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Rediscovering Human Rights in an Age of Torture(rs): Hayden and Mukasey, the point of law is principle

By       Message Raymond Budelman     Permalink
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opednews.com Headlined to H3 4/23/09

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In a Wall Street Journal op-ed two former Bush administration officials, CIA director General Michael Hayden and Attorney General Michael Mukasey, assert that President Obama’s release of Office of Legal Counsel (OLC) opinions discussing the possible legality of the CIA’s proposed harsh interrogation methods was “unnecessary” and “unsound as a matter of policy.”  According to Hayden and Mukasey, the techniques (which included the ‘attention grasp,’ ‘walling,’ facial holds, the ‘insult slap,’ cramped confinement, ‘wall standing,’ stress positions, sleep deprivation, “insects placed in a confinement box,” and waterboarding) “were applied only when expressly permitted by the [CIA] director” on an “as-needed” basis.

The four memos at issue are incredibly detailed and at times sound more like a reading of George Orwell’s 1984 than they do authoritative and binding legal advice.  For example, according to an August 1, 2002 OLC memo, the placing of an unknown insect into a small confinement box, occupied by a detainee who fears insects, would not constitute torture as the term is defined in U.S. law so long as the CIA took appropriate precautions.  Moreover although the use of waterboarding would, by the OLC’s own admission, constitute a threat of imminent death (as it produces a physiological effect that convinces the victim that he or she is drowning), waterboarding would not, so the Justice Department of 2002 said, produce the “prolonged harm” that is necessary for an act to constitute torture.

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Additionally, even if the outlined techniques were said to cause severe pain and suffering and/or constitute threats of imminent death and prolonged harm were proven, the OLC asserted that interrogators could not be prosecuted for violating the U.S.’s torture statute because “to have the required specific intent, an individual must expressly intend to cause such severe pain or suffering” or be acting in bad faith when using such techniques.  Since the OLC declared that “the objective of these techniques is not to cause severe physical pain,” it found that the requisite specific intent was not present.  Therefore, waterboarding—though dangerous and potentially fatal—is not torture as defined by U.S. law.  The August 2002 memo closes with a disingenuous caveat by the then-Assistant Attorney General (now judge) Jay Bybee: “We wish to emphasize that this is our best reading of the law; however, you should be aware that there are no cases construing this statute; just as there have been no prosecutions brought under it.”

According to Hayden and Mukasey, the release of these Orwellian memos will “invite the kind of institutional timidity and fear of recrimination that weakened intelligence gathering in the past, and that we came sorely to regret on Sept. 11, 2001.”  Excuse me?  Did I just read that?  Am I hallucinating?  Have I been living in an alternate reality for the past eight years?  Hey a**holes, September 11th was not a result of institutional timidity; the attack on this country was a result of institutional incompetence!  The attacks arose out of the federal authority’s inability to effectively share intelligence between agencies!  The worst attacks in this country’s history were the result of an FAA that acted as if aviation threats were a thing of the past!  But most of all the attacks were a consequence of seeing a president care more about vacations to Crawford than he did about his obligation to “secure the homeland!”  And the unavailability of torture as a viable interrogation tactic certainly had nothing to do with the attack either.  President Bush’s administration simply fell asleep at the wheel.

Notwithstanding this culture of incompetence and indolence, the CIA still had the institutional brainpower to draft a memo titled “Bin Laden determined to attack inside the U.S.” and pass it along to President Bush more than a month prior to that fateful September day.  Bin Laden determined to attack inside the U.S.  Pretty fuckin’ timid, ain’t it?  How more obvious does the CIA have to be?  Maybe the CIA could have drafted a memo titled “Move Your Asses!” Or better yet, it could have foretold the attack entirely by titling its memo: “Bin Laden to attack the World Trade Center and Pentagon on September 11, 2001 by hijacking four commercial airliners flying out of Newark and Boston.”  That would’ve done the trick!  If only the CIA knew.

Continuing their misguided rationalization and defense of torture, Hayden and Mukasey assert that “public disclosure of the OLC opinions, and thus of the techniques themselves, assures that terrorists are now aware of the absolute limit of what the U.S. government could do to extract information from them, and can supplement their training accordingly,” diminishing the future effectiveness of such techniques.  How stupid are these guys?  Did Mukasey and Hayden take too much LSD in college?  I’m pretty sure everyone, and I mean everyone—from George W. Bush to Osama bin Laden,  is and always has been (or at least should have been) aware that torture surpasses the ‘civilized’ world’s limit with regard to acceptable interrogation practices.

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Hayden’s and Mukasey’s ultimate conclusion is that “By allowing this disclosure, President Obama has tied not only his own hands but also the hands of any future administration faced with the prospect of attack.”  How so?  As a human rights advocate, I would like to believe that the U.S.’s days of torture are behind her.  But as Hayden, Mukasey, and other George Bush officials can attest to, saying that “America does not torture” and actually making that statement stand up in reality are two very different and unrelated things.  Sadly, the disclosure of the U.S.’s torturous practices over the last eight years will not eliminate the prospect of torture in the future.  The only thing that President Obama could do to “tie” his hands and the hands of future presidents would be to bring investigations and criminal prosecutions.  Yet, prosecution of individuals who have tortured detainees has, by all appearances, been ruled out entirely by the current administration.  Moreover, international prosecution seems to be just as implausible, now that Spanish authorities are caving to American pressure, dropping their investigative efforts against Attorney General Gonzales and others.

Contrary to what Mukasey and Hayden claim, the way the American Government has treated suspected terrorists over the past eight years has never be determined or influenced by the way that terrorists treat Americans.  While “the people who beheaded Nicholas Berg and Daniel Pearl, and have tortured and slain other American captives, are [not] likely to be shamed into giving up violence by the news that the U.S. will no longer interrupt the sleep cycle of captured terrorists,” they are also not likely to find encouragement (nor will they find recruits) in a world where America at least appears to stand up for its liberal values.  Furthermore, even were these efforts to fail entirely in limiting the effectiveness of terrorist organizations’ message of hate, the use of barbaric practices by one party does not justify or excuse the use of barbaric practices by another more powerful party.  There is value in remaining above the torture fray.  In the words of Israel’s High Court of Justice, “We are aware that [the decision to outlaw the use of torture] does not ease dealing with [the] reality” of terrorism, but “This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it.”

If some a**hole wants to go and cut off an American’s head or kill 3,000 innocent Americans while contemporaneously vilifying America, calling it “the Great Satan,” he is presenting an ineffective and losing argument.  But the argument is losing and ineffective only up until the time when America “proves” how evil it truly is by abandoning all of its democratic values in a futile effort to achieve security through backward, medieval means.

You see, Mukasey and Hayden fall into an all too typical trap common to Americans these days.  In advancing their argument against the disclosure of the OLC memos and, ultimately, for the use of torture (which they, like so many other conservatives, euphemistically label “harsh interrogation”), the assumption is made that the detained terrorist suspects are not suspects at all; indeed, they are simply terrorists.  Again I quote: “the people who beheaded Nicholas Berg and Daniel Pearl, and have tortured and slain other American captives, are [not] likely to be shamed into giving up violence by the news that the U.S. will no longer interrupt the sleep cycle of captured terrorists.”  They, like so many others whom have been blinded by fear, operate under a principle of “guilty until proven guilty.”  The word ‘terrorist’ has entered the American lexicon in an unsurprising, albeit regrettable, way: the word terrorist brands its subject with an indelible mark of nonhumanity.  Ergo, terrorists need not be treated like humans and afforded fundamental human rights because they are not human.  They, in the eyes of many conservatives, are the quintessential demonized “other.”

Hayden and Mukasey also justify torture implicitly, through the September 11th paradigm.  They link harsh interrogation with the terrorist threat to America when in reality the two things have truly nothing to do with one another (aside from the fact that torture often evokes a feeling of terror from its victims).  Hayden and Mukasey frame the issue in such a way as to make it impossible for a rational American to believe that terrorist activity can be thwarted without using torture.  One passage from Hayden’s and Mukasey’s writing is worth quoting at length:

There is something of the self-fulfilling prophecy in the claim that our interrogation of some unlawful combatants beyond the limits set in the Army Field Manual has disgraced us before the world.  Such a claim often conflates interrogation with the sadism engaged in by some soldiers at Abu Ghraib, an incident that had nothing whatever to do with intelligence gathering.  The limits of the Army Field Manual are entirely appropriate for young soldiers, for the conditions in which they operate, for the detainees they routinely question, and for the kinds of tactically relevant information they pursue.  Those limits are not appropriate, however, for more experienced people in controlled circumstances with high-value detainees.  Indeed, the Army Field Manual was created with awareness that there was an alternative protocol for high-value detainees.

In addition, there were those who believed that the U.S. deserved what it got on Sept. 11, 2001.  Such people, and many who purport to speak for world opinion, were resourceful both before and after the Sept. 11 attacks in crafting reasons to resent America's role as a superpower.  Recall also that the first World Trade Center bombing in 1993, the attacks on our embassies in Kenya and Tanzania, the punctiliously correct trials of defendants in connection with those incidents, and the bombing of the USS Cole took place long before the advent of CIA interrogations, the invasion of Saddam Hussein's Iraq, or the many other purported grievances asserted over the past eight years.

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The preceding excerpt illustrates a widespread conservative belief that those who oppose harsh interrogation, i.e., torture, either have always hated America, sympathize with the ‘plight’ of the terrorists, are simply naïve, and/or are resentful of America’s worldly superiority.  But there are many individuals (including many Americans on the left and the right) who oppose torture not because they resent America, but because they deplore barbarism.  This is not a childish sentiment, but an admirable conviction.

Knowing the weakness of their argument, Mukasey and Hayden resort to the “extraordinary times call for extraordinary measures” argument by elucidating that “The techniques themselves were used selectively” and “against only a small number of hard-core prisoners who successfully resisted other forms of interrogation, and then only with the explicit authorization of the director of the CIA.”  In other words, torture was reserved for the ‘worst of the worst.’  “Of the thousands of unlawful combatants captured by the U.S.,” Mukasey and Hayden continue, “fewer than 100 were detained and questioned in the CIA program.  Of those, fewer than one-third were subjected to any of the techniques discussed in these opinions.”  Are they arguing that this is extraordinary behavior for extraordinary circumstances?  Fair enough, even accepting that argument as true, “extraordinary” behavior quickly becomes ordinary and routine once it is deemed acceptable.  The moment that the torture of a few becomes possible, the torture of many becomes probable.  Besides, Chuckie Taylor, a U.S. citizen, was prosecuted and convicted in 2009 under the U.S.’s torture statute for committing a single act of torture abroad in 2002.  When speaking of torture numbers become irrelevant.  A single act of torture is one too many.

In explaining what they see as the damning effect of President Obama’s decision to release the OLC secret memos, the authors state:

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