"This government does not torture people."[2]
President Bush, October 5, 2007
Wolf Blitzer: "So you think that this Administration has engaged in torture?"
Former President Jimmy Carter: "I don't think so; I know it."
Televised Interview, October 10, 2007 [3]
These comments by President Bush and Former President Carter were occasioned by a report in the New York Times on October 4, 2007 that secret memos by Alberto Gonzales's Justice Department dating back to February 2005 provided explicit authorization for the harshest interrogation techniques ever known to be used by the CIA, namely combinations of "painful physical and psychological tactics, including head-slapping, simulated drowning, and frigid temperatures."[4] The new memos suggest that the much-touted efforts by Assistant Attorney General James B. Comey and others to renounce the infamous Yoo/Bybee "torture" memos of 2002 had ephemeral effects - at least with respect to the CIA.[5]
One can hardly blame Jimmy Carter for being certain that the nation that gave birth to the human rights movement has engaged in illegal cruel, inhuman, and degrading treatment and even criminal torture in violation of the most fundamental norm in the human rights canon. Given recent events, it is becoming increasingly untenable to argue that horrors such as those at Abu Ghraib were discrete abuses by "a few bad apples."
Unlike Jimmy Carter, I cannot claim direct knowledge that the United States engages in deliberate torture or sends captured individuals to places where it knows or strongly suspects torture will occur. Like millions around the world, I merely strongly suspect that it has based on abundant circumstantial evidence.
This evidence includes the Administration's own misguided policy, ostensibly based on concerns for national security, not to identify publicly the specific interrogation techniques it has authorized for all its personnel and agents. U.S. credibility on this issue is not advanced by President Bush's refusal to confirm or deny whether the United States' "enhanced interrogation techniques" include such notorious methods as water boarding, or by the new Attorney General's claim during his confirmation hearings that he did know whether this tactic, familiar to the torturers of the Spanish Inquisition, is illegal.[6] U.S. claims that it does not engage in conduct that violates numerous treaties it has ratified because these agreements do not apply extraterritorially or to the "war" on terror fail to respond to those who rightly believe that no such abuse should take place anywhere with respect to anyone -- at least under customary international law.[7] U.S. claims that it is not torturing people or the law are undermined to the extent the question of whether the United States ought to be engaged in such abuse threatens to become a partisan one, with a number of presidential candidates suggesting that certain interrogation techniques - many of which are regarded by human rights experts as either torture or forms of equally banned cruel, inhuman, or degrading treatment -- should be permissible in the on-going war on terror.[8] When the highest law enforcement official of the United States and candidates for its highest office suggest, as did the notorious Yoo/Bybee memoranda, that inflictions of severe psychological and physical pain such as water boarding might not constitute criminal torture, it is reasonable for many people to assume that the same message is being conveyed, more quietly, to some U.S. agents in the field. U.S. officials' failure to renounce techniques such as water boarding as both repugnant and illegal, even in so-called "ticking bomb" situations, suggests to the world that the United States continues to insist on a self-judging, sub silentio derogation from a non-derogable international law norm.[9] If the highest officials in the United States continue to hedge on whether water boarding is torture, can comparable lawyerly parsing on the rack or the screw be too far behind?
Blanket and vague assurances that the United States is not violating one of the least contested jus cogens norms is not a tenable policy. The U.S. State Department's efforts to convince the world that the United States respects and values the international as well as the national rule of law[10] will be for naught if what the United States is doing is seen as legal hair-splitting to justify what most of the world rightly considers uncivilized, barbarous, and illegal behavior.
For most of the world, it hardly helps that the U.S. Congress, intentionally or not, may have aided and abetted these acts through passage of recent legislation that removes a key form of judicial protection against abuse and arbitrary detention (habeas review), grants amnesty for former torturers, permits a defense for future torturers who receive authorizing legal advice, and authorizes the use of evidence derived from coercive tactics short of torture.[11] For those who see the intentional abuse of human beings as a practice antithetical to law, the fact that the U.S. Congress has seen fit to make it nearly impossible to discover (much less punish) torturers and has even given the president the legal authority to redefine what constitutes cruel, inhuman, or degrading treatment only gives credence to those who suspect that the United States abuses some of those it detains and renders suspects to others who do the same.
The most serious problem with the original Yoo/Bybee memos (or with respect to the later secret memos) was surely not that President Bush did not seek congressional approval prior to issuing them. That these memos offend the U.S. constitutional separation of powers matters less than the affront they represent to humanity and basic decency - as well as to international law. Only those who have lost sight of what the rule of law is for or who forget that international law exists to remind governments (including democracies) of our better selves, can possibly imagine that congressional acquiescence in torture or cruel, inhuman, or degrading treatment cures the United States' ever-widening credibility problem. Placing the president's authority to torture or to engage in cruel, inhuman, or degrading treatment within the right category of presidential authority under Youngstown Steel[12] will not put the United States in compliance with international law - or make anyone believe that it can continue to be trusted to keep its word.
Attorney General Mukasey's and others' strained attempts to avoid the inescapable fact that water boarding is criminal torture may have been intended to protect those U.S. operatives who used it pursuant to prior Executive authorization. While U.S. interrogators who face such charges now may have a defense under U.S. law if they turned to water boarding under the belief that it was lawful,[13] it is possible that such admissions would put political operatives at risk of prosecution, including those who may have sent persons to places where such treatment was expected. But continued obfuscation by U.S. officials will do nothing to prevent the possibility of criminal prosecution by other nations and may make such prosecutions more likely. In the interview quoted above, Jimmy Carter refused to endorse criminal prosecutions of those who may have authorized torture. He suggested that the United States relies on the "ballot box" to punish such people instead. To the extent Carter is correct, other nations may feel compelled by their own international obligations (as under the Convention Against Torture) to initiate prosecutions, including against former high-level U.S. government officials. This is yet another reason why the U.S. Congress needs to pass legislation that would make absolutely clear, as does the revised Army Field Manual, that the CIA, like the U.S. military, cannot engage in techniques like water boarding that violate Common Article 3 of the Geneva Conventions.[14]
Continued obfuscation on this matter without effective action to prevent detainee abuse and to punish abusers is not only dishonest; it fails to protect those who serve the United States in more honorable ways.
[4]See, e.g., Scott Shane, David Johnston, and James Risen, "Secret U.S. Endorsement of Severe Interrogations," New York Times, Oct. 4, 2007, at A1.
[5]Memorandum from Daniel Levin, Acting Assistant Attorney Gen., U.S. Dept. of Justice, to James B. Comey, Acting Assistant Attorney Gen., U.S. Dept. of Justice, Legal Standards Applicable under 18 U.S.C. §§ 2340-2340A (Dec. 30, 2004) available at http://www.justice.gov/olc/dagmemo.pdf. For the underlying "torture memos," see Karen J. Greenberg and Joshua L. Dratel, ed., The Torture Papers: The Road to Abu Ghraib (2005).
[6]See, e.g., Scott Shane, "Nominee's Stand May Avoid Tangle of Torture Cases," New York Times, Nov. 1, 2007, at A1. See also Scott Shane, "On Torture, 2 Messages And a High Political Cost," New York Times, Oct. 30, 2007, at A18 (suggesting that the Administration's vague denials may be part of a conscious policy to have enemies of the United States believe that the U.S. still uses torture).
[7]See generally, José E. Alvarez, "Torturing the Law," 37 Case Western Res. J. Int'l L. 175 (2006) (canvassing the ways the original "torture" memos ignored or misconstrued customary international law as well as the 1949 Geneva Conventions, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, the International Covenant on Civil and Political Rights, the American Declaration on the Rights and Duties of Man, and the Convention Relating to the Status of Refugees).
[8]See, e.g., Marc Santora, "Three Top Republican Candidates Take a hard Line on the Interrogation of Detainees," New York Times, Nov. 3, 2007; Rosa Brooks, "Torture: the new abortion," L.A. Times, Nov. 8, 2007. Compare comments by Sen. John McCain (condemning use of torture) to those of Rudy Giuliani (suggesting that water boarding might be justified), at the Republican Presidential Debate, May 15, 2007 (see transcript at http://www.cfr.org/publication/13338/).
[9]See, e.g., Memorandums 14 and 15, both dated Aug. 1, 2002, in The Torture Papers, supra note 5, at 218.
[11] See generally, Michael J. Matheson, "The Amendment of the War Crimes Act," 101 AJIL 48 (2007).
[12]Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)(delineating a three tiered approach to presidential powers under the U.S. Constitution whereby the president's power is at its "zenith" when the president acts pursuant to his own powers as well as express or implied authorization from Congress, enters a "twilight" zone of authority when he acts without Congressional authorization, and is at the "lowest ebb" of his authority when his acts contravene the will of Congress).
[13] See Matheson , supra note 11, at 51 (discussing Detainee Treatment Act of 2005).
[14] Id. at 53 (recommending expanding the scope of the revised Army Field Manual).
"This government does not torture people."
