UN-Truth

“Torture is abhorrent both to American law and values and to international norms” - from a legal opinion by the U.S. Department of Justice.

The New York Times published an investigative report today revealing that “When the Justice Department publicly declared torture ‘abhorrent’ in a legal opinion in December 2004, the Bush administration appeared to have abandoned its assertion of nearly unlimited presidential authority to order brutal interrogations. But soon after Alberto R. Gonzales’s arrival as attorney general in February 2005, the Justice Department issued another opinion, this one in secret. It was a very different document, according to officials briefed on it, an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency. The new opinion, the officials said, for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures. Mr. Gonzales approved the legal memorandum on ‘combined effects’ over the objections of James B. Comey, the deputy attorney general, who was leaving his job after bruising clashes with the White House. Disagreeing with what he viewed as the opinion’s overreaching legal reasoning, Mr. Comey told colleagues at the department that they would all be ‘ashamed’ when the world eventually learned of it … Later that year, as Congress moved toward outlawing ‘cruel, inhuman and degrading’ treatment, the Justice Department issued another secret opinion, one most lawmakers did not know existed, current and former officials said. The Justice Department document declared that none of the C.I.A. interrogation methods violated that standard … The debate over how terrorism suspects should be held and questioned began shortly after the Sept. 11, 2001, attacks, when the Bush administration adopted secret detention and coercive interrogation, both practices the United States had previously denounced when used by other countries. It adopted the new measures without public debate or Congressional vote, choosing to rely instead on the confidential legal advice of a handful of appointees…”
The NYTimes investigative story on Justice Department justifications for torture-like interrogation techniques is here.

Here are some more extended excerpts from the NYTimes’ lengthy investigative report:

“ ‘We were getting asked about combinations — “Can we do this and this at the same time?” ‘ recalled Paul C. Kelbaugh, a veteran intelligence lawyer who was deputy legal counsel at the C.I.A.’s Counterterrorist Center from 2001 to 2003. Interrogators were worried that even approved techniques had such a painful, multiplying effect when combined that they might cross the legal line, Mr. Kelbaugh said.

He recalled agency officers asking: ‘These approved techniques, say, withholding food, and 50-degree temperature — can they be combined?’ Or ‘Do I have to do the less extreme before the more extreme?’

The questions came more frequently, Mr. Kelbaugh said, as word spread about a C.I.A. inspector general inquiry unrelated to the war on terrorism. Some veteran C.I.A. officers came under scrutiny because they were advisers to Peruvian officers who in early 2001 shot down a missionary flight they had mistaken for a drug-running aircraft. The Americans were not charged with crimes, but they endured three years of investigation, saw their careers derailed and ran up big legal bills. That experience shook the Qaeda interrogation team, Mr. Kelbaugh said. ‘You think you’re making a difference and maybe saving 3,000 American lives from the next attack. And someone tells you, “Well, that guidance was a little vague, and the inspector general wants to talk to you” ‘ , he recalled. ‘We couldn’t tell them, “Do the best you can”, because the people who did the best they could in Peru were looking at a grand jury.

Mr. Kelbaugh said the questions were sometimes close calls that required consultation with the Justice Department. But in August 2002, the department provided a sweeping legal justification for even the harshest tactics. That opinion, which would become infamous as ‘the torture memo’a fter it was leaked, was written largely by John Yoo, a young Berkeley law professor serving in the Office of Legal Counsel. His broad views of presidential power were shared by Mr. Addington, the vice president’s adviser. Their close alliance provoked John Ashcroft, then the attorney general, to refer privately to Mr. Yoo as Dr. Yes for his seeming eagerness to give the White House whatever legal justifications it desired, a Justice Department official recalled. Mr. Yoo’s memorandum said no interrogation practices were illegal unless they produced pain equivalent to organ failure or ‘even death’.

A second memo produced at the same time spelled out the approved practices and how often or how long they could be used.

Despite that guidance, in March 2003, when the C.I.A. caught Khalid Sheikh Mohammed, the chief planner of the Sept. 11 attacks, interrogators were again haunted by uncertainty. Former intelligence officials, for the first time, disclosed that a variety of tough interrogation tactics were used about 100 times over two weeks on Mr. Mohammed. Agency officials then ordered a halt, fearing the combined assault might have amounted to illegal torture… Some intelligence officers say that many of Mr. Mohammed’s statements proved exaggerated or false. One problem, a former senior agency official said, was that the C.I.A.’s initial interrogators were not experts on Mr. Mohammed’s background or Al Qaeda, and it took about a month to get such an expert to the secret prison. The former official said many C.I.A. professionals now believe patient, repeated questioning by well-informed experts is more effective than harsh physical pressure.

Other intelligence officers, including Mr. Kelbaugh, insist that the harsh treatment produced invaluable insights into Al Qaeda’s structure and plans. ‘We leaned in pretty hard on K.S.M.’, Mr. Kelbaugh said, referring to Mr. Mohammed. ‘We were getting good information, and then they were told: “Slow it down. It may not be correct. Wait for some legal clarification”.’

The doubts at the C.I.A. proved prophetic. In late 2003, after Mr. Yoo left the Justice Department, the new head of the Office of Legal Counsel, Jack Goldsmith, began reviewing his work, which he found deeply flawed. Mr. Goldsmith infuriated White House officials, first by rejecting part of the National Security Agency’s surveillance program, prompting the threat of mass resignations by top Justice Department officials, including Mr. Ashcroft and Mr. Comey, and a showdown at the attorney general’s hospital bedside. Then, in June 2004, Mr. Goldsmith formally withdrew the August 2002 Yoo memorandum on interrogation, which he found overreaching and poorly reasoned. Mr. Goldsmith left the Justice Department soon afterward. He first spoke at length about his dissenting views to The New York Times last month, and testified before the Senate Judiciary Committee on Tuesday.

Six months later, the Justice Department quietly posted on its Web site a new legal opinion that appeared to end any flirtation with torture, starting with its clarionlike opening: ‘Torture is abhorrent both to American law and values and to international norms’. A single footnote — added to reassure the C.I.A. — suggested that the Justice Department was not declaring the agency’s previous actions illegal …

John D. Hutson, who served as the Navy’s top lawyer from 1997 to 2000, said he believed that the existence of legal opinions justifying abusive treatment is pernicious, potentially blurring the rules for Americans handling prisoners. ‘I know from the military that if you tell someone they can do a little of this for the country’s good, some people will do a lot of it for the country’s better’, Mr. Hutson said. Like other military lawyers, he also fears that official American acceptance of such treatment could endanger Americans in the future. ‘The problem is, once you’ve got a legal opinion that says such a technique is O.K., what happens when one of our people is captured and they do it to him? How do we protest then?’ he asked…”
The NYTimes investigative story on the evolution of Justice Department justifications for torture-like interrogation techniques is here.

The U.S. is a signatory - and thus a State Party - to the U.N.’s Convention Against Torture. We can bet that sometime in the next couple of years, the next time they are due to produce the obligatory “periodic report” of their compliance with the treaty they signed, they will be asked about these memos. The questioning will of course depend on whoever the “independent experts” are who will sit on the UN Committee Against Torture at that time.

It is to be hoped that the U.S. will sort out this horror before then, as not too much can really be expected from the UN’s Committee in any case, and it will be several years from now before they even get to this matter.

Filed under: Torture