-- CarinaWallance - 04 Apr 2008

Ready for comments.

Introduction

Shielded by an expansive interpretation of wartime power, the Bush administration has ignored the law prohibiting torture and sanctioned torture as an interrogation technique. Threatened with the exposure of its conduct at Abu Ghraib, the administration utilized the military trials to give cover to its calculated policies. The administration has corrupted the rule of law as well as the role of lawyers and criminal proceedings. The US has become a torturing country.

(I) The law of torture: absolute prohibition

Under US law, the prohibition of torture applies to US citizens and non-citizens alike, – regardless of whether the detainee is a prisoner-of-war or ‘unlawful combatant’ – and is upheld during times of peace, war, or state of emergency. In other words, the prohibition of torture is absolute. In addition to federal prohibition of torture, the US is party to a host of international treaties unequivocally prohibiting torture including the Geneva Conventions, the Convention against Torture, and the International Covenant on Civil and Political Rights. A federal anti-torture statute (18 U.S.C. § 2340A), defines torture as an act “specifically intended to inflict severe physical or mental pain or suffering”.

(II) US violation of the law of torture

The Bush administration has violated the law of torture in pursuit of its political needs. Following the attacks of September 11th, in response to the political necessity of producing results for a fearful public and confronted with a faltering war, the administration exerted great pressure on its ranks to get intelligence and used ‘legal’ justification in granting them what amounted to a carte blanche with which to do so. Evidence indicates that the practice of torture has been widespread and systematic, and has included outsourcing to foreign countries. At home, the House, last month, failed to overturn President Bush’s veto of legislation that would have prohibited the CIA from using waterboarding as an interrogation technique on terror suspects.

'Legal' Carte Blanche

A recently publicized 2003 memorandum (since withdrawn) written by high-ranking Justice Department official John Yoo and directed to the Pentagon’s senior leadership, authorized the military’s use of extremely harsh interrogation techniques amounting to torture and exempted military officials from prosecution under the laws banning such conduct. The memorandum serves to immunize policy makers and subordinates. It asserts that the president’s wartime power trumps laws and treaties against torture. Yoo goes on to offer further means for escaping accountability by defining torture so narrowly as to exclude clearly illegal acts, ultimately defeating the purpose of the prohibition of torture. The memorandum limits torture to the infliction of pain that is equivalent to that caused by “serious physical injury so severe that death, organ failure or permanent damage resulting in a loss of significant body functions will likely result” (p. 39).

The Systematic Practice of Torture

The atrocities committed at Abu Ghraib, which stand out in particular because of the images that were captured in the press and include forced nakedness, the use of leashes and sexual humiliation, appear not to be a gross aberration from the administration’s policy in the hands of a few low-ranking criminals. Rather, the mistreatment of Iraqi prisoners appears to be the systematic result of pressure from high-ranking civilian and military officials, assured by the ‘legal’ justification from their lawyers, to violate the prohibition on torture.

Abu Ghraib soldiers have said that they were following the directions of military intelligence officials to soften up detainees for interrogation. At trial, the dog handler Sgt. Michael Smith, testified that he was merely following interrogation procedures approved by Colonel Pappas, the chief intelligence officer at Abu Ghraib. Colonel Pappas, testifying under a grant of immunity, stated that while the particular conduct was not directly ordered, he had been following the general guidance from Maj. Gen. Geoffrey Miller. Miller is former commander of the military prison at Guantanamo. Reporting to Rumsfeld, he traveled to Iraq in 2003 to assist in starting-up Abu Ghraib and to help in setting ‘the conditions’ for enhancing prison interrogations. The abuses began soon after his departure. Military investigations reveal that many of the tactics used at Abu Ghraib were applied months earlier at Guantanamo (Washington Post, July 14, 2005).

(III) US Story of Torture: An Exercise in Social Control

High-ranking officials have not been charged concerning these abuses. Instead, the Abu Ghraib military trials have focused on low-ranking prison guards. In denying requests for testimony from higher-ranking officials, including Sanchez and Rumsfeld, army judges have held that their actions did not bear directly on the reservists’ conduct. Despite its earlier pledges, Congress has not undertaken any meaningful effort to hold senior officials accountable. In other words, the trials have served to advance the Bush administration’s characterization of the events as the isolated conduct of a few rogue soldiers acting on their own. The trials are a step in the series of actions taken by the Bush administration as it repudiates the law on torture. The administration’s lawyers have authorized treatment amounting to torture, its personnel have implemented it, and then its military trials have controlled the damage. These judicial decisions tell the public, in effect: the few, lone criminals have been punished, rest assured, America is not a torturing country.

Conclusion

America has become a torturing country. When the fear which arose in the aftermath of 9/11, the fear fed by the administration for its own political needs, when this fear finally settles, we will ask in shock, ‘how could this have happened?’ It is the duty of the citizen and the task of the lawyer to restore the rule of law by bringing it back to the fundamental ethical conviction that the US prohibits torture absolutely.