Yes, Of Course It Was Torture

Apr 16 2013 @ 11:20pm

[Re-posted from earlier today]

Until the CIA hands back its critique of the Senate Intelligence Committee’s report into the war crimes authorized by president Bush, we lack a report that carries institutional bipartisan weight on the interrogation practices in the era of Dick Cheney’s “dark side.” Until now, that is.

westpointplaqueThe Constitution Project’s non-partisan report on the facts – an exhaustive, yet gripping and lucid 575 pages – puts any lingering doubts to rest.

Some of the participants give it particular credibility: Asa Hutchinson was a key figure in impeaching president Clinton, an Arkansas congressman whose DEA nomination was backed by an overwhelming 98 – 1 in the Senate and who subsequently ran the largest division within Bush’s Department of Homeland Security.  Richard Epstein is one of the most doctrinaire libertarian conservatives you could hope to find. Thomas R Pickering was president George H W Bush’s ambassador to the UN, and American ambassador to both Russia and India. Judge William S. Sessions is the former Director of the FBI, under Reagan and Bush. They all signed off on the Constitution Project’s findings, which are inarguable, given the evidence provided in the report.

Those findings, to put it bluntly, are that for several years, the United States government systematically committed war crimes against prisoners in its custody, violating the Geneva Conventions, US domestic law, and international law. Many of these war crimes were acts of torture; many more were acts of cruel, inhuman and degrading treatment. All are federal crimes. None of those who authorized the war crimes has been prosecuted.

The report – which I urge you to read in full when you get the chance – dispassionately lays out all the possible legal definitions of torture (domestic and international) and then describes what the Bush administration authorized. The case is not a close one. Bush and Cheney are war criminals, as are all those involved in the implementation of these torture techniques. Perhaps the most powerful part of the case is an examination of what the US itself has condemned as torture when committed by other countries. Take one often lightly-dismissed torture technique – stress positions. The Bush administration’s own State Department has called these techniques torture:

The State Department criticized Jordan in its 2006 Human Rights report for subjecting detainees to “forced standing in painful positions for prolonged periods.” In its 2000, 2001 and 2002 reports on Iran, “suspension for long periods in contorted positions” is described as torture. In its 2001 and 2002 Human Rights report on Sri Lanka, “suspension by the wrists or feet in contorted positions” and remaining in “unnatural positions for extended periods” are described as “methods of torture.”

Flash forward to what the Bush administration authorized in one case:

While being held in this position [a prolonged standing stress position involving being shackled to a bar or hook in the ceiling by the detainee’s wrists, typically while naked, for a continual period of time, ranging from two to three days continuously, up to two or three months intermittently] some of the detainees were allowed to defecate in a bucket. A guard would come to release their hands from the bar or hook in the ceiling so that they could sit on the bucket. None of them, however, were allowed to clean themselves afterwards. Others were made to wear a garment that resembled a diaper. This was the case for Mr. Bin Attash in his fourth place of detention. However, he commented that on several occasions the diaper was not replaced so he had to urinate and defecate on himself while shackled in the prolonged stress standing position. When [prisoners fell] asleep held in this position, the whole weight of their bodies was effectively suspended from the shackled wrists, transmitting the strain through the arms to the shoulders.

The Bush administration is on record that this is torture. Now take one of the more famous techniques – waterboarding. Again, the Bush administration itself condemned the use of this barbarism when deployed by others and described it quite simply as torture:

In the section entitled Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, the 2003 – 2007 Bush State Department Human Rights report on Sri Lanka described “near-drowning” as “torture and abuse.” In its Human Rights Reports for Tunisia from 1996 to 2004, “submersion of the head in water” is deemed “torture.” In the 2005 and 2006 Human Rights Reports for Tunisia, this practice is considered “torture and abuse.”

Domestic case law universally argues that waterboarding is unequivocally torture – and the report has a comprehensive set of cases to back it up. Dick Cheney has publicly admitted that he authorized this torture technique – and the report documents it occurred much more often than on the oft-cited “rare three” “high-value” prisoners. So Dick Cheney has conceded that he authorized acts which his own administration condemned as torture when committed by other countries, and which all international and domestic legal precedent defines as torture. One prisoner, as we know, was subjected to this torture technique 183 times.

I fully understand the immense difficulty any democracy has in holding its former war criminals to account. When such profound violations of human rights have occurred under the clear authority of the highest elected official in the land – who was re-elected after the torture was as plain as day – it remains very difficult to hold anyone accountable. The report assumes good faith on the part of all involved – and that the resort to torture was a function of a genuine, good faith attempt to keep Americans safe, after a uniquely horrifying act of terror on 9/11.

But none of that matters as a legal or ethical issue. What matters – and the law is crystal clear about this – is that torture and anything even close to torture be prosecuted aggressively. This is true especially when a government is claiming urgent national security in defense of its own crimes. The laws specifically rule out any defense on those grounds. So either we are a republic governed by the rule of law or we are not. Yes, there is discretion as to whether to prosecute any crime. But war crimes are the gravest on the books and have no statute of limitations. Prosecuting them is integral to adherence to Geneva, which itself is integral to the maintenance of the rule of law and of Western civilization itself. Either we set up a Truth Commission and find a way to pardon the war criminals, while establishing their guilt – which would at least give a brief nod to the rule of law. Or we have to take this report and the Senate Intelligence Committee’s findings as a basis for legal action for war crimes.

There is no way forward without this going back. And there is no way past this but through it.

(Photo: a plaque at West Point on the integrity of America’s armed forces through history – grotesquely betrayed by the Bush administration.)