In response to Friday's Executive Order authorizing the CIA to resume abusdive interrogations of "enemy combatants" in its custody, two of the NGOs leading the fight against torture have released a summary of their forthcoming report on the CIA's "enhanced techniques." [For an Analysis of the Executive Order, see Marty Lederman at Balkinization.]
For anyone thinking that the new CIA program will be substantially different than the old one -- described in detail online by Vanity Fair last week -- nearly universally condemned as torture, this quote from an Administration official is not comforting:
"CIA detainees have also alleged they were left naked in cells for prolonged periods, subjected to sensory and sleep deprivation and extreme heat and cold, and sexually taunted. A senior administration officials briefing reporters yesterday said that any future use of 'extremes of heat and cold' would be subject to a 'reasonable interpretation . . . we're not talking about forcibly induced hypothermia.' "
The report:
Summary of Forthcoming Report on
“Enhanced” Interrogation Techniques: The Risk of Criminality
by Physicians for Human Rights and Human Rights First
July 2007
All U.S. personnel who engage in the CIA’s so-called “enhanced” interrogation techniques and similarly abusive techniques are at serious risk of violating U.S. law. Under U.S. law, as detailed below, the severity of physical pain or mental harm caused by an interrogation technique is key to determining whether the technique can be considered torture or cruel, inhuman or degrading treatment. An extensive body of medical literature, derived from the treatment and study of torture survivors worldwide, demonstrates that the “enhanced” techniques are likely to cause significant physical and mental harm to detainees. As a result, officials and interrogators who authorize and participate in interrogations using these techniques face a substantial risk of criminal prosecution under the provisions prohibiting “torture” and “cruel and inhuman treatment” in the U.S. War Crimes Act (WCA), as amended by the Military Commissions Act of 2006 (MCA),i and under the U.S. Torture Act of 2000.ii Many of these interrogation techniques may also be prohibited by the Detainee Treatment Act of 2005 (DTA).iii To protect U.S. officials and personnel from potential criminal liability and to ensure that all U.S. personnel adhere to U.S. law, these techniques should not be authorized.
The CIA Enhanced Interrogation Methods
While the details of, and regulations governing, the CIA’s “enhanced” interrogation program remain classified, credible reports have disclosed several of these techniques, including waterboarding (mock drowning), exposure to extreme cold (including induced hypothermia), stress positions, extreme sensory deprivation and overload, shaking, striking, prolonged sleep deprivation, and isolation, among others.iv Without identifying these and other specifically approved techniques, the President has publicly endorsed “alternative interrogation methods,” declaring that the MCA, which he signed into law in October 2006, allows the CIA “program” to continue.v Yet a closer examination of the MCA and other U.S. law, informed by medical and psychological knowledge, reveals that authorization of these enhanced interrogation techniques, whether practiced alone or in combination, may constitute torture and/or cruel and inhuman treatment and, consequently, place interrogators at serious legal risk of prosecution for war crimes or other violations.
A recently declassified report by the Pentagon’s Office of the Inspector General (OIG) has revealed that these techniques were based in large part on techniques of torture used by the U.S military in its Survival, Evasion, Resistance, and Escape (SERE) program intended to train personnel to resist such abuse.vi According to the OIG, these techniques were transformed, with the assistance of military psychologists, into “standard operating procedure” (SOP) for interrogations at the Guantánamo Bay detention facility. This Guantánamo SOP, the OIG reports, also was brought to Afghanistan and Iraq and, according to media reports, provided a basis for techniques used by CIA personnel, also with assistance from psychologists.vii The origin of these techniques is directly related to the focus of this report. They were designed to inflict physical and psychological harm for the purpose of breaking down interrogation subjects. This report describes the nature and extent of that harm and the legal consequences.
Violations of the War Crimes Act, the Torture Act and the Detainee Treatment Act
The recent amendments to the War Crimes Act establish as war crimes “grave breaches” of Common Article 3 of the Geneva Conventions,viii including “torture” and “cruel and inhuman treatment.”ix “Torture” is characterized, in pertinent part, as “an act specifically intended to inflict severe physical or mental pain or suffering.”x The separate war crime of “cruel and inhuman treatment,” is defined “an act intended to inflict severe or serious physical or mental pain or suffering.”xi
For the crime of torture under the WCA xii and the Torture Act,xiii severe mental pain or suffering is defined as “the prolonged mental harm caused by or resulting from” several specified actions, including “the intentional infliction or threatened infliction of severe physical pain or suffering” and “the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality.”xiv
For the WCA crime of “cruel and inhuman treatment,” serious mental pain or suffering is defined as “the serious and non-transitory mental harm (which need not be prolonged) caused by or resulting from” the same specified actions.xv
Stephen Soldz is psychoanalyst, psychologist, public health researcher, and faculty member at the Institute for the Study of Violence of the Boston Graduate School of Psychoanalysis. He is a member of Roslindale Neighbors for Peace and Justice. He maintains the Psyche, Science, and Society blog.
Amy Goodman reports on several gutsy kids in the Presidential Scholars program who earned a chance to meet the President...and used the opportunity to hand him a note signed onto by about a third of the scholars.
Not the first time bright young American students have stood up for the rule of law and the Constitution in confronting this President, I hope no one forgets Kate Bateman's question to Bush April 10, 2006 or Tiffany Cooper's question to Bush Jan 23, 2006
by
Gustav Wynn (60 articles, 38 quicklinks, 5 diaries, 281 comments)
on Sunday, July 22, 2007 at 10:51:12 PM
Yes, it was inspiring to see the kids decide that citizenship meant doing something about societal wrongs. I also the apreciated the story of one of the students bursting into tears when she heard that her daughter had done wht she had not done during Vietnam.
by
Stephen Soldz (68 articles, 0 quicklinks, 52 diaries, 23 comments)
on Monday, July 23, 2007 at 6:27:26 AM
The Nuremberg trails established beyond doubt that the defence of "I was only following orders" is NOT acceptable with respect to War Crimes.
This brings us to the basic tenet of Military Law "a member of the defence force is legally bound to obey a LAWFUL order".
What is a lawful order "a lawful order must be for a military purpose (Note it doesn't have to be reasonable) and one that is not in itself unlawful'.
I would argue that with the issue of "enhanced interrogation techniques" is one were the concept of being for a military purpose is probably provable the question for soldiers ought to be is it in itself unlawful? I suspect it is unlawful in which case soldiers are duty bound to refuse the order as following an unlawful order may render them personally guilty of crimes against humanity.
by
kwalsh (1 articles, 0 quicklinks, 6 diaries, 206 comments)
on Sunday, July 22, 2007 at 11:11:06 PM
Everybody should do what they can to keep this issue alive. As the President himself repeated when challenged by the teen scholars, "The U.S. does not torture". This points up the two-headed hydra of denial in the room.
First, our government who directly or indirectly condoned torture: Alberto Gonzales fashioned a "torture memo" seeking loopholes in accountability for his President, while creating a new "enemy combatant" status, defined only by the right to be tortured without traditional standards of evidence or legal recourse. This led to abundant reports of torture happening in the field, as well as rendition and even reports of use of banned chemical weapons.
Then we have the order to "Gitmoize" detainee facilities in Iraq. Despite Bush muttering "The U.S. does not torture" the Abu Ghraib photos prove beyond all doubt we sure did torture. This brings up the second head of the hydra, the media.
The U.S. military was caught red-handed torturing with photo evidence. The result? Play down the story, quietly convict only the soldiers who appear in the photos.
But what happens when a Pulitzer winning reporter publishes an expose showing exactly how the Abu Ghraib scandal goes right up the ladder? This is what Seymour Hersh's New Yorker piece did, with a senior CIA source naming names that led right to Rumsfeld's deputy secretary.
No investigation has followed to date as network media has completely ignored the story.
The involvement of Dick Cheney's general counsel David Addington and DOJ attorney John Yoo in steering policy towards torture has been spotlighted in the Washington Post, though the greatest deterrent to torture, either officially sanctioned or by rogue interrogators, would be prosecution under the International War Crimes Tribunal, reinstatement of the International Criminal Court Treaty after Bush's 2002 welching, or as suggested by Amnesty International, convene a UN investigation into Rumsfeld, Gonzales, Cambone, Douglas Feith, William Haynes, Addington and former DOJ counsel Jay Bybee, now a federal appeals court judge. This report details how one German body is already seeking to try Rumseld, Gonzales and George Tenet in Berlin on behalf of 11 Iraqi Abu Ghraib victims.
Head of Amnesty U.S. William Schulz writes these architects of torture should be apprehended as they visit other countries, just like Pinochet was nabbed in London in 1998, and the bar associations of their respective states should investigate ethics breaches when government lawyers are used to craft legal opinions that justify or defend torture.
Regardless of Bush's recent re-phrasing of torture guidelines, or even the Military Commissions Act of 2006, prosecution of known incidents of torture will be most effective in prevention. The laws are on the books, but the government will not act unlesss there is sufficient outrage and minimal media coverage.
by
Gustav Wynn (60 articles, 38 quicklinks, 5 diaries, 281 comments)
on Monday, July 23, 2007 at 1:01:00 PM
4 comments
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