t r u t h o u t | News Analysis
It's now over three weeks since veteran Justice Department (DOJ) lawyer David Margolis dashed the hopes of those seeking accountability for the Bush administration's torturers, but this is a story of such profound importance that it must not be allowed to slip away.
Margolis decided that an internal report into the conduct of John Yoo and Jay S. Bybee, who wrote the notorious memos in August 2002, which attempted to redefine torture so that it could be used by the CIA, was mistaken in concluding that both men were guilty of "professional misconduct," and should be referred to their bar associations for disciplinary action.
Instead, Margolis concluded, in a memo that shredded four years of investigative work by the Office of Professional Responsibility (OPR), the DOJ's ethics watchdog, that Yoo and Bybee had merely exercised "poor judgment." As lawyers in the Office of Legal Counsel (OLC), which is charged with providing objective legal advice to the executive branch on all constitutional questions, Yoo and Bybee attempted to redefine torture as the infliction of physical pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death," or the infliction of mental pain which "result[s] in significant psychological harm of significant duration e.g. lasting for months or even years."
Yoo, notoriously, had lifted his description of the physical effects of torture from a Medicare benefits statute and other health care provisions in a deliberate attempt to circumvent the UN Convention Against Torture, signed by President Reagan in 1988 and incorporated into US federal law, in which torture is defined as:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person ...
Obsessed with finding ways in which "severe pain" could be defined so that the CIA could torture detainees and get away with it, Yoo drew on some truly revolting examples of physical torture, citing a particularly brutal case, Mehinovic v. Vuckovic, in which, during the Bosnian war, a Serb soldier named Nikola Vuckovic had tortured his Bosnian neighbor, Kemal Mehinovic, with savage and sadistic brutality. Yoo dismissed the possibility that other torture techniques - waterboarding, for example, which is a form of controlled drowning, and prolonged sleep deprivation - might cause "significant psychological harm of significant duration," or physical pain rising to a level that a judge might regard as torture.
In both of his definitions, however, Yoo was clearly mistaken. No detailed studies have yet emerged regarding the prolonged psychological effects of the torture program approved by Yoo and Bybee, largely because lawyers for the "high-value detainees" in Guantánamo have been prevented - first under Bush, and now under Obama - from revealing anything publicly about their clients.
However, lawyers for Ramzi bin al-Shibh, who was charged in the Bush administration's military commissions, made a good show of demonstrating that bin al-Shibh is schizophrenic and on serious medication, when they argued throughout 2008 that he was not fit to stand trial, and I have seen no evidence to suggest that bin al-Shibh was in a similar state before his four years in secret CIA prisons.
An even more pertinent example is Abu Zubaydah, a supposed high-value detainee, held in secret CIA prisons for four and a half years, for whom the torture program was originally developed. Zubaydah's case may well be the most shocking in Guantánamo, because, although he was subjected to physical violence and prolonged sleep deprivation, was confined in a small box and was waterboarded 83 times, the CIA eventually concluded that he was not, as George W. Bush claimed after his capture, "al-Qaeda's chief of operations," but was, instead, a "kind of travel agent" for recruits traveling to Afghanistan for military training, who was not a member of al-Qaeda at all.
Zubaydah was clearly mentally unstable before his capture and torture, as the result of a head wound sustained in Afghanistan in 1992, but as one of his lawyers, Joe Margulies, explained in an article in the Los Angeles Times last April, his subsequent treatment in US custody has caused a profound deterioration in his mental health that would certainly constitute "significant psychological harm of significant duration." Margolis wrote:
No one can pass unscathed through an ordeal like this. Abu Zubaydah paid with his mind. Partly as a result of injuries he suffered while he was fighting the communists in Afghanistan, partly as a result of how those injuries were exacerbated by the CIA and partly as a result of his extended isolation, Abu Zubaydah's mental grasp is slipping away. Today, he suffers blinding headaches and has permanent brain damage. He has an excruciating sensitivity to sounds, hearing what others do not. The slightest noise drives him nearly insane. In the last two years alone, he has experienced about 200 seizures.
Moreover, when it came to defining physical torture, the OPR report's authors noted that, as so often in the memos, Yoo had ignored relevant case history. The key passage in the report deals with the US courts' decisions regarding the Torture Victim Protection Act (TVPA). Yoo had drawn on Mehinovic for his description of physical torture "of an especially cruel and even sadistic nature," and, as the authors noted, he also argued that only 'acts of an extreme nature' that were 'well over the line of what constitutes torture' have been alleged in TVPA cases."
The authors continued:
Thus, the memorandum asserted, "there are no cases that analyze what the lowest boundary of what constitutes torture."[sic]
That assertion was misleading. In fact, conduct far less extreme than that described in Mehinovic v. Vuckovic was held to constitute torture in one of the TVPA cases cited in the appendix to the Bybee memo. That case, Daliberti v. Republic of Iraq, 146 F. Supp. 2d 146 (D.D.C. 2001), held that imprisonment for five days under extremely bad conditions, while being threatened with bodily harm, interrogated and held at gunpoint, constituted torture with respect to one claimant.
A close inspection of Daliberti (which dealt with US personnel seized by Iraqi forces between 1992 and 1995) is revealing, as the DC District Court held, "Such direct attacks on a person and the described deprivation of basic human necessities are more than enough to meet the definition of 'torture' in the Torture Victim Protection Act." The judges based their ruling on the following:
David Daliberti and William Barloon allege that they were "blindfolded, interrogated and subjected to physical, mental and verbal abuse" while in captivity. They allege that during their arrests one of the agents of the defendant threatened them with a gun, allegedly causing David Daliberti "serious mental anguish, pain and suffering." During their imprisonment in Abu Ghraib prison, Daliberti and Barloon were "not provided adequate or proper medical treatment for serious medical conditions which became life threatening." The alleged torture of Kenneth Beaty involved holding him in confinement for eleven days "with no water, no toilet and no bed." Similarly, Chad Hall allegedly was held for a period of at least four days "with no lights, no window, no water, no toilet and no proper bed." Plaintiffs further proffer that Hall was "stripped naked, blindfolded and threatened with electrocution by placing wires on his testicles ... in an effort to coerce a confession from him."
Yoo and his apologists will undoubtedly quibble yet again. There is the threat of electrocution, a threat made with a gun and deprivation of water, in one case for 11 days, none of which feature in the OLC's memos. However, outside of the specific torture program approved by the OLC, numerous prisoners who were held at Bagram before being transported to Guantánamo have stated that they were actually subjected to electric shocks while hooded (rather than being threatened with electrocution), and that being threatened at gunpoint was a regular occurrence.
Moreover, it has also been stated that the withholding of medication was used with Abu Zubaydah after his capture, when he was severely wounded, and it should also be noted that numerous ex-prisoners have stated that, in Guantánamo, it was routine for medical treatment to be withheld unless prisoners cooperated with their interrogators.
Most of all, however, a comparison between Daliberti and the OLC memos reveals the extent to which the techniques approved by Yoo resulted in "severe pain or suffering, whether physical or mental," which clearly exceeded that endured by David Daliberti and his fellow Americans in Iraq.
First of all, there is waterboarding, an ancient torture technique that has long been recognized as torture by the United States. As Eric Holder noted during his confirmation hearing in January 2009, "We prosecuted our own soldiers for using it in Vietnam." With this in mind, it ought to be inconceivable that anyone could argue that waterboarding Abu Zubaydah 83 times and Khalid Sheikh Mohammed 183 times could be anything less than torture.
In addition, the prolonged isolation, prolonged sleep deprivation, nudity, hooding, shackling in painful positions, cramped confinement, physical abuse, dousing in cold water, beatings and threats endured by the CIA's high-value detainees (as revealed in the leaked International Committee of the Red Cross (ICRC) report based on interviews with the 14 men transferred to Guantánamo from secret CIA prisons in September 2006) completes a picture that surely "shocks the conscience" more than the torture described in Daliberti, especially as those held were subjected to these techniques for far longer periods.
Should any further doubts remain about the definition of torture - and how it was implemented in the "War on Terror" - these should have been dispelled in January 2009, when, shortly before President Bush left office, Susan Crawford, the retired military judge who was the Convening Authority for the Military Commissions at Guantánamo (responsible for deciding who should be charged) granted the most extraordinary interview to Bob Woodward of the Washington Post.
Crawford told Woodward that the reason she had not pressed charges against Mohammed al-Qahtani, a Saudi who was initially put forward for a trial by Military Commission, along with Khalid Sheikh Mohammed, Ramzi bin al-Shibh and three other men, was because he was tortured in Guantánamo.
"We tortured Qahtani," she said. "His treatment met the legal definition of torture."
"The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent," Crawford explained. "You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge," and to conclude that it was torture.
As I explained in an article at the time:
Al-Qahtani's treatment was severe, of course. As Time magazine revealed in an interrogation log that was made available in 2005, he was interrogated for 20 hours a day over a 50-day period in late 2002 and early 2003, when he was also subjected to extreme sexual humiliation, threatened by a dog, strip-searched and made to stand naked, and made to bark like a dog and growl at pictures of terrorists. On one occasion he was subjected to a "fake rendition," in which he was tranquilized, flown off the island, revived, flown back to Guantánamo, and told that he was in a country that allowed torture.
In addition, as I explained in my book The Guantánamo Files:
The sessions were so intense that the interrogators worried that the cumulative lack of sleep and constant interrogation posed a risk to his health. Medical staff checked his health frequently - sometimes as often as three times a day - and on one occasion, in early December, the punishing routine was suspended for a day when, as a result of refusing to drink, he became seriously dehydrated and his heart rate dropped to 35 beats a minute. While a doctor came to see him in the booth, however, loud music was played to prevent him from sleeping.
The techniques used on al-Qahtani were approved by defense secretary Donald Rumsfeld, but the impetus came from the torture memos written and authorized by Yoo and Bybee. Moreover, although Crawford was not so principled when it came to considering the treatment to which the high-value detainees had been subjected in CIA custody - on the basis, presumably, that such information would be easier to conceal in a Military Commission than al-Qahtani's well-publicized ordeal - it is clear from the ICRC report on the high-value detainees that their treatment also "met the legal definition of torture." In addition, it seems probable that the treatment of the 80 other prisoners held in secret CIA prisons, the treatment of prisoners in Afghanistan, before their arrival in Guantánamo and the treatment of over 100 prisoners in Guantánamo, who were subjected to versions of the "enhanced interrogation techniques" used on al-Qahtani would also constitute torture.
For these reasons, David Margolis' whitewash of Yoo and Bybee cannot be the final word. In his memo to Attorney General Eric Holder, dismissing the report's conclusions, Margolis tried to claim that it was important to remember that Yoo and Bybee were working in extraordinary circumstances, striving to prevent another major terrorist attack. In an early version of the report, OPR head Mary Patrice Brown dismissed this argument, asserting, "Situations of great stress, danger and fear do not relieve department attorneys of their duty to provide thorough, objective and candid legal advice, even if that advice is not what the client wants to hear."
This is correct, but another authoritative source also explains why there are no excuses for twisting the law out of all shape in an attempt to justify torture. As the UN Convention Against Torture stipulates (Article 2.2), "No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture."
The UN Convention also stipulates (Article 4. 1) that signatories to the Convention "shall ensure that all acts of torture are offences under its criminal law" and requires each state, when torture has been exposed, to "submit the case to its competent authorities for the purpose of prosecution" (Article 7.1). As with Article 2.2, there are no excuses for not taking action, and that includes political expediency, or, as Barack Obama described it, "a belief that we need to look forward as opposed to looking backwards."
I have left part of the commnets visable in this post just to give you an idea of what most people are saying. It appears as if people (Real Americans) are wising up, speaking up, and are sick of it all (the direction our country is going, which, me thinks, is right
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Forget it. You're beating a
Sat, 03/13/2010 - 16:50 — mysterioso (not verified)
Forget it. You're beating a dead horse.
There may not be a detailed
Sat, 03/13/2010 - 17:11 — mg (not verified)
There may not be a detailed study of the effects of the "enhanced interrogation techniques", but for some in the military to scrap it's waterboarding training because it had the psychological effect of a nuclear bomb on a person's resolve is certainly telling. This was before, or at least about the same time as the infamous memos were drafted. Margolis' determination seems wrong.
Sat, 03/13/2010 - 17:18 — Anonymous (not verified)
Pointless exercise-this administration has bought into all the evil of its' bush roots and will not let go.
Difference? N o difference. just repeated bait and switch to try and keep us on board.
"Forget it. You're beating a
Sat, 03/13/2010 - 17:31 — inL.A (not verified)
"Forget it. You're beating a dead horse."
Until it's found out that an American was treated in the same manner.
Dead Horse or whatever, the
Sat, 03/13/2010 - 17:32 — Anonymous (not verified)
Dead Horse or whatever, the fact that we even have to discuss torture shows that our government is clearly out of control.That so much torture went on and no one is yet held accountable could indeed lead to a conclusion that WE are the "bad guys" on the planet-
a violent regime with zero moral high ground to stand on... George Washinton is rolling in his grave...
Another attempt to test the
Sat, 03/13/2010 - 17:41 — Anonymous (not verified)
Another attempt to test the waters. Another way to eventually be legal as "they" decide to torture Americans as the bankrupt government goes thru its death throes. Allowing an American to be classified an "enemy combatant" was only the beginning of the 4th Reich. Will Americans stand up for American Way?
Let Yoo and Bybee be
Sat, 03/13/2010 - 18:07 — Anonymous (not verified)
Let Yoo and Bybee be subjected to water boarding, threatenings at gun point, and all the things they don't consider to be "torture" and then we will see if they alter their original definition of what torture is.
My fellow Americans, welcome
Sat, 03/13/2010 - 18:34 — BillyDoc (not verified)
My fellow Americans, welcome to the true and undisputed Axis of Evil. The Great Satan. Our homeland.
I don't know about you, but I'm not at all proud of this. I spent years of my life in government and military service, thinking at the time that I was serving my country. There is no way I would do it again. Not even close. This IS the Great Satan and the Axis of Evil, this bastion of Christian Values. My only hope now is that it collapses quickly, for humanity's sake.
the government of the United
Sat, 03/13/2010 - 18:43 — Anonymous (not verified)
the government of the United States. all three branches, no longer care about our history, our long held values, the rule of law, the Constitution, the Bill of Rights.
All they care about is the law of the jungle, who survives and who dies.
It is like that T-shirt that came out a few years ago-"He who has the most toys when he dies, wins."
And if in the process of winning, torture must be used, according to their standards, they will find a rationalization for using it, just as they have done, no matter how their arguments stretch credulity, no matter how they violate our laws, treaties or history. If they think it will help them win, then it is fair game and a legitimate response.
Saints preserve us, as no one else will.
Obama is W-lite and like W
Sat, 03/13/2010 - 19:03 — Anonymous (not verified)
Obama is W-lite and like W he deserves to be impeached!
Who would ever have thought
Sat, 03/13/2010 - 19:09 — boB0 (not verified)
Who would ever have thought it. Once called the leader of the free world we are now Nazi Germany, or perhaps even worse. Maybe we are now Stalinist Soviet Union or The Peoples Repub under Mao. So this is how the average non Nazi, German citizen must have felt as Hitler took over power.
It is Obama who is
Sat, 03/13/2010 - 19:14 — No We Won't (not verified)
It is Obama who is responsible for this cover-up or whitewashing of W/Cheney torture/warcrimes. And it is Obama who clearly now deserves to be IMPEACHED.
ACTUALLY IT'S HE WHO dies
Sat, 03/13/2010 - 19:28 — ultimus gimp (not verified)
ACTUALLY IT'S HE WHO dies with the most toys- is dead
So right, Andy
Sat, 03/13/2010 - 19:29 — S. Wolf Britain (not verified)
So right, Andy Worthington!!!!! You put it so succinctly and thoroughly that there is absolutely no (further) excuse(s) for not completely recognizing that all of the very points, and most important points, you made are totally accurate.
This article and the pointed facts it proves entirely true, beyond any reasonable doubt(s) whatsoever, also pointedly prove that there is absolutely no (further) excuse(s) for not holding all those involved in ordering and/or justifying the obvious torture completely accountable to the fullest extent of the law; and that there are absolutely no doubts whatsoever that ALL OF THEM are war criminals and MUST BE prosecuted, convicted and imprisoned for the rest of their natural lives for their heinous orders, justifications and very serious criminal violations of law that they very clearly perpetrated.
Thank you for making this patently and absolutely clear beyond any reasonable or logical doubt(s), excuse(s), justification(s) or rationalization(s) whatsoever.
A tractor trailer seriously
Sat, 03/13/2010 - 19:53 — On Topic (not verified)
A tractor trailer seriously injured Senate majority leader's wife, injuring his daughter also, by rear-ending her car. A rear-ending tractor trailer injured Judi Bari weeks before a car bomb nearly killed her, leaving her permanently crippled. FBI was covicted years later; gov't paid millions to her surviving daughters. President Johnson appointed former liberal Chief Justice Earl Warren to head a Commission that found Oswald to be President Kennedy's lone assassin, contrary to much evidence produced and later found to be factual. Many believe that Warren knew his family would have a fatal accident if he found otherwise. The Senate leader's intention to oppose further war funding became known when his wife's car was rear-ended.
"We hold these truths to be
Sat, 03/13/2010 - 19:55 — Anonymous (not verified)
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."
...And "...Prudence, indeed,
Sat, 03/13/2010 - 20:58 — S. Wolf Britain (not verified)
...And "...Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, IT IS THEIR DUTY, to throw off such Government, and to provide new Guards for their future security..."!
U.S. Declaration of Independence, 1776; LAW, AND/OR PART OF CONSTITUTIONAL LAW, under the Constitution of the United States, THE SUPREME LAW OF THE LAND, through the Supremacy Clause of that same Constitution! [Emphasis and/or clarification(s) added by me.]
IMPEACH TYRANT AND TREASONOUS TRAITOR BARACK HUSSEIN OBAMA, AKA BARRY SOTERO, CRIMINAL AGAINST THE U.S. CONSTITUTION AND BILL OF RIGHTS AMONG MANY OTHER LAWS; OBSTRUCTER OF JUSTICE BY PREVENTING WAR CRIMINALS FROM BEING PROSECUTED AND HELD ACCOUNTABLE; TORTURE ENABLER; "EXTRAORDINARY RENDITION" ENABLER; VIOLATOR AND DENIER OF TRUE DUE PROCESS OF LAW; ENABLER OF COMPLETELY UNCONSTITUTIONAL "LAW(S)" FALSELY AND FRAUDULENTLY LABELING, ACCUSING AND INDEFINITELY IMPRISONING, OFTEN WITHOUT TRIAL(S), COMPLETELY INNOCENT AMERICANS AND CITIZENS OF OTHER COUNTRIES FOR SUPPOSEDLY BEING "TERRORISTS", "ENEMY COMBATANTS", "ENEMY BELLIGERENTS", AND SUPPOSEDLY BEING "GUILTY" OF COMMITTING "PERCEIVED THREATENING CONDUCT" (UNDER THE SO-CALLED "U.S.A. 'P.A.T.R.I.O.T.' ACT"), BEING SO-CALLED "THREATS TO NATIONAL SECURITY", AND/OR OF SUPPOSEDLY BEING "GUILTY" OF BEING SO-CALLED "ENEMIES OF THE STATE"; ETC., ETC.!!!!!
Our government's embrace of
Sat, 03/13/2010 - 21:22 — Anonymous (not verified)
Our government's embrace of torture during the dark Bush years and the failure under Obama to aggressively demand accountability and redress is the most profound signal, among the many, of our nation's decline and descent.
..'out damned spot..'
...And I inadvertently left
Sat, 03/13/2010 - 21:26 — S. Wolf Britain (not verified)
...And I inadvertently left out, ...ENABLER OF THE COMPLETELY FRAUDULENT, ENDLESS, TOTALLY UNCONSTITUTIONAL AND OTHERWISE COMPLETELY ILLEGAL "WAR (OF!) TERRORISM"...!
en dot wikipedia dot
Sat, 03/13/2010 - 21:49 — S. Wolf Britain (not verified)
en dot wikipedia dot org/wiki/Declaration_of_Independence_(United_States)
While the nation is defining
Sun, 03/14/2010 - 00:21 — Anonymous (not verified)
While the nation is defining torture let us not forget to include the new "means and methods" of torture not being discussed such as brain and body implanted and embedded devices. The ability for remotely torture as defined by the U.S. right now can be done without any regulation at this time by advertisers. There is no excuse for AT&T being allowed to sell one on one time with embedded scientists, which came out during the hearings. What about the privacy and intellectual property and suffering of these scientists from AT&T's criminal behavior? Perhaps that is why there are so many dead or incarcerated ones. It was all about stealing technology for profit. This too, happened under the Cheney Presidency.
Advertisers like Ogilvy, a front for Mossad, have the rights to interact with people who have embedded devices without regulation. There was a hearing about it on Capital Hill last year. This interaction can include a total occupation of a person's time, sleeplessness until death, and even overriding corrections to the heart muscle to put a person into cardiac arrest.
Don't forget all the scientists and other innocent persons, including intelligence officers who were killed during the Bush Administration without the President's knowledge.
The real problem is what happened to the data, who has it, what are "they" doing with it and how can it be corrected.
We need Autolaw to safeguard ourselves.
There is no need whatsoever for any tortuous interrogations for any reason, when a persons mind can be read to obtain needed information.
i'm emailing for sick children
Let's face it. The effect
Sun, 03/14/2010 - 00:30 — Anonymous (not verified)
Let's face it. The effect of sustained illegal mistreatment of prisoners, made very public, has gone a long way towards redefining the Taliban - at least in their own minds - as freedom fighters.
Do you honestly think a
Sun, 03/14/2010 - 00:50 — goddamnathiest (not verified)
Do you honestly think a government lawyer would ever try and hold other government lawyers accountable for their actions?
Let these two stand trial at the Hague and then see what happens.
No government employee will ever be held accountable for their actions. But a junior enlisted soldier will and be sent to prison.
Where some still sit and rot for lesser acts.
You can't have a war on
Sun, 03/14/2010 - 01:10 — Anonymous (not verified)
You can't have a war on terror - semantically this is ludicrous. War IS terror & the USA are promoting, executing, aiding and abetting more wars than any other nation on the planet. So who are the terrorists?
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