by Nat Hentoff
With no sign of torture on a prisoner, then it didn't happen, right?
On July 20, George W. Bush issued an executive order authorizing the
CIA to use "enhanced" techniques (as the president likes to call them)
in its terror interrogation program including in the CIA's secret
prisons, known internationally as "black sites." CIA director Michael
Hayden assures us that "now our mission and authorities [to conduct
that mission] are clearly defined." Adds national intelligence
director Michael McConnell: "We now have a clear legal basis" for the
CIA's crucial national-security responsibilities.
The new Bush directive claims to forbid torture and cruel and inhuman
treatment, as required by the Supreme Court's 2006 Hamdan v. Rumsfeld
decision and the Geneva Conventions. However, under the Military
Commissions Act of 2006, only the president can interpret the meaning
of the Geneva Conventions.
And under his executive order, Bush refuses to list the specific
techniques that the CIA can use. All are still classified.
Therefore, "given [this administration's] record," says Jennifer
Daskal, the U.S. program advocacy director at Human Rights Watch,
where she focuses on counterterrorism policy, "there is absolutely no
reason to take the Bush administration's word on trust." For example,
Bush has repeatedly insisted that, "We do not torture," despite, as I
and others have documented, a mountain range of evidence to the
contrary. (See Jane Mayer's "The Black Sites: A rare look into the
CIA's secret interrogation programs," The New Yorker, August 13.)
Why are these special powers of extreme persuasion exclusively
permitted for the CIA classified? Because, says McConnell, we don't
want future inmates of the "black sites" to figure out how to resist
these "enhanced" techniques for extracting information.
But McConnell also doesn't want the tenderhearted among us to fear
that the world will regard our nation as monstrous for permitting the
use of these methods. When Associated Press reporter Ben Feller asked
him whether the American people would be upset if the enemy used these
secret interrogation methods on American citizens, McConnell answered:
"I would not want a U.S. citizen to go through the process. But it
is not torture, and there would be no permanent damage to that
citizen."
In other words, so long as no marks are left on a CIA prisoner,
interrogators are left to their time-tested cruelties. However,
Elaine Massimino, the Washington director of Human Rights First, makes
a very pertinent point: "Administration lawyers may try to convince
[CIA] interrogators that the secret interrogation techniques
authorized by the president are lawful because they cause no
'permanent damage.' But interrogators shouldn't buy it."
She goes on to list certain long-practiced (and subsequently leaked)
interrogation techniques that, despite all evidence to the contrary,
the CIA and the president have continually insisted are not torture,
or that could not be considered cruel and inhuman. There is every
reason to believe that the new presidential executive order includes
their use.
Accordingly, Massimino emphasizes: "Stress positions, prolonged
isolation, sensory bombardment, mock-drowning, and other such abuses
can cause serious physical and mental pain. They need not inflict
permanent damage in order to violate the law and potentially result in
very serious criminal sanctions." Sanctions, that is, that could be
directed at administration officials all the way up the chain of
command.
If an inmate gets out of a CIA secret prison and some have to get into
one of our courts and claim that he or she has been tortured or
otherwise treated inhumanely in violation of U.S. and international
laws, that person's lawyer can cite the United Nations' "Manual on the
Effective Investigation and Documentation of Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment," issued on August 9,
1999:
"The absence of physical evidence should not be construed to suggest
that torture did not occur, since such acts of violence against
persons frequently leave no marks or permanent scars"(emphasis
added).
Moreover, many American military lawyers the Judge Advocate
Generals have told Congress and the president's palace guard that the
"enhanced" techniques described by Massimino and surely included in
Bush's July 20 executive order are illegal both here and by
international standards. Because these military lawyers are driven by
an integrity lacking elsewhere in the administration, they were not
consulted in the writing of the president's executive order unleashing
the CIA.
I try to avoid hyperbole in reporting on this administration's utter
contempt for the Constitution's separation of powers let alone our
vaunted "American values" but what the president and his lawyers are
doing in this executive order cries out for investigation, using their
full subpoena powers, by the Senate and House Armed Services,
Intelligence, and Judiciary committees.
Now that the Democrats are in control of Congress, what the hell are
they waiting for? And where are the alarmed voices of the Democratic
presidential candidates?
Next week, I'll be looking at Leave No Marks: Enhanced Interrogation
Techniques and the Risk of Criminality , a startling, fully documented
agenda for these essential congressional investigations, which was
released last month by Human Rights First in conjunction with
Physicians for Human Rights (go to humanrightsfirst.org and
physiciansforhumanrights.org).
As of this writing, there has been hardly any penetrating press
coverage of the charges in this report. For example, "Officials and
interrogators who authorize and participate. . . in the CIA's
so-called interrogation techniques. . . face a substantial risk of
criminal liability under the provisions prohibiting 'torture' and
'cruel or inhuman treatment' in the U.S. War Crimes Act, as amended
by the Military Commissions Act of 2006, and under the Torture
Convention Implementation Act of 1994."
In other words, it's not only the actual CIA interrogators in these
"black sites" who may themselves wind up in the dock. The Leave No
Marks report adds:
"Officials who authorize these techniques. . . are at significant
risk: namely, that in future trials involving the War Crimes Act and
other legal prohibitions described in this report, courts will be
presented with credible and compelling evidence of harm provided by
medical and psychological experts skilled in the documentation of
physical and psychological consequences of torture and ill treatment,
in accordance with internationally accepted protocols."
However, underlying the question of whether these horrific crimes
(made in the USA) will ever be prosecuted in our courts is a basic
problem: How many Americans will give a damn about demanding such
justice?