We are a land of laws until torture is sanctioned by government

We are a land of laws until torture is sanctioned by government

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1st Marine Battalion raising the United States flag at Guantánamo Bay on June 10, 1898.
1st Marine Battalion raising the United States flag at Guantánamo Bay on June 10, 1898.

WASHINGTON, December 19, 2014 — The U.S. Senate report detailing torture committed by CIA agents and government contractors on 119 detainees — 26 of them tortured by mistake — describes actions which were both illegal and immoral. These actions were not taken by elected representatives, but by non-elected government bureaucrats who apparently lied to our elected officials about what they were doing.

Those who believe in rule of law, in limited government, in clearly defined Constitutional limits upon government power should be outraged. Some are. Others have found a way either to defend torture or to remain silent, wishing for the subject to go away as the news cycle moves on to diplomatic relations with Cuba, North Korean hacking, or whatever new horror occurs in the world.

President Obama has acknowledged that the CIA engaged in torture, but he has directed the Department of Justice not to prosecute either those who tortured or those who authorized it. He and Attorney General Holder are more interested in involving the federal government in ambiguous local law enforcement issues, such as what happened in Ferguson, Missouri, than in confronting the illegal activities of the federal government itself.

Why did congressional oversight committees like the Senate Intelligence Committee, which issued the report on torture, not know of the torture when it was taking place? Was no one looking into what the CIA was doing? Michael Glennon, an intelligence specialist at Tufts University, says that the Senate committee’s report took so long to be published that the CIA’s rebuttal was written 18 months ago, in 2013.

In the period when the abuses were going on, the Senate Intelligence Committee failed to subpoena documents, interview CIA officials, or ask to visit sites where torture was being conducted. The elected officials who were meant to scrutinize our intelligence services were clearly co-opted. In Professor Glennon’s view, they now appear to be exercising “hindsight, not oversight.”

The Economist notes that, “the Senate committee has acquired a photograph showing ‘well-worn’ water boarding tools at a prison in Afghanistan. The CIA had claimed until now that only three prisoners had been subjected to this torture — and none of them at the Afghan site … In 2012 Barack Obama and his attorney general, Eric Holder, decided not to prosecute any CIA agents for torture. (John Kiriakou, an ex -agent who leaked details of the program to reporters, was jailed.)”

After 9/11, the FBI sent two agents to Israel to learn how its interrogators dealt with Arab suspects; there was talk of “extraditing the suspects to allied countries where security services sometimes employ threats to family members or resort to torture.” As early as January 2002, National Security Council principals, aware of “potential charges of torture,” began debating whether the protections of the Geneva Conventions, signed by President Ronald Reagan, should apply to captured al-Qaeda or Taliban fighters.

The CIA view was that it required relief from the limitations of the Geneva Conventions. The agency began to look for other countries where it could send the detainees, thinking that they would not then be covered by U.S. law. They were, however, aware of a U.S. statute that barred U.S. citizens from committing torture outside the country.

President George W. Bush signed a memorandum stating that the Third Geneva Convention did not apply to the conflict with al-Qaeda and the Taliban. Within months, the government began using “enhanced interrogation” techniques in Afghanistan and at Guantanamo Bay. As time went on, interrogators wanted to use even harsher techniques. In June 2002, it got a ruling from the Justice Department which was described by former assistant attorney general Jack Goldsmith this way: “Violent acts aren’t necessarily torture; if you do torture, you probably have a defense; and even if you don’t have a defense, the torture law doesn’t apply if you act under color of presidential authority.”

As the Senate Armed Services Committee said in its 2008 report, senior government officials “redefined the law to create the appearance of their legality, and authorized their use against detainees.” But saying torture is not really “torture” by executive decree does not make an illegal action legal. Perhaps President Obama is prepared to look away because he likes the idea of changing the law by executive decree, as he has done with his executive order on immigration.

In his Meet the Press interview, former Vice President Cheney set forth the “legal” justifications provided by the Justice Department’s Office of Legal Counsel in the so-called “torture memo” in 2002. The memo justified the CIA’s use of waterboarding and other practices long recognized as torture in international law, and for which the U.S. prosecuted Japanese who used them on American prisoners of war in World War II. Cheney ignored the fact that this memo was retracted by Jack Goldsmith, the director of the Justice Department’s Office of Legal Counsel in 2004 because, as he said in his memoirs, they lacked a foundation in the law and appeared to be intended “to confer immunity for bad acts.” Cheney’s citing of the discredited documents seem to confirm Goldsmith’s argument.

Why is no one being prosecuted for perjury for lying under to oath to Congress? When then-CIA Director Michael Hayden appeared before the Senate Select Committee on Intelligence in April 2007, he misrepresented almost every aspect of the interrogation program. Among other things, he made false or unsupported statements about the interrogation of Abu Zubaida, the CIA’s first disappeared detainee; the qualification and training of the interrogators; the numbers of detainees held; the intelligence allegedly obtained by coercive tactics; abusive and illegal conduct by interrogators and the effectiveness of waterboarding.

Hayden claimed that all of those conducting the program were “carefully chosen and carefully screened” and underwent more than 250 hours of specialized training. In fact, the CIA’s records show that it chose interrogators who “had engaged in inappropriate detainee interrogations, had workplace management anger issues, and had reportedly admitted to sexual assault.” Some interrogators were given no training at all, others had 65 hours — not 250.

Professor David Cole of the Georgetown University Law School, notes that, “Hayden was following a well-trod path. The CIA gave false information about Abh Zubaida to the Justice Department when seeking initial approval to use waterboarding and other torture tactics, asserting that he was uncooperative when in fact he had been providing a great deal of information to FBI agents using lawful interrogation methods, The CIA later claimed that the waterboarding of Abu Zubaida had produced critical intelligence about other al-Qaeda members, but the agency’s records show that Abu Zubaida provided that information before being subjected to coercive tactics.”

To blame the CIA for torture is to misunderstand what really occurred. Cole writes, “Yes, the CIA lied. But all of the other relevant actors knew more than enough to say no. They knew that the CIA was disappearing suspects into secret detention sites — a grave international human rights violation of its own — and then subjecting them to prolonged sleep deprivation, waterboarding, physical assaults, and painful stress positions. This was the brutality that the Senate committee leadership knew about. Yet no one sought to stop it. Torture was not just the work of a rogue agent or agency, but the formal policy of the highest levels of our government, executive and legislative. And we the people are also complicit, as long as we do not demand accountability.”

Senator Mark Udall, D-Colo., states that, “Director Brennan and the CIA today are continuing to willfully provide inaccurate information and misrepresent the efficacy of torture. In other words, the CIA is lying … There has to be accountability. The longer you wait to address the question of accountability, the more it festers and there is more potential that people lose interest and we repeat these very acts at some point in the future.”

Udall, a member of the Intelligence Committee, strongly criticized President Obama for failing to “rein in” the CIA and its leadership. He also faulted the administration for keeping some of those responsible for the program in leadership positions.

It is sad to see some rising in defense of a torture program which was both illegal and immoral, and produced little information of value. Fortunately, others have a moral compass that does not waver the moment “national security” is presented as a rationale for policies America should never embrace.

Peggy Noonan, the conservative commentator, wrote in the Wall Street Journal:

“America should never again do what is asserted and outlined in the (Senate) report, which enumerates various incidents of what I believe must honestly be called torture … Torture is not like us. It’s not part of the American DNA. We think of ourselves as better than that … We can’t use torture methods, and still at the same time be the hope of the world. You’re either an animal like other animals of you’re something different, something higher and known to be different and higher.”

We have a government out of control, no longer limited by the Constitution or by our traditional commitment to representative government and rule by law. If there is no accountability for staining our good name with torture, and lying about it with impunity, we will long regret the turn our government has taken. We cannot speak of torture and of “American exceptionalism” in the same breath. We must choose which path to follow, something which there is great hesitation to do on the part of both of our political parties. When we speak of “American values” now, it is difficult to know what is really being invoked.


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Allan C. Brownfeld
Received B.A. from the College of William and Mary, J.D. from the Marshall-Wythe School of Law of the College of William and Mary, and M.A. from the University of Maryland. Served as a member of the faculties of St. Stephen's Episcopal School, Alexandria, Virginia and the University College of the University of Maryland. The recipient of a Wall Street Journal Foundation Award, he has written for such newspapers as The Houston Press, The Washington Evening Star, The Richmond Times Dispatch, and The Cincinnati Enquirer. His column appeared for many years in Roll Call, the newspaper of Capitol Hill. His articles have appeared in The Yale Review, The Texas Quarterly, Orbis, Modern Age, The Michigan Quarterly, The Commonweal and The Christian Century. His essays have been reprinted in a number of text books for university courses in Government and Politics. For many years, his column appeared several times a week in papers such as The Washington Times, The Phoenix Gazette and the Orange County Register. He served as a member of the staff of the U.S. Senate Internal Security Subcommittee, as Assistant to the research director of the House Republican Conference and as a consultant to members of the U.S. Congress and to the Vice President. He is the author of five books and currently serves as Contributing Editor of The St. Croix Review, Associate Editor of The Lincoln Review and editor of Issues.