Showing posts with label torture. Show all posts
Showing posts with label torture. Show all posts
Thursday, September 03, 2009
Tortuous Presumptions
The recent release of the “CIA Inspector General’s Special Review of Counterterrorism Detention and Interrogation Activities, September 2001 to October 2003”—detailing once again the appalling torture techniques employed by U.S. interrogators in their attempt to get information from “the worst of the worst”—has been discussed by experts far more qualified than myself. One aspect of the report, however, especially as disclosed by former CIA analyst Ray McGovern (“Closing in on the Torturers,” Aug. 26, 2009, consortiumnews.com), struck me forcefully. It concerned the operating assumption among interrogators, in the absence of any evidence, that their Al-Qua’ida captives (called “high value detainees) must have had crucial information, and were refusing to give it up. Here is what the report says:
According to a number of those interviewed for this Review, the Agency’s intelligence on Al-Qa’ida was limited prior to the CTC (Counterterrorist Center) Program. The Agency lacked adequate linguists or subject matter experts and had very little hard knowledge of what particular Al-Qa’ida leaders—who later became detainees—knew. This lack of knowledge led analysts to speculate about what a detainee ‘should know’…When a detainee did not respond to a question posed to him, the assumption at Headquarters was that the detainee was holding back and knew more; consequently, Headquarters recommended resumption of EITs [enhanced interrogation techniques].
McGovern adds one more bit of data from the Review, and then a comment:
Some participants in the Program, particularly field interrogators, judge that CTC assessments to the effect that detainees are withholding information are not always supported by an objective evaluation of available information and the evaluation of the interrogators but are too heavily based, instead, on presumptions of what the individual might or should know.
And then comes McGovern’s comment:
“People were tortured on the basis of ‘presumptions.’ Nice.”
What struck me when I read this was how similar it sounded to the root rationale governing the arrest and detention of American civilians during World War II. The phrase then in vogue by the FBI, military intelligence, and the Alien Enemy Control Division of the Department of Justice, was “potentially dangerous.” This was the term that was used to justify first investigating and then preparing dossiers on thousands and thousands of Americans with roots in the three prospective enemy nations—Japan, Germany, and Italy—even before war broke out. These investigations were undertaken primarily by J. Edgar Hoover’s FBI, starting in 1936 after a meeting the Director had with President Franklin Roosevelt. By 1940, the individuals investigated—many of them targeted by informants—were placed on a Custodial Detention Index prepared by Hoover’s FBI. The term “custodial detention” clearly indicates that anyone on the list was automatically a candidate for arrest and detention in the event the United States entered the war, which it did on December 7, 1941. And on that date, and in subsequent months, thousands on the list (some 60,000 domestic arrests were made during the war) were arrested, detained, interrogated about their activities and associations, and, if they could not “prove their innocence,” interned at Army-run camps for the duration of the war. Most were so-called “enemy aliens,” those immigrants who had been born in Italy, Japan or Germany and had not yet become U.S. citizens, but many were naturalized U.S. citizens with roots in those now-enemy nations.
It was in respect to the latter that the Department of Justice, under the direction of Attorney General Francis Biddle, in about 1943 looked into the reasoning behind the term “potentially dangerous,” and came to some stunning conclusions. It should be noted that both Biddle and his predecessor, Robert Jackson (later elevated to the Supreme Court) had expressed reservations about many such wartime assumptions earlier. Specifically, Jackson had warned about the casual use of the term “subversion” or “subversive activity” with regard to the spying then being done on Americans. Jackson maintained that subversion was a dangerous concept because there were “no definite standards to determine what constitutes a ‘subversive activity’, such as we have for murder or larceny.” The Attorney General expanded on this problem with more examples:
Activities which seem benevolent or helpful to wage earners, persons on relief, or those who are disadvantaged in the struggle for existence may be regarded as “subversive” by those whose property interests might be burdened thereby. Those who are in office are apt to regard as “subversive” the activities of any of those who would bring about a change of administration. Some of our soundest constitutional doctrines were once punished as subversive.
That the Attorney General knew whereof he spoke could have been grimly attested to by one Italian immigrant and “enemy alien” named Federico Dellagatta. Dellagatta had been reported for making suspect statements—“irresponsible talk about the greatness of the Italian people and the Italian army”—while shining shoes in Providence RI’s Union Station He was arrested and detained by the FBI, judged no danger to the nation by his hearing board, and recommended for parole. But when his case was reviewed by the DOJ’s Alien Division, the term “subversive activity” came into play, with grim results for the bootblack. Here is what the reviewer said:
“In the opinion of this reviewer, subject’s persistent talk in praising and boasting of the greatness of the Italian people and of the Italian army while employed in a shoe shining shop constitutes downright subversive activity..” [emphasis added, ed.]
Because of his “subversive” talk, therefore, Dellagatta was interned. Francis Biddle, shortly afterward, weighed in on the related danger of sedition statutes, one of which had been quietly included in the Alien Registration Act of 1940. The act made it a criminal offense for anyone to advocate overthrowing the Government of the U.S. or any state, or even to be “a member of an association which teaches, advises or encourages such an overthrow.” For Francis Biddle, then Solicitor General, such sedition statutes were too easily misused, and often conflicted with the bedrock First Amendment right to free speech. As he later wrote in his autobiography, In Brief Authority:
History showed that sedition statutes—laws addressed to what men said—invariably had been used to prevent and punish criticism of the government, particularly in time of war. I believed them to be unnecessary and harmful.
When he became Attorney General, Biddle opposed many of the proposed measures demanded by the military (though to his everlasting shame, he cooperated in the internment of 110,000 Japanese, including 70,000 U.S. citizens), especially its Individual Exclusion Program aimed at naturalized citizens of German and Italian descent. Biddle actually refused to prosecute several who violated their exclusion orders. His real objections came in 1943, however, when he ordered his department to prepare a report on the Program. After examining and completely invalidating the entire rationale for removing individuals from allegedly vulnerable coastal zones, the report then attacks the concept of “potential dangerousness” as the basis for exclusion (and, by implication, for internment as well.) It notes, first, that “the concept of potential dangerousness itself contains the element of possibility.” Saying someone is “potentially dangerous,” that is, is equivalent to saying that someone “might possibly be a possible threat.” The report then concludes:
Practically, the use of phrases such as this [i.e. ‘potentially dangerous’] suggests that those who use them hold the view that a subject of an exclusion case must be excluded unless it is clear that there is no reason to exclude him. This is analogous to saying that the burden of proof is on the excludee, although the excludee, of course, cannot meet the burden, since he is not advised of the charges against him.
Unfortunately, there were no Robert Jacksons or Francis Biddles in George W. Bush’s Department of Justice, or in his CIA. Where those two WWII Attorneys General understood and, for the most part, respected the law, the Constitutional protections afforded all persons in the United States (such as the right to know what one is charged with), and the presumption of innocence enshrined in English law since the 12th century, Bush’s political appointees did not. Therefore, it seemed perfectly natural to them and their underlings to make “presumptions” about what a detainee could be expected to know, and to torture him if he did not reveal what was expected. Of course, as lawyers, they were adept at coining novel names for such practices, names like Enhanced Interrogation Techniques. They were also adept—Yoo, Addington, Bybee, Gonzalez, on up to the President and Vice-President—at issuing diabolical directives to both define what torture was (or more often was NOT), and why those interrogators who employed it could not be liable for prosecution. As the Review notes:
The OLC [Office of Legal Counsel, where Yoo and Bybee worked] determined that a violation of Section 2340 [of the torture statute,18 U.S. Legal Code] requires that the infliction of severe pain be the defendant’s “precise objective.” OLC also concluded that necessity or self-defense might justify interrogation methods that would otherwise violate section 2340A.
OLC produced another legal opinion on 1 August 2002 at the request of CIA…The opinion concluded that use of EITs on Abu Zubaydah would not violate the torture statute because, among other things, Agency personnel: (1) would not specifically intend to inflict severe pain or suffering, and (2) would not in fact inflict severe pain or suffering.
So there you have it. Interrogators “presume” that a detainee knows more than he’s saying, and on that basis get permission to use “Enhanced Interrogation Techniques” like wall slamming, sleep and food deprivation, and waterboarding. Then, having done this—in Zubaydah’s case, using the waterboard over 180 times—they then say that legally ‘We didn’t intend to hurt the little fellow, nor did we even know it hurt or caused any suffering whatever; we only wanted information. The fact that people tend to emerge from these sessions gibbering like idiots may be due to the diabolical training they all get. And besides, the bosses insisted.’
Though torturing suspects based on a “presumption” of what they know is different from interning them, or excluding them from vast areas because of their “potential danger,” the entire policy forms a continuum which turns on the same idea. That idea seems to be that, regardless of the law, one can never take too many precautions, or be too squeamish about methods when confronting what one presumes to be a “potentially dangerous” or “potentially knowledgeable” population.
Lawrence DiStasi
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Wednesday, July 15, 2009
Torture by Design and Other Stuff
For those who boast or whine
About intelligent design
And draw lessons from scripture
To create a picture
Of what we humans have done
For security or fun
Need to re-check and squint
To see if we followed the blueprint
We need to review the bidding on torture and related violations of law and the Constitution before we blithely travel down the road to tomorrow’s legal issues. We have endured the painful if titillating exposes of hypocrites wailing over their peccadilloes. Governor Sanford and Senators Ensign and Vitter are merely the latest in a long series of failed humans; some of whom seem bent on throwing stones while forgetting that their positions in life place them in glass houses in full view of the people whom they both resemble and represent. Human failing appears to be part of the human condition and fully bipartisan. If there is a difference, it is that the conservatives run on a platform of holiness and purity while they stumble and fall at the same rate as liberals who are just as human and fallible, but run on platforms that are unrelated to personal perfection. Let us accept that these practices will continue and then devote some energy to issues of Constitutional and international law before we get too distracted.
Let me begin with the absurd posturing by our former Vice President Dick Cheney re the efficacy of torture. While that assertion that torture “worked” is not relevant to the law, it must still be challenged. Let us return to the design of the torture program and how it either evolved or was the product of intelligent design since that is a common mantra of the right wing. We experienced considerable torture at the hands of Chinese and North Korean Communists during the Korean Conflict. The torture resulted in scores of false confessions that were distributed internationally and decried as inhuman and cruel by our government and even our press. The purpose of the torture that was structurally inherent in the design was to elicit confessions…false confessions. After review of the military subjected to torture and countless interviews and study, we recognized that our soldiers were not prepared for the process and that, if they were given an orientation to the techniques of torture, that perhaps there would be increased resistance to signing false statements and fewer incidents in future conflicts. The SERE program was then designed and presented to our military to reduce false confessions by our soldiers. Many of our military personnel were then trained to resist by subjecting them to abbreviated torture techniques. It was not done to train our soldiers in how to inflict torture, but rather to familiarize them with the techniques so that they might be better prepared to resist.
Think about this. The Communists designed a program to elicit false confessions and then exploited those false confessions on the world stage. That was their design and the system worked according to that design. At no time did the Communists assume that their extracted confessions were “truth through torture,” but rather that the many Americans, although not all, were weak enough to succumb to the techniques. The design worked exactly as it should. Given that we, after failing to prevent 9/11, moved to round up “targets” like Sheik Mohammed and torture them without any essential redesign of the program used by the Communists, then why should we suddenly believe that the same design under similar conditions would suddenly produce Truth? This is the equivalent of designing a physical system to extract water from a stone and expecting it to produce fine wine. It’s a miracle! We can be absolute in expecting that physical system to extract water, not wine and we can fully expect that the torture of prisoners by our government produced false confessions. That is the beauty of design. Incidentally, that design is not affected by the good intentions of the torturers to get Truth, or the righteousness of our cause to find the perpetrators of 9/11. Sheik Mohammed has admitted to giving false answers to stop the torture he was subjected to much as our soldiers did upon return to a safe environment at home. Hmm. If Cheney can create wine from water, he missed his calling.
In addition to the problem of a system working according to design, there is the nagging reality of the law. Our Constitution and international laws to which we are party specifically prohibits torture. Techniques such as waterboarding have been cited repeatedly in precedent as prohibited and illegal. Our own findings in the Nuremburg trials led to punishment of the perpetrators and even to the officials and legal authorities that provided covering opinions. Herbert Klemm was convicted by a U.S. military tribunal for a legal position he took that advocated taking rights away from people that contributed to the abuse of these groups. This places Yoo and other Bush administration lawyers in the similar position of supporting torture through memos and other means that advocated positions that attempted to rewrite common definitions of torture, for example, to provide a fig leaf to cover Bush and Cheney. Limiting the definition of torture as “deliberately inflicting grievous bodily harm such as organ failure” is a bogus opinion on its face and could be prosecuted by others using our own precedent against Klemm. Even if some court would exonerate Bush and Cheney due to their ignorance, Yoo and others might be prosecuted based upon the assumption that an attorney would be required to issue an opinion that recognizes common international law and our own laws on the subject. A lawyer calling a pig a diamond does not materially alter the nature of the pig. Torture is torture regardless of what Yoo called it.
More recently, we have been informed that Cheney apparently failed to notify Congress of an assassination program being established in violation of specific law created by our Legislature that required briefing on CIA programs. Further, an earlier Congress eliminated political assassinations as policy in the 1970s as a result of the Phoenix Program disclosures in Vietnam and Cambodia. This is a double problem for the Cheney office (hiding an illegal program from Congress). We probably all guessed that Cheney who apparently drinks liberally but is conservative in most other aspects of life would be on the wrong side of the law, but we simply did not understand the depth of his involvement. It now seems that Cheney was not only personally cherry-picking intelligence, but he was directing actions to change the rules of behavior for our intelligence forces and perhaps saw himself as 007 with license to kill. This is troubling on an international as well as a national level because, just as we did not inform Congress, we also failed to inform our allies. That usually gets them ticked off.
Where to from here? We cannot make believe that this history did not happen. We have a major economic crisis, yes, but the law is always with us. The crisis in economics will pass. If we do not pursue the law, then some day, when we least expect it, the law may pursue us. On that tenuous note, we are all guilty of contributing to the delinquency of an administration if we look the other way…and that is true for both the perpetrating Bush Administration and the following Obama Administration. I am fully aware that Obama does not want to delay health care and recovery from this recession, but just how many people will it require to simply follow the law where it takes us? Will history be any kinder to Obama for doing nothing than it will for Bush and Cheney for the violations? Should it?
We need to use our powers as citizens to cry out for justice. It will take months and compromise is unacceptable, but we cannot simply stand by and allow our great nation to shrink from our joint and aggregate responsibility to ensure that justice prevails. Is it worse to admit our failings and to repair them or to pretend that we have no faults when the hypocrisy is screaming to us and to the world as we wait? Remember Sanford, Ensign and Vitter? It is not their failings but their hypocrisy that angers us. Let us not be hypocrites. Yes, we failed. Now let us repair the damage by welcoming Justice without reservation and let the lady with the blindfold do her thing.
Peace,
George Giacoppe
15 July 2009
About intelligent design
And draw lessons from scripture
To create a picture
Of what we humans have done
For security or fun
Need to re-check and squint
To see if we followed the blueprint
We need to review the bidding on torture and related violations of law and the Constitution before we blithely travel down the road to tomorrow’s legal issues. We have endured the painful if titillating exposes of hypocrites wailing over their peccadilloes. Governor Sanford and Senators Ensign and Vitter are merely the latest in a long series of failed humans; some of whom seem bent on throwing stones while forgetting that their positions in life place them in glass houses in full view of the people whom they both resemble and represent. Human failing appears to be part of the human condition and fully bipartisan. If there is a difference, it is that the conservatives run on a platform of holiness and purity while they stumble and fall at the same rate as liberals who are just as human and fallible, but run on platforms that are unrelated to personal perfection. Let us accept that these practices will continue and then devote some energy to issues of Constitutional and international law before we get too distracted.
Let me begin with the absurd posturing by our former Vice President Dick Cheney re the efficacy of torture. While that assertion that torture “worked” is not relevant to the law, it must still be challenged. Let us return to the design of the torture program and how it either evolved or was the product of intelligent design since that is a common mantra of the right wing. We experienced considerable torture at the hands of Chinese and North Korean Communists during the Korean Conflict. The torture resulted in scores of false confessions that were distributed internationally and decried as inhuman and cruel by our government and even our press. The purpose of the torture that was structurally inherent in the design was to elicit confessions…false confessions. After review of the military subjected to torture and countless interviews and study, we recognized that our soldiers were not prepared for the process and that, if they were given an orientation to the techniques of torture, that perhaps there would be increased resistance to signing false statements and fewer incidents in future conflicts. The SERE program was then designed and presented to our military to reduce false confessions by our soldiers. Many of our military personnel were then trained to resist by subjecting them to abbreviated torture techniques. It was not done to train our soldiers in how to inflict torture, but rather to familiarize them with the techniques so that they might be better prepared to resist.
Think about this. The Communists designed a program to elicit false confessions and then exploited those false confessions on the world stage. That was their design and the system worked according to that design. At no time did the Communists assume that their extracted confessions were “truth through torture,” but rather that the many Americans, although not all, were weak enough to succumb to the techniques. The design worked exactly as it should. Given that we, after failing to prevent 9/11, moved to round up “targets” like Sheik Mohammed and torture them without any essential redesign of the program used by the Communists, then why should we suddenly believe that the same design under similar conditions would suddenly produce Truth? This is the equivalent of designing a physical system to extract water from a stone and expecting it to produce fine wine. It’s a miracle! We can be absolute in expecting that physical system to extract water, not wine and we can fully expect that the torture of prisoners by our government produced false confessions. That is the beauty of design. Incidentally, that design is not affected by the good intentions of the torturers to get Truth, or the righteousness of our cause to find the perpetrators of 9/11. Sheik Mohammed has admitted to giving false answers to stop the torture he was subjected to much as our soldiers did upon return to a safe environment at home. Hmm. If Cheney can create wine from water, he missed his calling.
In addition to the problem of a system working according to design, there is the nagging reality of the law. Our Constitution and international laws to which we are party specifically prohibits torture. Techniques such as waterboarding have been cited repeatedly in precedent as prohibited and illegal. Our own findings in the Nuremburg trials led to punishment of the perpetrators and even to the officials and legal authorities that provided covering opinions. Herbert Klemm was convicted by a U.S. military tribunal for a legal position he took that advocated taking rights away from people that contributed to the abuse of these groups. This places Yoo and other Bush administration lawyers in the similar position of supporting torture through memos and other means that advocated positions that attempted to rewrite common definitions of torture, for example, to provide a fig leaf to cover Bush and Cheney. Limiting the definition of torture as “deliberately inflicting grievous bodily harm such as organ failure” is a bogus opinion on its face and could be prosecuted by others using our own precedent against Klemm. Even if some court would exonerate Bush and Cheney due to their ignorance, Yoo and others might be prosecuted based upon the assumption that an attorney would be required to issue an opinion that recognizes common international law and our own laws on the subject. A lawyer calling a pig a diamond does not materially alter the nature of the pig. Torture is torture regardless of what Yoo called it.
More recently, we have been informed that Cheney apparently failed to notify Congress of an assassination program being established in violation of specific law created by our Legislature that required briefing on CIA programs. Further, an earlier Congress eliminated political assassinations as policy in the 1970s as a result of the Phoenix Program disclosures in Vietnam and Cambodia. This is a double problem for the Cheney office (hiding an illegal program from Congress). We probably all guessed that Cheney who apparently drinks liberally but is conservative in most other aspects of life would be on the wrong side of the law, but we simply did not understand the depth of his involvement. It now seems that Cheney was not only personally cherry-picking intelligence, but he was directing actions to change the rules of behavior for our intelligence forces and perhaps saw himself as 007 with license to kill. This is troubling on an international as well as a national level because, just as we did not inform Congress, we also failed to inform our allies. That usually gets them ticked off.
Where to from here? We cannot make believe that this history did not happen. We have a major economic crisis, yes, but the law is always with us. The crisis in economics will pass. If we do not pursue the law, then some day, when we least expect it, the law may pursue us. On that tenuous note, we are all guilty of contributing to the delinquency of an administration if we look the other way…and that is true for both the perpetrating Bush Administration and the following Obama Administration. I am fully aware that Obama does not want to delay health care and recovery from this recession, but just how many people will it require to simply follow the law where it takes us? Will history be any kinder to Obama for doing nothing than it will for Bush and Cheney for the violations? Should it?
We need to use our powers as citizens to cry out for justice. It will take months and compromise is unacceptable, but we cannot simply stand by and allow our great nation to shrink from our joint and aggregate responsibility to ensure that justice prevails. Is it worse to admit our failings and to repair them or to pretend that we have no faults when the hypocrisy is screaming to us and to the world as we wait? Remember Sanford, Ensign and Vitter? It is not their failings but their hypocrisy that angers us. Let us not be hypocrites. Yes, we failed. Now let us repair the damage by welcoming Justice without reservation and let the lady with the blindfold do her thing.
Peace,
George Giacoppe
15 July 2009
Saturday, May 09, 2009
Torture: Crime versus Punishment
We have our ways
On the ship of State
To win your praise
While pushing fate
For the detainee
That is so unlucky
To be positioned
For Inquisition
And then to drown
While we clown
I can no longer remain silent on the false debate on torture. I have tolerated countless right wing extremists defending the US practice of torture, and now otherwise prudent and moderate people argue that torture can be legitimate under two conditions: If it is legal and if it works. The logic is bizarre more than faulty and we will explore the arguments that are essentially extensions of the logic proffered by the Spanish Inquisition. We have rule of law or we do not. That fact is independent of patriotism.
Let us first consider the issue of the law. The US signed the Geneva Accords and we proclaim that we accepted the international law on torture. Precedent from WW II and even the war in Vietnam also supports the prosecution of torture. Conviction of Japanese soldiers who tortured by using the techniques defended by Yoo and Bybee led to sentences of 15 years hard labor. Those techniques included beating, wall-banging, waterboarding (or the water cure), prolonged exposure to cold, etc. It has not always been a military issue. According to Progress Politics: “In 1983, Texas Sheriff James Parker was charged, along with three of his deputies, for handcuffing prisoners to chairs, placing towels over their faces, and pouring water on the cloth until they gave what the officers considered to be confessions. The sheriff and his deputies were all convicted and sentenced to four years in prison.”
Torture, including waterboarding, is illegal. There is no room for debate on that fact. As for what constitutes torture, beyond waterboarding, the examples abound, but precedent mentions stress positions, nakedness, prolonged interrogation and waking periods, denial of food or water, infliction of pain including emotional pain. Those all sound familiar if you have kept up with the Bybee and Yoo legal advice or the Gitmo reporting. Mostly, it is common sense administration for controlling the treatment of captives who have no other protection from abuse than the laws themselves. Merely naming a practice “enhanced interrogation” that, in fact, uses the already defined techniques of torture does not alter the practice or the offense. Requesting and receiving an attorney’s opinion that attempts to create a loophole in the laws on torture is meaningless if the techniques actually applied are already defined as torture. The crime is in the application of illegal methods, not in the advice whether the advice was sincere or an artifact of a conspiracy to commit torture.
Recently, former Vice President Cheney has offered: 1) that the techniques worked, and 2) that only 3 detainees were waterboarded. Let’s take a look at those claims. If the techniques worked, why was one detainee waterboarded 183 times in one month? It would seem that besides being irrelevant, it is hardly an efficient approach to get accurate and usable information. The techniques were “reverse engineered” from the Communist Chinese methods used during the Korean conflict. We actually set up the SERE Program to orient our own military to the Chinese Communist methods that extracted FALSE confessions from our fighting men and women. The underlying premise was that if we trained our military, that they would be less likely to provide false confessions. The method used by the Chinese Communists worked and false confessions were extracted so that our military were exploited for propaganda by the Chinese Communists. Our complaint then and even now is that the confessions were FALSE, not that they were true. Now Cheney has proclaimed a minor miracle that methods made famous for extracting false information now bring forth the TRUTH. Amazing!
If I waterboard only three detainees or otherwise only torture only three detainees, guess what? I tortured three people with multiple counts of torture on those three? That is parallel to extorting or assaulting or robbing or killing only three people. If torture is applied to only one person and only one time, then the offense has been committed. In terms of committing a crime, it takes only one offense. You don’t need to be a serial killer to be tried for murder. And the issue of patriotism as a motive for depriving a person of his rights under the laws of torture simply fails muster. If I rob a bank and assault a teller because I wanted to pay for an operation for my mother or to give money to the poor, the “motivation” is meaningless except in mitigation after conviction for the crime. If an intent is to be examined for a violation of the law, it is the intent to deprive a person of his or her rights under the applicable laws, not the intent to be patriotic. That may come after the trial and conviction for the violation of the law.
My personal interpretation of the myriad pronouncements by Cheney and others is that the truth is coming into daylight and that Cheney knows that he could serve jail time if he were tried and convicted of promoting methods otherwise defined as torture. He may or may not be evil, but surely, he is not stupid and does not look forward to being called out by our courts or by the international courts to defend his actions regarding torture. This is a basic case of conflict of interest. We have a right of free speech and Cheney is exercising that right, but please consider the source when evaluating the content. Others, including Bybee and Yoo and Rumsfeld and Gonzales have been less garrulous, but they must also be hoping all this will blow away or that people will accept their framing of the arguments and lose sight of the real offenses committed. The nation of Spain may again be in the limelight, but this time on the side of the law and against the Inquisition. The irony is worth noting.
In summary, the techniques of torture are illegal and while I seriously doubt that they work, that issue is irrelevant for all the reasons already cited. If US perpetrators (high and low) are not, in fact, tried by US courts, they may well be tried by foreign courts and, if so, we will have lost the initiative to control our own fate and reputation as a nation of law. Torture at Guantanamo and at Abu Ghraib and other sites has been credited as the greatest recruiting tool for the Taliban and Al Qaeda. We need to demonstrate that we have the courage to do the right thing and to practice what we preach…even if it hurts. Let the Taliban and Al Qaeda recruit on their own and without our help. Otherwise we face the ever increasing numbers of enemy at a time when we should be making it more difficult and less attractive for them to sign on. If these officials were criminals and were also patriotic, may they receive reduced sentences. First, we need to try them in courts of law as happens in other civilized countries.
Peace,
George Giacoppe
10 May 2009
On the ship of State
To win your praise
While pushing fate
For the detainee
That is so unlucky
To be positioned
For Inquisition
And then to drown
While we clown
I can no longer remain silent on the false debate on torture. I have tolerated countless right wing extremists defending the US practice of torture, and now otherwise prudent and moderate people argue that torture can be legitimate under two conditions: If it is legal and if it works. The logic is bizarre more than faulty and we will explore the arguments that are essentially extensions of the logic proffered by the Spanish Inquisition. We have rule of law or we do not. That fact is independent of patriotism.
Let us first consider the issue of the law. The US signed the Geneva Accords and we proclaim that we accepted the international law on torture. Precedent from WW II and even the war in Vietnam also supports the prosecution of torture. Conviction of Japanese soldiers who tortured by using the techniques defended by Yoo and Bybee led to sentences of 15 years hard labor. Those techniques included beating, wall-banging, waterboarding (or the water cure), prolonged exposure to cold, etc. It has not always been a military issue. According to Progress Politics: “In 1983, Texas Sheriff James Parker was charged, along with three of his deputies, for handcuffing prisoners to chairs, placing towels over their faces, and pouring water on the cloth until they gave what the officers considered to be confessions. The sheriff and his deputies were all convicted and sentenced to four years in prison.”
Torture, including waterboarding, is illegal. There is no room for debate on that fact. As for what constitutes torture, beyond waterboarding, the examples abound, but precedent mentions stress positions, nakedness, prolonged interrogation and waking periods, denial of food or water, infliction of pain including emotional pain. Those all sound familiar if you have kept up with the Bybee and Yoo legal advice or the Gitmo reporting. Mostly, it is common sense administration for controlling the treatment of captives who have no other protection from abuse than the laws themselves. Merely naming a practice “enhanced interrogation” that, in fact, uses the already defined techniques of torture does not alter the practice or the offense. Requesting and receiving an attorney’s opinion that attempts to create a loophole in the laws on torture is meaningless if the techniques actually applied are already defined as torture. The crime is in the application of illegal methods, not in the advice whether the advice was sincere or an artifact of a conspiracy to commit torture.
Recently, former Vice President Cheney has offered: 1) that the techniques worked, and 2) that only 3 detainees were waterboarded. Let’s take a look at those claims. If the techniques worked, why was one detainee waterboarded 183 times in one month? It would seem that besides being irrelevant, it is hardly an efficient approach to get accurate and usable information. The techniques were “reverse engineered” from the Communist Chinese methods used during the Korean conflict. We actually set up the SERE Program to orient our own military to the Chinese Communist methods that extracted FALSE confessions from our fighting men and women. The underlying premise was that if we trained our military, that they would be less likely to provide false confessions. The method used by the Chinese Communists worked and false confessions were extracted so that our military were exploited for propaganda by the Chinese Communists. Our complaint then and even now is that the confessions were FALSE, not that they were true. Now Cheney has proclaimed a minor miracle that methods made famous for extracting false information now bring forth the TRUTH. Amazing!
If I waterboard only three detainees or otherwise only torture only three detainees, guess what? I tortured three people with multiple counts of torture on those three? That is parallel to extorting or assaulting or robbing or killing only three people. If torture is applied to only one person and only one time, then the offense has been committed. In terms of committing a crime, it takes only one offense. You don’t need to be a serial killer to be tried for murder. And the issue of patriotism as a motive for depriving a person of his rights under the laws of torture simply fails muster. If I rob a bank and assault a teller because I wanted to pay for an operation for my mother or to give money to the poor, the “motivation” is meaningless except in mitigation after conviction for the crime. If an intent is to be examined for a violation of the law, it is the intent to deprive a person of his or her rights under the applicable laws, not the intent to be patriotic. That may come after the trial and conviction for the violation of the law.
My personal interpretation of the myriad pronouncements by Cheney and others is that the truth is coming into daylight and that Cheney knows that he could serve jail time if he were tried and convicted of promoting methods otherwise defined as torture. He may or may not be evil, but surely, he is not stupid and does not look forward to being called out by our courts or by the international courts to defend his actions regarding torture. This is a basic case of conflict of interest. We have a right of free speech and Cheney is exercising that right, but please consider the source when evaluating the content. Others, including Bybee and Yoo and Rumsfeld and Gonzales have been less garrulous, but they must also be hoping all this will blow away or that people will accept their framing of the arguments and lose sight of the real offenses committed. The nation of Spain may again be in the limelight, but this time on the side of the law and against the Inquisition. The irony is worth noting.
In summary, the techniques of torture are illegal and while I seriously doubt that they work, that issue is irrelevant for all the reasons already cited. If US perpetrators (high and low) are not, in fact, tried by US courts, they may well be tried by foreign courts and, if so, we will have lost the initiative to control our own fate and reputation as a nation of law. Torture at Guantanamo and at Abu Ghraib and other sites has been credited as the greatest recruiting tool for the Taliban and Al Qaeda. We need to demonstrate that we have the courage to do the right thing and to practice what we preach…even if it hurts. Let the Taliban and Al Qaeda recruit on their own and without our help. Otherwise we face the ever increasing numbers of enemy at a time when we should be making it more difficult and less attractive for them to sign on. If these officials were criminals and were also patriotic, may they receive reduced sentences. First, we need to try them in courts of law as happens in other civilized countries.
Peace,
George Giacoppe
10 May 2009
Saturday, July 19, 2008
Let's kill all the lawyers
In Shakespeare’s Henry VI, part II, we find Dick the butcher, one of the rebel followers of Jack Cade, uttering these lines:
“The first thing we do, let's kill all the lawyers.” (IV.ii.83-84)
Especially after listening to Congressional hearings featuring such legal eagles of the Bush Administration as John Yoo, David Addington, Alberto Gonzalez, Jim Haynes, and most recently Douglas Feith, the lines seem uncannily appropriate to our time. Each lawyer has taken the stand in his turn and, like that other legal eagle, former President Bill Clinton, chosen denial and obfuscation and parsing of words as the means to escape all culpability. In Clinton’s case, though, the offense involved fellatio in the Oval Office—a rather crude offense, but not one that endangered the Republic. In the case of Yoo, Addington, Gonzalez, Haynes and Feith, by contrast, the offenses amounted to supplying the legal justification for war crimes, most notably the torture that now almost everyone agrees took place at Guantanamo and Abu Ghraib, and probably numerous other “black sites” around the world. Such torture subverts not only several treaties to which the United States is a signatory—the Geneva Conventions, the Torture Convention of 1984—but also the U.S. Constitution’s ban on cruel and unusual punishment, and the policies for interrogation laid out in the Army Field Manual.
All these lawyers, of course, argue either that they were just doing the job their client, the President of the United States or, in some cases Secretary of Defense Rumsfeld asked them to do; or that they were endeavoring to “protect the security of the nation.” In order to do this, they argue, they had to find a way to extract vital information from “the bad guys” captured in Afghanistan and elsewhere. Thus they argued in memo after memo, and in meeting after meeting, that since this was not a regular war, the rules governing prisoners of war (POWs) did not apply; or that even if they did apply, these particular “bad guys” were not regular, uniform-wearing troops but were “enemy combatants” (i.e. terrorists) and undeserving of the protections offered by the Geneva Conventions. Yoo and his boss Jay Bybee—another legal eagle now rewarded with a lifetime position as a federal judge—took a slightly different tack. They argued that the Geneva rules governing torture were outdated, having defined torture much too broadly. They then “tortured” torture to refer to only that kind of treatment which led to injury equivalent to “organ failure or death” or long-term psychological damage.
What resulted from all these coordinated attempts to justify “taking the gloves off” was torture. Prisoners were hooded for long periods, shackled to the floor like dogs, kept standing for long hours until their ankles swelled to excruciating size, sexually humiliated in a host of ways, frightened with dogs, religiously tormented, and waterboarded. All these methods (18 of them were outlined in Haynes’ December 2, 2002 memo to his boss, SecDef Donald Rumsfeld), both alone and in combination, were meant to reduce a prisoner to total hopelessness, misery, disorientation, de-personalization, and psychosis, the aim being to force him to reveal what he knew about future terrorist plans or the whereabouts of superiors.
The astonishing thing about all this—especially as it is laid out in numerous books and articles like Philppe Sands’ recent Torture Team—is that where usually we expect the military to be pushing for tougher measures in war and civilians in the Justice Department to be reigning them in with legal objections (as happened in World War II regarding internment of civilians), here the opposite occurred. In 2002 it was civilian appointees in the Pentagon, the Department of Justice and the White House who argued ferociously for extreme interrogation methods, and Pentagon lawyers, usually in the Judge Advocate General’s office, who objected to the violations of U. S. laws and military traditions. In short, instead of trying to reign in the hawks in the military, the Bush Administration let loose its own Chicken hawks. It was these civilian policy makers who badgered and bullied and, most often, simply cut the military lawyers out of the decisional loop entirely. And indeed, what Philppe Sands, himself an English barrister, concludes is that in the Bush Administration, policy ruled. The policy was set by civilians, by Bush himself, by his Machiavellian Vice President Cheney, and by all the sycophants, mostly lawyers, who followed and sought to please their clients by offering advice they wanted to hear. In Sands’ words:
“The legal advice was fitted around the policy” (Sands, p. 226)
If the policy was war in Iraq, the lawyers found ways to justify it. If the policy was torture, the lawyers found ways to disqualify prisoners from protections against it, or found ways to define torture so narrowly that almost anything was permissible. And overall, they argued fiercely that even if it were torture, it was necessary to save the people from terrorism. This was the tack taken by that distinguished legal eagle, not a part of the administration but one of the reigning nabobs at Harvard’s Law School, Alan Dershowitz. He it was who invented the last-ditch rationale, the “ticking time-bomb” scenario. Its import was simple, or simple-minded: if we capture a terrorist whom we suspect has information about a bomb, a nuclear weapon about to explode in a crowded city, what could possibly limit our attempts to get that information in time? Shouldn’t our policy be that any and all methods are warranted in such a dire emergency?
Without questioning this ridiculous scenario—for how often could it be, aside from on an imaginary thriller like “24” (the favorite program of most of the interrogators at Guantanamo, as well as many of the lawyers), that a single captive would have such information, with his captors knowing he had it?—the Administration based policy on it. And administration lawyers gave the requisite advice: it is legitimate to do virtually anything to prisoners to make them talk. In short, the legal advice was fitted around the policy—just as, earlier, as we learned from one of Britain’s diplomats, the intelligence required to justify invading Iraq was fitted around that policy as well.
What Sands points out in Torture Team, however, is that lawyers have a legal obligation not simply to win for their clients, not simply to provide them with legal rationales for the unlawful behavior they wish to engage in (this is the job rather, of mafia lawyers), but the obligation to warn them of the legal consequences of such actions. Lawyers have a primary responsibility to make sure their clients do NOT resort to measures that violate the law. Lawyers are officers of the court. And what the government lawyers in the Bush Administration failed to do, it now seems clear, was sound the alarm about the legal peril facing their clients for the illegalities they wanted to employ.
Instead, they strove mightily to frame arguments and find justifications for those illegalities, as well as expedients to indemnify both themselves and their clients from the penalties such acts incurred. They worked mightily to avoid their culpability for the war crimes that resulted from their arguments. And for the most part, they succeeded.
On the other hand, perhaps they did not succeed as thoroughly as they once hoped. The 1984 Convention against Torture and Other Cruel, Inhuman and Degrading Treatment, to which the United States is a signatory, makes very clear that not only are public officials prohibited from “intentionally inflicting” physical or mental pain upon a person (including so-called enemy combatants), but there are no circumstances, including a war against terrorism, that justify such treatment. Not only are all such acts criminal offenses, but more important, “any act by any person which constitutes complicity or participation in torture” is also a criminal offense. In other words, the lawyers whose arguments authorized such acts are also culpable—as the Nuremberg Trials demonstrated.
This is not just an academic argument. In June 2006, in the Hamdan vs. Rumsfeld case, the Supreme Court ruled that Common Article 3 of the Geneva Convention did, in fact, apply to all Guantanamo detainees. Taliban or al-Quaeda, state combatants or enemy combatants, all had these rights. Justice Anthony Kennedy went even further. He wrote that “violations of Common Article 3 are considered ‘war crimes,’ punishable as federal offenses, when committed by or against United States nationals and military personnel” (quoted in Sands, p. 174).
Of course, this “ominous” decision put the Bushies, including the lawyers, in a bit of a panic. For one thing, the Torture Convention of 1984 contains the requirement that all parties to this Convention, i.e. all nations who signed it, are “required to investigate any person who is alleged to have committed torture.” This act also “criminalizes any act that constitutes complicity” in torture (Sands, p. 177). So what did President Bush and his lawyers do? Why they proposed, and passed the Military Commissions Act, signed into law in November of 2006. This act “created a new defense to alleged breaches of Common Article 3…where the misconduct concerned the ‘detention and interrogation of aliens’ between September 11, 2001 and December 30, 2005” (Sands p. 208). Thus it gave the interrogators, and the lawyers, and any Bush Administration officials retroactive immunity from prosecution for their crimes. Rather a nice ploy, it seems. Commit crimes that violate the law both domestic and international; then create a new law absolving oneself of guilt for the crime. We’ve just seen a re-enactment of this in the bill that gave telecommunications companies immunity from their crimes in spying on the American people.
But the rejoicing in the White House may have come too soon. For as two jurists pointed out to Philippe Sands when he questioned them about the immunity legislation, this was a “very stupid” thing to do. Such legislation, allowing a crime to be covered up, “was almost an admission that a crime had occurred.” As one of the jurists pointed out, it had all the earmarks of a “pactum scaelaris,” or “evil pact,” bringing into play that part of the Criminal Code which “showed that contributing to the avoidance of an investigation of a crime could itself give rise to complicity” (Sands, p. 208).
Sands sums up the case he makes throughout the book as follows:
“The lawyers advising the Administration played a decisive role in subverting the system of international rules that should have protected all detainees from cruel and degrading treatment, a system that the United States had done so much to put in place. This was no mere accident or oversight. Nor was it a case of responding to a legitimate request that came up from the ground-level interrogators at Guantanamo, as the Bush Administration would have us believe. September 11 gave rise to a conscious decision to set aside international rules constraining interrogations.”
In short, it was the lawyers who enabled torture by subverting the constraints against it. Absent their legal arguments rationalizing the banned techniques, circumventing the international constraints against them, and justifying their use in the alleged crisis, the torture could not have happened. Which brings us back to Shakespeare’s formulation for a remedy:
“First thing we do, let’s kill all the lawyers.”
Lawrence DiStasi
=
“The first thing we do, let's kill all the lawyers.” (IV.ii.83-84)
Especially after listening to Congressional hearings featuring such legal eagles of the Bush Administration as John Yoo, David Addington, Alberto Gonzalez, Jim Haynes, and most recently Douglas Feith, the lines seem uncannily appropriate to our time. Each lawyer has taken the stand in his turn and, like that other legal eagle, former President Bill Clinton, chosen denial and obfuscation and parsing of words as the means to escape all culpability. In Clinton’s case, though, the offense involved fellatio in the Oval Office—a rather crude offense, but not one that endangered the Republic. In the case of Yoo, Addington, Gonzalez, Haynes and Feith, by contrast, the offenses amounted to supplying the legal justification for war crimes, most notably the torture that now almost everyone agrees took place at Guantanamo and Abu Ghraib, and probably numerous other “black sites” around the world. Such torture subverts not only several treaties to which the United States is a signatory—the Geneva Conventions, the Torture Convention of 1984—but also the U.S. Constitution’s ban on cruel and unusual punishment, and the policies for interrogation laid out in the Army Field Manual.
All these lawyers, of course, argue either that they were just doing the job their client, the President of the United States or, in some cases Secretary of Defense Rumsfeld asked them to do; or that they were endeavoring to “protect the security of the nation.” In order to do this, they argue, they had to find a way to extract vital information from “the bad guys” captured in Afghanistan and elsewhere. Thus they argued in memo after memo, and in meeting after meeting, that since this was not a regular war, the rules governing prisoners of war (POWs) did not apply; or that even if they did apply, these particular “bad guys” were not regular, uniform-wearing troops but were “enemy combatants” (i.e. terrorists) and undeserving of the protections offered by the Geneva Conventions. Yoo and his boss Jay Bybee—another legal eagle now rewarded with a lifetime position as a federal judge—took a slightly different tack. They argued that the Geneva rules governing torture were outdated, having defined torture much too broadly. They then “tortured” torture to refer to only that kind of treatment which led to injury equivalent to “organ failure or death” or long-term psychological damage.
What resulted from all these coordinated attempts to justify “taking the gloves off” was torture. Prisoners were hooded for long periods, shackled to the floor like dogs, kept standing for long hours until their ankles swelled to excruciating size, sexually humiliated in a host of ways, frightened with dogs, religiously tormented, and waterboarded. All these methods (18 of them were outlined in Haynes’ December 2, 2002 memo to his boss, SecDef Donald Rumsfeld), both alone and in combination, were meant to reduce a prisoner to total hopelessness, misery, disorientation, de-personalization, and psychosis, the aim being to force him to reveal what he knew about future terrorist plans or the whereabouts of superiors.
The astonishing thing about all this—especially as it is laid out in numerous books and articles like Philppe Sands’ recent Torture Team—is that where usually we expect the military to be pushing for tougher measures in war and civilians in the Justice Department to be reigning them in with legal objections (as happened in World War II regarding internment of civilians), here the opposite occurred. In 2002 it was civilian appointees in the Pentagon, the Department of Justice and the White House who argued ferociously for extreme interrogation methods, and Pentagon lawyers, usually in the Judge Advocate General’s office, who objected to the violations of U. S. laws and military traditions. In short, instead of trying to reign in the hawks in the military, the Bush Administration let loose its own Chicken hawks. It was these civilian policy makers who badgered and bullied and, most often, simply cut the military lawyers out of the decisional loop entirely. And indeed, what Philppe Sands, himself an English barrister, concludes is that in the Bush Administration, policy ruled. The policy was set by civilians, by Bush himself, by his Machiavellian Vice President Cheney, and by all the sycophants, mostly lawyers, who followed and sought to please their clients by offering advice they wanted to hear. In Sands’ words:
“The legal advice was fitted around the policy” (Sands, p. 226)
If the policy was war in Iraq, the lawyers found ways to justify it. If the policy was torture, the lawyers found ways to disqualify prisoners from protections against it, or found ways to define torture so narrowly that almost anything was permissible. And overall, they argued fiercely that even if it were torture, it was necessary to save the people from terrorism. This was the tack taken by that distinguished legal eagle, not a part of the administration but one of the reigning nabobs at Harvard’s Law School, Alan Dershowitz. He it was who invented the last-ditch rationale, the “ticking time-bomb” scenario. Its import was simple, or simple-minded: if we capture a terrorist whom we suspect has information about a bomb, a nuclear weapon about to explode in a crowded city, what could possibly limit our attempts to get that information in time? Shouldn’t our policy be that any and all methods are warranted in such a dire emergency?
Without questioning this ridiculous scenario—for how often could it be, aside from on an imaginary thriller like “24” (the favorite program of most of the interrogators at Guantanamo, as well as many of the lawyers), that a single captive would have such information, with his captors knowing he had it?—the Administration based policy on it. And administration lawyers gave the requisite advice: it is legitimate to do virtually anything to prisoners to make them talk. In short, the legal advice was fitted around the policy—just as, earlier, as we learned from one of Britain’s diplomats, the intelligence required to justify invading Iraq was fitted around that policy as well.
What Sands points out in Torture Team, however, is that lawyers have a legal obligation not simply to win for their clients, not simply to provide them with legal rationales for the unlawful behavior they wish to engage in (this is the job rather, of mafia lawyers), but the obligation to warn them of the legal consequences of such actions. Lawyers have a primary responsibility to make sure their clients do NOT resort to measures that violate the law. Lawyers are officers of the court. And what the government lawyers in the Bush Administration failed to do, it now seems clear, was sound the alarm about the legal peril facing their clients for the illegalities they wanted to employ.
Instead, they strove mightily to frame arguments and find justifications for those illegalities, as well as expedients to indemnify both themselves and their clients from the penalties such acts incurred. They worked mightily to avoid their culpability for the war crimes that resulted from their arguments. And for the most part, they succeeded.
On the other hand, perhaps they did not succeed as thoroughly as they once hoped. The 1984 Convention against Torture and Other Cruel, Inhuman and Degrading Treatment, to which the United States is a signatory, makes very clear that not only are public officials prohibited from “intentionally inflicting” physical or mental pain upon a person (including so-called enemy combatants), but there are no circumstances, including a war against terrorism, that justify such treatment. Not only are all such acts criminal offenses, but more important, “any act by any person which constitutes complicity or participation in torture” is also a criminal offense. In other words, the lawyers whose arguments authorized such acts are also culpable—as the Nuremberg Trials demonstrated.
This is not just an academic argument. In June 2006, in the Hamdan vs. Rumsfeld case, the Supreme Court ruled that Common Article 3 of the Geneva Convention did, in fact, apply to all Guantanamo detainees. Taliban or al-Quaeda, state combatants or enemy combatants, all had these rights. Justice Anthony Kennedy went even further. He wrote that “violations of Common Article 3 are considered ‘war crimes,’ punishable as federal offenses, when committed by or against United States nationals and military personnel” (quoted in Sands, p. 174).
Of course, this “ominous” decision put the Bushies, including the lawyers, in a bit of a panic. For one thing, the Torture Convention of 1984 contains the requirement that all parties to this Convention, i.e. all nations who signed it, are “required to investigate any person who is alleged to have committed torture.” This act also “criminalizes any act that constitutes complicity” in torture (Sands, p. 177). So what did President Bush and his lawyers do? Why they proposed, and passed the Military Commissions Act, signed into law in November of 2006. This act “created a new defense to alleged breaches of Common Article 3…where the misconduct concerned the ‘detention and interrogation of aliens’ between September 11, 2001 and December 30, 2005” (Sands p. 208). Thus it gave the interrogators, and the lawyers, and any Bush Administration officials retroactive immunity from prosecution for their crimes. Rather a nice ploy, it seems. Commit crimes that violate the law both domestic and international; then create a new law absolving oneself of guilt for the crime. We’ve just seen a re-enactment of this in the bill that gave telecommunications companies immunity from their crimes in spying on the American people.
But the rejoicing in the White House may have come too soon. For as two jurists pointed out to Philippe Sands when he questioned them about the immunity legislation, this was a “very stupid” thing to do. Such legislation, allowing a crime to be covered up, “was almost an admission that a crime had occurred.” As one of the jurists pointed out, it had all the earmarks of a “pactum scaelaris,” or “evil pact,” bringing into play that part of the Criminal Code which “showed that contributing to the avoidance of an investigation of a crime could itself give rise to complicity” (Sands, p. 208).
Sands sums up the case he makes throughout the book as follows:
“The lawyers advising the Administration played a decisive role in subverting the system of international rules that should have protected all detainees from cruel and degrading treatment, a system that the United States had done so much to put in place. This was no mere accident or oversight. Nor was it a case of responding to a legitimate request that came up from the ground-level interrogators at Guantanamo, as the Bush Administration would have us believe. September 11 gave rise to a conscious decision to set aside international rules constraining interrogations.”
In short, it was the lawyers who enabled torture by subverting the constraints against it. Absent their legal arguments rationalizing the banned techniques, circumventing the international constraints against them, and justifying their use in the alleged crisis, the torture could not have happened. Which brings us back to Shakespeare’s formulation for a remedy:
“First thing we do, let’s kill all the lawyers.”
Lawrence DiStasi
=
Thursday, June 19, 2008
The Torture Conspiracy
The McClatchy newspapers—the only major media group that has even pretended to employ investigative reporters to question Bush administration policies—has done it again. This time, in a June 18 article by Tom Lasseter, it has pointed out that the “framework under which detainees were imprisoned for years without charges at Guantanamo and in many cases abused in Afghanistan,” was an organized attempt to circumvent U.S. laws and treaties “to prevent anyone…from being held accountable.” Five White House lawyers, all of them familiar to anyone who has been following this, are identified as part of the so-called “War Council:” David Addington, now chief of staff to VP Cheney; Alberto Gonzalez, one-time Attorney General; John Yoo, one-time counsel in the Justice Department; William J. Haynes II, former Pentagon general counsel; and Timothy E. Flanigan, former deputy to Gonzalez. This “War Council” met every few weeks in the office of Gonzalez or Haynes to plot their nefarious policies—policies that resulted directly in depriving arrested suspects of all legal rights, and in torture. The members of this council were, in every sense of the word, a torture conspiracy, and worse, one that “created an environment in which it was nearly impossible to prosecute soldiers or officials for alleged crimes committed in U.S. detention facilities.”
Lasseter’s article lists the memos, the direct result of the conspiracy, that did the dirty work.
Jan. 9, 2002: Yoo sent a memo to Haynes, saying that the Geneva Convention’s Common Article Three prohibiting “humiliating and degrading treatment and torture of prisoners” did not cover al Quaeda or Taliban suspects.
Jan. 25, 2002: Gonzalez sent a follow-up memo to President Bush, asserting that eliminating prisoner rights under Geneva (the Yoo memo) set up a “solid defense against prosecutors or independent counsels” who might some day want to pursue war-crimes charges.
Feb. 7, 2002: Bush then followed up these memos with a memo of his own, asserting that al-Quaeda or Taliban suspects were not considered prisoners of war, and wouldn’t be given Common Article Three protections. (i.e., the memos resulted in almost immediate action.)
Aug. 1, 2002: Gonzalez requests a memo from the Justice Department, which Yoo writes, defining torture so narrowly—injury such as death, or organ failure deriving from “extreme acts”—that it could excuse almost any abuse.
March 14, 2003: Yoo writes a memo for Haynes (who was getting heat from his military lawyers about the abuses going on) asserting that even if some interrogation amounted to war crimes, the perpetrators still couldn’t be prosecuted because they were operating under Bush’s constitutional authority to wage war. “In wartime,” Yoo wrote, “it is for the president alone to decide what methods to use to best prevail against the enemy.”
The conspiracy, in short, provided the legal bases for Americans to use torture, and the legal structure whereby they could escape prosecution for their crimes. These legal opinions resulted in direct and foreseeable and planned actions—first the President’s memo declaring captured detainees beyond the reach of U.S. and international laws, and then the license to interrogators to use techniques normally considered to be war crimes because the President, in his role as commander during a war, had given them sanction. Evidence exists confirming that U.S. interrogators did, in fact, use the once-forbidden techniques, i.e. torture.
Of course, what we now know is that the Justice Department itself, under new head of Office of Legal Counsel Jack Goldsmith, found John Yoo’s Aug. 2002 and March 2003 opinions so legally abhorrent, that it reversed them. We also know that the Supreme Court first, in 2006, rebuked the Bush lawyers by ruling that Common Article Three of the Geneva Conventions DID apply to Guantanamo prisoners; and it also recently reversed the Bush administration’s contention that so-called enemy combatants do not have habeas corpus rights (the right to challenge the reason for their detention), by ruling that, in fact, they DO. We also now know that even within the administration—especially in the Judge Advocate General’s office at the Pentagon—military lawyers and officials were horrified at what they saw being perpetrated in their names, and tried to protest. But, as Lasseter makes clear, the War Council simply shut out these protesting voices.
Now those voices are coming back to haunt them. In a Boston Globe article on June 18, Bryan Bender writes that the group “Physicians for Human Rights” has now found medical evidence corroborating the stories of eleven former Guantanamo prisoners that they were tortured. The evidence includes scars such as cheek wounds on a prisoner who says he was stabbed with a screwdriver, and burns and other scars which tend to support allegations of electrical shock and forced sodomy.
This evidence was convincing enough to General Antonio Taguba (who wrote the first report on Abu Ghraib) to induce him to write in the report’s preface: “This report tells the largely untold human story of what happened to detainees in our custody when the commander in chief and those under him authorized a systematic regime of torture.” General Taguba, now retired, then added an even harsher judgment:
“There is no longer any doubt as to whether the current administration has committed war crimes.”
Does this not complete the circle? White House lawyers engaged in a conspiracy to circumvent the laws against torture, and to provide cover for those who employed torture. The President put that conspiracy into action by asserting that those captured had no rights and so could be held indefinitely without charges and treated in any way their interrogators could devise, short of murdering them (although there are up to one hundred torture deaths alleged by researchers like Alfred McCoy.) The members of the United States armed forces and other official and non-official organizations then implemented those executive orders by treating all captives as if they were guilty, subhuman, and deserving of torture. And their actions were hidden, for as long as possible, from neutral watchdog authorities like the International Red Cross.
What more is needed, now, to begin pursuing those responsible for war crimes?
What could possibly prevent the impeachment of this President, indeed, as Vincent Bugliosi has written in a recent book, from PROSECUTING this President and all his henchmen for nothing less than a sustained conspiracy to commit war crimes?
Lawrence DiStasi
Lasseter’s article lists the memos, the direct result of the conspiracy, that did the dirty work.
Jan. 9, 2002: Yoo sent a memo to Haynes, saying that the Geneva Convention’s Common Article Three prohibiting “humiliating and degrading treatment and torture of prisoners” did not cover al Quaeda or Taliban suspects.
Jan. 25, 2002: Gonzalez sent a follow-up memo to President Bush, asserting that eliminating prisoner rights under Geneva (the Yoo memo) set up a “solid defense against prosecutors or independent counsels” who might some day want to pursue war-crimes charges.
Feb. 7, 2002: Bush then followed up these memos with a memo of his own, asserting that al-Quaeda or Taliban suspects were not considered prisoners of war, and wouldn’t be given Common Article Three protections. (i.e., the memos resulted in almost immediate action.)
Aug. 1, 2002: Gonzalez requests a memo from the Justice Department, which Yoo writes, defining torture so narrowly—injury such as death, or organ failure deriving from “extreme acts”—that it could excuse almost any abuse.
March 14, 2003: Yoo writes a memo for Haynes (who was getting heat from his military lawyers about the abuses going on) asserting that even if some interrogation amounted to war crimes, the perpetrators still couldn’t be prosecuted because they were operating under Bush’s constitutional authority to wage war. “In wartime,” Yoo wrote, “it is for the president alone to decide what methods to use to best prevail against the enemy.”
The conspiracy, in short, provided the legal bases for Americans to use torture, and the legal structure whereby they could escape prosecution for their crimes. These legal opinions resulted in direct and foreseeable and planned actions—first the President’s memo declaring captured detainees beyond the reach of U.S. and international laws, and then the license to interrogators to use techniques normally considered to be war crimes because the President, in his role as commander during a war, had given them sanction. Evidence exists confirming that U.S. interrogators did, in fact, use the once-forbidden techniques, i.e. torture.
Of course, what we now know is that the Justice Department itself, under new head of Office of Legal Counsel Jack Goldsmith, found John Yoo’s Aug. 2002 and March 2003 opinions so legally abhorrent, that it reversed them. We also know that the Supreme Court first, in 2006, rebuked the Bush lawyers by ruling that Common Article Three of the Geneva Conventions DID apply to Guantanamo prisoners; and it also recently reversed the Bush administration’s contention that so-called enemy combatants do not have habeas corpus rights (the right to challenge the reason for their detention), by ruling that, in fact, they DO. We also now know that even within the administration—especially in the Judge Advocate General’s office at the Pentagon—military lawyers and officials were horrified at what they saw being perpetrated in their names, and tried to protest. But, as Lasseter makes clear, the War Council simply shut out these protesting voices.
Now those voices are coming back to haunt them. In a Boston Globe article on June 18, Bryan Bender writes that the group “Physicians for Human Rights” has now found medical evidence corroborating the stories of eleven former Guantanamo prisoners that they were tortured. The evidence includes scars such as cheek wounds on a prisoner who says he was stabbed with a screwdriver, and burns and other scars which tend to support allegations of electrical shock and forced sodomy.
This evidence was convincing enough to General Antonio Taguba (who wrote the first report on Abu Ghraib) to induce him to write in the report’s preface: “This report tells the largely untold human story of what happened to detainees in our custody when the commander in chief and those under him authorized a systematic regime of torture.” General Taguba, now retired, then added an even harsher judgment:
“There is no longer any doubt as to whether the current administration has committed war crimes.”
Does this not complete the circle? White House lawyers engaged in a conspiracy to circumvent the laws against torture, and to provide cover for those who employed torture. The President put that conspiracy into action by asserting that those captured had no rights and so could be held indefinitely without charges and treated in any way their interrogators could devise, short of murdering them (although there are up to one hundred torture deaths alleged by researchers like Alfred McCoy.) The members of the United States armed forces and other official and non-official organizations then implemented those executive orders by treating all captives as if they were guilty, subhuman, and deserving of torture. And their actions were hidden, for as long as possible, from neutral watchdog authorities like the International Red Cross.
What more is needed, now, to begin pursuing those responsible for war crimes?
What could possibly prevent the impeachment of this President, indeed, as Vincent Bugliosi has written in a recent book, from PROSECUTING this President and all his henchmen for nothing less than a sustained conspiracy to commit war crimes?
Lawrence DiStasi
The Torture Conspiracy
The McClatchy newspapers—the only major media group that has even pretended to employ investigative reporters to question Bush administration policies—has done it again. This time, in a June 18 article by Tom Lasseter, it has pointed out that the “framework under which detainees were imprisoned for years without charges at Guantanamo and in many cases abused in Afghanistan,” was an organized attempt to circumvent U.S. laws and treaties “to prevent anyone…from being held accountable.” Five White House lawyers, all of them familiar to anyone who has been following this, are identified as part of the so-called “War Council:” David Addington, now chief of staff to VP Cheney; Alberto Gonzalez, one-time Attorney General; John Yoo, one-time counsel in the Justice Department; William J. Haynes II, former Pentagon general counsel; and Timothy E. Flanigan, former deputy to Gonzalez. This “War Council” met every few weeks in the office of Gonzalez or Haynes to plot their nefarious policies—policies that resulted directly in depriving arrested suspects of all legal rights, and in torture. The members of this council were, in every sense of the word, a torture conspiracy, and worse, one that “created an environment in which it was nearly impossible to prosecute soldiers or officials for alleged crimes committed in U.S. detention facilities.”
Lasseter’s article lists the memos, the direct result of the conspiracy, that did the dirty work.
Jan. 9, 2002: Yoo sent a memo to Haynes, saying that the Geneva Convention’s Common Article Three prohibiting “humiliating and degrading treatment and torture of prisoners” did not cover al Quaeda or Taliban suspects.
Jan. 25, 2002: Gonzalez sent a follow-up memo to President Bush, asserting that eliminating prisoner rights under Geneva (the Yoo memo) set up a “solid defense against prosecutors or independent counsels” who might some day want to pursue war-crimes charges.
Feb. 7, 2002: Bush then followed up these memos with a memo of his own, asserting that al-Quaeda or Taliban suspects were not considered prisoners of war, and wouldn’t be given Common Article Three protections. (i.e., the memos resulted in almost immediate action.)
Aug. 1, 2002: Gonzalez requests a memo from the Justice Department, which Yoo writes, defining torture so narrowly—injury such as death, or organ failure deriving from “extreme acts”—that it could excuse almost any abuse.
March 14, 2003: Yoo writes a memo for Haynes (who was getting heat from his military lawyers about the abuses going on) asserting that even if some interrogation amounted to war crimes, the perpetrators still couldn’t be prosecuted because they were operating under Bush’s constitutional authority to wage war. “In wartime,” Yoo wrote, “it is for the president alone to decide what methods to use to best prevail against the enemy.”
The conspiracy, in short, provided the legal bases for Americans to use torture, and the legal structure whereby they could escape prosecution for their crimes. These legal opinions resulted in direct and foreseeable and planned actions—first the President’s memo declaring captured detainees beyond the reach of U.S. and international laws, and then the license to interrogators to use techniques normally considered to be war crimes because the President, in his role as commander during a war, had given them sanction. Evidence exists confirming that U.S. interrogators did, in fact, use the once-forbidden techniques, i.e. torture.
Of course, what we now know is that the Justice Department itself, under new head of Office of Legal Counsel Jack Goldsmith, found John Yoo’s Aug. 2002 and March 2003 opinions so legally abhorrent, that it reversed them. We also know that the Supreme Court first, in 2006, rebuked the Bush lawyers by ruling that Common Article Three of the Geneva Conventions DID apply to Guantanamo prisoners; and it also recently reversed the Bush administration’s contention that so-called enemy combatants do not have habeas corpus rights (the right to challenge the reason for their detention), by ruling that, in fact, they DO. We also now know that even within the administration—especially in the Judge Advocate General’s office at the Pentagon—military lawyers and officials were horrified at what they saw being perpetrated in their names, and tried to protest. But, as Lasseter makes clear, the War Council simply shut out these protesting voices.
Now those voices are coming back to haunt them. In a Boston Globe article on June 18, Bryan Bender writes that the group “Physicians for Human Rights” has now found medical evidence corroborating the stories of eleven former Guantanamo prisoners that they were tortured. The evidence includes scars such as cheek wounds on a prisoner who says he was stabbed with a screwdriver, and burns and other scars which tend to support allegations of electrical shock and forced sodomy.
This evidence was convincing enough to General Antonio Taguba (who wrote the first report on Abu Ghraib) to induce him to write in the report’s preface: “This report tells the largely untold human story of what happened to detainees in our custody when the commander in chief and those under him authorized a systematic regime of torture.” General Taguba, now retired, then added an even harsher judgment:
“There is no longer any doubt as to whether the current administration has committed war crimes.”
Does this not complete the circle? White House lawyers engaged in a conspiracy to circumvent the laws against torture, and to provide cover for those who employed torture. The President put that conspiracy into action by asserting that those captured had no rights and so could be held indefinitely without charges and treated in any way their interrogators could devise, short of murdering them (although there are up to one hundred torture deaths alleged by researchers like Alfred McCoy.) The members of the United States armed forces and other official and non-official organizations then implemented those executive orders by treating all captives as if they were guilty, subhuman, and deserving of torture. And their actions were hidden, for as long as possible, from neutral watchdog authorities like the International Red Cross.
What more is needed, now, to begin pursuing those responsible for war crimes?
What could possibly prevent the impeachment of this President, indeed, as Vincent Bugliosi has written in a recent book, from PROSECUTING this President and all his henchmen for nothing less than a sustained conspiracy to commit war crimes?
Lawrence DiStasi
Lasseter’s article lists the memos, the direct result of the conspiracy, that did the dirty work.
Jan. 9, 2002: Yoo sent a memo to Haynes, saying that the Geneva Convention’s Common Article Three prohibiting “humiliating and degrading treatment and torture of prisoners” did not cover al Quaeda or Taliban suspects.
Jan. 25, 2002: Gonzalez sent a follow-up memo to President Bush, asserting that eliminating prisoner rights under Geneva (the Yoo memo) set up a “solid defense against prosecutors or independent counsels” who might some day want to pursue war-crimes charges.
Feb. 7, 2002: Bush then followed up these memos with a memo of his own, asserting that al-Quaeda or Taliban suspects were not considered prisoners of war, and wouldn’t be given Common Article Three protections. (i.e., the memos resulted in almost immediate action.)
Aug. 1, 2002: Gonzalez requests a memo from the Justice Department, which Yoo writes, defining torture so narrowly—injury such as death, or organ failure deriving from “extreme acts”—that it could excuse almost any abuse.
March 14, 2003: Yoo writes a memo for Haynes (who was getting heat from his military lawyers about the abuses going on) asserting that even if some interrogation amounted to war crimes, the perpetrators still couldn’t be prosecuted because they were operating under Bush’s constitutional authority to wage war. “In wartime,” Yoo wrote, “it is for the president alone to decide what methods to use to best prevail against the enemy.”
The conspiracy, in short, provided the legal bases for Americans to use torture, and the legal structure whereby they could escape prosecution for their crimes. These legal opinions resulted in direct and foreseeable and planned actions—first the President’s memo declaring captured detainees beyond the reach of U.S. and international laws, and then the license to interrogators to use techniques normally considered to be war crimes because the President, in his role as commander during a war, had given them sanction. Evidence exists confirming that U.S. interrogators did, in fact, use the once-forbidden techniques, i.e. torture.
Of course, what we now know is that the Justice Department itself, under new head of Office of Legal Counsel Jack Goldsmith, found John Yoo’s Aug. 2002 and March 2003 opinions so legally abhorrent, that it reversed them. We also know that the Supreme Court first, in 2006, rebuked the Bush lawyers by ruling that Common Article Three of the Geneva Conventions DID apply to Guantanamo prisoners; and it also recently reversed the Bush administration’s contention that so-called enemy combatants do not have habeas corpus rights (the right to challenge the reason for their detention), by ruling that, in fact, they DO. We also now know that even within the administration—especially in the Judge Advocate General’s office at the Pentagon—military lawyers and officials were horrified at what they saw being perpetrated in their names, and tried to protest. But, as Lasseter makes clear, the War Council simply shut out these protesting voices.
Now those voices are coming back to haunt them. In a Boston Globe article on June 18, Bryan Bender writes that the group “Physicians for Human Rights” has now found medical evidence corroborating the stories of eleven former Guantanamo prisoners that they were tortured. The evidence includes scars such as cheek wounds on a prisoner who says he was stabbed with a screwdriver, and burns and other scars which tend to support allegations of electrical shock and forced sodomy.
This evidence was convincing enough to General Antonio Taguba (who wrote the first report on Abu Ghraib) to induce him to write in the report’s preface: “This report tells the largely untold human story of what happened to detainees in our custody when the commander in chief and those under him authorized a systematic regime of torture.” General Taguba, now retired, then added an even harsher judgment:
“There is no longer any doubt as to whether the current administration has committed war crimes.”
Does this not complete the circle? White House lawyers engaged in a conspiracy to circumvent the laws against torture, and to provide cover for those who employed torture. The President put that conspiracy into action by asserting that those captured had no rights and so could be held indefinitely without charges and treated in any way their interrogators could devise, short of murdering them (although there are up to one hundred torture deaths alleged by researchers like Alfred McCoy.) The members of the United States armed forces and other official and non-official organizations then implemented those executive orders by treating all captives as if they were guilty, subhuman, and deserving of torture. And their actions were hidden, for as long as possible, from neutral watchdog authorities like the International Red Cross.
What more is needed, now, to begin pursuing those responsible for war crimes?
What could possibly prevent the impeachment of this President, indeed, as Vincent Bugliosi has written in a recent book, from PROSECUTING this President and all his henchmen for nothing less than a sustained conspiracy to commit war crimes?
Lawrence DiStasi
Sunday, May 11, 2008
Two Takes on Torture
As is characteristic of it, the Bush Administration, in the wake of the Abu Ghraib scandal, has managed to persuade most Americans that the torture problem has been solved: the wrongdoers have been punished, torture is no longer tolerated, and Abu Ghraib is closed. The public’s gullibility notwithstanding, however, there remains the criminal truth. Not only are the perpetrators of the torture policies still at large and in power, a recent report indicates that, in fact, more Iraqis are now imprisoned than ever before: over 51,000 now languish in American and Iraqi prisons. Indeed, the “surge” has meant mainly a surge in prisoners: the number of Iraqis held by Americans rose 70% in 2007 from 14,500 to 24,700, while the Iraqi government now holds more than 26,000 of its own people prisoners. (“The Surge of Iraqi Prisoners,” by Clara Gilmartin, Foreign Policy in Focus, 5/7/08.)
Are we supposed to believe that none of these 50,000 now gets the “interrogation treatment” that made Abu Ghraib famous?
A look at two books—A Question of Torture, by Alfred McCoy, and The Lucifer Effect, by Philip Zimbardo--should quickly dispel any such notion, for each proves, in its own way, that torture by American agencies is not some recent innovation in response to the “war on terror,” but rather a longstanding government policy, and perhaps an unavoidable feature of imprisonment itself.
Begin with McCoy, in his book subtitled CIA Interrogation from the Cold War to the War on Terror. What McCoy demonstrates is that “Abu Ghraib, Guantanamo, and Kabul are manifestations of a long history of distinctive U.S. covert-warfare doctrine developed since WWII, in which psychological torture has emerged as a central facet of American foreign policy” (p. 7). That is, in response to Cold War fears that both the Russians and the Chinese were engaging in “mind control” experiments that could force captives to reveal state secrets and, indeed, to commit criminal acts, the CIA in the 1950s and 1960s embarked on a massive program to develop mind-control tactics of its own. Its new paradigm focused on two elements: sensory disorientation, and self-inflicted pain. These methods were meant to substitute for more primitive, physical methods of torture, which not only have the negative characteristic of leaving visible marks on their victims, but also fail, in many cases, to break the will of captives to resist. With the psychological methods (often enhanced by physical methods where necessary), resistance almost always vanished.
To accomplish its task, the CIA elicited the help and funded the work of several university researchers in psychology. Donald Hebb, of McGill University in Canada, supplied the first element: sensory deprivation. Several Americans—Albert Biderman, Irving L. Janis, Harold Wolff and Lawrence Hinkle—provided data on the role of self-inflicted pain. And Stanley Milgram, whose obedience experiments at Yale became legendary, provided the third element—that almost anyone could be trained to inflict torture.
Hebb started in 1951, under a CIA-funded contract, to provide data on sensory deprivation. Paying college students to just lie in his “black box” 24 hours a day with all sensory stimuli blocked by translucent goggles, soundproofing, and thick gloves, he discovered that “even short-term deprivation produced a devastating impact on the human psyche.” After only a few days, the subject’s identity “began to disintegrate.” In other words, a varied environment was found to be so essential for humans that without it, subjects could be brought to a state of “acute psychosis,” with brain function seriously impaired.
The CIA also financed the research of another Canadian, D. Ewen Cameron, who was fond of a procedure he called “depatterning.” Working on his patients at the Allan Institute, Cameron used drug-induced comas, electroshock treatments, and repeated taped messages for long periods to induce breakdown. By 1964, Cameron was considered a crackpot, but by then he had so maimed several patients that he was sued, with the CIA paying an out-of-court settlement of $750,000 to nine patients, with the Canadian government adding another $180,000.
Still, the CIA was not discouraged and financed the research of Hinkle and Wolff into self-inflicted pain techniques. They reportedly found that the Russian KGB used a simple method—making victims stand still for 18 to 24 hours—that produced excruciating pain wherein ankle size doubled, blisters erupted, heart rates climbed, kidneys shut down and delusions emerged. The “best” part of all this was that, contrary to torture where the interrogator inflicted the pain—thus increasing the will of the victim to resist—self-inflicted pain had the opposite effect. The victims seemed to blame themselves for the pain, and hence could summon less will to resist.
The CIA was quite excited by this, as well as by the results from the experiments of Stanley Milgram at Yale (McCoy produces circumstantial evidence to suggest that Milgram was in the orbit of the CIA and the Office of Naval Research). There, ordinary citizens were induced and encouraged to shock “subjects” in order to make them learn. Though the subjects were not actually being shocked, but were acting, the shockers did not know this. They found themselves administering higher and higher voltages, encouraged always by the authority figures urging them on, up to and including the most excruciating pain available. The conclusion demonstrated that anyone—especially the police and military of foreign allies, such as those in Latin America, where the CIA was ‘fighting communism’—could be easily persuaded to torture those deemed in possession of useful information.
All these results were not simply academic exercises. The CIA put them into training manuals and implemented them worldwide for the next 40 years. In 1963, for example, the CIA produced its Kubark Counterintelligence Interrogation handbook. It embraced the two-part form of torture—sensory deprivation and self-inflicted pain—its paid research had uncovered. As McCoy puts it, the “fundamental hypothesis” of Kubark is that interrogation involves “methods of inducing regression of the personality to whatever earlier and weaker level is required for the dissolution of resistance and inculcation of dependence” (p. 51). All interrogation is a way of “speeding up the process of regression,” to the point where the assault on personal identity becomes “mentally intolerable.” The methods researched by Hebb and Cameron, among others, are laid out in full, with techniques such as “hooding” or “sleep denial” used to disorient the prisoner, and “personal or sexual humiliation” used to attack personal identity. It also pointed out that pain which the person “seems to inflict on himself” diminishes resistance much more rapidly than pain from without.
The CIA then proceeded to use Vietnam as its own personal laboratory for these and other techniques. Its main venue was the Phoenix program, meant to destroy the Vietcong underground. Information was crucial, and so all its new techniques, and many old ones such as the simple, old fashioned killing of captives, were employed. One of these ‘experiments’ deserves mention. In 1966, the CIA shipped to Vietnam an electroshock machine along with three psychiatrists, including Dr. Lloyd Cotter, to test the depatterning techniques of Ewen Cameron. Cotter applied electroconvulsive treatment to Vietnamese patients and was “impressed” with the results. The results with Vietcong prisoners were even more impressive: the CIA psychiatrists applied 12 electroshocks the first day, and as many as 60 during the next seven days, until one of the prisoners died. Undaunted, the electroshocks continued until the rest of the prisoners died several weeks later. At that point, the CIA operatives simply left; experiment over.
The result of all this was enemy “neutralization” estimated, in 1972, at 81,740 eliminated, with 26,369 detainees simply killed. As McCoy points out, this killing of suspects left over is necessary to avoid indefinite jailing of captives who can no longer offer information; hence his conclusion: “In effect, the logical corollary to state-sanctioned torture is state-sponsored murder” (p. 196). In Iran under the Shah (whom the U.S. installed after organizing the downfall of the democratically-elected Mossadegh government), the CIA, with help from Israeli intelligence, used its new torture doctrine to organize and train the Savak, the Shah’s secret police. According to Iranian poet Reza Baraheni, “at least half a million people” were beaten, whipped or tortured in Iran by Savak (p. 75).
Still, the United States did not want to appear to approve of torture, so it signed international agreements such as the 1984 UN Convention against Torture. However, the Reagan Administration posted reservations to the new treaty, which were effected when President Clinton finally signed it in 1994. These reservations, in the form of “clearer” definitions of what constituted psychological torture, limited it to such things as using mind-altering substances and the threat of imminent death. These narrow definitions, McCoy points out, made no mention of “sensory deprivation (hooding), self-inflicted pain (stress positions) and disorientation (isolation and sleep denial)—the very techniques the CIA had been refining for decades” (p. 100). Hence, even after the United States had signed the 1984 Convention, the CIA felt free to use its psychological techniques while U.S. officials could continue to say, “We do not torture.”
Thus we see that far from being an aberration, or a radical departure from previous interrogation practices, the Bush Administration’s announcement that the “gloves were coming off” after 9/11 meant mainly that, for America’s spy agencies, it would be business pretty much as usual. The departure from prior practice—for there was one—came with the extension of CIA torture techniques to the military: those interrogators at U.S. military installations who have since become so famous. In order to implement this “force drift,” however, the administration had to outflank its military officers, particularly those in the Advocate General’s office, who raised loud and persistent objections to what they saw going on at Guantanamo, Bagram Air Force Base, and later, Abu Ghraib. All, without exception, said such tactics violated military interrogation manuals and should be halted. In response, Secretary of Defense Donald Rumsfeld, aided by the White House neocons like David Addington and lawyers in the Justice Department like John Yoo and Jay Bybee, organized a Defense Working Group to provide him and the military the cover and authority they needed.
As intended, Rumsfeld’s DWG produced a memo in March of 2003 approving of the extreme interrogation methods. They read like a reprint of the Kubark manual, especially when specified by General Geoffrey Miller for Guantanamo: a 72-point matrix for stress and duress, using “harsh heat or cold; withholding food; hooding for days at a time; naked isolation in cold, dark cells for more than 30 days; and stress positions designed to subject detainees to rising levels of pain” (p. 129). Miller also added forms of psychological torture specific to Arab culture which, since Abu Ghraib, have become disgustingly familiar—the conscious strategy of sexual humiliation and other forms of assault on Muslim cultural inhibitions. And though the International Red Cross, in 2004, declared such methods to be “tantamount to torture,” and hence violations of international law, the U.S. military simply dismissed these charges.
This open contempt marked another departure, according to McCoy: instead of using such psychological techniques covertly, as it had for half a century, the United States government under George W. Bush now “defied the international community by openly defending the techniques and denying that they constituted torture” (p. 157). Put another way, that which started out as a series of psychological methods to break any human being—but secretly, thus acknowledging their heinous nature—had now become something publicly and defiantly accepted, a kind of torture about which an American administration seemed almost proud.
*
What Philip Zimbardo’s The Lucifer Effect: Understanding How Good People Turn Evil, adds to this discussion is the notion that, given the right situation, almost anyone can turn into a perpetrator of horror. In short, where most of us, particularly in the United States and the West, tend to attribute evil actions to “dispositional factors,” i.e. the alleged bad or evil inherent in a specific person whose evil disposition leads him to “sin”, Zimbardo’s famous Stanford Prison Experiment (SPE) took the opposite tack: evil behavior stems mainly from the situation in which people find themselves. In the SPE, average college students were chosen at random to be either “guards” or “prisoners.” A pretend prison was set up in the basement of Stanford’s psychology building, and a situation created in which the guards were to control and discipline the prisoners for a set period. No physical force was to be used, but other means, such as humiliation, isolation, harassment, and so on were legitimate methods for the guards to use. Zimbardo summed up the design and purpose of the experiment as follows: “our research will attempt to differentiate between what people bring into a prison situation from what the situation brings out in the people who are there.” His assistant put it more succinctly: “You’re putting good people in an evil situation to see who or what wins.”
What stunned the experimenters, and stuns the reader, is how quickly the situation won, i.e. how rapidly the neutral students fell into their assigned roles. Within a matter of days, the prisoners become docile and obedient. The guards, many of them student radicals themselves, become authoritarian, brutal disciplinarians. As one “prisoner” put it afterward: “The guard role promotes sadism. The prisoner role promotes confusion and shame” (p. 189). Even more astonishing is the degree to which not just the students but the psychologists and graduate students running the experiment themselves seemed to forget the make-believe nature of the situation and became that which they were supposedly miming. The most dramatic example of this latter takes place when one of the prisoners, Doug-8612, becomes so overwrought that he must be released after his second day in “prison.” In response, the “warden” and Zimbardo himself as “superintendent” begin to worry that Doug-8612’s “breakdown” might have been just playacting designed so that he could gather other students outside the experiment to stage a ‘breakout’ of his fellow prisoners. Worse, they begin to analyze their screening methods to see if somehow they had allowed a “flawed” or “damaged” person to slip into their experiment. The irony is striking: in a “study designed to demonstrate the power of situational forces over dispositional tendencies, we were making a dispositional attribution” (i.e. Doug-8612 was a “bad apple” who had slipped into the group of “good” subjects. ed note)
Among many striking moments in this experiment, one of the most troubling, given our experience with Abu Ghraib, is the point near the end when one of the guards, Hellmann, on his own, adds sexual harassment of prisoners to his repertoire of control tactics: “’See that hole in the ground? Now do twenty-five push-ups, fucking that hole! You hear me!’ One after another, the prisoners obey, as Burdan shoves them down to do their duty.” Then the secondary guard, Burdan, makes the prisoners do the camel game—forcing three prisoners to play female camels, bending over, baring their behinds beneath their short prison smocks, while ordering the others to “Stand behind the female camels and hump them” (p. 172).
Fortunately for Philip Zimbardo and his subjects, an outside observer, his future wife Christina Maslach, intervened. Having seen what was happening, she objected heatedly, insisting that “What you are doing to those boys is a terrible thing!” This forced the researcher to admit his responsibility for having created this little “prison,” thereby leading his students into a tangled knot of dominance and submission that was deeply affecting their psyches, and to call off his experiment after only one week (it was originally scheduled to last two weeks.) It also led him to reflect, when writing his book 30 years later, on where the ultimate responsibility for evil behavior, especially in the real world, lies. In brief, though each individual should be held responsible for his actions, the situation in which those actions take place controls behavior far more than any of us realizes. Perhaps more important, it is the System that creates the action-inducing situation which is ultimately responsible. Zimbardo puts it thus:
“The negative power on which I had been running for the past week, as superintendent of this mock prison, had blinded me to the reality of the destructive impact of the System that I was sustaining….While I was focused on the abstract conceptual issue, the power of the behavioral situation vs the power of individual dispositions, I had missed seeing the all-encompassing power of the System that I had helped create and sustain.
The System includes the Situation, but it is more enduring, more widespread, involving extensive networks of people, their expectations, norms, policies, and, perhaps laws…Each System comes to develop a culture of its own, as many Systems collectively come to contribute to the culture of a society.” (p. 179)
Elsewhere, Zimbardo also includes a System’s ideology in the nexus of key factors that sustains it—ideology such as: America is a nation chosen by and protected by God, America is the model democracy, America is the home of liberty and justice for all, America is that singular nation which never attacks or exploits but always helps others, etc.
Now we need to contrast this Systemic-situational view with the one that has pertained in the Bush Administration (and throughout American culture to a greater or lesser degree) when faced with the consequences of Abu Ghraib and its war on terror. Zimbardo quotes Condoleeza Rice in an interview with Jim Lehrer in July of 2005 to illustrate the latter:
“When are we going to stop making excuses for the terrorists and saying that somebody is making them do it? No, these are simply evil people who want to kill…This isn’t about some kind of grievance. This is an effort to destroy rather than to build. And until everybody in the world calls it by name—the evil that it is---stops making excuses for them, then I think we’re going to have a problem.” (p. 311)
The administration attitude (these are simply evil people) pertained, of course, not just to the terrorists, but also to the guards who committed the photographically-documented outrages at Abu Ghraib. It was the “bad apples,” not the barrel, who were responsible. And the “bad apples” got punished—Sgt Chip Frederick, Lynnde England, Charles Graner—while the barrel itself, and those who had created the barrel, got off scot free. In the most immediate sense, this means Secretary of Defense Donald Rumsfeld, who, according to Mark Danner (Torture & Truth: American, Abu Ghraib and the War on Terror), issued directives about preparing detainees for interrogation that included the following recommended methods:
“Use of stress positions for 4 hours in isolation up to 30 days; Hooding during transportation and questioning; Deprivation of light and auditory stimuli; Removal of all comfort items (including religious ones); Forced grooming; Removal of clothing.; Using detainees’ individual phobias (fear of dogs) to induce stress.” (p. 408)
In the largest sense, it means all those, both appointed and elected, who helped to direct and justify and implement the system.
Thus, by examining American torture policies in light of his own Stanford Prison Experiment, Philip Zimbardo leads us to the conclusion that the situation trumps almost any individual disposition in leading the way to evil actions. And the System that creates the situation should bear the most responsibility of all. He liberally cites the memos noted above—memos that were designed to not only place the detainees in U.S. custody beyond the reach of any court or law, including the Geneva Conventions, but also to protect those implementing the policies from any liability for war crimes—to buttress his case. He also points out that a System is implemented by individual actors, to be sure, but it is not underlings like Sgt. Frederick and Pvt. England who bear most culpability; rather it is those actors who hold the power positions in that system—the Rumsfelds, the Cheneys, the Addingtons, the Yoos, the Bybees, the Rices, the entire Bush White House torture cabal including the President himself. As Zimbardo puts it:
I believe that a system consists of those agents and agencies whose power and values create or modify the rules of and expectations for “approved behavior” within its sphere of influence. In one sense, the system is more than the sum of its parts and of its leaders, who also fall under its powerful influences. In another sense, however, the individuals who play key roles in creating a system that engages in illegal, immoral and unethical conduct should be held accountable despite the situational pressures on them.” (p. 438)
It is such a system, Zimbardo suggests, that allowed Nazis like Adolph Eichmann to commit his crimes while feeling all along that he was just “doing his job.” To the extent that a similar type of system has been created in the United States of America under all of our noses and with our tax dollars is the extent to which all of us who support and sustain and allow that system to continue are guilty. Not as guilty, perhaps, as the Bush administration high officials, who should, who must be held to account for their crimes—but guilty nonetheless.
Lawrence DiStasi
Are we supposed to believe that none of these 50,000 now gets the “interrogation treatment” that made Abu Ghraib famous?
A look at two books—A Question of Torture, by Alfred McCoy, and The Lucifer Effect, by Philip Zimbardo--should quickly dispel any such notion, for each proves, in its own way, that torture by American agencies is not some recent innovation in response to the “war on terror,” but rather a longstanding government policy, and perhaps an unavoidable feature of imprisonment itself.
Begin with McCoy, in his book subtitled CIA Interrogation from the Cold War to the War on Terror. What McCoy demonstrates is that “Abu Ghraib, Guantanamo, and Kabul are manifestations of a long history of distinctive U.S. covert-warfare doctrine developed since WWII, in which psychological torture has emerged as a central facet of American foreign policy” (p. 7). That is, in response to Cold War fears that both the Russians and the Chinese were engaging in “mind control” experiments that could force captives to reveal state secrets and, indeed, to commit criminal acts, the CIA in the 1950s and 1960s embarked on a massive program to develop mind-control tactics of its own. Its new paradigm focused on two elements: sensory disorientation, and self-inflicted pain. These methods were meant to substitute for more primitive, physical methods of torture, which not only have the negative characteristic of leaving visible marks on their victims, but also fail, in many cases, to break the will of captives to resist. With the psychological methods (often enhanced by physical methods where necessary), resistance almost always vanished.
To accomplish its task, the CIA elicited the help and funded the work of several university researchers in psychology. Donald Hebb, of McGill University in Canada, supplied the first element: sensory deprivation. Several Americans—Albert Biderman, Irving L. Janis, Harold Wolff and Lawrence Hinkle—provided data on the role of self-inflicted pain. And Stanley Milgram, whose obedience experiments at Yale became legendary, provided the third element—that almost anyone could be trained to inflict torture.
Hebb started in 1951, under a CIA-funded contract, to provide data on sensory deprivation. Paying college students to just lie in his “black box” 24 hours a day with all sensory stimuli blocked by translucent goggles, soundproofing, and thick gloves, he discovered that “even short-term deprivation produced a devastating impact on the human psyche.” After only a few days, the subject’s identity “began to disintegrate.” In other words, a varied environment was found to be so essential for humans that without it, subjects could be brought to a state of “acute psychosis,” with brain function seriously impaired.
The CIA also financed the research of another Canadian, D. Ewen Cameron, who was fond of a procedure he called “depatterning.” Working on his patients at the Allan Institute, Cameron used drug-induced comas, electroshock treatments, and repeated taped messages for long periods to induce breakdown. By 1964, Cameron was considered a crackpot, but by then he had so maimed several patients that he was sued, with the CIA paying an out-of-court settlement of $750,000 to nine patients, with the Canadian government adding another $180,000.
Still, the CIA was not discouraged and financed the research of Hinkle and Wolff into self-inflicted pain techniques. They reportedly found that the Russian KGB used a simple method—making victims stand still for 18 to 24 hours—that produced excruciating pain wherein ankle size doubled, blisters erupted, heart rates climbed, kidneys shut down and delusions emerged. The “best” part of all this was that, contrary to torture where the interrogator inflicted the pain—thus increasing the will of the victim to resist—self-inflicted pain had the opposite effect. The victims seemed to blame themselves for the pain, and hence could summon less will to resist.
The CIA was quite excited by this, as well as by the results from the experiments of Stanley Milgram at Yale (McCoy produces circumstantial evidence to suggest that Milgram was in the orbit of the CIA and the Office of Naval Research). There, ordinary citizens were induced and encouraged to shock “subjects” in order to make them learn. Though the subjects were not actually being shocked, but were acting, the shockers did not know this. They found themselves administering higher and higher voltages, encouraged always by the authority figures urging them on, up to and including the most excruciating pain available. The conclusion demonstrated that anyone—especially the police and military of foreign allies, such as those in Latin America, where the CIA was ‘fighting communism’—could be easily persuaded to torture those deemed in possession of useful information.
All these results were not simply academic exercises. The CIA put them into training manuals and implemented them worldwide for the next 40 years. In 1963, for example, the CIA produced its Kubark Counterintelligence Interrogation handbook. It embraced the two-part form of torture—sensory deprivation and self-inflicted pain—its paid research had uncovered. As McCoy puts it, the “fundamental hypothesis” of Kubark is that interrogation involves “methods of inducing regression of the personality to whatever earlier and weaker level is required for the dissolution of resistance and inculcation of dependence” (p. 51). All interrogation is a way of “speeding up the process of regression,” to the point where the assault on personal identity becomes “mentally intolerable.” The methods researched by Hebb and Cameron, among others, are laid out in full, with techniques such as “hooding” or “sleep denial” used to disorient the prisoner, and “personal or sexual humiliation” used to attack personal identity. It also pointed out that pain which the person “seems to inflict on himself” diminishes resistance much more rapidly than pain from without.
The CIA then proceeded to use Vietnam as its own personal laboratory for these and other techniques. Its main venue was the Phoenix program, meant to destroy the Vietcong underground. Information was crucial, and so all its new techniques, and many old ones such as the simple, old fashioned killing of captives, were employed. One of these ‘experiments’ deserves mention. In 1966, the CIA shipped to Vietnam an electroshock machine along with three psychiatrists, including Dr. Lloyd Cotter, to test the depatterning techniques of Ewen Cameron. Cotter applied electroconvulsive treatment to Vietnamese patients and was “impressed” with the results. The results with Vietcong prisoners were even more impressive: the CIA psychiatrists applied 12 electroshocks the first day, and as many as 60 during the next seven days, until one of the prisoners died. Undaunted, the electroshocks continued until the rest of the prisoners died several weeks later. At that point, the CIA operatives simply left; experiment over.
The result of all this was enemy “neutralization” estimated, in 1972, at 81,740 eliminated, with 26,369 detainees simply killed. As McCoy points out, this killing of suspects left over is necessary to avoid indefinite jailing of captives who can no longer offer information; hence his conclusion: “In effect, the logical corollary to state-sanctioned torture is state-sponsored murder” (p. 196). In Iran under the Shah (whom the U.S. installed after organizing the downfall of the democratically-elected Mossadegh government), the CIA, with help from Israeli intelligence, used its new torture doctrine to organize and train the Savak, the Shah’s secret police. According to Iranian poet Reza Baraheni, “at least half a million people” were beaten, whipped or tortured in Iran by Savak (p. 75).
Still, the United States did not want to appear to approve of torture, so it signed international agreements such as the 1984 UN Convention against Torture. However, the Reagan Administration posted reservations to the new treaty, which were effected when President Clinton finally signed it in 1994. These reservations, in the form of “clearer” definitions of what constituted psychological torture, limited it to such things as using mind-altering substances and the threat of imminent death. These narrow definitions, McCoy points out, made no mention of “sensory deprivation (hooding), self-inflicted pain (stress positions) and disorientation (isolation and sleep denial)—the very techniques the CIA had been refining for decades” (p. 100). Hence, even after the United States had signed the 1984 Convention, the CIA felt free to use its psychological techniques while U.S. officials could continue to say, “We do not torture.”
Thus we see that far from being an aberration, or a radical departure from previous interrogation practices, the Bush Administration’s announcement that the “gloves were coming off” after 9/11 meant mainly that, for America’s spy agencies, it would be business pretty much as usual. The departure from prior practice—for there was one—came with the extension of CIA torture techniques to the military: those interrogators at U.S. military installations who have since become so famous. In order to implement this “force drift,” however, the administration had to outflank its military officers, particularly those in the Advocate General’s office, who raised loud and persistent objections to what they saw going on at Guantanamo, Bagram Air Force Base, and later, Abu Ghraib. All, without exception, said such tactics violated military interrogation manuals and should be halted. In response, Secretary of Defense Donald Rumsfeld, aided by the White House neocons like David Addington and lawyers in the Justice Department like John Yoo and Jay Bybee, organized a Defense Working Group to provide him and the military the cover and authority they needed.
As intended, Rumsfeld’s DWG produced a memo in March of 2003 approving of the extreme interrogation methods. They read like a reprint of the Kubark manual, especially when specified by General Geoffrey Miller for Guantanamo: a 72-point matrix for stress and duress, using “harsh heat or cold; withholding food; hooding for days at a time; naked isolation in cold, dark cells for more than 30 days; and stress positions designed to subject detainees to rising levels of pain” (p. 129). Miller also added forms of psychological torture specific to Arab culture which, since Abu Ghraib, have become disgustingly familiar—the conscious strategy of sexual humiliation and other forms of assault on Muslim cultural inhibitions. And though the International Red Cross, in 2004, declared such methods to be “tantamount to torture,” and hence violations of international law, the U.S. military simply dismissed these charges.
This open contempt marked another departure, according to McCoy: instead of using such psychological techniques covertly, as it had for half a century, the United States government under George W. Bush now “defied the international community by openly defending the techniques and denying that they constituted torture” (p. 157). Put another way, that which started out as a series of psychological methods to break any human being—but secretly, thus acknowledging their heinous nature—had now become something publicly and defiantly accepted, a kind of torture about which an American administration seemed almost proud.
*
What Philip Zimbardo’s The Lucifer Effect: Understanding How Good People Turn Evil, adds to this discussion is the notion that, given the right situation, almost anyone can turn into a perpetrator of horror. In short, where most of us, particularly in the United States and the West, tend to attribute evil actions to “dispositional factors,” i.e. the alleged bad or evil inherent in a specific person whose evil disposition leads him to “sin”, Zimbardo’s famous Stanford Prison Experiment (SPE) took the opposite tack: evil behavior stems mainly from the situation in which people find themselves. In the SPE, average college students were chosen at random to be either “guards” or “prisoners.” A pretend prison was set up in the basement of Stanford’s psychology building, and a situation created in which the guards were to control and discipline the prisoners for a set period. No physical force was to be used, but other means, such as humiliation, isolation, harassment, and so on were legitimate methods for the guards to use. Zimbardo summed up the design and purpose of the experiment as follows: “our research will attempt to differentiate between what people bring into a prison situation from what the situation brings out in the people who are there.” His assistant put it more succinctly: “You’re putting good people in an evil situation to see who or what wins.”
What stunned the experimenters, and stuns the reader, is how quickly the situation won, i.e. how rapidly the neutral students fell into their assigned roles. Within a matter of days, the prisoners become docile and obedient. The guards, many of them student radicals themselves, become authoritarian, brutal disciplinarians. As one “prisoner” put it afterward: “The guard role promotes sadism. The prisoner role promotes confusion and shame” (p. 189). Even more astonishing is the degree to which not just the students but the psychologists and graduate students running the experiment themselves seemed to forget the make-believe nature of the situation and became that which they were supposedly miming. The most dramatic example of this latter takes place when one of the prisoners, Doug-8612, becomes so overwrought that he must be released after his second day in “prison.” In response, the “warden” and Zimbardo himself as “superintendent” begin to worry that Doug-8612’s “breakdown” might have been just playacting designed so that he could gather other students outside the experiment to stage a ‘breakout’ of his fellow prisoners. Worse, they begin to analyze their screening methods to see if somehow they had allowed a “flawed” or “damaged” person to slip into their experiment. The irony is striking: in a “study designed to demonstrate the power of situational forces over dispositional tendencies, we were making a dispositional attribution” (i.e. Doug-8612 was a “bad apple” who had slipped into the group of “good” subjects. ed note)
Among many striking moments in this experiment, one of the most troubling, given our experience with Abu Ghraib, is the point near the end when one of the guards, Hellmann, on his own, adds sexual harassment of prisoners to his repertoire of control tactics: “’See that hole in the ground? Now do twenty-five push-ups, fucking that hole! You hear me!’ One after another, the prisoners obey, as Burdan shoves them down to do their duty.” Then the secondary guard, Burdan, makes the prisoners do the camel game—forcing three prisoners to play female camels, bending over, baring their behinds beneath their short prison smocks, while ordering the others to “Stand behind the female camels and hump them” (p. 172).
Fortunately for Philip Zimbardo and his subjects, an outside observer, his future wife Christina Maslach, intervened. Having seen what was happening, she objected heatedly, insisting that “What you are doing to those boys is a terrible thing!” This forced the researcher to admit his responsibility for having created this little “prison,” thereby leading his students into a tangled knot of dominance and submission that was deeply affecting their psyches, and to call off his experiment after only one week (it was originally scheduled to last two weeks.) It also led him to reflect, when writing his book 30 years later, on where the ultimate responsibility for evil behavior, especially in the real world, lies. In brief, though each individual should be held responsible for his actions, the situation in which those actions take place controls behavior far more than any of us realizes. Perhaps more important, it is the System that creates the action-inducing situation which is ultimately responsible. Zimbardo puts it thus:
“The negative power on which I had been running for the past week, as superintendent of this mock prison, had blinded me to the reality of the destructive impact of the System that I was sustaining….While I was focused on the abstract conceptual issue, the power of the behavioral situation vs the power of individual dispositions, I had missed seeing the all-encompassing power of the System that I had helped create and sustain.
The System includes the Situation, but it is more enduring, more widespread, involving extensive networks of people, their expectations, norms, policies, and, perhaps laws…Each System comes to develop a culture of its own, as many Systems collectively come to contribute to the culture of a society.” (p. 179)
Elsewhere, Zimbardo also includes a System’s ideology in the nexus of key factors that sustains it—ideology such as: America is a nation chosen by and protected by God, America is the model democracy, America is the home of liberty and justice for all, America is that singular nation which never attacks or exploits but always helps others, etc.
Now we need to contrast this Systemic-situational view with the one that has pertained in the Bush Administration (and throughout American culture to a greater or lesser degree) when faced with the consequences of Abu Ghraib and its war on terror. Zimbardo quotes Condoleeza Rice in an interview with Jim Lehrer in July of 2005 to illustrate the latter:
“When are we going to stop making excuses for the terrorists and saying that somebody is making them do it? No, these are simply evil people who want to kill…This isn’t about some kind of grievance. This is an effort to destroy rather than to build. And until everybody in the world calls it by name—the evil that it is---stops making excuses for them, then I think we’re going to have a problem.” (p. 311)
The administration attitude (these are simply evil people) pertained, of course, not just to the terrorists, but also to the guards who committed the photographically-documented outrages at Abu Ghraib. It was the “bad apples,” not the barrel, who were responsible. And the “bad apples” got punished—Sgt Chip Frederick, Lynnde England, Charles Graner—while the barrel itself, and those who had created the barrel, got off scot free. In the most immediate sense, this means Secretary of Defense Donald Rumsfeld, who, according to Mark Danner (Torture & Truth: American, Abu Ghraib and the War on Terror), issued directives about preparing detainees for interrogation that included the following recommended methods:
“Use of stress positions for 4 hours in isolation up to 30 days; Hooding during transportation and questioning; Deprivation of light and auditory stimuli; Removal of all comfort items (including religious ones); Forced grooming; Removal of clothing.; Using detainees’ individual phobias (fear of dogs) to induce stress.” (p. 408)
In the largest sense, it means all those, both appointed and elected, who helped to direct and justify and implement the system.
Thus, by examining American torture policies in light of his own Stanford Prison Experiment, Philip Zimbardo leads us to the conclusion that the situation trumps almost any individual disposition in leading the way to evil actions. And the System that creates the situation should bear the most responsibility of all. He liberally cites the memos noted above—memos that were designed to not only place the detainees in U.S. custody beyond the reach of any court or law, including the Geneva Conventions, but also to protect those implementing the policies from any liability for war crimes—to buttress his case. He also points out that a System is implemented by individual actors, to be sure, but it is not underlings like Sgt. Frederick and Pvt. England who bear most culpability; rather it is those actors who hold the power positions in that system—the Rumsfelds, the Cheneys, the Addingtons, the Yoos, the Bybees, the Rices, the entire Bush White House torture cabal including the President himself. As Zimbardo puts it:
I believe that a system consists of those agents and agencies whose power and values create or modify the rules of and expectations for “approved behavior” within its sphere of influence. In one sense, the system is more than the sum of its parts and of its leaders, who also fall under its powerful influences. In another sense, however, the individuals who play key roles in creating a system that engages in illegal, immoral and unethical conduct should be held accountable despite the situational pressures on them.” (p. 438)
It is such a system, Zimbardo suggests, that allowed Nazis like Adolph Eichmann to commit his crimes while feeling all along that he was just “doing his job.” To the extent that a similar type of system has been created in the United States of America under all of our noses and with our tax dollars is the extent to which all of us who support and sustain and allow that system to continue are guilty. Not as guilty, perhaps, as the Bush administration high officials, who should, who must be held to account for their crimes—but guilty nonetheless.
Lawrence DiStasi
Tuesday, May 06, 2008
Sami al-Hajj
On May 1, presumably not as a May day present, the Al-Jazeera journalist Sami al-Hajj was released from 6 years of imprisonment in Guantanamo. Al-Hajj had been on a hunger strike for more than a year, and was reported to be 40 pounds under his normal weight, and looking far older than his 38 years. Partly this was due to the treatment he received at Guantanamo, America’s infamous torture prison, where he said he was interrogated hundreds of times, and subjected to beatings, extremes of temperature, sexual assault, and threats with military dogs—all the standard methods used by Americans against “terror war” captives in recent years. In addition, al-Hajj was reportedly force fed to keep him alive, a procedure which involved forcing a feeding tube up his nose and into his stomach twice a day, and which exacerbated the throat cancer he has suffered from. As is customary, no charges were offered to justify al-Hajj’s captivity. He was a Sudanese national working as a cameraman for Al-Jazeera, the Arabic news outlet which the United States has constantly attacked, both verbally and physically, since the beginning of its “war on terror.” Upon trying to enter Afghanistan in December 2001 to cover the war there, he was seized by Pakistani authorities and turned over to American forces. Held and abusively interrogated at Bagram Air Force Base and then at another prison facility in Kandahar until June 2002, he was then delivered, bound and gagged, to the prison at Guantanamo Bay in Cuba. He remained there for 6 years.
In Sudan, where he was hospitalized following his release, Sami al-Hajj has made numerous statements about his imprisonment:“Our human condition, our human dignity was violated, and the American administration went beyond all human values, all moral values, all religious values. In Guantánamo...rats are treated with more humanity. But we have people from more than 50 countries that are completely deprived of all rights and privileges, and they will not give them the rights that they give to animals….For more than seven years, I did not get a chance to be brought before a civil court. To defend their just case and to get the freedom that we’re deprived of, they ignored every kind of law, every kind of religion….He concluded by saying: “My last message to the US administration is that torture will not stop terrorism—torture is terrorism.”
The U.S. response to al-Hajj’s claims of mistreatment follows a familiar pattern. ABC News featured three unnamed Pentagon “officials” who said that there was nothing to “substantiate his allegations that he was mistreated at Guantanamo.” These same officials tried to dismiss al-Hajj as “a manipulator and a propagandist.” (see Naomi Spencer, “Journalist released from Guantanamo details abuse,” May 5 2008, www.wsws.org
The truth, however, is that this age-old justification for torture crumbles under even the slightest scrutiny. And that is not only because torture violates all the treaties and laws we have signed over the years, including our Constitution outlawing cruel and inhuman treatment. It is also because we now know that this type of torture did not begin with Abu Ghraib or Guantanamo, and has not been limited to the Arabs or Muslims we have been at such pains to dehumanize. As Alfred McCoy makes very clear in his A Question of Torture, there is a long history of this new kind of torture that began shortly after World War II, one that has been constantly perfected since then by the CIA among others. These methods were ready and waiting when the so-called “war on terror” was announced after 9/11, and were quickly and eagerly updated and implemented. My next post will go into that aspect of the story in detail. Suffice it to say here that even a cursory look at the methods McCoy lays out proves—even if we doubt the words of Arab/Muslims like Sami al-Hajj—that these torture techniques have been part of the American interrogator’s playbook for nearly a half century now, and have been used not only by American “interrogators” themselves, but spread like a new gospel to our “allies” around the world.
The only question for us who have now become revoltingly aware of such things is how do we, a complacent public, justify standing idly by and letting this happen, letting the perpetrators of this little shop of horrors operating in our name ride off not just unaccountable and unpunished, but richly rewarded for their crimes?
Lawrence DiStasi
In Sudan, where he was hospitalized following his release, Sami al-Hajj has made numerous statements about his imprisonment:“Our human condition, our human dignity was violated, and the American administration went beyond all human values, all moral values, all religious values. In Guantánamo...rats are treated with more humanity. But we have people from more than 50 countries that are completely deprived of all rights and privileges, and they will not give them the rights that they give to animals….For more than seven years, I did not get a chance to be brought before a civil court. To defend their just case and to get the freedom that we’re deprived of, they ignored every kind of law, every kind of religion….He concluded by saying: “My last message to the US administration is that torture will not stop terrorism—torture is terrorism.”
The U.S. response to al-Hajj’s claims of mistreatment follows a familiar pattern. ABC News featured three unnamed Pentagon “officials” who said that there was nothing to “substantiate his allegations that he was mistreated at Guantanamo.” These same officials tried to dismiss al-Hajj as “a manipulator and a propagandist.” (see Naomi Spencer, “Journalist released from Guantanamo details abuse,” May 5 2008, www.wsws.org
The truth, however, is that this age-old justification for torture crumbles under even the slightest scrutiny. And that is not only because torture violates all the treaties and laws we have signed over the years, including our Constitution outlawing cruel and inhuman treatment. It is also because we now know that this type of torture did not begin with Abu Ghraib or Guantanamo, and has not been limited to the Arabs or Muslims we have been at such pains to dehumanize. As Alfred McCoy makes very clear in his A Question of Torture, there is a long history of this new kind of torture that began shortly after World War II, one that has been constantly perfected since then by the CIA among others. These methods were ready and waiting when the so-called “war on terror” was announced after 9/11, and were quickly and eagerly updated and implemented. My next post will go into that aspect of the story in detail. Suffice it to say here that even a cursory look at the methods McCoy lays out proves—even if we doubt the words of Arab/Muslims like Sami al-Hajj—that these torture techniques have been part of the American interrogator’s playbook for nearly a half century now, and have been used not only by American “interrogators” themselves, but spread like a new gospel to our “allies” around the world.
The only question for us who have now become revoltingly aware of such things is how do we, a complacent public, justify standing idly by and letting this happen, letting the perpetrators of this little shop of horrors operating in our name ride off not just unaccountable and unpunished, but richly rewarded for their crimes?
Lawrence DiStasi
Thursday, April 24, 2008
The Concentration of Evil
The more I read about torture by United States agents—CIA operatives,
military special forces, hired mercenaries, and military police—the
more unsettling the whole sordid situation becomes. The information
now at hand is simply unassailable: the United States government
consciously set out, after the attacks of 9/11, to “take off the
gloves” when dealing with prisoners who might possibly have
information about al Quaeda or the Taliban or anyone else in the Arab/
Muslim world. Using techniques that had been around for years, some
for centuries, some updated specifically for those likely to be
captured in the current “war” on terror, intelligence agents
determined that they could employ just about any method to extract
information. They were aided and abetted and indeed prodded to do so
by the Secretary of Defense, Donald Rumsfeld, and through him, by
their commanders. The Secretary of Defense was in turn given the
protection of the best legal “minds” in the White House and the
Department of Justice, who issued a series of now-famous memos
justifying virtually all means of gathering intelligence from
captives, most of whom were placed in a category that voided the
protections normally due them as prisoners.
All this took place in an atmosphere in which the United
States President, George W. Bush, had promised, right after 9/11, to
rid the world of evil—by which he meant the evil promulgated by those
terrorists who had attacked the World Trade Center.
Instead, what took place was the greatest concentration
of evil in the history of the American presidency. Consider who was
in that White House. George W. Bush, from the moment he took office,
indeed, before he even took office, demonstrated that morals simply
did not apply to him. He could piously proclaim the virtues of
military service, and remain AWOL from even the minimal duty he was
obligated to perform in the Air National Guard. He could inveigh
against the so-called Axis of Evil, and at the same time authorize to
his staff virtually any measures in pursuing revenge: “any barriers
in your way, they are gone.” He could preach about the bestial
nature of the terrorists who had attacked our “civilized” values, and
at the same time rebuff anyone—this time the Secretary of Defense, no
nervous Nellie himself—who protested that retaliatory action could
encounter certain legal obstacles:
“I don’t care what the international lawyers say,”
brayed the President. “We are going to kick some ass.”
It was this climate, created by the President, that led directly to
the horrors at Bagram air base in Afghanistan, Abu Ghraib in Iraq and
Guantanamo in Cuba.
But the president was not alone. Smirking quietly but
malevolently behind him and beside him always was his president of
vice, Richard Cheney. Cheney is that lovely man who once gave the
finger in the Senate to a democrat who thwarted him, Senator Patrick
Leahy, mouthing presidentially: “Go fuck yourself.” He’s that
sporting duck hunter who famously shot his best friend in the face.
He’s that zealot who pushed the concept of the unitary presidency—the
notion that no law can constrain a president in time of war—to the
point that, with the war on terror scheduled to last indefinitely,
absolute presidential power becomes indefinite as well. Cheney is
also the man in whose office the lawyer David Addington reigns—the
one browbeating other white house lawyers to immunize the president
and all his men from their crimes.
Then, of course, there were the other ethically-
challenged legal eagles: Alberto Gonzalez, who had to resign from his
Attorney General post in shame; John Yoo, who coined the term
“quaint” to describe the Geneva Conventions, thus making their
protections moot; and a host of others dedicated to removing all
constraints on the torture of captives so long as the Decider in
Chief gave torture his imprimatur. And he did. And they did. And the
evil festered and suppurated and spread around the globe. And the
White House, and all it touched, became a black house of horrors.
How to explain this? How to explain such a concentration
of evil in one place at one time? No one really knows. Perhaps one
can only look at it poetically: those who preach the gospel of
absolute good and absolute evil, as George Bush has since taking
office, as the conservatives have since forever—it is their prime
article of faith—must ultimately practice what they preach. They
must finally be caught up in the dualism to which they subscribe. For
it is in the nature of dualism to be convertible: white easily shades
into black, hot inevitably becomes cold, good cannot help but be
infected by, and in the end defined by evil.
So it is in the Bush White House. Paint it and sanitize
it and bleach it as they will, they can never hide what they have
become and what it has become: a black house inhabited by demons.
Lawrence DiStasi
=
military special forces, hired mercenaries, and military police—the
more unsettling the whole sordid situation becomes. The information
now at hand is simply unassailable: the United States government
consciously set out, after the attacks of 9/11, to “take off the
gloves” when dealing with prisoners who might possibly have
information about al Quaeda or the Taliban or anyone else in the Arab/
Muslim world. Using techniques that had been around for years, some
for centuries, some updated specifically for those likely to be
captured in the current “war” on terror, intelligence agents
determined that they could employ just about any method to extract
information. They were aided and abetted and indeed prodded to do so
by the Secretary of Defense, Donald Rumsfeld, and through him, by
their commanders. The Secretary of Defense was in turn given the
protection of the best legal “minds” in the White House and the
Department of Justice, who issued a series of now-famous memos
justifying virtually all means of gathering intelligence from
captives, most of whom were placed in a category that voided the
protections normally due them as prisoners.
All this took place in an atmosphere in which the United
States President, George W. Bush, had promised, right after 9/11, to
rid the world of evil—by which he meant the evil promulgated by those
terrorists who had attacked the World Trade Center.
Instead, what took place was the greatest concentration
of evil in the history of the American presidency. Consider who was
in that White House. George W. Bush, from the moment he took office,
indeed, before he even took office, demonstrated that morals simply
did not apply to him. He could piously proclaim the virtues of
military service, and remain AWOL from even the minimal duty he was
obligated to perform in the Air National Guard. He could inveigh
against the so-called Axis of Evil, and at the same time authorize to
his staff virtually any measures in pursuing revenge: “any barriers
in your way, they are gone.” He could preach about the bestial
nature of the terrorists who had attacked our “civilized” values, and
at the same time rebuff anyone—this time the Secretary of Defense, no
nervous Nellie himself—who protested that retaliatory action could
encounter certain legal obstacles:
“I don’t care what the international lawyers say,”
brayed the President. “We are going to kick some ass.”
It was this climate, created by the President, that led directly to
the horrors at Bagram air base in Afghanistan, Abu Ghraib in Iraq and
Guantanamo in Cuba.
But the president was not alone. Smirking quietly but
malevolently behind him and beside him always was his president of
vice, Richard Cheney. Cheney is that lovely man who once gave the
finger in the Senate to a democrat who thwarted him, Senator Patrick
Leahy, mouthing presidentially: “Go fuck yourself.” He’s that
sporting duck hunter who famously shot his best friend in the face.
He’s that zealot who pushed the concept of the unitary presidency—the
notion that no law can constrain a president in time of war—to the
point that, with the war on terror scheduled to last indefinitely,
absolute presidential power becomes indefinite as well. Cheney is
also the man in whose office the lawyer David Addington reigns—the
one browbeating other white house lawyers to immunize the president
and all his men from their crimes.
Then, of course, there were the other ethically-
challenged legal eagles: Alberto Gonzalez, who had to resign from his
Attorney General post in shame; John Yoo, who coined the term
“quaint” to describe the Geneva Conventions, thus making their
protections moot; and a host of others dedicated to removing all
constraints on the torture of captives so long as the Decider in
Chief gave torture his imprimatur. And he did. And they did. And the
evil festered and suppurated and spread around the globe. And the
White House, and all it touched, became a black house of horrors.
How to explain this? How to explain such a concentration
of evil in one place at one time? No one really knows. Perhaps one
can only look at it poetically: those who preach the gospel of
absolute good and absolute evil, as George Bush has since taking
office, as the conservatives have since forever—it is their prime
article of faith—must ultimately practice what they preach. They
must finally be caught up in the dualism to which they subscribe. For
it is in the nature of dualism to be convertible: white easily shades
into black, hot inevitably becomes cold, good cannot help but be
infected by, and in the end defined by evil.
So it is in the Bush White House. Paint it and sanitize
it and bleach it as they will, they can never hide what they have
become and what it has become: a black house inhabited by demons.
Lawrence DiStasi
=
Sunday, April 13, 2008
Here's to You, John Yoo
First, let’s get some facts straight. Attorney John Yoo was an
assistant to Attorney General John Ashcroft, working in the Office
of Legal Counsel under his boss, Jay Bybee, during George Bush's
first term. This office is supposed to advise all the departments of
government on the legality or illegality of their actions. The
attorneys work, in the final analysis, not for the President or any
of his subordinates, but for the American people. They are obliged to
render opinions that are, to put it mildly, legal, according to U.S.
and international law.
Second, let’s look at what John Yoo did and why he did it.
To begin with, he essentially argued, in a series of memos, that the
Bill of Rights to the United States Constitution has no bearing on
the President of the United States during wartime. Neither the 5th
Amendment’s due process clauses nor the 8th Amendment’s protections
against cruel and unusual punishment apply to aliens in foreign
countries, and even if they did, Yoo maintained, the President is not
bound by them. Essentially, this means that the President’s power
trumps both the Constitution and the federal statutes that constitute
U.S. Law—specifically, any that would constrain his power to find and/
or torture those he deems ‘enemies.’ This means that the President
can also thumb his nose at foreign laws and treaties, for if he
cannot be constrained by U.S. Law, he certainly cannot be constrained
by treaties with other nations, such as the Geneva Conventions, even
though normally and legally they have the force of the Constitution
itself. No matter; the President, wrote Yoo, is “free to override all
such laws and treaties at his discretion.” In sum: John Yoo argued
that the President has unlimited authority to order war crimes
against enemy combatants captured on foreign soil, so long as he
decides that such orders are necessary to the nation’s “defense.”
All this is breathtaking enough. What’s worse is that in defending
these memos, John Yoo has actually said that they confer on the
President the power, if he chooses to use it, to torture children. In
a January 2006 interview with Notre Dame professor and international
human rights scholar Doug Cassel, Yoo argued that there is no law
that could prevent the President from ordering the torture of even
the child of a suspect. Here is the conversation:
Cassel: If the President deems that he’s got to torture somebody,
including by crushing the testicles of the person’s child, there is
no law that can stop him?
Yoo: No treaty.
Cassel: Also no law by Congress. That is what you wrote in the
August 2002 memo.
Yoo: I think it depends on why the President thinks he needs to do
that.
(see article by Philip Watts, www.informationclearinghouse.info/
article11488.htm.)
Of course, we can surmise, the President would always have a
“good” reason for crushing a child’s testicles.
So let’s get specific. Let’s take a look at one of the allegedly
toothless treaties that John Yoo was referring to—the 1984 Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment—which
the United States signed. Here is what it says:
“The term ‘torture’ means any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person
for such purposes as obtaining information or a confession…No
exceptional circumstances whatsoever, whether a state of war or a
threat of war, internal political stability or any other public
emergency, may be invoked as a justification of torture.” (cited by
Anthony Piel, “A Primer on the Law of Torture,” Truthout.org, 11/5/07)
Anyone convicted of such crimes can be punished by life imprisonment
or the death penalty. Piel goes on to say that not only is the United
States bound by this law, the President cannot grant immunity from
its provisions: “The US government crafted, promoted, adopted, signed
and ratified the 1984 Convention Against Torture, which therefore
automatically becomes the “supreme law of the land,” pursuant to the
US Constitution. No enabling legislation is required to give effect
to these basic principles of law.”
For a lawyer in the Office of Legal Counsel in the Justice
Department to argue otherwise is to essentially argue that the
President and all those under him can break the law with impunity.
But Yoo not only did this—in direct violation of his legal ethics. He
also argued for the immunity of those who followed his memos and
broke any such laws. Here is what Yoo writes in another Memo, (as
noted by Glenn Greenwald in “John Yoo’s War Crimes,” Salon, April 2,
2008):
"If a government defendant were to harm an enemy combatant during an
interrogation in a manner that might arguably violate a criminal
prohibition, he would be doing so in order to prevent further attacks
on the United States by the al Qaeda terrorist network. In that case,
we believe that he could argue that the executive branch's
constitutional authority to protect the nation from attack justified
his actions."
So there it is. Not only 'could we argue' that the President is
above all law prohibiting torture, both domestic and international,
so are those Americans (CIA agents, military police and/or
interrogators, civilian contractors) who follow his orders and
torture or abuse their captives. So are those who command them—the
generals, the admirals, the secretaries of defense and war and so on
up the chain.
This last part is really the point. We have been given the
impression, not least by Yoo himself, that he was trying to formulate
difficult policy in the critical and dangerous new conditions created
by 9/11, and that government officials were pressing him and his
office for guidance on how they should conduct interrogations, how
they should treat the dangerous “terrorists” they were capturing.
This turns out to be a smokescreen. In fact, as Scott Horton has
recently noted in “Yoo Two,” (Harper’s Magazine, April 3, 2008),
there were two series of memos, one in August 2002, and one in March
2003. The memos are similar in that they “were issued as part of an
actual plan to induce individuals to commit criminal acts by ensuring
that their crimes would never be investigated or prosecuted.” Horton
calls this effort a “criminal enterprise,” because “Under the
standards of U.S. v Altstoetter, it was reasonably foreseeable that
the issuance of these memoranda would result in serious harm,
including assault, torture, and death, to protected persons in the
custody of the United States. Accordingly, each of the actors,
including the memoranda writers, is criminally liable.”
This was the “need” to which John Yoo was responding. As a
lawyer and professor of United States law, he knew full well that
what he was advocating would make those who followed its dictates
liable to prosecution for war crimes. So did others in government,
and that was the real “crisis” at hand. Naval officers had seen what
was happening to “enemy combatants” at Guantanamo under the authority
of Yoo’s earlier memo, and had relayed it to Alberto Mora, the
general counsel for the Navy in the Pentagon. These practices, along
with other questionable techniques authorized by Donald Rumsfeld,
including waterboarding, led decent military lawyers to vehemently
protest what was going on. These were military lawyers who knew about
torture and knew about the consequences for U.S. military personnel
if it became known worldwide that the United States was engaging in
such practices. When the legal counsel at the Pentagon, William
Haynes, began wilting under enormous pressure from such lawyers, he
recommended to Defense Secretary Rumsfeld that the torture procedures
should stop. (see Horton, cited above, and Jane Mayer, “The Memo,”
New Yorker Magazine, 2/27/2006.)
Unfortunately for the military, the chicken hawks were in
charge. Rumsfeld took his case to the Office of Legal Counsel in the
Justice Department, among others. He needed legal justification for
torture, and military lawyers knew too much to give it to him. The
political hacks in the Office of Legal Counsel, John Yoo and his boss
Jay Bybee chief among them, had no such qualms. Yoo knew nothing
about the military, but he had “read lots of books.” And so he
crafted his torture-justifying memos. And those memos were relayed to
zealots like Secretary Rumsfeld and his commander at Guantanamo,
General Geoffrey Miller. Miller implemented the 'more creative'
techniques at Gitmo, was subsequently sent to Abu Ghraib to
“gitmoize” that sadly tragic place, and the rest is history
(including the death of the so-called “Ice Man” and god knows how
many more).
As Scott Horton puts it, Yoo created these memos “as a
roadmap to committing crimes and getting away with it.” The roadmap
worked. The only sad sacks punished for the scandals at Abu Ghraib
have been, as always, the underlings, the so-called “bad apples” in
an otherwise pristine barrel, Pvt. Lynndie England, Sgt. Chip
Frederick, Cpl. Charles Graner. The war criminals really responsible
for those crimes—Yoo and his boss Bybee, Donald Rumseld, Richard
Cheney and his lawyer, David Addington, Alberto Gonzalez, General
Geoffrey Miller, George Tenet and President George W. Bush, among
others—have so far gotten off scott-free.
Perhaps they are all laughing privately amongst themselves.
Then again, perhaps not. Though they may, like John Yoo (now safely,
and to my mind scandalously, welcomed back to his academic post at
Boalt School of Law, UC Berkeley) continue to defend their actions as
necessary in a time of war, perhaps they should also remember that
the conventions against torture specifically state that “no
exceptional circumstances may be invoked as a justification for
torture.” Perhaps they should also remember what Anthony Piel, cited
above, reminds us:
“…there is no statute of limitations on war crimes and crimes against
humanity.”
So here’s to you, John Yoo. You’ve served your masters well,
and duly collected your due. Although, it may be, you’ll yet see
another turn of the screw.
Lawrence DiStasi
assistant to Attorney General John Ashcroft, working in the Office
of Legal Counsel under his boss, Jay Bybee, during George Bush's
first term. This office is supposed to advise all the departments of
government on the legality or illegality of their actions. The
attorneys work, in the final analysis, not for the President or any
of his subordinates, but for the American people. They are obliged to
render opinions that are, to put it mildly, legal, according to U.S.
and international law.
Second, let’s look at what John Yoo did and why he did it.
To begin with, he essentially argued, in a series of memos, that the
Bill of Rights to the United States Constitution has no bearing on
the President of the United States during wartime. Neither the 5th
Amendment’s due process clauses nor the 8th Amendment’s protections
against cruel and unusual punishment apply to aliens in foreign
countries, and even if they did, Yoo maintained, the President is not
bound by them. Essentially, this means that the President’s power
trumps both the Constitution and the federal statutes that constitute
U.S. Law—specifically, any that would constrain his power to find and/
or torture those he deems ‘enemies.’ This means that the President
can also thumb his nose at foreign laws and treaties, for if he
cannot be constrained by U.S. Law, he certainly cannot be constrained
by treaties with other nations, such as the Geneva Conventions, even
though normally and legally they have the force of the Constitution
itself. No matter; the President, wrote Yoo, is “free to override all
such laws and treaties at his discretion.” In sum: John Yoo argued
that the President has unlimited authority to order war crimes
against enemy combatants captured on foreign soil, so long as he
decides that such orders are necessary to the nation’s “defense.”
All this is breathtaking enough. What’s worse is that in defending
these memos, John Yoo has actually said that they confer on the
President the power, if he chooses to use it, to torture children. In
a January 2006 interview with Notre Dame professor and international
human rights scholar Doug Cassel, Yoo argued that there is no law
that could prevent the President from ordering the torture of even
the child of a suspect. Here is the conversation:
Cassel: If the President deems that he’s got to torture somebody,
including by crushing the testicles of the person’s child, there is
no law that can stop him?
Yoo: No treaty.
Cassel: Also no law by Congress. That is what you wrote in the
August 2002 memo.
Yoo: I think it depends on why the President thinks he needs to do
that.
(see article by Philip Watts, www.informationclearinghouse.info/
article11488.htm.)
Of course, we can surmise, the President would always have a
“good” reason for crushing a child’s testicles.
So let’s get specific. Let’s take a look at one of the allegedly
toothless treaties that John Yoo was referring to—the 1984 Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment—which
the United States signed. Here is what it says:
“The term ‘torture’ means any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person
for such purposes as obtaining information or a confession…No
exceptional circumstances whatsoever, whether a state of war or a
threat of war, internal political stability or any other public
emergency, may be invoked as a justification of torture.” (cited by
Anthony Piel, “A Primer on the Law of Torture,” Truthout.org, 11/5/07)
Anyone convicted of such crimes can be punished by life imprisonment
or the death penalty. Piel goes on to say that not only is the United
States bound by this law, the President cannot grant immunity from
its provisions: “The US government crafted, promoted, adopted, signed
and ratified the 1984 Convention Against Torture, which therefore
automatically becomes the “supreme law of the land,” pursuant to the
US Constitution. No enabling legislation is required to give effect
to these basic principles of law.”
For a lawyer in the Office of Legal Counsel in the Justice
Department to argue otherwise is to essentially argue that the
President and all those under him can break the law with impunity.
But Yoo not only did this—in direct violation of his legal ethics. He
also argued for the immunity of those who followed his memos and
broke any such laws. Here is what Yoo writes in another Memo, (as
noted by Glenn Greenwald in “John Yoo’s War Crimes,” Salon, April 2,
2008):
"If a government defendant were to harm an enemy combatant during an
interrogation in a manner that might arguably violate a criminal
prohibition, he would be doing so in order to prevent further attacks
on the United States by the al Qaeda terrorist network. In that case,
we believe that he could argue that the executive branch's
constitutional authority to protect the nation from attack justified
his actions."
So there it is. Not only 'could we argue' that the President is
above all law prohibiting torture, both domestic and international,
so are those Americans (CIA agents, military police and/or
interrogators, civilian contractors) who follow his orders and
torture or abuse their captives. So are those who command them—the
generals, the admirals, the secretaries of defense and war and so on
up the chain.
This last part is really the point. We have been given the
impression, not least by Yoo himself, that he was trying to formulate
difficult policy in the critical and dangerous new conditions created
by 9/11, and that government officials were pressing him and his
office for guidance on how they should conduct interrogations, how
they should treat the dangerous “terrorists” they were capturing.
This turns out to be a smokescreen. In fact, as Scott Horton has
recently noted in “Yoo Two,” (Harper’s Magazine, April 3, 2008),
there were two series of memos, one in August 2002, and one in March
2003. The memos are similar in that they “were issued as part of an
actual plan to induce individuals to commit criminal acts by ensuring
that their crimes would never be investigated or prosecuted.” Horton
calls this effort a “criminal enterprise,” because “Under the
standards of U.S. v Altstoetter, it was reasonably foreseeable that
the issuance of these memoranda would result in serious harm,
including assault, torture, and death, to protected persons in the
custody of the United States. Accordingly, each of the actors,
including the memoranda writers, is criminally liable.”
This was the “need” to which John Yoo was responding. As a
lawyer and professor of United States law, he knew full well that
what he was advocating would make those who followed its dictates
liable to prosecution for war crimes. So did others in government,
and that was the real “crisis” at hand. Naval officers had seen what
was happening to “enemy combatants” at Guantanamo under the authority
of Yoo’s earlier memo, and had relayed it to Alberto Mora, the
general counsel for the Navy in the Pentagon. These practices, along
with other questionable techniques authorized by Donald Rumsfeld,
including waterboarding, led decent military lawyers to vehemently
protest what was going on. These were military lawyers who knew about
torture and knew about the consequences for U.S. military personnel
if it became known worldwide that the United States was engaging in
such practices. When the legal counsel at the Pentagon, William
Haynes, began wilting under enormous pressure from such lawyers, he
recommended to Defense Secretary Rumsfeld that the torture procedures
should stop. (see Horton, cited above, and Jane Mayer, “The Memo,”
New Yorker Magazine, 2/27/2006.)
Unfortunately for the military, the chicken hawks were in
charge. Rumsfeld took his case to the Office of Legal Counsel in the
Justice Department, among others. He needed legal justification for
torture, and military lawyers knew too much to give it to him. The
political hacks in the Office of Legal Counsel, John Yoo and his boss
Jay Bybee chief among them, had no such qualms. Yoo knew nothing
about the military, but he had “read lots of books.” And so he
crafted his torture-justifying memos. And those memos were relayed to
zealots like Secretary Rumsfeld and his commander at Guantanamo,
General Geoffrey Miller. Miller implemented the 'more creative'
techniques at Gitmo, was subsequently sent to Abu Ghraib to
“gitmoize” that sadly tragic place, and the rest is history
(including the death of the so-called “Ice Man” and god knows how
many more).
As Scott Horton puts it, Yoo created these memos “as a
roadmap to committing crimes and getting away with it.” The roadmap
worked. The only sad sacks punished for the scandals at Abu Ghraib
have been, as always, the underlings, the so-called “bad apples” in
an otherwise pristine barrel, Pvt. Lynndie England, Sgt. Chip
Frederick, Cpl. Charles Graner. The war criminals really responsible
for those crimes—Yoo and his boss Bybee, Donald Rumseld, Richard
Cheney and his lawyer, David Addington, Alberto Gonzalez, General
Geoffrey Miller, George Tenet and President George W. Bush, among
others—have so far gotten off scott-free.
Perhaps they are all laughing privately amongst themselves.
Then again, perhaps not. Though they may, like John Yoo (now safely,
and to my mind scandalously, welcomed back to his academic post at
Boalt School of Law, UC Berkeley) continue to defend their actions as
necessary in a time of war, perhaps they should also remember that
the conventions against torture specifically state that “no
exceptional circumstances may be invoked as a justification for
torture.” Perhaps they should also remember what Anthony Piel, cited
above, reminds us:
“…there is no statute of limitations on war crimes and crimes against
humanity.”
So here’s to you, John Yoo. You’ve served your masters well,
and duly collected your due. Although, it may be, you’ll yet see
another turn of the screw.
Lawrence DiStasi
Friday, December 14, 2007
How Could they Do It?
Increasingly, we humans are faced with acts that seem unexplainable. How, we ask, could the Nazi Holocaust, the genocides in Armenia, Bosnia, Rwanda, and elsewhere, and most recently, the torture committed by United States troops at Abu Ghraib, have happened? With this in mind, I recently read Iris Chang’s disturbing account of yet another genocidal killing spree, that of Japanese troops against the residents of the Chinese city of Nanking in 1937, all of it detailed in Chang’s The Rape of Nanking (Basic Books, 1997). And the question that Chang poses in at least two places in her book is the one haunting us all these days: How could they do it? How could otherwise rational human beings lose all sense of respect and restraint in order to torture, humiliate, dismember, and violate in every way fellow human beings, and on such a grand scale? Chang offers not one but several answers to explain the events in Nanking—where as many as 300,000 Chinese were slaughtered in a matter of weeks. Among them are the absolute deadliness of absolute power; the specific training which the Japanese military imposed on its soldiers, training them with exercises meant to instill killing instincts; the suppressed rage of those soldiers, themselves treated like dirt by their officers; the “frightening ease” with which all of us can witness and accept genocide as long as the danger is perceived to be far away. All these, and others, especially the training which portrays the enemy as “sub-human,” no doubt operate. But I think there is one more, a usually unspoken one, which relates to some recent thoughts of mine on betrayal (see the blogs, Traitors I and II).
I am referring to a sense one can get when reading about truly unspeakable acts—the vindictive manner with which Japanese soldiers cut off the heads of all Chinese, including women they had just savagely raped; the torture and brutality imposed on little children, pregnant mothers, helpless old people, none of whom could have possibly represented a threat—that more than the numbing of civilized behavior or empathy is at work, that some unspoken animus is at play here. It is as if the soldier, the perpetrator, is blaming his victims, blaming them for being what they are. There is the distinct sense in this, in all sadism perhaps, that the perpetrator is blaming the victim for being something disgusting, something humiliating. The soldier/torturer, that is, first puts the victim in a situation of complete powerlessness, and then blames him or her for being powerless. For groveling. For not standing up to defend himself, but rather begging for his life, demonstrating his willingness to submit to any humiliation in order to be spared.
And what we hear is the interior monologue of the torturer: you disgust me. You are beneath contempt, and therefore do not deserve to live. But why? we want to ask. What is so disgusting? And I think the answer is that you, as a victim, my victim, remind me of what I am, of what I am trying desperately not to be: completely vulnerable, a being who is a hair’s breadth away, always, from dying, from groveling in shit and humiliation myself. This, I think, is the deep fear that is raised by the sight of a completely helpless victim. And, at the same time, what is also raised is an exhilaration that I can, at least for the moment, rise above that horribly rejected condition by treating you as dirt. By destroying you, sending you back to that nothingness from which you came. That is to say, we, our conscious selves, always yearn to be invulnerable, always strive to position ourselves above the mess and perilous brevity of our existence, to see ourselves as somehow not the barely cobbled-together, watery beings we know we are. And the yearning runs on fear.
In a real way, I think, this fear is connected to the fear of reversion I’ve referred to in my ‘Traitor’ series. We all know we are mud and dirt and slime, disgusting from the point of view of so-called “civilization” where we do everything to mute and disguise that origin. We also all know that our determination to pretend to be substantial, permanent, solid, to make our civilized works permanent and solid, stems from our evanescence, from the paltry nature of what we are and how pitifully brief and shaky is our appearance here. Iris Chang refers to this several times in her book, when she comments again and again on the “thin veneer of civilization” that can vanish so easily and quickly in a genocide. And that is true. And we all know it. And it terrifies us, the knowledge that any of us, all of us, can so easily revert to a state of anarchy, powerlessness, shapelessness. And again, it is precisely that terror which is turned on the victim, turned into rage against the victim who reminds us of our terror. Of the imminence of our reversion to mud and slime and liquefaction.
This, then, is what I think lies at the heart of all this horror and brutality, this exultation in rape and dismemberment and torture and murder in the cruel fashion of which only humans are capable. ‘Don’t remind me of what I am. I hate you for reminding me of what I am. And therefore I will reduce you to the most abject piece of shit and trash imaginable.’ The Nazis did this constantly, routinely to the Jews in concentration camps. And, as Iris Chang demonstrates with chapter and verse, the Japanese in Nanking did this just as routinely. It wasn’t just killing soldiers or civilians who might be dangerous. It was humiliating them even after death. Most were dumped into the Yangtze River, which ran blood for weeks. But the most vivid depiction of what I am referring to occurred in the revolting story of the Japanese dumping the bodies of dead Chinese into pits—the pits which the Chinese had earlier dug in most roads in the vain hope that they could hinder the advance of Japanese tanks. The conquering Japanese responded with the genocidal cruelty which Nanking symbolizes: they filled the pits with Chinese bodies, some still alive, and took pleasure in running over these pits of piled-up bodies now functioning as dirt, with their tanks and trucks. Horror. But more than horror, this cruel inversion of decent burial turned the Chinese bodies into the deepest form of humiliation: ‘You are nothing but roadfill. Roadkill. Inanimate shapeless matter of the most worthless kind.’
Something more than the numbing of civilized behavior in war is needed to explain such horror. Something, I would submit, like what I have referred to above. Something that all of us, however well trained, ignore at our peril.
Lawrence DiStasi
=
I am referring to a sense one can get when reading about truly unspeakable acts—the vindictive manner with which Japanese soldiers cut off the heads of all Chinese, including women they had just savagely raped; the torture and brutality imposed on little children, pregnant mothers, helpless old people, none of whom could have possibly represented a threat—that more than the numbing of civilized behavior or empathy is at work, that some unspoken animus is at play here. It is as if the soldier, the perpetrator, is blaming his victims, blaming them for being what they are. There is the distinct sense in this, in all sadism perhaps, that the perpetrator is blaming the victim for being something disgusting, something humiliating. The soldier/torturer, that is, first puts the victim in a situation of complete powerlessness, and then blames him or her for being powerless. For groveling. For not standing up to defend himself, but rather begging for his life, demonstrating his willingness to submit to any humiliation in order to be spared.
And what we hear is the interior monologue of the torturer: you disgust me. You are beneath contempt, and therefore do not deserve to live. But why? we want to ask. What is so disgusting? And I think the answer is that you, as a victim, my victim, remind me of what I am, of what I am trying desperately not to be: completely vulnerable, a being who is a hair’s breadth away, always, from dying, from groveling in shit and humiliation myself. This, I think, is the deep fear that is raised by the sight of a completely helpless victim. And, at the same time, what is also raised is an exhilaration that I can, at least for the moment, rise above that horribly rejected condition by treating you as dirt. By destroying you, sending you back to that nothingness from which you came. That is to say, we, our conscious selves, always yearn to be invulnerable, always strive to position ourselves above the mess and perilous brevity of our existence, to see ourselves as somehow not the barely cobbled-together, watery beings we know we are. And the yearning runs on fear.
In a real way, I think, this fear is connected to the fear of reversion I’ve referred to in my ‘Traitor’ series. We all know we are mud and dirt and slime, disgusting from the point of view of so-called “civilization” where we do everything to mute and disguise that origin. We also all know that our determination to pretend to be substantial, permanent, solid, to make our civilized works permanent and solid, stems from our evanescence, from the paltry nature of what we are and how pitifully brief and shaky is our appearance here. Iris Chang refers to this several times in her book, when she comments again and again on the “thin veneer of civilization” that can vanish so easily and quickly in a genocide. And that is true. And we all know it. And it terrifies us, the knowledge that any of us, all of us, can so easily revert to a state of anarchy, powerlessness, shapelessness. And again, it is precisely that terror which is turned on the victim, turned into rage against the victim who reminds us of our terror. Of the imminence of our reversion to mud and slime and liquefaction.
This, then, is what I think lies at the heart of all this horror and brutality, this exultation in rape and dismemberment and torture and murder in the cruel fashion of which only humans are capable. ‘Don’t remind me of what I am. I hate you for reminding me of what I am. And therefore I will reduce you to the most abject piece of shit and trash imaginable.’ The Nazis did this constantly, routinely to the Jews in concentration camps. And, as Iris Chang demonstrates with chapter and verse, the Japanese in Nanking did this just as routinely. It wasn’t just killing soldiers or civilians who might be dangerous. It was humiliating them even after death. Most were dumped into the Yangtze River, which ran blood for weeks. But the most vivid depiction of what I am referring to occurred in the revolting story of the Japanese dumping the bodies of dead Chinese into pits—the pits which the Chinese had earlier dug in most roads in the vain hope that they could hinder the advance of Japanese tanks. The conquering Japanese responded with the genocidal cruelty which Nanking symbolizes: they filled the pits with Chinese bodies, some still alive, and took pleasure in running over these pits of piled-up bodies now functioning as dirt, with their tanks and trucks. Horror. But more than horror, this cruel inversion of decent burial turned the Chinese bodies into the deepest form of humiliation: ‘You are nothing but roadfill. Roadkill. Inanimate shapeless matter of the most worthless kind.’
Something more than the numbing of civilized behavior in war is needed to explain such horror. Something, I would submit, like what I have referred to above. Something that all of us, however well trained, ignore at our peril.
Lawrence DiStasi
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