Thursday, April 18, 2013

Torture is a war crime, not a mistake...

Thomas Pickering has overseen the production of a long, straightforward report that America during the Bush administration tortured prisoners. This punctures all the administration/New York Times' vapidities about "enhanced interrogations..."


George W. Bush, Cheney, Rumsfeld and Condi Rice cannot go abroad. If they do, they will be arrested.


At the Super Bowl two years ago, announcers reported that Bush was going to hawk Decision Points in Switzerland. But he was then warned from Europe that he would be arrested. He stayed home.


Condi (my onetime student) snuck into London to watch Olympic basketball protected by America's war criminal ally, Great Britain.


Here is a poem I wrote in February 2011:

Er in ye s

blackwoman among whites

Madame Secretary

cannot g o

Mr. President


can not g o

Mr. Pentagon


bighousein Marylan d

Mr. Cheney

can not g o

a b r o a d


See also here.

In the course of the New York Times article, Scott Shane (as well as Pickering in the Washington Post) invokes the Convention against Torture which was signed by Ronald Reagan in 1986 and ratified by Congress in 1994. Both Shane and Pickering, nonetheless, say only that torture is a "mistake" which must not be repeated as does the Times editorial below.


That torture must be barred is true and important. Nonetheless, the claim is also false. Charles Graner and Lynndie England are in jail for crimes of racist sadism (somehow creepier than ordinary torture) they committed at Abu Ghraib (Cheney, Rumsfeld and Bush go free though having ordered these crimes and water boarding for which the US hanged the Tokyo war criminals). See the straightforward article by Evan Wallach, a J.A.G. officer and judge, on waterboarding from the 2007 Washington Post below, except that Wallach leaves out that conviction for this offense has carried the death penalty...


Torture is a criminal act under international law - the Geneva Conventions, the Convention against Torture - signed and fought for by the United States, and under American law. The Supremacy Clause, Article 6 section 2 of the Constitution, makes treaties signed by the United States the highest law of the land. There are also domestic anti-torture laws. See here.


The unpunished criminality of the American elite contrasts with its jailing of 2.3 million prisoners, 25% of the world's prisoners, many for marijuana possession, and ruining the lives of many young blacks, latinos, and poor whites.

These practices deprive words of freedom of much of their content. America is the biggest police state in the world - for the poor...


Through agreement within the elite consolidated by Obama, those who had committed vast crimes, for instance, murdering over a hundred people in American custody (a Pentagon statistic) like Mr. Dilawar at Bagram, ones which gravely injured Americans, as well as the primary victims, go free.


The New York Times has helped smooth the way for this criminality. Shane's article and the words of its editorial also do this. Torture must be ruled out as a policy, they rightly say. But it is no "mistake."


Torture is a crime.


Here are several pointed letters about the last post here.

Tom Ricks, an historian from Pennsylvania, writes:

"Hi Alan,

Please don't forget to add the A team "Obama and Hillary R. Clinton" to the list of top decsion makers who continue to approve the torture and forced feeding (a form of torture) of the 100+ GITMO prisoners - btw, it was Bill Clinton who FIRST began the "retention program" and I have voted Democrat for most of my life!



Fred Dallmayr, an old friend and a political theorist intolerant of Imperial vaporing, writes:

"Dear Alan, thank you thank you thank you for distributing this information. How can one not be terribly ashamed of what this country is doing to some people??? Yours, Fred"


Jin Wilkinson notes:


Amy Goodman (Democracy Now) is talking about the hunger strike but I don’t know who else is. I think it was Washington who said, “These are the times that try men’s souls.” Has the Left EVER been weaker and more powerless? You are an historian so you should know.

If I remember, I will submit a prayer request for the Gitmo prisoners next Sunday. Jack Nicholson said it best, “You can’t handle the truth!” Just saw “One Flew Over the Cuckoo’s Nest” at the Conference on World Affairs Cinema Interuptus. I learn a lot more there than I do listening to the guests. David Corn, the Washington editor of Mother Jones, wouldn’t talk about Amy Goodman.

As an historian, I don’t need to say to you that what is not said is often more powerful than what is. As Paul Newman said in “Cool Hand Luke,” “Sometimes nothing is a real cool hand.” And Jesus said, “Know the truth and the truth will set you free.”

REAL History now does what true journalism is supposed to do: afflict the comfortable and comfort the afflicted. I wish there were more of you.



Ted Ricks (Tom's brother) adds:

"Hi Tom and Alan,

We know that “extraordinary rendition” - – was launched in 2003 as the PBS Frontline documentary Egypt among many sites -

Obama did close down – or at least claimed to have - all “black sites” and torture except for Guantanamo Bay Naval Base where some 166 prisoners now languish [conducting a hunger strike in the face of torture is courageous and not remotely "languishing"...).

Despite 11 years of imprisonment in Gitmo and military trials, only 2 people - from the 6,000 + rounded up in Iraq and Afghanistan - have been found guilty of war crimes in Guantanamo Bay:

David Hicks, an Australian citizen, was found guilty in a plea bargain, of providing material support for terrorism in 2001, according to his military lawyer under retrospective legislation introduced in 2006.

Salim Hamdan was convicted of being Osama bin Laden's chauffeur. After his release, he appealed his case. On October 16, 2012, the United States Court of Appeals for the District of Columbia Circuit vacated Hamdan's conviction, on the grounds that the acts he was charged with under the Military Commissions Act of 2006 were not, in fact, crimes at the time he committed them, rendering it an ex post facto prosecution.

Ali al-Bahlul was convicted of making a video celebrating the attack on the USS Cole.

This roundup and torture from 2002-2008 is a criminal period of American history that has been reported on by many, most notably by Jane Mayer’s “The Dark Side” and Alfred McCoy’s “A Question of Torture.” It has most recently being investigated by the “Constitution Project for Task Force on Detainees Treatment” with a report due this spring -

I agree that It is time to stop this miscarriage of justice in Guantanamo Bay.



Here is Scott Shane's story from the frontpage of the Times:

April 16, 2013
U.S. Engaged in Torture After 9/11, Review Concludes

WASHINGTON — A nonpartisan, independent review of interrogation and detention programs in the years after the Sept. 11, 2001, terrorist attacks concludes that “it is indisputable that the United States engaged in the practice of torture” and that the nation’s highest officials bore ultimate responsibility for it.

The sweeping, 577-page report says that while brutality has occurred in every American war, there never before had been “the kind of considered and detailed discussions that occurred after 9/11 directly involving a president and his top advisers on the wisdom, propriety and legality of inflicting pain and torment on some detainees in our custody.” The study, by an 11-member panel convened by the Constitution Project, a legal research and advocacy group, is to be released on Tuesday morning.

Debate over the coercive interrogation methods used by the administration of President George W. Bush has often broken down on largely partisan lines. The Constitution Project’s task force on detainee treatment, led by two former members of Congress with experience in the executive branch — a Republican, Asa Hutchinson, and a Democrat, James R. Jones — seeks to produce a stronger national consensus on the torture question.

While the task force did not have access to classified records, it is the most ambitious independent attempt to date to assess the detention and interrogation programs. A separate 6,000-page report on the Central Intelligence Agency’s record by the Senate Intelligence Committee, based exclusively on agency records, rather than interviews, remains classified.

“As long as the debate continues, so too does the possibility that the United States could again engage in torture,” the report says.

The use of torture, the report concludes, has “no justification” and “damaged the standing of our nation, reduced our capacity to convey moral censure when necessary and potentially increased the danger to U.S. military personnel taken captive.” The task force found “no firm or persuasive evidence” that these interrogation methods produced valuable information that could not have been obtained by other means. While “a person subjected to torture might well divulge useful information,” much of the information obtained by force was not reliable, the report says.

Interrogation and abuse at the C.I.A.’s so-called black sites, the Guantánamo Bay prison in Cuba and war-zone detention centers, have been described in considerable detail by the news media and in declassified documents, though the Constitution Project report adds many new details.

It confirms a report by Human Rights Watch that one or more Libyan militants were waterboarded by the C.I.A., challenging the agency’s longtime assertion that only three Al Qaeda prisoners were subjected to the near-drowning technique. It includes a detailed account by Albert J. Shimkus Jr., then a Navy captain who ran a hospital for detainees at the Guantánamo Bay prison, of his own disillusionment when he discovered what he considered to be the unethical mistreatment of prisoners.

But the report’s main significance may be its attempt to assess what the United States government did in the years after 2001 and how it should be judged. The C.I.A. not only waterboarded prisoners, but slammed them into walls, chained them in uncomfortable positions for hours, stripped them of clothing and kept them awake for days on end.

The question of whether those methods amounted to torture is a historically and legally momentous issue that has been debated for more than a decade inside and outside the government. The Justice Department’s Office of Legal Counsel wrote a series of legal opinions from 2002 to 2005 concluding that the methods were not torture if used under strict rules; all the memos were later withdrawn. News organizations have wrestled with whether to label the brutal methods unequivocally as torture in the face of some government officials’ claims that they were not.

In addition, the United States is a signatory to the international Convention Against Torture, which requires the prompt investigation of allegations of torture and the compensation of its victims.

Like the still-secret Senate interrogation report, the Constitution Project study was initiated after President Obama decided in 2009 not to support a national commission to investigate the post-9/11 counterterrorism programs, as proposed by Senator Patrick J. Leahy, Democrat of Vermont, and others. Mr. Obama said then that he wanted to “look forward, not backward.” Aides have said he feared that his own policy agenda might get sidetracked in a battle over his predecessor’s programs.

The panel studied the treatment of prisoners at Guantánamo Bay, in Afghanistan and Iraq, and at the C.I.A’s secret prisons. Staff members, including the executive director, Neil A. Lewis, a former reporter for The New York Times, traveled to multiple detention sites and interviewed dozens of former American and foreign officials, as well as former detainees.

Mr. Hutchinson, who served in the Bush administration as chief of the Drug Enforcement Administration and under secretary of the Department of Homeland Security, said he “took convincing” on the torture issue. But after the panel’s nearly two years of research, he said he had no doubts about what the United States did.

“This has not been an easy inquiry for me, because I know many of the players,” Mr. Hutchinson said in an interview. He said he thought everyone involved in decisions, from Mr. Bush down, had acted in good faith, in a desperate effort to try to prevent more attacks.

“But I just think we learn from history,” Mr. Hutchinson said. “It’s incredibly important to have an accurate account not just of what happened but of how decisions were made.”

He added, “The United States has a historic and unique character, and part of that character is that we do not torture.”

The panel found that the United States violated its international legal obligations by engineering “enforced disappearances” and secret detentions. It questions recidivism figures published by the Defense Intelligence Agency for Guantánamo detainees who have been released, saying they conflict with independent reviews.

It describes in detail the ethical compromise of government lawyers who offered “acrobatic” advice to justify brutal interrogations and medical professionals who helped direct and monitor them. And it reveals an internal debate at the International Committee of the Red Cross over whether the organization should speak publicly about American abuses; advocates of going public lost the fight, delaying public exposure for months, the report finds.

Mr. Jones, a former ambassador to Mexico, noted that his panel called for the release of a declassified version of the Senate report and said he believed that the two reports, one based on documents and the other largely on interviews, would complement each other in documenting what he called a grave series of policy errors.

“I had not recognized the depths of torture in some cases,” Mr. Jones said. “We lost our compass.”

While the Constitution Project report covers mainly the Bush years, it is critical of some Obama administration policies, especially what it calls excessive secrecy. It says that keeping the details of rendition and torture from the public “cannot continue to be justified on the basis of national security” and urges the administration to stop citing state secrets to block lawsuits by former detainees.

The report calls for the revision of the Army Field Manual on interrogation to eliminate Appendix M, which it says would permit an interrogation for 40 consecutive hours, and to restore an explicit ban on stress positions and sleep manipulation.
The core of the report, however, may be an appendix: a detailed 22-page legal and historical analysis that explains why the task force concluded that what the United States did was torture. It offers dozens of legal cases in which similar treatment was prosecuted in the United States or denounced as torture by American officials when used by other countries.

The report compares the torture of detainees to the internment of Japanese Americans during World War II. “What was once generally taken to be understandable and justifiable behavior,” the report says, “can later become a case of historical regret.”


April 16, 2013
Indisputable Torture

A dozen years after the terrorist attacks of Sept. 11, 2001, an independent, nonpartisan panel’s examination of the interrogation and detention programs carried out in their aftermath by the Bush administration may seem to be musty old business. But the sweeping report issued on Tuesday by an 11-member task force convened by the Constitution Project, a legal research and advocacy group, provides a valuable, even necessary reckoning.

The work of the task force, led by two former congressmen — Asa Hutchinson, a Republican, who served in the Bush administration as under secretary of the Department of Homeland Security, and James Jones, a Democrat, who was an ambassador to Mexico during the Clinton years — is informed by interviews with dozens of former American and foreign officials, as well as with former prisoners.

It is the fullest independent effort so far to assess the treatment of detainees at Guantánamo Bay, in Afghanistan and Iraq, and at the C.I.A.’s secret prisons. Those who sanctioned the use of brutal methods, like former Vice President Dick Cheney, will continue to defend their use. But the report’s authoritative conclusion that “the United States engaged in the practice of torture” is impossible to dismiss by a public that needs to know what was committed in the nation’s name.

The report found that those methods violated international legal obligations with “no firm or persuasive evidence” that they produced valuable information that could not have been obtained by other means. This blunt language should help end a corrosive debate that has broken down on largely partisan lines.

Reaching a stronger national consensus on the issue of torture is crucial because, as the report says, “as long as the debate continues, so too does the possibility that the United states could again engage in torture.” The task force found that using torture — like waterboarding, slamming prisoners into walls, and chaining them in uncomfortable stress position for hours — had “no justification” and “damaged the standing of our nation, reduced our capacity to convey moral censure when necessary and potentially increased the danger to U.S. military personnel taken captive.” And in engineering “enforced disappearances” and secret detentions, the United States violated its international treaty obligations. A detailed 22-page appendix cites dozens of legal cases in which the United States prosecuted similar treatment or denounced it as torture when carried out by other countries.

Brutality is not uncommon in warfare. But, as the panel notes, there never was before “the kind of considered and detailed discussions that occurred after 9/11 directly involving a president and his top advisers on the wisdom, propriety and legality of inflicting pain and torment on some detainees in our custody.”

The panel further details the ethical lapses of government lawyers in the Bush years who served up “acrobatic” advice to justify brutal interrogations, and of medical professionals who helped oversee them. It is also rightly critical of the Obama administration’s use of expansive claims of secrecy to keep the details of rendition and torture from becoming public and to block victims’ lawsuits.

The report’s appearance all these years later is a reminder of the lost opportunity for a full accounting in 2009 when President Obama chose not to support a national commission to investigate the post-9/11 detention and interrogation programs. At that time, Mr. Obama said he wanted to “look forward, not backward.” But identifying past mistakes so they can be avoided is central to looking forward. The Constitution Project’s effort is a good step in that direction. But the portrait of what happened is still incomplete. For starters, a separate 6,000-page report by the Senate Intelligence Committee, based on Central Intelligence Agency records, has yet to be declassified and made public. The next step should be its release. There is no excuse for further delay.


America must atone for the torture it inflicted
By Thomas R. Pickering, Published: April 16
Thomas R. Pickering is a member of the Constitution Project’s Task Force on Detainee Treatment. He was undersecretary of state for political affairs from 1997 to 2001 and served as ambassador and representative to the United Nations from 1989 to 1992.

It’s never easy in this volatile world to advance America’s strategic aims. For more than four decades, in the service of Democratic and Republican presidents, it was often my job to persuade foreign governments to adhere to international law and observe the highest standards of conduct in human rights — including the strict prohibition of torture. A report released Tuesday by an independent task force on detainee treatment (to which I contributed) makes it clear that U.S. officials could have used the same advice.

Unfortunately, the U.S. government’s use of torture against suspected terrorists, and its failure to fully acknowledge and condemn it, has made the exercise of diplomacy far more daunting. By authorizing and permitting torture in response to a global terrorist threat, U.S. leaders committed a grave error that has undermined our values, principles and moral stature; eroded our global influence; and placed our soldiers, diplomats and intelligence officers in even greater jeopardy.

It’s not just the Bush-Cheney administration that bears responsibility for diminished U.S. standing, although the worst abuses undeniably took place in the years immediately after the Sept. 11, 2001, attacks. The Obama administration also has failed to be as open and accountable on such fundamental questions of law, morality and principle as a great power that widely supports human rights needs to be.

What can be done to mitigate the damage and set this country on a better course? First and foremost, Americans need to confront the truth. Let’s stop resorting to euphemisms and call “enhanced interrogation techniques” — including but not limited to waterboarding — what they actually are: torture. Torturing detainees flies in the face of principles and practices established in the founding of our republic, and it violates U.S. law and international treaties to which we are a party. Subjecting detainees to torture, no matter how despicable their alleged crimes, runs counter to the values embodied in the U.S. Constitution.

Too much information about the abuse of detainees remains hidden from the American people. Specifically, the Obama administration’s ongoing concealment of the details about our use of torture has made it impossible for the United States to comply with its legal obligations under the U.N. Convention Against Torture and has contributed to a disturbing level of public support for torturing suspected terrorists.

President Obama should direct relevant officials to declassify as many related documents as possible as quickly as possible — starting with the more than 6 million pages of classified documents that were the basis for the Senate intelligence committee’s recent report on the CIA’s interrogation program, and the still-secret report itself — so that the American people may finally learn what was done in our name. Admitting our mistakes is the only legitimate basis on which we can reassure the world that America remains committed to the rule of law and to upholding human rights and democratic values.

Second, Congress needs to work with the administration to close the loopholes that allowed torture to occur under a pretense of legality. In 2009, Obama signed an executive order giving interrogators clear instructions about permissible techniques. But future presidents could reverse course with the stroke of a pen — and no public notice.

To ensure that cannot happen, the federal Anti-Torture Statute should be amended to make clear that the deliberate infliction of severe pain and suffering is torture — regardless of the duration of the torment being inflicted. The War Crimes Act should be amended to make clear that cruel, inhuman or degrading treatment of detainees is a federal crime even when it falls short of torture. Instead of being told to rely on secret legal memos or doctors’ unethical monitoring of brutal interrogation sessions, interrogators should be given unambiguous orders that all detainees are to be treated in strict compliance with Common Article 3 of the Geneva Conventions, which is the basic provision of international law outlawing torture. And there should be clear, public rules ensuring prompt access to detainees by the International Committee of the Red Cross.

Third, the United States must not transfer detainees to torture in other countries. Such transfers, known as “renditions,” have occurred under Presidents Bill Clinton, George W. Bush and Obama — despite the fact that they violate the Convention Against Torture. In part, this is because of a policy of reliance on “diplomatic assurances” from other countries that detainees would not be tortured, despite clear evidence that these assurances were not credible. In part, this is because the United States has refused to acknowledge that the prohibition against transfers to torture is legally binding outside of U.S. territory. Both must change.

Democracy and torture cannot peacefully coexist in the same body politic. Successful human rights diplomacy and torture can’t either. Our country and its place in the world — as well as the Americans bravely serving in military, intelligence and diplomatic posts around the globe — deserve nothing less.

Waterboarding Used to Be a Crime

By Evan Wallach
Sunday, November 4, 2007

As a JAG in the Nevada National Guard, I used to lecture the soldiers of the 72nd Military Police Company every year about their legal obligations when they guarded prisoners. I'd always conclude by saying, "I know you won't remember everything I told you today, but just remember what your mom told you: Do unto others as you would have others do unto you." That's a pretty good standard for life and for the law, and even though I left the unit in 1995, I like to think that some of my teaching had carried over when the 72nd refused to participate in misconduct at Iraq's Abu Ghraib prison.

Sometimes, though, the questions we face about detainees and interrogation get more specific. One such set of questions relates to "waterboarding."

That term is used to describe several interrogation techniques. The victim may be immersed in water, have water forced into the nose and mouth, or have water poured onto material placed over the face so that the liquid is inhaled or swallowed. The media usually characterize the practice as "simulated drowning." That's incorrect. To be effective, waterboarding is usually real drowning that simulates death. That is, the victim experiences the sensations of drowning: struggle, panic, breath-holding, swallowing, vomiting, taking water into the lungs and, eventually, the same feeling of not being able to breathe that one experiences after being punched in the gut. The main difference is that the drowning process is halted. According to those who have studied waterboarding's effects, it can cause severe psychological trauma, such as panic attacks, for years.

The United States knows quite a bit about waterboarding. The U.S. government -- whether acting alone before domestic courts, commissions and courts-martial or as part of the world community -- has not only condemned the use of water torture but has severely punished those who applied it.

After World War II, we convicted several Japanese soldiers for waterboarding American and Allied prisoners of war. At the trial of his captors, then-Lt. Chase J. Nielsen, one of the 1942 Army Air Forces officers who flew in the Doolittle Raid and was captured by the Japanese, testified: "I was given several types of torture. . . . I was given what they call the water cure." He was asked what he felt when the Japanese soldiers poured the water. "Well, I felt more or less like I was drowning," he replied, "just gasping between life and death."

Nielsen's experience was not unique. Nor was the prosecution of his captors. After Japan surrendered, the United States organized and participated in the International Military Tribunal for the Far East, generally called the Tokyo War Crimes Trials. Leading members of Japan's military and government elite were charged, among their many other crimes, with torturing Allied military personnel and civilians. The principal proof upon which their torture convictions were based was conduct that we would now call waterboarding.

In this case from the tribunal's records, the victim was a prisoner in the Japanese-occupied Dutch East Indies:

A towel was fixed under the chin and down over the face. Then many buckets of water were poured into the towel so that the water gradually reached the mouth and rising further eventually also the nostrils, which resulted in his becoming unconscious and collapsing like a person drowned. This procedure was sometimes repeated 5-6 times in succession.

The United States (like Britain, Australia and other Allies) pursued lower-ranking Japanese war criminals in trials before their own tribunals. As a general rule, the testimony was similar to Nielsen's. Consider this account from a Filipino waterboarding victim:

Q: Was it painful?

A: Not so painful, but one becomes unconscious. Like drowning in the water.

Q: Like you were drowning?

A: Drowning -- you could hardly breathe.

Here's the testimony of two Americans imprisoned by the Japanese:

They would lash me to a stretcher then prop me up against a table with my head down. They would then pour about two gallons of water from a pitcher into my nose and mouth until I lost consciousness.

And from the second prisoner: They laid me out on a stretcher and strapped me on. The stretcher was then stood on end with my head almost touching the floor and my feet in the air. . . . They then began pouring water over my face and at times it was almost impossible for me to breathe without sucking in water.

As a result of such accounts, a number of Japanese prison-camp officers and guards were convicted of torture that clearly violated the laws of war. They were not the only defendants convicted in such cases. As far back as the U.S. occupation of the Philippines after the 1898 Spanish-American War, U.S. soldiers were court-martialed for using the "water cure" to question Filipino guerrillas.

More recently, waterboarding cases have appeared in U.S. district courts. One was a civil action brought by several Filipinos seeking damages against the estate of former Philippine president Ferdinand Marcos. The plaintiffs claimed they had been subjected to torture, including water torture. The court awarded $766 million in damages, noting in its findings that "the plaintiffs experienced human rights violations including, but not limited to . . . the water cure, where a cloth was placed over the detainee's mouth and nose, and water producing a drowning sensation."

In 1983, federal prosecutors charged a Texas sheriff and three of his deputies with violating prisoners' civil rights by forcing confessions. The complaint alleged that the officers conspired to "subject prisoners to a suffocating water torture ordeal in order to coerce confessions. This generally included the placement of a towel over the nose and mouth of the prisoner and the pouring of water in the towel until the prisoner began to move, jerk, or otherwise indicate that he was suffocating and/or drowning."

The four defendants were convicted, and the sheriff was sentenced to 10 years in prison.

We know that U.S. military tribunals and U.S. judges have examined certain types of water-based interrogation and found that they constituted torture. That's a lesson worth learning. The study of law is, after all, largely the study of history. The law of war is no different. This history should be of value to those who seek to understand what the law is -- as well as what it ought to be.

Evan Wallach, a judge at the U.S. Court of International Trade in New York, teaches the law of war as an adjunct professor at Brooklyn Law School and New York Law School.

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