Wednesday, October 22, 2014

How the Presidency corrupts: the pseudo-"legalization" and renewal of torture

Over the course of his term and a half in office, the constitutional lawyer Barack Obama has apparently been converted from an opponent of torture - someone who rightly recognized that this has made America odious in the world; take the pictures of Abu Ghraib including killings and the pictures of IS beheadings and one will not feel that America, despite its occasional affection for human rights, is much more "civilized" - into a protector of torturers. Now he has become someone who might leave the door open - the CIA is pushing - for restored future torture.


Obama quickly became a killer using drones in countries with which the US is not at war (Pakistan, Somalia, Yemen). He makes use of a secret, private (outside regular military command) army with 66,000 troops, the Joint Special Operations Command, doing operations all over the world (see Jeremy Scahill, Dirty Wars) A regime in which the leader has a private army is a called a tyranny.


The JSOC became public a little when these troops took out Bin Laden (the JSOC assistant commander was the one of the phone in the famous shot of Obama, Hilary, Joe Biden and others awaiting word at the White House). This was a rare, decent American use of force, though, of course, the US, a pretty cowardly and lawless country, could not bring him back for trial.

Obama took him out without the use of drones.


America continues to use drones while killing many civilians. Obama's counselor (consigliere?) Brennan (an horrific war criminal under Bush and today) is now the head of the CIA. As Sullivan underlines below, he lied to Congress about the CIA spying on the Committee charged with overseeing it. Under Obama's "leadership", the report of that Senate Committee has till now not been released. The CIA is still gutting it.


As Sullivan's second post reveals, the Senate report contains a document by Leon Panetta, then head of the CIA, acknowledging the ineffectiveness of torture (something long known; Cheney was barraged by this criticism and ignored it). Trust secret tyrannical government and in addition to murder and butchery of innocent people and disgrace, one gets incompetence, and then, comic book or Hollywood efforts (breaks ins at the Senate office) to cover it up.

Brennan makes Watergate look professional...


Is the American government transparent, as Obama promised, to the people, or are the people transparent to the CIA, a secret government, along with the NSA?


As Bertolt Brecht once wrote of the East German government, will the CIA dissolve the people (and the law and the Congress) and elect a new one? Will they be airbrushed by the Pentagon, the JeffCO School Board and others practitioners/apologists for horrors? See here.


American democracy, even under Obama who promised something different and not just Bush-Cheney, is increasingly an alienated police state, the law and any division of powers fading. Note the power of the Senate against the CIA...

This is the opposite of what a democracy, and even the Constitutional design, the separation and balance of powers a la Montesquieu, mandates. It is not fully developed yet. But it is developing rapidly and its increasing consumption of Obama as a comparatively decent public figure is sad.


Howard Koh wrote a 90 page legal memo on what the law on torture is. The New York Times and Sullivan invoke it below. But the Bush/Cheney ("Mr. Dark Side") administration, for evil purposes - torture and murder - and the CIA which carried them out invented a ridiculous doctrine that the US is not legally obligated to obey treaties it has signed (Article 6 section 2 of the Constitution, the Supremacy Clause, makes such treaties the highest law of the land). It says the US is not obligated to obey treaties against torture, the centerpiece of international law, that America has long fought for.


The American military base at Guantanamo, Bush said, was "foreign" territory - any child could point to the naked Emperor's fanciful clothes here - and torture, indefinite detention and murder by American troops/intelligence agents there, are not barred by American law. That Mr. Bush should be undergoing proceedings in a court for his own chance to don an orange jumpsuit - he deserves decent treatment in an American prison - is, unfortunately, obvious.

The Congress led by McCain (who, of course, gave up his convictions to seek the Republican nomination for President - the ring of power, see here - and has been a sad character ever since) said explicitly that American bases abroad are American territory. As Sullivan notes,

"Here, moreover, is the text of the Detainee Treatment Act, pioneered by torture victim John McCain, making it even more explicit:

(a) No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

(b) Construction. Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section."


You might think Congress was writing for belligerent ninnies (and not Constitutional Law Professors from the University of Chicago) with statement b. But that is exactly the nonexistent loophole (see David Luban below) that Bush claimed, the nonexistent loophole that the CIA inside the Obama administration desperately seeks despite many other laws and even this obvious construction (2+2=4 is to be construed as 2+2...).


All of those who participated in these crimes, meaning those who ordered them and those who carried them out including social "scientists" like Mitchell and Jesson, are criminals under international and American law, and need legal proceedings.


The State Department rightly wants to drive a stake through the vampire's (the CIA's) heart. They want to have the rule of law and America to be respected again (why Obama got the Nobel Peace Prize...).


The CIA and some "military" officials are trying to defeat the law. If they can abolish the rule of law, then there is "legally" no crime (lots of murdered people in American custody however, blood on Brennan's hands...).


Colin Powell is the only official in the Bush administration who has a defense on torture because he argued for the standard military rule: "you torture them; they torture you" - who, again, provided the example to IS?


Charles Savage broke this important story (less clearly than he might have) in the New York Times here. Obama is thinking, perhaps his long game, of consolidating the torture apparatus. He is sacrificing the common good and decency, and one of the proudest moments, as the Times puts it, of his Presidency to do this. For if he leaves this loophole, as Sullivan says, certainly a Republican President or a zealous, 3:AM Hillary Clinton might go for it. Rand Paul is the only Presidential candidate so far outside the orbit of this, but he has already moved to support Israel - a wild, torturer state as Occupier of the Palestinians which has influenced the US to adopt torture and naked aggression during the Bush administration (for instance, the Wurmsers and Richard Perle who had been Netanyahu advisers and then came here). Here too, as with Hillary, the corrupting effect of the Presidency is already in evidence (talk about the ring of power, the ring of Gyges...See here).


A large secret police is a dangerous institution for a democracy (the CIA, the FBI), one which which is very likely to destroy it (consider, for example, Iran-Contra). It is part of the militarism or war complex which dominates American government, something that Obama warned against eloquently in his speech at the National Defense University last year - militarism leads to authoritarianism - and now, making another, a third, foolish war in Iraq is in the thrall of.


The CIA is an anti-democratic institution. It has been since its inception (there are many good people who have gone into the CIA, for example Ray McGovern, but its corrupting effects on America are startling). It has overthrown some 15 non white democracies, aided in torture around the world, for instance, training the Savak in the Shah's Iran, murdering some 20,000 village leaders in Vietnam (Operation Phoenix), become the torturers under Bush, fight right now to carry on torture in plain sight.


The fate of the rule of the law and the decency of America hang it the balance. The Times and Sullivan call Obama out on this. Every one of us should...


"Close the Overseas Torture Loophole
President Obama and the Convention Against Torture

One of the proudest moments of President Obama’s presidency took place on his second day in office, when he signed an executive order that banned torture and cruel treatment in the interrogation of terror suspects.

But apparently some of his subordinates didn’t get the message. As Charlie Savage of The Times reported on Sunday, some military and intelligence lawyers in the administration are pressuring the White House to adopt a Bush-era position that there is no bar against the use of torture by the United States outside American borders. And, unfortunately, the White House is considering the proposal.

The issue has come up because the United States is required to appear in Geneva next month before the United Nations committee that monitors compliance with the global Convention Against Torture, adopted in 1984 and ratified by the United States 10 years later. State Department lawyers want the administration to abandon the position of the George W. Bush administration and state plainly that it will not engage in torture or cruel treatment of prisoners anywhere in the world, including at detention camps on foreign soil.

But military and intelligence officials don’t want the administration to make that public statement. They’re worried that such a declaration could result in the prosecution of the Bush-era officials who did practice torture.

That fear seems misplaced. There should be legal accountability from those who tarnished the country’s reputation by ordering and practicing torture, but it’s hard to see how agreeing to a global ban on torture now would increase the chances for such a prosecution. For one thing, Congress already passed a law in 2005 saying that no one in American custody shall be subjected to cruel, inhuman and degrading treatment “regardless of nationality or physical location.” Mr. Bush reserved the right to bypass the law, but the plain language of the statute is quite clear.

Last year, Harold Koh, then the top lawyer in the State Department, wrote a detailed, 90-page memo explaining why there was no legal basis to claim that the United Nations torture treaty didn’t apply to American officials acting overseas. The White House says it still prohibits torture or cruel treatment anywhere, but considers the treaty question a “technical” matter worthy of review.

Nearly six years after he stopped the practice, President Obama should not consider any legal loophole that might permit an American official to engage in torture or cruelty, no matter where it takes place. A clear position in Geneva would send a strong message that humane treatment isn’t just an Obama administration policy, but rather permanent national and international law."


"Obama And Torture: Another Win For The CIA?
Andrew Sullivan, the Daily Dish
OCT 20 2014 @ 12:15PM
Obama Departs The White House En Route To New York

There have been posts I’ve written over the past decade and a half on this blog that have left me with a very heavy heart. Absorbing the full meaning of what was revealed at Abu Ghraib was one; reflecting on the horrifying child-abuse in the Catholic church was another; reacting to president Bush’s endorsement of a Federal Marriage Amendment or president Obama’s half-assed decision to re-fight the Iraq War one more time were not exactly easy posts to compose. I confess I find it hard to write dispassionately about these kinds of things. The abuse of children; the torture of prisoners; the madness of permanent warfare; and the citizenship and dignity of gay people: these are first order questions for me. I understand, as we all must, that politics is an inherently flawed, imperfect, deeply human and always compromised activity. But some things are not really open to compromise. And torture is one of them.

The mounting evidence that president Obama’s long game may well mean the entrenchment and legitimization of torture and abuse of prisoners is a deeply painful thing to report on. He’ll say otherwise; they’ll reach out and insist otherwise. But the record, alas, is getting clearer by the day. We have seen Obama’s rock-solid support for John Brennan’s campaign to prevent any accountability, even to the point of spying on the Senate Committee tasked with oversight, across his two terms. We have watched as the White House has refused to open up its own records for inspection, as it has allowed the CIA to obstruct, slow-walk and try to redact to meaninglessness the Senate Intelligence Committee’s still-stymied report on torture. Our jaws have dropped as the president has reduced one of the gravest crimes on the statute book to “we tortured some folks,” while doing lots of “good things” as well.

Now for the moment when the stomach lurches. The Obama administration is actually now debating whether the legal ban on torture by the CIA in black sites and brigs and gulags outside this country’s borders should be explicitly endorsed by the administration in its looming presentation before the UN’s Committee Against Torture (which might well be an interesting session, given the administration’s consistent refusal to enforce the Geneva Conventions).

One has to ask a simple question: what on earth is there to debate? Torture as well as cruel, inhuman and degrading treatment has already been banned by the executive order of the president, and it is not bound by any geographical limits. Here, moreover, is the text of the Detainee Treatment Act, pioneered by torture victim John McCain, making it even more explicit:

(a) No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

(b) Construction. Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section.

Well: here is the explanation, as given by Charlie Savage in the NYT yesterday:

Military and intelligence lawyers are said to oppose accepting that the treaty imposes legal obligations on the United States’ actions abroad. They say they need more time to study whether it would have operational impacts. They have also raised concerns that current or future wartime detainees abroad might invoke the treaty to sue American officials with claims of torture, although courts have repeatedly thrown out lawsuits brought by detainees held as terrorism suspects.

The CIA’s lawyers want more time to study whether banning torture and cruel, inhuman or degrading treatment of prisoners in line with the law and Obama’s executive order would have “operational impacts”. But how could it when torture and mistreatment are hereby forever banned? Doesn’t it imply that the CIA still sees an option for restoring torture in the future, especially if a pro-torture Republican wins the presidency?

A strong case for this interpretation can be read here in a post by David Luban. It’s essential, if complex, legal reading for anyone concerned that Obama, by taking the CIA’s side in this debate and promoting and exonerating those implicated in past torture, has actually left open the real possibility of this darkness descending again.

Savage has tweeted in response that “operational impacts” could merely refer to conditions of confinement, or force-feeding, rather than to torture and abuse more broadly understood. But the question is still vague – and we know enough about the appalling record of the CIA in this matter to suspect that even the tiniest loophole in the anti-torture regime – like those dutifully carved by Yoo, Bybee et al. – can lead to more war crimes, whose very existence can be suppressed.

You can see the inherent danger here:

Bernadette Meehan, a National Security Council spokeswoman, said Mr. Obama’s opposition to torture and cruel interrogations anywhere in the world was clear, separate from the legal question of whether the United Nations treaty applies to American behavior overseas.

Say what? Is she really saying that all that matters is that Obama personally opposes torture, regardless of whether the law says so or not? Does the administration think we’re that easily placated? Does the president think that another empty rhetorical gesture to his base will suffice – even though his administration intends to be mealy-mouthed about torture in front of the UN Committee and leave a gaping loophole for the next president to exploit?

Presidents come and go; Congressional majorities go back and forth; but the CIA remains. Because this administration never even considered enforcing the Geneva Conventions on the US – by refusing to investigate and prosecute acts of torture and abuse by government officials under the previous administration – the CIA knows it can get away with war crimes in plain sight. Emboldened by that knowledge, and eager to prove that its previous actions were completely legit, it seeks now to find ways to cover up the record, and get the Obama administration to endorse a loophole for the perpetuation of torture, thus cementing a bipartisan protection of war criminals and of war crimes and prisoner abuse. It does all this for the future: so that it will never be held accountable by any body, domestic or international, and so that it can torture and abuse again, if it decides it’s in the country’s best interests. And only it will make that decision. We know by now it needs no other sanction – just some legal shenanigans to cover its own ass.

So we have a true test of what this president is made of, as the administration preps for its first appearance before the UN Committee. Is this president serious about torture? Or is he a pawn, like so many before him, of a rogue agency that is accountable to no one?"


"Andrew Sullivan
The Daily Dish

The Struggle For Accountability On Torture
OCT 22 2014 @ 11:26AM
Redacted Document - see here.

A new story in the Huffington Post confirms what I’ve been fearing for a while now: that the Obama White House, in particular chief of staff Denis McDonough, is now pulling out all the stops to protect the CIA as far as humanly possible from any accountability over its torture program. If you want to know why the report has been stymied, and why something that was completed two years ago cannot even get the executive summary in front of the American people, the answer, I’m afraid, is the president.

You’d think his chief-of-staff would have better things to do right now than plead with Senators to protect and defend John Brennan, the CIA director who has put up a ferocious fight to avoid any accountability. But no:

During the last weeks of July, the intelligence community was bracing itself for the release of the Senate investigation’s executive summary, which is expected to be damning in its findings against the CIA. The report was due to be returned to the Senate panel after undergoing an extensive declassification review, and its public release seemed imminent.

Over the span of just a few days, McDonough, who makes infrequent trips down Pennsylvania Avenue, was a regular fixture, according to people with knowledge of his visits. Sources said he pleaded with key Senate figures not to go after CIA Director John Brennan in the expected furor that would follow the release of the report’s 500-page executive summary.

Weird, huh? What is at the heart of this Brennan-McDonough alliance? And then this staggering detail:

According to sources familiar with the CIA inspector general report that details the alleged abuses by agency officials, CIA agents impersonated Senate staffers in order to gain access to Senate communications and drafts of the Intelligence Committee investigation. These sources requested anonymity because the details of the agency’s inspector general report remain classified. “If people knew the details of what they actually did to hack into the Senate computers to go search for the torture document, jaws would drop. It’s straight out of a movie,” said one Senate source familiar with the document.

All of this is out of a really bad movie: CIA goons torturing prisoners with abandon, destroying evidence of war crimes, hacking into the Senate Committee’s computers, impersonating Senate staffers and on and on.

What really seems to have set off the alarm bells is what’s called the Panetta Report, an internal CIA review of its own torture program that somehow (almost certainly accidentally) got included in the document dump given to the Committee. That report is, by all accounts, damning about the torture program, especially its vaunted “effectiveness.” And you can see why Brennan panicked. How will the CIA attack the Senate report if its own report had come to the exact same conclusion? That’s what set off this drama – because Brennan knew at that point that the CIA was busted. Since then he and McDonough have done all they can to bury the truth, even as they are “debating” whether to allow a loophole for torture if conducted overseas.

What’s also disturbing is the weakness of the Democrats, with a few exceptions (thank God for Wyden and Udall). Feinstein seems to have retreated to her usual supine role, and there’s a sense that the political climate – with ISIS hysteria at epic levels – makes this kind of accountability politically toxic. You get a flavor of how the CIA will play this from this quote in the HuffPo piece:

“At a time when ISIS is on the march and beheading American journalists, some Democrats apparently think now is not the time to be advocating going soft on terrorists. The speculation I hear is that the Senate Democrats will wait until the elections are safely over,” said Robert Grenier, a veteran CIA officer who was the top counterterrorism official from 2004 to 2006.

No one is advocating “going soft” on terrorists. We’re advocating the rule of law and core adherence to the Geneva Conventions and a thorough review of war crimes under the last administration. Those are not weaknesses in a democracy’s fight against Jihadist terror. They are strengths. And they are not negotiable.

What I worry about is if the Republicans win the Senate next month, they could bury the report for good. I simply have to hope – remember that? – that the president means what he has always said, and that massive evidence of war crimes is not buried, even if no one in the CIA or the Bush administration will ever be held accountable for anything.

Release the report. And if it is so damning that Brennan has to go, that’s the price of democratic accountability. No one is indispensable. And no one should be somehow claiming in a democracy that they are.

(Image: A heavily redacted document from the CIA released in 2008)"


"Just Security
Just looking for loopholes…

By David Luban
Sunday, October 19, 2014 at 5:05 PM

…is what W. C. Fields supposedly said when someone found him leafing through the Bible. Apparently some lawyers in the Obama administration are following Fields’s lead, and may succeed in returning to the kind of loophole lawyering of the Bush administration’s “torture memos,” in order to fend off constraints on prisoner abuse abroad.

In today’s New York Times, Charlie Savage reports that the Obama administration is debating whether to circle back to a Bush administration interpretation of the Convention Against Torture’s ban on cruel, inhuman, and degrading treatment (CIDT) that doesn’t rise to the level of torture. The relevant treaty language is this (article 16 of CAT):

“Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture.”

The Bush administration understood this to mean that there are no obligations to prevent CIDT outside the territorial jurisdiction of the United States — in particular, in U.S. interrogation facilities abroad. Congress closed that loophole in 2005, and so did President Obama in Executive Order 13491, issued in his first days in office. The executive order requires that prisoners must be treated humanely and not subjected to cruel treatment, torture, or outrages on personal dignity, including humiliating and degrading treatment – and it applies everywhere, provided the prisoner is in the custody or effective control of the United States or its agents. Savage reports that some lawyers within the intelligence and military communities favor interpreting the CAT prohibition on cruelty in the Bush manner, as applying only within U.S. territorial jurisdiction. (Lest this seem obvious: Congress has extended U.S. jurisdiction to cover U.S. military bases and other U.S. “entities” in foreign states, which seems clearly to include interrogation facilities.)

So the current debate is about whether U.S. treaty interpretation should walk back from one of the signature Obama achievements: the end of torture and cruelty in our treatment of prisoners abroad. Savage reports that the State Department wants to maintain the global CIDT ban. Readers may recall that last March, a 90-page memo written in 2010 by then-State Department Legal Adviser Harold H. Koh was leaked, which argued strongly that U.S. obligations under CAT apply anywhere the U.S. has “effective control” — a broad reading of “jurisdiction” that includes occupied territory and U.S.-run facilities abroad. The memo apparently never gained sufficient traction to prevail, but at least some of it seems to be the position of the State Department today. But apparently the opinion is by no means universally shared. Savage writes:

But military and intelligence lawyers are said to oppose accepting that the treaty imposes legal obligations on the United States’ actions abroad. They say they need more time to study whether it would have operational impacts.
This indicates an unrepentant pro-torture (or at least pro-CIDT) contingent within the “military and intelligence” legal communities. The key sentence is the second: “They say they need more time to study whether it would have operational impacts.” What “operational impacts” are they talking about? [UPDATE: In response to what follows, Charlie has clarified on twitter. See the end of this post for his update and my further reflections.]

The geographically broad CIDT ban would have operational impacts only if the military and intelligence communities want to reserve the option of abusing prisoners abroad. And the implication is that they are worried about being legally constrained, and want their desired result (permission to engage in cruel, inhuman, or degrading treatment abroad) to dictate the legal interpretation. In other words: more result-oriented, if-we-want-to-do-it-let’s-twist-the-law-to-let-us-do-it lawyer games. Just looking for loopholes….

Of course, CIDT would violate the President’s executive order, so a further implication is that the (unnamed) military and intelligence lawyers are unabashedly looking toward a new day when some future president would lift the ban. The extraordinary thing is Savage’s report that the position has any traction at all in the administration.

What makes it all more puzzling is that the ban on CIDT is not a product solely of the Obama executive order. Congress wrote it into law in 2005 in the Detainee Treatment Act:

(a) No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

(b) Construction. Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section.
Not only does the DTA prohibit CIDT by the United States everywhere on the planet, it prohibits loophole lawyering to evade the ban. Its second clause is, almost in so many words, an anti-loopholing prohibition. So, regardless of how CAT’s CIDT prohibition is interpreted, prisoner abuse remains prohibited by U.S. law.

Here’s the puzzle: if U.S. domestic law clearly prohibits CIDT anywhere in the world, how could geographical interpretation of CAT’s prohibition “have operational impacts” on the United States?

What follows is a dark speculation: perhaps the “military and intelligence lawyers” think they can loophole the DTA, notwithstanding its anti-loopholing prohibition. That is because the Bush administration loopholed the CIDT ban in three different ways, and narrowing the geographical scope of the ban was only one of them.

The second loopholes the very definition of CIDT. When the Senate ratified CAT, it attached a reservation defining “cruel, inhuman, and degrading” treatment to be the cruel treatment prohibited by the Fifth, Eighth, and Fourteenth Amendments. The Eighth Amendment pertains to punishment, not interrogation, and it is not the main issue. The pertinent point is the Due Process Clause of the Fifth and Fourteenth amendments. The Supreme Court has held that it does not apply abroad. The Bush administration seized on this point to argue that nothing the US does outside the territorial scope of those amendments is cruel, inhuman, or degrading, as the terms are interpreted in U.S. law. (This argument appears in one of the torture memos, pp. 21-25 — although this memo predates the DTA, and was withdrawn by the Obama administration.) And therefore the DTA doesn’t prohibit it, nor does it prohibit loopholing interpretations.

In other words, the wording of the DTA might allow lawyers not only to loophole its CIDT prohibition, but also to loophole its prohibition on loopholing. They would do this by an argument that no prisoner abuse short of torture can be cruel, inhuman, or degrading if it is done abroad. Therefore the anti-loopholing clause doesn’t apply.

In real-world terms, this is crazy stuff: whether conduct is cruel, inhuman, or degrading does not depend on where it’s committed. The argument’s trick is to focus on the jurisdictional reach of the Fifth Amendment, rather than its substantive standard. When Alberto Gonzales floated the argument during his confirmation hearings for attorney general, Abe Sofaer, the State Department Legal Adviser when CAT was ratified, wrote to Senator Patrick Leahy that this was not at all the point of the Senate reservation. The point was to guarantee that the same substantive standard would govern CIDT both in and outside the United States — not to create a geographical double standard.

That still leaves a third method loopholing the DTA. A practice violates the Fifth Amendment if it “shocks the conscience,” and Bush administration lawyers interpreted some Supreme Court dicta as establishing a “sliding scale” whereby the more important the government purpose, the less the activity shocks the conscience. Then-OLC head Steven Bradbury used this argument in his CIDT memo (pp. 27-30). The interpretation of the Court’s cases is wrong, as my colleague David Cole has shown (pp. 459-61). But the problem is more basic. As I’ve written in my book Torture, Power, and Law (pp. 122-23), under this argument, whether prisoner abuse is cruel, inhuman or degrading depends not the abuse, but on the motive of the interrogator. That’s like arguing that a justified killing is not a killing. Just like the argument that cruelty and degradation abroad are not cruel or degrading, the argument that cruelty and degradation for a good purpose are not cruel or degrading wires untruthfulness into the very meaning of words.

It’s important to understand that the Obama executive order withdrew all these memos and repudiated their elaborate sophisms. But without resurrecting their arguments, it is hard to see how the military and intelligence lawyers Savage reports about could get around the domestic law against CIDT — both the Obama executive order and the Detainee Treatment Act. Only if they think they can get around this law would the interpretation of CAT’s ban on CIDT have any conceivable operational impact.

It’s alarming, but not entirely surprising, that there are lawyers in the military and intelligence communities who would like to roll back the legal bans on abusive interrogations abroad. What is more surprising is that they have enough confidence and temerity to take on the President’s own strongly-maintained policy so directly; and what’s more alarming is the possibility that his administration might cave.

UPDATE, Monday Oct. 20: In response to this post, Charlie Savage has tweeted: “Re CAT: doubt operational impacts=interrogations bc DTA/EO. Other treaties w/ similar applicability? Confinement conditions?” It is relieving to know that the “operational impacts” Charlie’s sources were referring to probably don’t pertain to interrogation. It would be more relieving if the sources had said explicitly what they were talking about. His two speculative questions about what those operational impacts are raise puzzles of their own. If the worry is about the implications of a broad reading of the “territory under its jurisdiction” clause for a panoply of other treaties, why would the State Department be on the opposite side from the military and intelligence communities? Presumably, only if the other treaties specifically pertain to military or intelligence activities. It would be useful to know which those are. The most obvious candidate is the International Covenant on Civil and Political Rights (ICCPR). A quick glance through the rights it enumerates reveals a couple that might be potential sore spots: the article 10 right of persons in custody to “be treated with humanity and with respect for the inherent dignity of the human person,” which might be thought too vague; and the articles 14 and 15 fair-trial rights, which might be thought to impose standards that the Guantanamo military commissions could be accused of not meeting, although obviously the U.S. government would disagree. Charlie’s query about conditions of confinement might also raise questions about Guantanamo, in particular force feeding of inmates, which many believe is cruel, inhuman, or degrading. The trouble with this speculation is that Guantanamo is territory under U.S. jurisdiction, so article 16 of CAT applies to it no matter how broadly its geographical scope is interpreted. Or is the worry about potential detention of enemies elsewhere, who might hunger-strike and be force-fed? This too would be puzzling. As I pointed out in the main post, the U.S. has interpreted “cruel, inhuman, or degrading” to incorporate the substantive standards of constitutional protections in U.S. domestic law. U.S. domestic law permits force-feeding of prisoners to save their lives, so — once again — the geographical scope of CAT’s prohibition on CIDT would not have operational impact.

In short: if Charlie is right, my “dark speculation” about interrogation can thankfully be rejected. But the questions raised by his story are themselves puzzling enough that — pending some further illumination — I don’t see many alternative explanations that aren’t troubling in their own right.


David Luban is University Professor in Law and Philosophy at Georgetown.

No comments:

Post a Comment