Or How I Learned to Stop Worrying

"Even assuming that Hamden is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the Executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment. " - Justice John Paul Stevens writing the majority opinion of the United States Supreme Court in Hamdan v. Rumsfeld, Secretary of Defense, et. al.

The United States Supreme Court today rejected the Bush Administration’s contention that it could ignore the United States Constitution and laws and set up kangaroo courts in which to try detainees held at Guantanamo Bay. The Court rejected the argument that the Congress had stripped its jurisdiction by enacting the Detainee Treatment Act of 2005. The Court also held that the Executive Branch must obey the law of war, the Geneva Conventions (including Common Article 3), and the UCMJ. In short, the Court held that the President is not above the law, even in a time of war.

By holding that the President must obey the laws, Justice Stevens took a giant bite out of the Unitary Executive theory that the Bush Administration loves and cherishes so much.  In rather short order, the legal arguments put forth by John Yoo justifying torture now begin to crumble. The Court’s holding that Common Article 3 of the Geneva Conventions binds the actions of the Executive nullifies the argument used by this Administration to exclude parts of Article 3 from the latest Army Field Manual on interrogation. A house of cards built on the fantasy of an unchecked ruler has crumbled today upon colliding with the United States Constitution.

The Bush Administration’s arguments for Executive overreach have never had firm legal grounding. Their grounding has been based on fear and fanaticism. The debate has always been between fanaticism and reason. Today reason won a temporary reprieve. But the fanatics are still in charge of the Ship of State. The Administration’s principal premise, whether it is to justify torture or to justify indefinite detention, has been that the people we are holding are bad, evil, horrible. Therefore, anything we do to them is justified. Every overreaching act of the Bush Administration has been predicated on that fundamental premise.

The Bush Administration tortures a prisoner because it assumes a priori that the prisoner is a terrorist. Therefore, to extract valuable intelligence that might save lives the Administration must torture the terrorist. The bush Administration detains a prisoner indefinitely because it assumes a priori that the prisoner is a terrorist. Therefore, to protect the safety of all Americans the Administration must detain the terrorist indefinitely.

This underlying premise that all we hold are terrorists has emotional appeal to supporters of the Bush Administration and many Americans who are terrified of an unseen and unpredictable enemy. The Administration knows this and never misses an opportunity to perpetuate this notion:

“The important thing here to understand is that the people that are at Guantanamo are bad people.”

“I mean, these are terrorists for the most part. These are people that were captured in the battlefield of Afghanistan or rounded up as part of the al Qaeda network."

”We’ve already screened the detainees there and released a number, sent them back to their home countries. But what’s left is hard core.”  - Vice President Dick Cheney, June 2005

The Administration’s supporters duly follow this line that everyone at Guantanamo Bay and everyone the United States tortures is a terrorist. However, there is plenty of evidence that this is not the case. Many prisoners at Guantanamo Bay were sold to the Americans by enterprising Pakistanis and Afghanis for hefty fees. A large number of these detainees were later found to be innocent and some have been released. There are others at Guantanamo, like Abdur Sayed Rahman and Muhibullah, who are being held there for reasons that defy sanity:

But there are many more, it seems, who sound like Abdur Sayed Rahman, a self-described Pakistani villager who says he was arrested at his modest home in January 2002, flown off to Afghanistan and later accused of being the deputy foreign minister of that country’s deposed Taliban regime.

"I am only a chicken farmer in Pakistan," he protested to American military officers at Guantánamo. "My name is Abdur Sayed Rahman. Abdur Zahid Rahman was the deputy foreign minister of the Taliban."

…

At one review hearing last year, an Afghan referred to by the single name Muhibullah denied accusations that he was either the former Taliban governor of Shibarghan Province or had worked for the governor. The solution to his case should have been simple, Mr. Muhibullah suggested to the three American officers reviewing his case: They should contact the Shibarghan governor and ask him.

But the presiding Marine Corps colonel said it was really up to the detainee to try to contact the governor. Assuming that the annual review board denied his petition for freedom, noted the officer, whose name was censored from the document, Mr. Muhibullah would have a year to do so.

"How do I find the governor of Shibarghan or anybody?" the detainee asked.

"Write to them," the presiding officer responded. "We know that it is difficult but you need to do your best."

"I appreciate your suggestion, but it is not that easy," Mr. Muhibullah said.

The Bush Administration not only detains people without charge who are not terrorists they have also kidnapped and tortured people who are not terrorists. By not following the laws or international Conventions, the Bush Administration has denied itself the tools to determine who is truly a terrorist and who is being unjustly held and tortured. But, based on their principal premise, the distinction between guilt and innocence need not be made.

Having lost the legal fight it remains to be seen if the Bush Administration will be able to stoke the flames of fear enough to convince the American people to look the other way as it continues to torture and detain "terrorists". The Supreme Court has spoken; will the President listen?

This morning I attended a teach-in at the Georgetown University Law Center on Torture and Extraordinary Rendition. The panelists discussed the issue of torture, current torture cases, and pending legislation that will attempt to stop the Bush Administration from torturing. There were many legal, constitutional, and practical arguments put forth as to why torture should not be practiced. However, one argument stood out amongst all the rest. That argument was made by Nora Mislem - a woman, a mother, a torture survivor. In this post I want to tell you her story as best as I can convey with written words. Her story is her argument against torture.

Nora Mislem is from Honduras. In the early 1980s she was amongst a group of leftist students in Honduras who went to the Salvadoran border to assist refugees fleeing El Salvador. During this time the Honduran government was running CIA backed death squads to crush and terrorize the opposition. The Reagan Administration, in its proxy war against Marxist guerrillas in Central America, was training and supporting ruthless regimes in Honduras and other neighboring countries. In Honduras, the most notorious acts of murder and torture were being carried out by a CIA trained unit called Battalion 316. In 1981 and again in 1982 Nora Mislem was kidnapped by men from Battalion 316.

Under the custody of Battalion 316, Nora Mislem suffered torture like countless other victims. I sat silent today in the auditorium as she recounted in Spanish what horrors her torturers inflicted upon her. Every once in a while she paused as her translator, Sister Maureen from Torture Abolition and Survivors Support Coalition, described in English the horrors we knew she had spoken in her native tongue. In the next few sentences I will recount what I heard. But when I write them they will sound to the reader like many other tales of torture I am sure you have heard about. However, when I heard them today from her they were neither banal nor distant. They were the words of a human being who had suffered unimaginable horrors at the hands of monsters who continue to live among us.

Nora Mislem was tied up and hooded. She was handcuffed and tied with rubber tubing. She was told that her two-year-old son had been killed by the death squads in retaliation. She was told that soon her parents too would be killed. She was beaten. She was given electric shock all over her body including her genitals. A plastic bag was brought out. A machete was put to her head. She was told she was a dog. She was told her head would be cut off and put in the plastic bag for other dogs to eat. She was told that her genitals would be mutilated. She was repeatedly violated by her male torturers. Then without hope, she was released to live with the physical and emotional scars forever.

I asked her afterwards why she thinks she was tortured, what did her torturers hope to gain by torturing her? She said to me that she believes that she was tortured to instill fear and terror in the population. Others who dared to speak out against the government would face a similar fate. Her torture was an act of terrorism, not a method of interrogation. The purpose was to intimidate and humiliate. Ultimately she was tortured because the torturers had the freedom to torture without facing any consequences.

Nora Mislem’s story is not unique. Unfortunately she is one of many thousands of women, mothers, daughters, sisters and human beings around the world who carry the scars of torture with them every day of their lives. Her story is the story of torture. The Bush Administration has now made all Americans characters in the story of torture.

One of the participants at today’s teach-in made the point that the wrong discussion to have is whether torture as an interrogation technique works or not. That is irrelevant. Torture should not be allowed because it makes monsters of the torturers. When the Bush Administration decided that torture was acceptable, it dehumanized the Americans who are charged with practicing it. It dehumanized us as a people. In the 1980s the United States turned a blind eye when our allies practiced torture - today we have imported the practice and made it our own. Is this the nation we want to be?

Tomorrow, June 26th, has been designated by the United Nations as the International Day in Support of Survivors and Victims of Torture. There will be many events marking the day. After the events are over, many of us will move on with our lives. Occasionally we will rise in opposition to torture and hope our efforts will some day end this evil practice. In time Nora Mislem’s story will likely fade from our memories. However, for Mrs. Mislem and other survivors, torture is a lifelong tragedy. For her and for the thousands of others who continue to suffer torture we as a nation need to become human again. 

Events in Washington DC marking the 9th Annual U.N. International Day in Support of Survivors and Victims of Torture:

• Beginning Monday, June 26th at 7 a.m., TASSC will hold a 24-hour Vigil in Lafayette Park in Washington, DC. Click here for the schedule. I plan on being there in the evening.
• Amnesty International USA will lobby Congress tomorrow from 9 a.m. to 5 p.m. to stop extraordinary rendition.

As part of Torture Awareness Month, Georgetown University in Washington DC will host a teach-in on Extraordinary Rendition and Torture this Sunday, June 25th, 2006. I will be attending. I encourage anyone who lives in the Washington DC area to also attend. The teach-in is free and promises to be informative. As an added bonus, if you can guess who I am I promise to buy you a coffee at the nearest Starbucks.

Click here for the schedule and agenda of the teach-in. I hope to see you there.

Click here to register for the teach-in.

Click here to book our low low fares to the world’s most exotic torture destinations!

[Click here if you have complaints about our service. Click here if you would like a refund.]

Three detainees at Guantanamo Bay committed suicide yesterday. I had cited a tongue-in-cheek post a few weeks ago from Jeremiah Bullfrog about "suicide torturees". Little did I know at the time that the jailers at Guantanamo Bay had also read Jeremiah’s post. However, they apparently missed the satire completely.

Responding to the suicides Rear Admiral Harry Harris of the Joint Task Force - Guantanamo said:

They are smart. They are creative. They are committed. They have no regard for human life, neither ours nor their own. I believe this was not an act of desperation, but rather an act of asymmetrical warfare waged against us.

Have we lost our minds? Let me be very clear: Suicide is not an act of war. There is a big difference between "suicide" and "suicide bomber"; the latter involves killing other people. I can only hope this is some very clever psy-ops tactic to get al Qaeda to commit spontaneous suicide. Otherwise, we are in a world of trouble in the War on Terror. If the enemy is able to attack us by committing suicide, I am afraid we have no countermeasures.

The three detainees who committed suicide were being held without charges by the United States. They were not given Prisoner of War status and thereby denied the protections of the Geneva Conventions. They were very likely tortured. They were kept outside the jurisdiction of the US courts. There is absolutely no reason to believe that these men were guilty of anything. The only "evidence" we have is the word of the Bush Administration. I am afraid "trust us" no longer is an adequate explanation for gross violations of Human Rights.

One of the reasons the Geneva Conventions exist is for the protection of the party that is holding the prisoners. In addition to protecting the prisoners from abuse, the Geneva Conventions offer the necessary transparency so that the jailers cannot be accused of torture or other human rights violations. I am afraid by denying these prisoners the Geneva protections the United States cannot escape the charge that it tortures. If it did not torture, there was no reason not to accord these prisoners Geneva protections.

It should be no surprise that already these suicides are being called into question by the Saudis and others. The Bush Administration has no defense to these charges. The War on Terror is largely about hearts and minds. Guess who is losing that battle? Admiral Harris has more to worry about than whether suicides constitute acts of war. His statements are the latest indication that the United States violates laws of war and human rights at Guantanamo. The United States apparently does not even understand what constitutes "war" or it has broadened the definition of "war". If the US definition of "war" has been broadened, in conjunction with the narrowing of the definition of "torture", it points quite definitively to the Bush Administration’s lack of respect for human rights and international norms.

It used to be that the United States enjoyed the moral authority to point out bad behavior by other countries. Those days are over. The United States now is on the receiving end of such charges. Any claim that the United States now makes about defending the human rights of people in Iraq or other places will be considered a joke. This is a tragedy for us as Americans and for the rest of the world. We are moving from the age of reason to one where might is right. Shame on the Bush Administration and shame on us for allowing it to happen.

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.

June is Torture Awareness Month. June 26th is the date that the United Nations has marked as the International Day in Support of Survivors and Victims of Torture.

This blog has joined Bloggers Against Torture to spread awareness of American torture policy. The United States has increasingly used torture as a weapon in the "War on Terror". Throughout this month I will post articles that call attention to this abhorrent practice.

Here is what you can do to help:

• Visit the Torture Awareness Month website for more information on US torture policies and how you can help end these policies through community action, lobbying and other activities.
• If you are a blogger, please join Bloggers Against Torture.
• Please spread the word to your friends and neighbors by referring them to the Torture Awareness Month website.

June is Torture Awareness Month. To spread awareness Elendil of Rummy’s Diaries has launched Bloggers Against Torture. If you are a blogger, please consider joining the alliance. If you are a reader, visit the alliance web site and help spread the word. Torture can only survive in the shadows - help shine a light on this scourge upon humanity.

"The most potent weapon in the hands of the oppressor is the mind of the oppressed." - Stephen Biko (1946-1977)