Category Archives: torture

EDITORIAL: The scars of torture

The scars of torture
By Paul Woodward, War in Context, April 17, 2009

How much credit does President Obama deserve for releasing the torture memos?

Other than mildly placating growing anger over his betrayals of his civil liberties commitments (which, by the way, is proof of the need to criticize Obama when he does the wrong thing), there wasn’t much political gain for Obama in releasing these documents. And he certainly knew that, by doing so, he would be subjected to an onslaught of accusations that he was helping Al Qaeda and endangering American National Security. And that’s exactly what happened, as in this cliché-filled tripe from Hayden and Michael Mukasey in today’s Wall St. Journal, and this from an anonymous, cowardly “top Bush official” smearing Obama while being allowed to hide behind the Jay Bybee of journalism, Politico‘s Mike Allen.

But Obama knowingly infuriated the CIA, including many of his own top intelligence advisers; purposely subjected himself to widespread attacks from the Right that he was giving Al Qaeda our “playbook”; and he released to the world documents that conclusively prove how that the U.S. Government, at the highest levels, purported to legalize torture and committed blatant war crimes. There’s just no denying that those actions are praiseworthy. I understand the argument that Obama only did what the law requires. That is absolutely true. We’re so trained to meekly accept that our Government has the right to do whatever it wants in secret — we accept that it’s best that most things be kept from us — that we forget that a core premise of our government is transparency; that the law permits secrecy only in the narrowest of cases; and that it’s certainly not legal to suppress evidence of government criminality on the grounds that it is classified.

Still, as a matter of political reality, Obama had to incur significant wrath from powerful factions by releasing these memos, and he did that. That’s an extremely unusual act for a politician, especially a President, and it deserves praise.

Really? I honestly don’t see it and I think that drawing a distinction between the act of releasing the memos and the act of throwing out a lifeline to those who might face prosecution is a way of decoupling what were actually interlocking actions.

The Obama administration had already stalled on releasing the memos. Had they continued to do so they would have put themselves in the position of appearing to be complicit in covering up a criminal conspiracy.

Central to that conspiracy was an effort to use evidence derived from observing the effects of the US military’s Survival, Evasion, Resistance and Escape (SERE) training.

In assessing the potential risk involved in the use of torture techniques such as waterboarding, the Department of Justice’s Office of Legal Council rested heavily on the proposition that if no lasting harm had been done to SERE trainees then neither would terrorist suspects be at risk.

In his memo to John Rizzo, Acting General Council of the CIA, Assistant Attorney General Jay Bybee wrote:

…the information derived from SERE training bears upon the impact of the use of the individual techniques and upon their use as a course of conduct. You have found that the use of these methods together or separately, including the use of the waterboard, has not resulted in any negative long-term mental health consequences. The continued use of these methods without mental health consequences to the trainees indicates that it is highly improbable that such consequences would result here. Because you conducted the due diligence to determine that these procedures, either alone or in combination, do not produce prolonged mental harm, we believe that you do not meet the specific intent requirement necessary to violate Section 2340A [the statute prohibiting the use of torture].

But the gaping hole in that argument was acknowledged by Steven Bradbury, a member of Bybee’s own staff, three years later:

Although we refer to the SERE experience below, we note at the outset an important limitation on reliance on that experience. Individuals undergoing SERE training are obviously in a very different situation from detainees undergoing interrogation; SERE trainees know it is part of a training program, not a real-life interrogation regime, they presumably know it will last only a short time, and they presumably have assurances that they will not be significantly harmed by the training.

What was obvious to Bradbury in 2005 somehow eluded Bybee’s grasp in 2002. Maybe it was because Bybee had spent too much time in the company of the likes of Dick Cheney, David Addington and Donald Rumsfeld.

It was Rumsfeld who had famously asserted that as someone who worked standing up, he couldn’t see the harm in forcing someone else to remain standing for many hours — as though it was neither here nor there whether the person standing was also naked, chained in position and being held in secret in a foreign country.

The point — and this is really the core issue in the whole torture debate — is that there is and always has been only one pressure point against which force is applied in the practice of torture, that being, the human mind. Its aim is to break the mind without breaking the body. Its successful practice requires that whatever scars are left behind are not clearly visible.

If its up to Obama, America will now “move forward” and the scars of torture will remain invisible.

The CIA however is bracing itself for examination.

The Washington Post reports:

For the first time, officials said yesterday that they would provide legal representation at no cost to CIA employees subjected to international tribunals or inquiries from Congress. They also said they would indemnify agency workers against any financial judgments.

The announcement appeared to be designed to soothe concerns expressed by top intelligence officials, who argued in recent weeks that the graphic detail in the memos could bring unwanted attention to interrogators and deter others from joining government service.

CIA Director Leon E. Panetta told employees that the interrogation practices won approval from the highest levels of the Bush administration and that they had nothing to fear if they followed the legal guidance from the Justice Department.

“You need to be fully confident that as you defend the nation, I will defend you,” Panetta said.

John Demjanjuk, the former Nazi death camp guard who is awaiting deportation from the United States before being sent to Germany to face trial for his part in the Holocaust, is being defended by lawyers who argue that putting the 89-year-old on trial would cause him pain amounting to torture.

If he does end up on trial, his defense may well suggest that we no longer live in a world where the Nuremberg defense is untenable.

As Barack Obama and Leon Panetta seem to be saying, “I was just following orders,” has now become an honorable American justification for torture.

Is Obama being blackmailed by the CIA?

Obama tilts to CIA on memos
By Evan Perez and Siobhan Gorman, Wall Street Journal, April 15, 2009

The Obama administration is leaning toward keeping secret some graphic details of tactics allowed in Central Intelligence Agency interrogations, despite a push by some top officials to make the information public, according to people familiar with the discussions.

These people cautioned that President Barack Obama is still reviewing internal arguments over the release of Justice Department memorandums related to CIA interrogations, and how much information will be made public is in flux.

Among the details in the still-classified memos is approval for a technique in which a prisoner’s head could be struck against a wall as long as the head was being held and the force of the blow was controlled by the interrogator, according to people familiar with the memos. Another approved tactic was waterboarding, or simulated drowning. [continued…]

Editor’s Comment — No wonder there’s so much trepidation around releasing these memos. One can only imagine what kind of phrasing is involved in defining the “appropriate” amount of force with which someone’s head can be bashed against a wall.

Was it something specific like this: With less force than would be required to fracture the skull or spill blood? Or was it something more legalistic but vague, like this: With less force than could reasonably be expected to result in permanent brain damage?

The key issue here, the CIA would have us believe, is that revealing details on the torture techniques it has used would “undermine the agency’s credibility with foreign intelligence services.”

What this means, as far as I can tell from reading reports on the Binyam Mohamed case is this: When the CIA enlisted the support of MI5 (and other intelligence services) in the rendition and torture of suspected terrorists, the agreement was that information about the intelligence process would remain under the control of all participants. Another way of putting it would be to say that the co-conspirators agreed to cover each other’s backs so that they could collectively enjoy legal impunity.

Now that that impunity is in jeopardy, the lawbreakers are upping the ante by implying that exposing torture practices poses a national security threat. Ostensibly the threat comes from providing al Qaeda a propaganda coup, but the underlying threat is that the CIA will no longer get cooperation from foreign agencies and that intelligence gathering will therefore suffer. And what this boils down to is the crudest possible threat: if the administration doesn’t protect the agency, the agency won’t protect the administration. This is, in a word: blackmail.

At the White House, joking about a torture investigation?
By David Corn, Mother Jones, April 14, 2009

I was asked to go on Hardball on Tuesday night to discuss the news that Spanish prosecutors are likely to recommend a full investigation be conducted to determine if six former Bush administration officials—including ex-Attorney General Alberto Gonzales—ought to be indicted for having sanctioned torture at Guantanamo. So I thought I’d ask White House press secretary Robert Gibbs about the matter.

This could become a true headache for the White House—a high-profile case in which Spanish prosecutors bring charges against Gonzales; Douglas Feith, former undersecretary of defense; David Addington, former counsel to Vice President Dick Cheney; William Haynes, a former Pentagon lawyer; and John Yoo and Jay Bybee, two former Justice Department officials. Several steps must occur before any prosecution proceeds. If the prosecutors determine a full criminal investigation is warranted–as is expected–it will be up to a Spanish judge to open a full-fledged inquiry that could produce indictments. He could decide not to accept the recommendation. And, of course, it’s possible that an investigation could end without indictments. The Spanish hook for the case is a simple one: Five Guantanamo detainees were either Spanish citizens or residents. And, by the way, Spanish courts claim jurisdiction that extends to other nations when it comes to torture and war crimes. [continued…]

Obama is sounding like Bush

On state secrets, Obama is sounding like Bush
By John Schwartz, New York Times, February 10, 2009

In a closely watched case involving rendition and torture, a lawyer for the Obama administration seemed to surprise a panel of federal appeals judges on Monday by pressing ahead with an argument for preserving state secrets originally developed by the Bush administration.

In the case, Binyam Mohamed, an Ethiopian native, and four other detainees filed suit against a subsidiary of Boeing for arranging flights for the Bush administration’s “extraordinary rendition” program, in which terrorism suspects were secretly taken to other countries, where they say they were tortured. The Bush administration argued that the case should be dismissed because even discussing it in court could threaten national security and relations with other nations.

During the campaign, Mr. Obama harshly criticized the Bush administration’s treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantánamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.

“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.

“No, your honor,” Mr. Letter replied.

Judge Schroeder asked, “The change in administration has no bearing?”

Once more, he said, “No, Your Honor.” The position he was taking in court on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions,” he said.

That produced an angry response from Anthony D. Romero, executive director of the American Civil Liberties Union, which is representing the plaintiffs.

“This is not change,” he said in a statement. “This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama’s Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again.”

A Justice Department spokesman, Matt Miller, said the government did not comment on pending litigation, but he seemed to suggest that Mr. Obama would invoke the privilege more sparingly than its predecessor.

“It is the policy of this administration to invoke the state secrets privilege only when necessary and in the most appropriate cases,” he said, adding that Attorney General Eric H. Holder Jr. had asked for a review of pending cases in which the government had previously asserted a state secret privilege.

“The attorney general has directed that senior Justice Department officials review all assertions of the state secrets privilege to ensure that the privilege is being invoked only in legally appropriate situations,” he said. “It is vital that we protect information that, if released, could jeopardize national security.”

The court papers describe horrific treatment in secret prisons. Mr. Mohamed claimed that during his detention in Morocco, “he was routinely beaten, suffering broken bones and, on occasion, loss of consciousness. His clothes were cut off with a scalpel and the same scalpel was then used to make incisions on his body, including his penis. A hot stinging liquid was then poured into open wounds on his penis where he had been cut. He was frequently threatened with rape, electrocution and death.”

Ben Wizner, a lawyer for the A.C.L.U., told the judges that many of the facts that the government is trying to keep secret are scarcely secret at all, since the administration’s rendition program and the particulars of many of the cases have been revealed in news reports and in the work of government investigations from around the world. “The only place in the world where these claims can’t be discussed,” Mr. Wizner said, “is in this courtroom.”

What the A.C.L.U. is asking, he said, is that the case be allowed to go forward, giving the courts a chance to decide, based on classified information revealed solely to the judge, what should be allowed to be discussed.

But Mr. Letter said that the lower court judge, James Ware, did receive classified information and came to the correct conclusion in dismissing the case last year. He urged the judges to pore over the same material, and predicted “you will understand precisely, as Judge Ware did, why this case can’t be litigated.”

In a related matter, Patrick J. Leahy, the Vermont Democrat who is chairman of the Senate Judiciary Committee, on Monday proposed the establishment of a “truth commission” to investigate the Bush administration’s treatment of detainees and other issues, like the firings of United States attorneys by the Justice Department. The commission, he said, could grant immunity to witnesses to explore the facts without the threat of criminal prosecution.

Obama fails his first test on civil liberties and accountability — resoundingly and disgracefully
By Glenn Greenwald, Salon, February 9, 2009

What this is clearly about is shielding the U.S. Government and Bush officials from any accountability. Worse, by keeping Bush’s secrecy architecture in place, it ensures that any future President — Obama or any other — can continue to operate behind an impenetrable wall of secrecy, with no transparency or accountability even for blatantly criminal acts. [continued…]

Leahy seeks ‘truth commission’ to investigate Bush administration
By Ariane de Vogue, ABC News, February 9, 2009

The chairman of the Senate Judiciary Committee said the government should look into creating a “truth commission” to investigate the Bush administration’s Department of Justice.

Sen. Patrick Leahy, D-Vt., said that such a commission, which would answer to both Congress and the executive branch, could probe Bush administration policies on torture, interrogation and surveillance and “get to the bottom of what happened” during the eight years the Bush administration grappled with the legal war on terror.

Leahy called his proposal a “middle ground” between those critics of the Bush administration seeking to prosecute officials, and others wishing to concentrate on the future as opposed to investigating the past. “We need to be able to read the page before we turn it,” said Leahy. [continued…]

Torturing Democracy

Torturing Democracy, a major documentary film more than 18 months in the making, has been airing on individual public television stations around the US since October — although PBS has been reluctant to air it nationally.

The 90-minute film, from Emmy and DuPont awarding-winning producer Sherry Jones, relies on the documentary record to connect the dots in an investigation of interrogations of prisoners in U.S. custody that became “at a minimum, cruel and inhuman treatment and, at worst, torture,” in the words of the former general counsel of the United States Navy.

Up to date with the latest revelations, Torturing Democracy details how the government set aside the rule of law in its pursuit of harsh interrogations of suspected terrorists. It features in-depth interviews with numerous senior military and government officials.

Former Deputy Secretary of State Richard Armitage describes – for the first time on-camera – being waterboarded during military training before he was sent to Vietnam. When producer Jones asked Mr. Armitage if he considered waterboarding to be torture, he answered, “Absolutely. No question.” He added: “There is no question in my mind – there’s no question in any reasonable human being, that this is torture. I’m ashamed that we’re even having this discussion.”

Torturing Democracy can be viewed in three parts (part one, part two, part three).

REVIEW: The Dark Side

Answering terror with terror
By Louis Bayard, Salon, July 15, 2008

We can’t say we weren’t warned.

The very first Sunday after the 9/11 attacks, Vice President Dick Cheney descended like a cloud on “Meet the Press” to outline the Bush administration’s response. “We’ll have to work sort of the dark side, if you will. We’ve got to spend time in the shadows in the intelligence world. A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies — if we are going to be successful. That’s the world these folks operate in. And, uh, so it’s going to be vital for us to use any means at our disposal basically, to achieve our objectives.”

Around the nation, one presumes, numbed heads were nodding in approval. Whatever it takes to get those bastards. The true nature of our Faustian bargain would not become clear until later, and maybe it needed a journalist as steely and tenacious as Jane Mayer to give us the full picture. “The Dark Side” is about how the war on terror became “a war on American ideals,” and Mayer gives this story all the weight and sorrow it deserves. Many books get tagged with the word “essential”; hers actually is.

Above all, it underscores one of the least remarked aspects of our nation’s counterterrorist policy: the degree to which it has been driven not by spies or generals but by pasty men in ties. “The first thing we do,” goes that crowd-pleasing line from Shakespeare’s “Henry VI,” “let’s kill all the lawyers.” Readers of “The Dark Side” might be moved to add: “Before they kill you.” Almost from the moment America was attacked, Mayer writes, Cheney “saw to it that some of the sharpest and best-trained lawyers in the country, working in secret in the White House and the United States Department of Justice, came up with legal justifications for a vast expansion of the government’s power in waging war on terror. As part of that process, for the first time in history, the United States sanctioned government officials to physically and psychologically torment U.S.-held captives, making torture the official law of the land in all but name.” This “extralegal counterterrorism program,” contends Mayer, “presented the most dramatic, sustained, and radical challenge to the rule of law in American history.” [complete article]

NEWS & EDITOR’S COMMENT: Refusing to end the torture debate

Inside a 9/11 mastermind’s interrogation
By Scott Shane, New York Times, June 22, 2008

In a makeshift prison in the north of Poland, Al Qaeda’s engineer of mass murder faced off against his Central Intelligence Agency interrogator. It was 18 months after the 9/11 attacks, and the invasion of Iraq was giving Muslim extremists new motives for havoc. If anyone knew about the next plot, it was Khalid Shaikh Mohammed.

The interrogator, Deuce Martinez, a soft-spoken analyst who spoke no Arabic, had turned down a C.I.A. offer to be trained in waterboarding. He chose to leave the infliction of pain and panic to others, the gung-ho paramilitary types whom the more cerebral interrogators called “knuckledraggers.”

Mr. Martinez came in after the rough stuff, the ultimate good cop with the classic skills: an unimposing presence, inexhaustible patience and a willingness to listen to the gripes and musings of a pitiless killer in rambling, imperfect English. He achieved a rapport with Mr. Mohammed that astonished his fellow C.I.A. officers.

A canny opponent, Mr. Mohammed mixed disinformation and braggadocio with details of plots, past and planned. Eventually, he grew loquacious. “They’d have long talks about religion,” comparing notes on Islam and Mr. Martinez’s Catholicism, one C.I.A. officer recalled. And, the officer added, there was one other detail no one could have predicted: “He wrote poems to Deuce’s wife.”

Mr. Martinez, who by then had interrogated at least three other high-level prisoners, would bring Mr. Mohammed snacks, usually dates. He would listen to Mr. Mohammed’s despair over the likelihood that he would never see his children again and to his catalog of complaints about his accommodations.

“He wanted a view,” the C.I.A. officer recalled.

The story of Mr. Martinez’s role in the C.I.A.’s interrogation program, including his contribution to the first capture of a major figure in Al Qaeda, provides the closest look to date beneath the blanket of secrecy that hides the program from terrorists and from critics who accuse the agency of torture.

Beyond the interrogator’s successes, this account includes new details on the campaign against Al Qaeda, including the text message that led to Mr. Mohammed’s capture, the reason the C.I.A. believed his claim that he was the murderer of the Wall Street Journal reporter Daniel Pearl and the separate teams at the C.I.A.’s secret prisons of those who meted out the agony and those who asked the questions.

In the Hollywood cliché of Fox’s “24,” a torturer shouts questions at a bound terrorist while inflicting excruciating pain. The C.I.A. program worked differently. A paramilitary team put on the pressure, using cold temperatures, sleeplessness, pain and fear to force a prisoner to talk. When the prisoner signaled assent, the tormenters stepped aside. After a break that could be a day or even longer, Mr. Martinez or another interrogator took up the questioning.

Mr. Martinez’s success at building a rapport with the most ruthless of terrorists goes to the heart of the interrogation debate. Did it suggest that traditional methods alone might have obtained the same information or more? Or did Mr. Mohammed talk so expansively because he feared more of the brutal treatment he had already endured? [complete article]

Editor’s Comment — When Scott Shane refers to “the interrogation debate,” he’s already revealing an implicit position that runs as a subtle thread all the way through this article: if “it” works then it’s arguably justified.

The preponderance of the evidence he presents, suggests that the good old torture routine — which might not fit the Fox 24 cliche but falls squarely inside a long cinematic tradition where thugs and calm interrogators work hand-in-hand — really did work. And if it worked, maybe it shouldn’t be sullied with the term only critics use and be called “torture.”

Except — and this is of course where Shane egregiously misframes the debate — the heart of the debate is not whether torture can be shown to be expedient: it is whether the methods of interrogation used fit an internationally recognized definition of torture.

Since no less of a military authority than Abu Ghraib investigator, Major General Antonio Taguba, has come out and unequivocally declared that, “only question that remains to be answered is whether those who ordered the use of torture will be held to account,” one has to ask: Why is the New York Times still willing to suggest that the debate on torture has not been answered?

OPINION & EDITOR’S COMMENT: The moral relativism that supports torture

Where is the outrage?
By Robert Scheer, Truthdig, May 27, 2008

Are we Americans truly savages or merely tone-deaf in matters of morality, and therefore more guilty of terminal indifference than venality? It’s a question demanding an answer in response to the publication of the detailed 370-page report on U.S. complicity in torture, issued last week by the Justice Department’s inspector general.

Because the report was widely cited in the media and easily accessed as a pdf file on the Internet, it is fair to assume that those of our citizens who remain ignorant of the extent of their government’s commitment to torture as an official policy have made a choice not to be informed. A less appealing conclusion would be that they are aware of the heinous acts fully authorized by our president but conclude that such barbarism is not inconsistent with that American way of life that we celebrate. [complete article]

Editor’s Comment — There are many reasons that torture, as a moral and political issue, has never really gained enough traction to concern Americans as much as does, for instance, the price of gasoline. It’s not simply that it’s an issue that has very little direct impact on most people’s lives. Most importantly, we live in a culture that adheres to no moral absolutes when it comes to the use of violence.

Three out of ten Americans believe that torture is never justified. That’s the same number who oppose the death penalty. So, given that most Americans do believe that the state should be invested with the power to take away someone’s life, it doesn’t seem particularly surprising that a similar number would condone the use of torture.

Although moral relativism is supposedly the sin of the secular left, nowhere is it more starkly evident than in the co-existence of the “right to life” and support for capital punishment. What this conjunction reveals is that far from any absolute value being attached to life, the key issue for those who see no contradiction between these two views is the presence or absence of innocence. If most Americans thought that the victims of torture were also innocent, then there would undoubtedly be popular outrage.

The war on terrorism as a popular cause has always relied on the willingness of the Bush administration to toss aside the legal principal, innocent until proven guilty. Willingly, the public has accepted the idea that a terrorist suspect is no different than a terrorist. And this blurring of a distinction between guilt and suspicion is rooted in the use of the word: terrorist. It labels the person rather than the action.

FEATURES & EDITOR’S COMMENT: Torture and propaganda

Behind TV analysts, Pentagon’s hidden hand
By David Barstow, New York Times, April 20, 2008

In the summer of 2005, the Bush administration confronted a fresh wave of criticism over Guantánamo Bay. The detention center had just been branded “the gulag of our times” by Amnesty International, there were new allegations of abuse from United Nations human rights experts and calls were mounting for its closure.

The administration’s communications experts responded swiftly. Early one Friday morning, they put a group of retired military officers on one of the jets normally used by Vice President Dick Cheney and flew them to Cuba for a carefully orchestrated tour of Guantánamo.

To the public, these men are members of a familiar fraternity, presented tens of thousands of times on television and radio as “military analysts” whose long service has equipped them to give authoritative and unfettered judgments about the most pressing issues of the post-Sept. 11 world.

Hidden behind that appearance of objectivity, though, is a Pentagon information apparatus that has used those analysts in a campaign to generate favorable news coverage of the administration’s wartime performance, an examination by The New York Times has found.

The effort, which began with the buildup to the Iraq war and continues to this day, has sought to exploit ideological and military allegiances, and also a powerful financial dynamic: Most of the analysts have ties to military contractors vested in the very war policies they are asked to assess on air. [complete article]

Editor’s Comment — This article describes a triangle of complicity comprising Pentagon officials, retired military leaders, and television news networks. The New York Times essentially gives the networks a free pass. The final paragraphs of the article summarize the perfunctory answers the paper received in response to questions about conflicts of interest, yet the mere fact that the networks might have been unaware about the Pentagon briefings their analysts were receiving or the way these generals were cashing in on their connections, does not explain away what was always glaringly obvious: the chasm separating war news reporting on the one hand, and the military analysis being presented by the networks’ prize generals on the other hand. The networks had no interest in closing this gap. That fact in and of itself merits another investigative report but that will only happen if mainstream journalism opens itself up to some critical self-examination — and what are the chances of that happening?!

Stress hooding noise nudity dogs
By Philippe Sands, The Guardian, April 20, 2008

When the Haynes memo reached Guantánamo on December 2 [2002], Detainee 063 was in an isolated, plywood interrogation booth at Camp X-Ray. He was bolted to the floor and secured to a chair, his hands and legs cuffed. He had been held in isolation since August 8, nearly four months earlier. He was dehydrated and in need of regular hook-ups to an intravenous drip. His feet were swollen. He was urinating on himself.

During Detainee 063’s first few months at Guantánamo, the interrogators had followed established practices for military and law enforcement interrogations. Building rapport is the overriding aim of the US Army Field Manual 34-52, the rule book for military interrogators, colloquially referred to as “FM 34-52”. Legality was also essential, which meant operating in accordance with the rules set out in the US military’s Uniform Code of Military Justice and international law, in particular the four Geneva conventions.

At the heart of them lies “Common Article 3”, which expressly prohibits cruel treatment and torture, as well as “outrages upon personal dignity, in particular, humiliating and degrading treatment”. Tactics that had conformed to these principles changed dramatically. The interrogation log describes what happened immediately after Rumsfeld signed the Haynes memo.

The pattern was always the same: 20-hour interrogation sessions, followed by four hours of sleep. Sleep deprivation appears as a central theme, along with stress positions and constant humiliation, including sexual humiliation. These techniques were supplemented by the use of water, regular bouts of dehydration, the use of IV tubes, loud noise (the music of Christina Aguilera was blasted out in the first days of the new regime), nudity, female contact, pin-ups. An interrogator even tied a leash to him, led him around the room and forced him to perform a series of dog tricks. He was forced to wear a woman’s bra and a thong was placed on his head.

Rumsfeld led the charge for war in Iraq; in part he did so because of Saddam Hussein’s contempt for human life. “Torture is systematic in Iraq, and the most senior officials in the regime are involved,” Rumsfeld said, a few months before Saddam was overthrown. “Electric shock, eye gouging, acid baths, lengthy confinement in small metal boxes are only some of the crimes committed by this regime.” He spoke those words one day after secretly signing the Haynes memo and approving his own techniques of aggressive interrogation at Guantánamo.

Ironically, it was the Iraq war – in particular, events at Abu Ghraib prison – that brought the Haynes memo into the open two years later. By the autumn of 2003, Abu Ghraib was being run by the US as a detention facility. On April 28 2004, a CBS television report revealed the nature and scale of abuse being inflicted upon Iraqi prisoners. Photographs taken by US military participants were published, including one, now notorious, showing a prisoner standing on a box with his head covered and wires attached to his fingers. Another showed Private Lynndie England holding a leash tied to the neck of a naked man on the floor.

Was there a connection between the abuses at Abu Ghraib and the Bush administration’s secret interrogation policies at other places, including Guantánamo? In June 2004, President Bush, hosting the G8 summit in Savannah, Georgia, was asked by the media if he had authorised any kind of interrogation techniques necessary to pursue the “war on terror”? No, he said, his authorisation was that anything the US did would conform to US law and be consistent with international treaty obligations. “We’re a nation of law. We adhere to laws. We have laws on the books.”

Four days later, the administration unexpectedly declassified and released a number of documents relating to interrogation in the belief that this would reflect the thorough process of deliberation that, it was claimed, took place, and demonstrate a commitment to the rule of law. At the briefing, conducted by three lawyers from Bush’s inner circle, Alberto Gonzales, the president’s counsel, Jim Haynes from the Defence Department, and his deputy, Dan Dell’Orto, it was made clear that particular documents were crucial: the Haynes memo, and a decision taken a few months previously by the president, on February 7 2002, that none of the detainees at Guantánamo, whether Taliban or al-Qaida, could rely on any of the protections granted by the Geneva conventions, not even Common Article 3.

The second set of documents were legal opinions issued on August 1 2002. One of these, by two senior lawyers at the Justice Department, concluded that physical torture occurred only when the pain was “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions, or even death”. Mental torture required “lasting psychological harm”. The memo concluded that torture of suspected terrorists under interrogation would not be unlawful if it could be justified on grounds of necessity or self-defence.

On October 11 2002, Guantánamo had request that additional techniques beyond those in FM 34-52 be approved for use against high-value detainees, in particular a Saudi Arabian, Mohammed al-Qahtani – otherwise known as Detainee 063. The underlying message of the briefing was spelled out: Rumsfeld had merely responded to a request from Guantánamo, and in doing so had acted reasonably. By contrast, the abuses at Abu Ghraib were unauthorised and unconnected to actual policies.

Much later, in March 2006, Time magazine published on its website the interrogation log of Detainee 063. Some of the Abu Ghraib images bore a resemblance to what Detainee 063 had been through: humiliation, stress, hooding, nudity, female interrogators, shackles, dogs. Was this just a coincidence? [complete article]

FEATURE: Why Bush should reflect on Pinochet

The green light
By Philippe Sands, Vanity Fair, May, 2008

The abuse, rising to the level of torture, of those captured and detained in the war on terror is a defining feature of the presidency of George W. Bush. Its military beginnings, however, lie not in Abu Ghraib, as is commonly thought, or in the “rendition” of prisoners to other countries for questioning, but in the treatment of the very first prisoners at Guantanamo. Starting in late 2002 a detainee bearing the number 063 was tortured over a period of more than seven weeks. In his story lies the answer to a crucial question: How was the decision made to let the U.S. military start using coercive interrogations at Guantanamo?

The Bush administration has always taken refuge behind a “trickle up” explanation: that is, the decision was generated by military commanders and interrogators on the ground. This explanation is false. The origins lie in actions taken at the very highest levels of the administration—by some of the most senior personal advisers to the president, the vice president, and the secretary of defense. At the heart of the matter stand several political appointees—lawyers—who, it can be argued, broke their ethical codes of conduct and took themselves into a zone of international criminality, where formal investigation is now a very real option. This is the story of how the torture at Guantanamo began, and how it spread. [complete article]

OPINION: Ordinary evil

The ultimate casualty
By Richard Cohen, Washington Post, March 25, 2008

You know him well. His nickname was Gilligan, and he was a prisoner at Abu Ghraib, Saddam Hussein’s vast prison transformed into a vast American one and then transformed again by the Bush administration into a vast national disgrace. Gilligan was deprived of sleep, forced to stand on a small box, hooded like some medieval apparition, wired like a makeshift lamp and told (falsely) that if he fell he would be electrocuted. He was later released. Wrong man. Sorry.

The story of Gilligan is recounted in a forthcoming book and movie, both titled “Standard Operating Procedure” because that is precisely what the abuse of prisoners was at Abu Ghraib. Much of the book, written by Philip Gourevitch and Errol Morris (he made the documentary) and excerpted in last week’s New Yorker, relies on the verbatim testimony of the Americans who staffed Abu Ghraib. Some of them were the very ones who took the revolting pictures — including the iconic photo of Gilligan — that stunned the world.

What the interviews make clear is how pervasive and public the abuse of prisoners had been. Physical and mental abuse was conducted in the open. Photos were taken and passed up the chain of command. “Sleep deprivation, sexual humiliation, sensory disorientation and the imposition of physical and psychological pain,” Gourevitch and Morris write, were all permitted under the makeshift rules of the camp.

“They couldn’t say that we broke the rules because there were no rules,” said an Army reservist named Megan Ambuhl. Others talked of something even more insidious: the growing tolerance for inflicting pain. This is the stuff of famous psychology experiments (Milgram, etc.), but it also reminds me — and I know this is the extreme case — of the willingness of ordinary German soldiers in World War II to spend whole days in the routine murder of civilians. [complete article]

OPINION & FEATURE: American torture past and present

Debating torture and counterinsurgency — a century ago
By Paul Kramer, The New Yorker, February 25, 2008

Many Americans were puzzled by the news, in 1902, that United States soldiers were torturing Filipinos with water. The United States, throughout its emergence as a world power, had spoken the language of liberation, rescue, and freedom. This was the language that, when coupled with expanding military and commercial ambitions, had helped launch two very different wars. The first had been in 1898, against Spain, whose remaining empire was crumbling in the face of popular revolts in two of its colonies, Cuba and the Philippines. The brief campaign was pitched to the American public in terms of freedom and national honor (the U.S.S. Maine had blown up mysteriously in Havana Harbor), rather than of sugar and naval bases, and resulted in a formally independent Cuba.

The Americans were not done liberating. Rising trade in East Asia suggested to imperialists that the Philippines, Spain’s largest colony, might serve as an effective “stepping stone” to China’s markets. U.S. naval plans included provisions for an attack on the Spanish Navy in the event of war, and led to a decisive victory against the Spanish fleet at Manila Bay in May, 1898. Shortly afterward, Commodore George Dewey returned the exiled Filipino revolutionary Emilio Aguinaldo to the islands. Aguinaldo defeated Spanish forces on land, declared the Philippines independent in June, and organized a government led by the Philippine élite.

During the next half year, it became clear that American and Filipino visions for the islands’ future were at odds. U.S. forces seized Manila from Spain—keeping the army of their ostensible ally Aguinaldo from entering the city—and President William McKinley refused to recognize Filipino claims to independence, pushing his negotiators to demand that Spain cede sovereignty over the islands to the United States, while talking about Filipinos’ need for “benevolent assimilation.” Aguinaldo and some of his advisers, who had been inspired by the United States as a model republic and had greeted its soldiers as liberators, became increasingly suspicious of American motivations. When, after a period of mounting tensions, a U.S. sentry fired on Filipino soldiers outside Manila in February, 1899, the second war erupted, just days before the Senate ratified a treaty with Spain securing American sovereignty over the islands in exchange for twenty million dollars. In the next three years, U.S. troops waged a war to “free” the islands’ population from the regime that Aguinaldo had established. The conflict cost the lives of hundreds of thousands of Filipinos and about four thousand U.S. soldiers.

Within the first year of the war, news of atrocities by U.S. forces—the torching of villages, the killing of prisoners—began to appear in American newspapers. Although the U.S. military censored outgoing cables, stories crossed the Pacific through the mail, which wasn’t censored. Soldiers, in their letters home, wrote about extreme violence against Filipinos, alongside complaints about the weather, the food, and their officers; and some of these letters were published in home-town newspapers. A letter by A. F. Miller, of the 32nd Volunteer Infantry Regiment, published in the Omaha World-Herald in May, 1900, told of how Miller’s unit uncovered hidden weapons by subjecting a prisoner to what he and others called the “water cure.” “Now, this is the way we give them the water cure,” he explained. “Lay them on their backs, a man standing on each hand and each foot, then put a round stick in the mouth and pour a pail of water in the mouth and nose, and if they don’t give up pour in another pail. They swell up like toads. I’ll tell you it is a terrible torture.” [complete article]

The timing of the Guantanamo trials is not an accident
By Charles Swift, Slate, February 15, 2008

During the course of my career as a defense lawyer in the military, I’ve shrugged off many government conspiracy theories. Each time I heard one, I’d smile and say that one should never attribute to a vast government conspiracy acts that can be as readily attributed to mere government incompetence or accident. So, I did not initially assume any concerted plan or purpose behind recent activities at Guantanamo Bay.

But the government’s latest moves in the ongoing battle over the legality of its detention policies are anything but incompetent, and they’ve forced me to reassess my initial conclusion: The decision to try six Guantanamo detainees using military commissions is very clearly part of a concerted effort to use the Guantanamo commissions to subvert the goals of justice and to maintain a veil of secrecy around its questionable interrogation policies. [complete article]

NEWS: American lessons on torture

Justice official defends rough CIA interrogations
By Dan Eggen, Washington Post, February 17, 2008

The Bush administration allowed CIA interrogators to use tactics that were “quite distressing, uncomfortable, even frightening,” as long as they did not cause enough severe and lasting pain to constitute illegal torture, a senior Justice Department official said last week.

In testimony before a House subcommittee, Steven G. Bradbury, the acting chief of the Justice Department’s Office of Legal Counsel, spelled out how the administration regulated the CIA’s use of rough tactics and offered new details of how simulated drowning was used to compel disclosures by prisoners suspected of being al-Qaeda members.

The method was not, he said, like the “water torture” used during the Spanish Inquisition and by autocratic governments into the 20th century, but was subject to “strict time limits, safeguards, restrictions.” He added, “The only thing in common is, I think, the use of water.”

Bradbury indicated that no water entered the lungs of the three prisoners who were subjected to the practice, lending credence to previous accounts that the noses and mouths of CIA captives were covered in cloth or cellophane. Cellophane could pose a serious asphyxiation risk, torture experts said.

Bradbury’s unusually frank testimony Thursday before the House Judiciary Committee subcommittee stunned many civil liberties advocates and outside legal scholars who have long criticized the Bush administration’s secretive and aggressive interrogation policies.

Martin S. Lederman, a former Office of Legal Counsel official who teaches law at Georgetown University, called Bradbury’s testimony “chilling.” In an online posting, Lederman said that “to say that this is not severe physical suffering — is not torture — is absurd. And to invoke the defense that what the Spanish Inquisition did was worse and that we use a more benign, non-torture form of waterboarding . . . is obscene.” [complete article]

NEWS, OPINION & EDITOR’S COMMENT: The atrophy of conscience

Anybody’s guess
By Dahlia Lithwick, Slate, February 8, 2008

It’s been a banner week for water-boarding. This centuries-old practice of simulated drowning to extract false confessions and false testimony has really benefited of late from a good old legal reassessment and a smoking-hot PR campaign. In the course of a few short years, water-boarding has morphed from torture that unquestionably violates both federal and international law to an indispensable tool in the fight against terror. [complete article]

Waterboarding should be prosecuted as torture: U.N.
Reuters, February 8, 2008

The controversial interrogation technique known as waterboarding and used by the United States qualifies as torture, the U.N. human rights chief said on Friday.

“I would have no problems with describing this practice as falling under the prohibition of torture,” the U.N. High Commissioner for Human Rights, Louise Arbour, told a news conference in Mexico City. [complete article]

Cheney defends U.S. use of waterboarding
CBS/AP, February 8, 2008

The debate over waterboarding flared Thursday on Capitol Hill, with the CIA director raising doubts about whether it’s currently legal and the attorney general refusing to investigate U.S. interrogators who have used the technique on terror detainees.

Vice President Dick Cheney, meanwhile, said “it’s a good thing” that top al Qaeda figures underwent the harsh interrogation tactic in 2002 and 2003, claiming they were forced to give up information that helped protect the country and saved “thousands” of American lives. [complete article]

Justice Dept. ‘cannot’ probe waterboarding, Mukasey says
By Dan Eggen, Washington Post, February 8, 2008

The attorney general yesterday rejected growing congressional calls for a criminal investigation of the CIA’s use of simulated drownings to extract information from its detainees, as Vice President Cheney called it a “good thing” that the CIA was able to learn what it did from those subjected to the practice.

The remarks reflected a renewed effort by the Bush administration to defend its past approval of the interrogation tactic known as waterboarding, which some lawmakers, human rights experts and international lawyers have described as illegal torture. [complete article]

CIA chief doubts tactic to interrogate is still legal
By Scott Shane, New York Times, February 8, 2008

Gen. Michael V. Hayden, the director of the Central Intelligence Agency, told a Congressional committee on Thursday that waterboarding may be illegal under current law, despite assertions this week from the director of national intelligence and the White House that the harsh interrogation method may be used in the future.

General Hayden said that while “all the techniques we’ve used have been deemed to be lawful,” laws have changed since waterboarding was last used nearly five years ago.

“It is not included in the current program, and in my own view, the view of my lawyers and the Department of Justice, it is not certain that the technique would be considered to be lawful under current statute,” General Hayden said before the House Intelligence Committee. [complete article]

Waterboarding: Two questions for Michael Hayden
By Andy Worthington, Antiwar, February 7, 2008

My questions for Mr. Hayden are simple. Firstly, if it’s true that only three detainees were subjected to waterboarding, then why did a number of “former and current intelligence officers and supervisors” tell ABC News in November 2005 that “a dozen top al-Qaeda targets incarcerated in isolation at secret locations on military bases in regions from Asia to Eastern Europe” were subjected to six “Enhanced Interrogation Techniques,” instituted in mid-March 2002?

According to the ABC News account, the six techniques used by the CIA on the “dozen top al-Qaeda targets” were “The Attention Grab,” “Attention Slap,” “The Belly Slap” and three other techniques that are particularly worrying: “Long Time Standing,” “The Cold Cell,” and, of course, “Waterboarding.”

“Long Time Standing” was described as “among the most effective [techniques],” in which prisoners “are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours.” The ABC News report added, “Exhaustion and sleep deprivation are effective in yielding confessions.” In “The Cold Cell,” the prisoner “is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.”

The description of “Waterboarding” was as follows: “The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner’s face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.” [complete article]

Editor’s Comment — There’s a simple reason why the simple-minded don’t think that waterboarding is torture. In “real” torture, the person being tortured is the innocent victim; the torturer is the evil party. When Cheney ventured over to the dark side it was in order to give good people the freedom to do bad things to bad people. If the person being tortured is bad, then it can’t be torture. It’s perverse logic but it explains how a vice president with a twisted mind can have a “clean” conscience.

NEWS: Canadian government embarrasses itself

Torture awareness manual ‘wrongly’ lists Cdn allies, to be rewritten: Bernier
Canadian Press, January 19, 2008

Foreign Affairs Minister Maxime Bernier found himself backtracking Saturday over his department’s training manual that lists the U.S. and Guantanamo Bay as sites of possible torture – alongside such countries as Iran and Syria.

In a statement, Bernier said he regretted the embarrassment caused by the public disclosure of the manual, adding that it contains a list that “wrongly” includes some of Canada’s closest allies.

Bernier said the manual is neither a policy document, nor a statement of policy, and that he has directed it to be reviewed and rewritten. [complete article]

NEWS & OPINION: New torture tapes?

Lawyers for detainee refer in filing to more CIA tapes
By Carol D. Leonnig, Washington Post, January 19, 2008

Attorneys for a former detainee at a secret CIA prison said in a court filing this week that intelligence officials had falsely claimed in public statements that his interrogations were not videotaped, that all videotaped interrogations stopped in 2002 and that only a small number of CIA detainees were subjected to unusually harsh interrogation techniques.

The basis of the assertions was redacted from the filing by the Bush administration, under an unusually stringent security order that blocks the attorneys for Majid Khan from disclosing evidence of the alleged falsehoods or detailing how Khan was treated while in CIA custody.

Khan, one of 14 detainees whom the CIA secretly imprisoned before transferring them last year to the U.S. military prison at Guantanamo Bay, Cuba, has said he was systematically tortured. His attorneys at the New York-based Center for Constitutional Rights have been pressing for a court order to prevent the government from destroying evidence of his treatment. [complete article]

The official story unfolds
By Scott Horton, Harper’s, January 18, 2008

The destruction of the CIA torture tapes is still a fairly young scandal as Washington scandals go. It hasn’t even acquired a “gate” suffix. But the Administration is already busily choreographing it, with the dozens of shiny metal parts clicking away in synchronicity, like a finely designed mechanical watch. There is an admirable efficiency to the political process. If only these people were a fraction as good at the work of government as they are at political shenanigans, I keep thinking. The Bush Administration plan is simple: let’s think of this as a movie–Abu Ghraib, The Sequel. Instead of offering up a group of young grunts for the sacrifice, this time it will be a retired senior management figure at the CIA and some of his subordinates. And this sacrifice will, in the White House’s view, divert attention from the real source of both scandals, which is high in the upper reaches of the Executive Branch. Inside the White House, in fact. [complete article]

NEWS & EDITOR’S COMMENT: The torture cover-up

Station chief made appeal to destroy CIA tapes
By Joby Warrick and Walter Pincus, Washington Post, January 16, 2008

Those known to have counseled against the tapes’ destruction include John B. Bellinger III, while serving as the National Security Council’s top legal adviser; Harriet E. Miers, while serving as the top White House counsel; George J. Tenet, while serving as CIA director; [Scott W.] Muller, while serving as the CIA’s general counsel; and John D. Negroponte, while serving as director of national intelligence.

Hayden, in an interview, said the advice expressed by administration lawyers was consistent. “To the degree this was discussed outside the agency, everyone counseled caution,” he said. But he said that, in 2005, it was “the agency’s view that there were no legal impediments” to the tapes’ destruction. There also was “genuine concern about agency people being identified,” were the tapes ever to be made public.

Hayden, who became CIA director last year, acknowledged that the questions raised about the tapes’ destruction, then and now, are legitimate. “One can ask if it was a good idea, or if there was a better way to do it,” he said. “We are very happy to let the facts take us where they will.” [complete article]

Editor’s Comment — The top officials here were either duplicitous or incompetant or both. The decision-making process carries the signature of the Bush-Cheney administration. It’s all about being able to act and evade responsibility. Under the leadership of a frat boy president, no one wants to carry the accountability that Bush himself refuses to bear.

Special counsel sought in CIA tapes case
AP, January 16, 2008

The chairman of the House Judiciary Committee and 18 other House Democrats on Tuesday asked the attorney general to replace a government prosecutor with an outside lawyer to investigate the CIA’s destruction of interrogation videotapes. [complete article]

FEATURE: Can Mike McConnell fix America’s intelligence community?

The spymaster [PDF]
By Lawrence Wright, The New Yorker, January 21, 2008

I asked how he [Mike McConnell, the US Director of National Intelligence,] defined torture.

“There’s a history of people making claims that it’s not torture if you don’t force the failure of a major organ,” McConnell said, referring to the infamous 2002 memo by John Yoo, a Justice Department lawyer, who argued that an interrogation technique was torture only when it was as painful as organ failure or death. “My view is, that’s kind of absurd. It’s pretty simple. Is it excruciatingly painful to the point of forcing someone to say something because of the pain?” McConnell leaned forward confidentially. “Now, how descriptive do I want to be with you? I don’t want to tell you everything, and why is that? Look, these guys talk because, among other things, they’re scared.”

McConnell asserted that it was not difficult to evaluate the truthfulness of a confession, even a coerced one. “And as soon as they start to talk we can tell in minutes if they are lying,” he said. “One, you know a lot. And you know when someone is giving you information that is not connecting up to what you know. You also know when to use a polygraph.”

McConnell refused to specify what new methods had been approved for the C.I.A. “There are techniques to get the information, and when they get the information it has saved lives,” he said vaguely. “We have people walking around in this country that are alive today because this process happened.”

Couldn’t the information be obtained through other means?

“No,” McConnell said. “You can say that absolutely.” He again cited the case of Khalid Sheikh Mohammed. “He would not have talked to us in a hundred years. Tough guy. Absolutely committed. He had this mental image of himself as a warrior and a martyr. No way he would talk to us.” Among the things that Mohammed confessed to was the murder of Daniel Pearl. And yet few people involved in the investigation of Pearl’s death believe that Mohammed had anything to do with the crime; another man, Ahmed Omar Saeed Sheikh, was convicted of killing Pearl. I mentioned McConnell’s hero, General Powell, whose disastrous speech to the United Nations, in February, 2003, made the case to the world for invading Iraq—a case founded on faulty intelligence. Part of Powell’s presentation was based on the testimony of Ibn al-Sheikh al-Libi, an Al Qaeda operative who was captured by Pakistani forces in December, 2001. The Pakistanis turned him over to the Americans. According to Jack Cloonan, a former F.B.I. agent involved in the interrogation, Libi was providing useful and accurate intelligence until the C.I.A. took custody of him and placed him inside a plywood box for transport. He was reportedly sent to Egypt and tortured. (An agency spokesman said, “The C.I.A. does not transport individuals anywhere to be tortured.”) Libi allegedly told his interrogators that the Iraqi military had trained two Al Qaeda associates in chemical and biological warfare. This was the essence of Colin Powell’s claim: Saddam had weapons of mass destruction and was working with Al Qaeda. Neither assertion was true. How could we ever trust information obtained under torture when such methods had already led us into a catastrophic war?

“Now, wait a minute,” McConnell said. “You allege torture. I don’t know. Maybe it was. I don’t know.” He wasn’t in office at the time.

I asked what personal experiences informed his views.

McConnell recalled that before going to Vietnam he had participated in the military’s Survival, Evasion, Resistance and Escape program. “You had to go through jungle training, get slapped around, knocked down, put in a box, physically abused,” he said. “That’s to prepare you for what the enemy might do to you.” McConnell was thrown into a covered pit with a snake. There was no room to stand or move around. “They would open up the thing and whack you a few times and close it down,” he said. “They beat us up reasonably well.” However, he knew that he was not going to die.

Waterboarding was not a part of the training when McConnell went through SERE, although it sometimes has been. “You know what waterboarding is?” he asked. “You lay somebody on this table, or put them in an inclined position, and put a washcloth over their face, and you just drip water right here”—he pointed to his nostrils. “Try it! What happens is, water will go up your nose. And so you will get the sensation of potentially drowning. That’s all waterboarding is.”

I asked if he considered that torture.

McConnell refused to answer directly, but he said, “My own definition of torture is something that would cause excruciating pain.”

Did waterboarding fit that description?

Referring to his teen-age days as a lifeguard, he said, “I know one thing. I’m a water-safety instructor, but I cannot swim without covering my nose. I don’t know if it’s some deviated septum or mucus membrane, but water just rushes in.” For him, he said, “waterboarding would be excruciating. If I had water draining into my nose, oh God, I just can’t imagine how painful! Whether it’s torture by anybody else’s definition, for me it would be torture.”

I queried McConnell again, later, about his views on waterboarding, since this exchange seemed to suggest that he personally condemned it. He rejected that interpretation. “You can do waterboarding lots of different ways,” he said. “I assume you can get to the point that a person is actually drowning.” That would certainly be torture, he said. The definition didn’t seem very different from John Yoo’s. The reason that he couldn’t be more specific, McConnell said, is that “if it ever is determined to be torture, there will be a huge penalty to be paid for anyone engaging in it.” [complete article – PDF]

EDITORIAL: Judicial complicity in torture

U.S. Court of Appeals decides that at Guantanamo, torture’s part of the job, but not to worry, the victims aren’t people
By Paul Woodward, War in Context, January 13, 2008

Suppose a United States Court of Appeals decided that even if torture is illegal, torturers cannot be prosecuted because “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants.” And suppose the same court when approached by plaintiffs who have alleged that “high-level U.S. government officials treated them as less than human,” told those plaintiffs that the court itself did not regard them as “persons.” Would such a legal ruling merit great attention in the Washington Post or the New York Times? Apparently not.

What the U.S. Court of Appeals for the District of Columbia Circuit decided last Friday, was that, as James Oliphant reported in the Baltimore Sun, “even if torture and religious abuse were illegal, defendants were immune under the Constitution because they could not have reasonably known that detainees at Guantanamo had any constitutional rights.”

As Eric Lewis, a lawyer for the detainees said, “It is an awful day for the rule of law and common decency when a court finds that torture is all in a days’ work for the secretary of defense and senior generals.” It is also an awful day when the leading newspapers in America regard this event as worthy of nothing more than a cursory mention.

What the federal court of appeals has in effect done is to undergird a culture of torture. They have concocted a legal defense for individuals who might want to shield themselves behind a line of defense that failed the Nazis: we were just following orders. And they have constructed a legalistic artifice that dovetails into the mindset that facilitates torture: the de-humanization of the victims.