Or How I Learned to Stop Worrying

Two months after the United Nations Committee Against Torture released its report criticizing the Bush’s Administration’s use of torture, the United Nations Human Rights Committee followed up with its own report. The committee criticized the United States for its continued practice of torture and of using extraordinary rendition to send detainees to countries that practice torture. The Committee also criticized the Bush Administration’s holding of persons secretly and without charge.

According to the Committee report:

The Committee was concerned by credible and uncontested information that the State party had detained people secretly for months and years on end. It was also concerned that for a period of time the State party had authorized interrogation techniques such as prolonged stress positions and isolation, sensory deprivation, hooding, exposure to cold or heat, and 20-hour interrogations. While the Committee welcomed the assurance that those techniques were no longer authorized under the present Army Field Manual, the United States should ensure that the Manual only permitted techniques consistent with the prohibition contained in article 7 of the Covenant, and that those techniques were binding on all agencies of government and others acting for them. The Committee also noted with concern shortcomings in relation to the independence, impartiality and effectiveness of investigations conducted into allegations of torture and cruel, inhuman or degrading treatment or punishment in detention facilities in Guantanamo, Afghanistan, Iraq, and other overseas locations, and into alleged cases of suspicious death in custody in those locations.

The Committee was further concerned that the State party appeared to have adopted a policy to send, or to assist in sending, suspected terrorists to third countries for purposes of detention and interrogation, without the appropriate safeguards to prevent treatment prohibited by the Covenant.

Just as it did when confronted with the report from the UN Committee Against Torture, the Bush Administration defended itself by stating that the Human Rights Committee and the International Covenant on Civil and Political Rights, whose implementation the Committee is charged with monitoring, do not apply to the War on Terror. Specifically the Bush Administration argued that the Covenant only applied when the State Party (United States) committed torture on its own territory. In other words, if the United States tortures a detainee on foreign soil, the Committee does not have jurisdiction. The Bush Administration’s position was presented by Matthew Waxman, Principal Deputy Assistant Secretary, Department of State:

The United States believed that the law of armed conflict – international humanitarian law – provided the proper legal framework regarding some of the questions raised by the Committee, Mr. Waxman noted. The United States was aware of the views of members of the Committee regarding the extraterritorial application of the Covenant, including the Committee’s General Comment No. 31. The United States, however, had a principled and long-held view that the Covenant applied only to a State party’s territory. Article 2, paragraph 1, of the Covenant stated explicitly that States parties were required to respect and ensure the rights in the Covenant to all individuals "within its territory and subject to its jurisdiction". That plain meaning of the treaty language was also confirmed by the Covenant’s own negotiating record. It was in light of its principled and longstanding view on the scope of the application of United States obligations under the Covenant, that the United States had not included in its formal response to the Committee’s written questions information regarding activities outside of its territory or governed by the law of armed conflict.

The Committee however was not persuaded by the Bush Administration’s argument.

Having lost the moral high ground and having butchered the definition of torture, the Bush Administration is now left with making mind-bending arguments that defy common sense. Torture is torture only if it is practiced in the United States. Torture is not torture when practiced by the United States on foreign soil. This is the basis for the existence of Guantanamo Bay and an unknown number of CIA secret prisons across the globe. The Bush Administration has been getting a lot of bad legal advice. The only person who might perhaps have been impressed by these arguments is the late George Orwell.

 [Cross posted at Bloggers Against Torture]

The big story today from the Los Angeles Times is that the United States has decided to omit parts of Article 3 of the Geneva Conventions from the latest Army Field Manual on interrogation. The Pentagon has apparently decided to omit the "humiliating and degrading treatment" clause of the Article. This has caused outrage in the Human Rights community. The military’s judge advocates general and the State Department have also fiercely opposed this omission. According to the LA Times, the State Department had argued that this change would be a blow to American standing internationally:

Defense officials said the State Department and other agencies had argued that adopting Article 3 would put the U.S. government on more solid "moral footing," and make U.S. policies easier to defend abroad.

Some State Department officials have told the Pentagon that incorporating Geneva into the new directive would show American allies that the American military is following "common standards" rather than making up its own rules. Department officials declined to comment for this article about the directive or their discussions with the Pentagon.

The focus of the concern about the omission has been on abandoning the part of Article 3 that prohibits "humiliating and degrading treatment". However, the focus should really be on torture instead.

The Geneva exemption is part of a broader effort by the Bush Administration to systematically justify the use of torture by lawyering around the international Conventions that it is signatory to. As I discussed in an earlier post, the United States has already narrowed its definition of "torture" from the definition found in the United Nations Convention Against Torture. The United States has also asserted that when it ratified the Convention Against Torture, it only ratified the "torture" portion of the Convention and not the "cruel, inhuman and degrading punishment" part of the Convention. By narrowing the definition of "torture" and not accepting the remaining portions of the Convention, the United States can now effectively claim that interrogation techniques that do not cause serious injury such as "organ failure" or "even death" do not rise to the level of "torture". Furthermore, since the United States only accepts the "torture" part of the Convention, anything short of the US definition of "torture" does not violate America’s obligations under the Convention Against Torture.

The narrowed United States definition of "torture" has been in place since 2002 when the "Torture Memo" was written by the Justice Department. However, the United States military was still bound by the Army Field Manual, which adhered to Article 3 of the Geneva Conventions. Up until now, only non-military personnel (CIA) were able to take advantage of the narrower definition of "torture" during interrogations. Article 3 still prevented the military from engaging in interrogations that were short of the US definition of "torture" but were caught by Article 3’s prohibition on "humiliating and degrading treatment". Dropping these parts of Article 3 now allows the United States military to engage in behavior that falls under the Convention Against Torture’s definition of "torture" but not under the US definition of "torture". Article 3 of the Geneva Conventions was the last check against a uniform policy of torture that can now be implemented across all branches of the United States government, including the military.

A final obvious but important aspect of the overall torture policy is that acts performed under the narrow definition of "torture" would constitute a crime if committed within the United States where US Courts have jurisdiction. That is the reason why Guantanamo Bay exists.

It is important to call attention to this cleverly disguised attempt by the United States Government to enlist the military in its policy of torture. The Administration would much prefer to debate what constitutes "humiliating" or "degrading" behavior. That is a murky area that the Administration hopes will cloud the real issue. The real issue is on the other side of the interrogation spectrum. The real issue is what constitutes torture. This Administration is playing word games while it pursues a policy of torture. Our moral authority in the world is not the only thing that is being compromised - we as a people are complicit in torture if we allow it to continue.

Torture needs a rationale to survive. Torture needs a justification. States that torture always find ways to justify torture as an act that is within the law. They use the law as the first weapon of torture. Before the drills are powered up, before the electricity is turned on, before the water is boiled, before the knives are sharpened, it is the lawyer who strikes the first and most lethal blow.

The Nazis were very good at codifying torture. They had brilliant but morally bankrupt lawyers craft legal arguments to justify their increasingly sadistic methods in order to get "information vital to the interests of the State". The world, however, was not impressed and saw evil for what it was - evil. In response to the crimes of the Nazis the United Nations adopted the Universal Declaration of Human Rights (UDHR) in 1948 to try to ensure that the barbarism of the Nazis would never be repeated again. The Preamble to the UDHR states in part:

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

Whereas it is essential to promote the development of friendly relations between nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge, […]

Noble as it was, the UDHR did not prevent States from engaging in horrific acts of torture. Recognizing the continued practice of torture, The United Nations, in 1984, adopted the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This Convention was supposed to remove once and for all the scourge of torture from the arsenals of civilized nations.

The United Nations did not count on an enterprising young lawyer named John Yoo. In August 2002, while working at the Justice Department John Yoo authored what became known as the "Torture Memo". John Yoo also authored other fine works that any Police State or young Nazi would be proud of, but for today, I would like to focus on his loving treatment of torture. Yoo wrote this memo in response to then White Counsel Alberto Gonzales’ request for a legal justification of "enhanced interrogation techniques" the Bush Administration was learning to master. The Bush Administration needed a legal justification to torture and John Yoo was more than eager to provide one.

John Yoo is a fine and brilliant lawyer. He took to the task of justifying torture with gusto. However, he ran into one big problem. That problem was the UN Convention against Torture. On the face of it, the Convention’s language is pretty clear about what constitutes torture and what the obligations of each State that is a party to the Convention are. The Convention in Article I paragraph 1 defines torture:

For the purposes of this Convention, the term "torture" means 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, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Yoo argued that the United States defines torture differently than the United Nations and it said so when it ratified the Convention (under the first President Bush). He further argued that no State at the time objected to the US’s narrower definition of torture. Therefore, the US was not committing torture. Furthermore, he argued, even if the United States was committing torture, no international court had the authority to hold the United States in violation of the Convention. Nana nana boo boo! Yoo concluded his schoolboy argument:

Thus, we conclude that the Bush Administration’s understanding created a valid and effective reservation to the Torture Convention. Even if it were otherwise, there is no international court to review the conduct of the United States under the Convention. In an additional reservation, the United States refused to accept the jurisdiction of the ICJ (which, in any event, could only hear a case brought by another state, not by an individual) to adjudicate cases under the Convention. Although the Convention creates a Committee to monitor compliance, it can only conduct its studies and has no enforcement powers.

It is no small coincidence that Yoo was also the chief proponent of the Presidential Signing Statement in the Bush Administration. He argues that laws and conventions can be interpreted by the President in any way he chooses. So, the President never actually violates a law or a convention, he simply reinterprets it.

In his defense of his memo and Alberto Gonzales, John Yoo unabashedly defended the American definition of torture by blaming Congress:

The Senate and Congress’ decisions provided the basis for the Justice Department’s definition of torture:

"Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture (under U.S. law), it must result in significant psychological harm of significant duration, e.g., lasting for months or even years. . . . We conclude that the statute, taken as a whole, makes plain that it prohibits only extreme acts.'’

Besides, he argued, the United States did not accept the entire Convention; it only accepted the "torture" part (with modified definition) and not the "cruel, inhuman and degrading punishment" part:

Not only does the very text of the convention recognize the difference between cruel, inhuman and degrading treatment and torture, but the United States clearly chose to criminalize only torture.

I suppose it would not help to point out to Mr. Yoo that the Convention is "against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment". The "other" in the Convention’s title and in its text would seem to most English speakers to clearly indicate that "torture" is a subset of "cruel, inhuman or degrading treatment or punishment" and not separate from "cruel, inhuman or degrading treatment or punishment". But who am I to quibble with such a fine lawyer?

Last month the United Nations Committee Against Torture strongly criticized the United States for clear violations of the Convention Against Torture. I am sure that does not bother Mr. Yoo. After all, as he has stated, so what? They can’t force the United States to stop torturing.

Behind the tortured legal arguments lies the mind of a monster. In December 2005, during a debate at Norte Dame University, John Yoo acknowledged that no treaty or law prevents the President from authorizing torture of a child, including "crushing the testicles" of the child. First the State decides to torture, and then it uses the law to justify the torture. Dr. Joseph Mengele would tear up with pride.

Torture at its most basic level is carried out by jackbooted thugs who inflict pain and humiliation upon a helpless human being. But the thugs are just instruments that carry out the policy. In that the actual torturers are like the electric drills or the electrodes used to inflict the pain. These thugs are the mindless foot soldiers of the State. The real criminals are the ones who rationalize torture, who give it breath, who give it life. They often do not see the violence and cruelty their policies and rationalizations unleash. They are far removed from the blood and the feces. They do not have to wash their hands of the stench of death or decay. They are the real perpetrators of torture. They are the ones who need to be stopped if torture is to be eradicated.

These poisonous minds, like John Yoo, have infected the body of the United States with their poisonous policy. For the United States to recover from this sickness of torture, it must hold these sinister minds accountable and reject their kind. These policies are unworthy of a nation that was once the beacon of human rights. Shame on us until we end the torture.

"For the purposes of this Convention, the term "torture" means 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, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. " - Article I, paragraph 1 of the Convention Against Torture ratified by the United States on April 18, 1988.

The United Nations Committee Against Torture released its State Report for the United States on May 18, 2006. In an 11-page indictment of the United States the Committee laid bare America’s loss of moral authority in the world. The report was a product of the 36th session of the Committee Against Torture. Of the 7 countries reviewed during the session only the United States provided a written defense of its torture policies to the Committee. More so than the Committee report the written response of the United States demonstrates that the United States has been engaged in a systematic campaign of torture since the attacks of September 11, 2001. The report and the American response shed light on a shameful chapter in American history.

 The American defense of torture is based on four pillars of argument:

1. The United States defines torture differently than the United Nations Convention Against Torture.
2. The Convention Against Torture does not apply during times of armed conflict.
3. The Convention Against Torture only applies to the United States when it commits torture on the territory of the United States.
4. Kidnapping and disappearance perpetrated by the United States do not constitute torture.

 The Committee report indicts the United States on the following grounds:

• The United States should ensure that psychological torture be defined according to the Convention and not according to the U.S. contention that only "prolonged mental harm" constitutes torture. The definition of torture in the Convention clearly states that 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."
• The Committee cites articles 1 and 16 of the Convention that states that the Convention Against Torture applies at all times and not only during peacetime as the United States has contended. The United States had made the absurd assertion that only the "law of armed conflict" should apply during wars and that applying the Convention Against Torture would "result in an overlap of the different treaties which would undermine the objective of eradicating torture".
• The Committee clarified to the United States that the Convention applies to all territories (including Guantanamo Bay) under the control of the United States, and not only on acts of torture committed by the United States within the borders of the United States. The United States has used this absurd geographical limitation as a basis for perpetrating torture on detainees at Guantanamo Bay and elsewhere around the world.
• The Committee chastised the United States for not registering some prisoners and hiding them from international observers. This tactic effectively removes all safeguards against torture.
• The Committee noted that secret detention facilities run by the United States without any international oversight violate the Convention Against Torture. The United States response to the Committee’s inquiry was a "no comment" and is a tacit admission of guilt by the United States.
• The Committee pointed out the obvious fact lost upon the United States that enforced disappearances of persons by the United States is a violation of the Convention Against Torture.
• The Committee informed the United States that extraordinary rendition of persons to countries known to commit torture puts the United States in violation of the Convention Against Torture. This clever sleight of hand by the United States does not absolve it of its responsibilities under the Convention.
• The Committee noted that the indefinite detention of persons at Guantanamo Bay and elsewhere is a violation of the Convention Against Torture. The Committee recommended that the Guantanamo Bay detention facility be closed to bring the United States into compliance with the Convention.
• The Committee pointed out that techniques such as "waterboarding", use of dogs and "short shackling" that have led to deaths are a violation of the Convention Against Torture. The United States had argued rather bizarrely that cruel and inhuman punishment is not necessarily torture.

The United States has come a long way from the Clinton days when our biggest moral dilemma was whether or not fallatio constituted sex. The fact that the United States finds itself in the untenable position of arguing that it does not torture on tortured definitions of the word "torture" and geographical jurisdiction of the Convention should give all citizens pause. Our Government is essentially arguing that torturing someone on foreign soil is not torture. Our Government is arguing that the word "torture" can be defined so that most torture (like beating a man until he dies) can be construed as not being "torture". Our Government is arguing that kidnapping someone so that they disappear from the face of this planet is not torture because the person is now a non-person and no one can hear his or her screams. Our Government is arguing that if a bear shits in the woods and no one is there to see it, the bear did not in fact shit in the woods. Our Government is arguing that we can only torture someone if we are at peace with him or her. If we declare war on someone we are free to stick baseball bats up their asses to our hearts’ content and be safe in the delusion that we are not torturing them.

Our Government has lost its collective mind when it comes to torture. Is it any wonder that we are losing hearts and minds in the War on Terror? By our condoning of torture, by our tortured defense of torture, by our complete lack of humanity we are now viewed in the world as a rogue state. This must end.

For centuries the United States has been a beacon of hope for people fleeing torture and persecution. For centuries the wretched of the earth have pointed to the United States and said, "there, that is where there is hope; that is where there is justice." For centuries people have come to our shores with wounds emotional and physical and we have given them shelter and given them solace. We cannot be the great country we have been, the shining example to the World of human dignity and human achievement, if we allow our Government to torture and destroy all that this country has stood for.

This must end. This must end now. We, the people of the United States of America, must say in one voice to our Government that We do not torture. You will not torture, not in Our name. This must end now.