Reviving Torture

On April 28, 2004, the CBS News program 60 Minutes II aired a story revealing in graphic detail--with photos supplied by a U.S. soldier who had chosen to blow the whistle on prisoner abuse--the torture and cruel, inhuman, and degrading treatment of Iraqi captives at the U.S. Army's detention facility at Abu Ghraib. The story led to multiple investigations, the removal of Brig. Gen. Janet Karpinski from her command, and the court-martial of several low-ranking soldiers involved in the mistreatment of prisoners. Those at the highest levels of government denied responsibility, argued that "enhanced interrogation" was not torture and therefore was not illegal, and claimed that getting rough with detainees was necessary to get actionable intelligence for the "war on terror." In November of that same year, President George W. Bush became the first Republican candidate for the presidency since 1988 to win a majority of the popular vote. Respect for human rights was apparently not among the American electorate's priorities at the time.

In the Republican presidential debate in New Hampshire back on February 6, Donald Trump said, "I would bring back waterboarding and I'd bring back a hell of a lot worse than waterboarding." The line won the applause of many of those in the audience, a group older but apparently no wiser with respect to fundamental human rights norms than those who had voted for Bush in 2004.

To be clear, waterboarding is torture. It has been rightly condemned as torture by the United States Government in the past, at least when it was being employed by others. It violates every reasonable construction of the terms of the the 1949 Geneva Conventions and the 1984 Convention on Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. Its use is forbidden by the U.S. Army Field Manual. And as a result of an amendment to the National Defense Authorization Act signed by President Obama on November 25, 2015, it is now a clear and unequivocal violation of federal law. The U.S. Constitution, of course, requires the president to "take care that the laws be faithfully executed," whether he or she agrees with those laws or not.

Just days after Trump's embrace of waterboarding and, in the same debate, Ted Cruz's denial that waterboarding is torture, John McCain took to the floor of the Senate to condemn such loose talk. His remarks should be carefully noted by the Republican candidates vying, or so it appears, to be torturer-in-chief.

Ignoring the pleas of human rights groups, President Obama opted not to prosecute--or even investigate--the violations of federal and international law by those in the George W. Bush administration, including Vice President Dick Cheney, who advocated the use of "enhanced interrogation" techniques, including waterboarding. In retrospect, that may have been a mistake. Perhaps it would not now be so easy for some to talk of reviving torture if more had been punished for actually practicing it.

Master of Confessions

Two months ago, the appeals process ended in the case of Kaing Guek Eav, the only person to have been convicted thus far in Cambodia's special genocide tribunal, the Extraordinary Chambers in the Courts of Cambodia (ECCC). Comrade Duch, to use the defendant's more familiar nom de guerre, was the top Khmer Rouge official at S-21, the infamous makeshift prison in Phnom Penh, where, between 1975 and early 1979, over 12,000 people were held and tortured before being transported to their executions in the killing fields outside of the city. The sentence handed down by the mixed Cambodian/international tribunal in 2010 had been 30 years in prison; the appellate division changed the term to life imprisonment for the 69-year-old Duch.

Four others who bear even more responsibility for the slaughter in Cambodia, people much older and more feeble than Duch, have been indicted by the ECCC, but it is entirely possible that Duch will be the only person the court ever convicts. Of the four remaining indictees, one died on March 14, 2013, and another had her case dismissed in November 2011 when she was deemed unfit for trial due to the advance of Alzheimer's disease. The two remaining named defendants, Nuon Chea and Khieu Samphan, are 87 and 82, respectively. (There are two additional cases under investigation involving a total of five possible defendants, but their identities remain confidential at this point.)

During his trial, Duch confessed and apologized to his victims' families, many of whom crowded the visitors' galleries when he testified. At one point Duch said, "I sincerely regret to giving in to others' ideas and concepts and to accepting the criminal tasks I was asked to do. When I think about it, I am first angry at the steering committee of the party, who used all sorts of tricks to lead the country to a total and absolute tragedy. I am also angry at myself for agreeing on others' conceptions and for blindly respecting their criminal orders." Duch later angered those to whom he had apologized by asking the court to release him on the grounds that his case did not fall within the competence of the ECCC. He was not, his lawyer argued, a "senior leader" of the Khmer Rouge nor was he one of those "most responsible" for the crimes committed by the regime. The court rejected the claim.

French journalist Thierry Cruvellier has just published a book--The Master of Confessions--about the Duch trial. Farah Stockman, who met Cruvellier while both were covering the International Criminal Tribunal for Rwanda, writes about Cruvellier, his book, and genocide trials here. She notes that Cruvellier is "the world's most dedicated genocide trial junkie," having covered trials at the International Criminal Tribunal for Rwanda, the International Criminal Tribunal for the Former Yugoslavia, the Special Court for Sierra Leone, and the ECCC. Everywhere, she says, Cruvellier asked these questions: "Who is this expensive international justice for? The peasant farmers who give their testimonies, only to return home to poverty and meals less delicious than what the killers eat in UN jails? Was it for the 'international community,' which needed absolution for its failure to stop the killings? Or for killers to get one last shot at forgiveness?"

Stockman concludes that, perhaps, the trials are for history--to help us understand how and why genocide occurs so we can prevent it in the future. Maybe. But trials are a slow and cumbersome way to build knowledge. I would venture to say that the trials are simply for the sake of justice. Certainly not perfect justice: too many killers--in Cambodia, Rwanda, the Balkans, Sudan, the Central African Republic, and elsewhere--escape prosecution for us to speak of justice except in the highly qualified way that humans must always speak of justice. But, justice nonetheless--as an ideal, perhaps. So that even if Kaing Guek Eav is the only person ever convicted of crimes connected to the Cambodian genocide, we can still affirm that what happened was heinously offensive and that the victims deserve  recognition.

In what kind of world would we not at least attempt to do justice?

Update: George Packer of the New Yorker has a thoughtful review of Cruvellier's book here.

The C.I.A. Torture Cover-Up

The title of this post is the title of a New York Times editorial that says exactly what needs to be said at this point.

Senator Dianne Feinstein (D-CA), chair of the Senate Intelligence Committee, today publicly accused the CIA of what amounts to a criminal act in its efforts to impede the Committee's investigation of a program of torture ("enhanced interrogation" according to the euphemism used by the George W. Bush administration) involving terrorism suspects that was initiated in 2002. The text of Senator Feinstein's statement on the floor of the Senate is available here and a video of the speech can be seen below.

This is no small matter.

Convictions at the ICTY

Yesterday the International Criminal Tribunal for the Former Yugoslavia (ICTY) handed down sentences in the cases of two former Bosnian Serb officials convicted of crimes against humanity and war crimes. Mićo Stanišić and Stojan Župljanin were both sentenced to 22 years in prison having been convicted of the following charges: "persecution, a crime against humanity, through the underlying acts of killings; torture, cruel treatment, and inhumane acts; unlawful detention; establishment and perpetuation of inhumane living conditions; forcible transfer and deportation; plunder of property; wanton destruction of towns and villages, including destruction or wilful damage done to institutions dedicated to religion and other cultural buildings; and the imposition and maintenance of restrictive and discriminatory measures."

Both men were also convicted of murder and torture, which are classified as war crimes. Župljanin, but not Stanišić, was convicted of extermination as an element in the crimes against humanity.

The charges stemmed from the defendants' efforts to establish an ethnically pure Bosnian Serb state (Republika Srpska) following the breakup of Yugoslavia. The resulting conflict in Bosnia, which lasted from March 1992 to December 1995, claimed approximately 150,000 lives. During the war, scenes reminiscent of those in Nazi concentration camps were played out in various locations across Bosnia as a genocidal policy of "ethnic cleansing" was implemented by the Bosnian Serbs and, on occasion, other parties to the conflict.

To date, the ICTY has indicted 161 people and has discharged cases involving 136. Sixty-nine people have been convicted of crimes; 18 have been acquitted; 13 have been transferred to other courts for trial; 36 cases have been terminated without a verdict (as, for example, in the case against former Serb president Slobodan Milosevic, who died before the conclusion of his trial) or have had charges withdrawn; and 25 cases are ongoing.

From Torture Victim to President

As a young woman, Dilma Rousseff joined a guerrilla group opposed to the military junta ruling Brazil.  She was captured and spent three years in various prisons where she was repeatedly tortured.  Now, four decades later, she is Brazil's president.

Rousseff's story, the subject of a front-page article in yesterday's New York Times, is remarkable, but it is not unique.  So many of Latin America's politically active citizens were victims of state repression from the 1960s to the 1980s that we should not be terribly surprised to find that some of the ones who survived have now made it to the tops of their political systems.  In addition to Rousseff, there is former Chilean president Michelle Bachelet who was tortured by Chile's military dictatorship in the mid-1970s.  (Her father, a general loyal to President Salvador Allende, suffered a fatal heart attack while being tortured by the regime of General Augusto Pinochet, which ousted Allende.)  José Mujica, president of Uruguay, was also tortured by his government.

Perhaps the best-known torture victim to experience such a dramatic change of fortune was South Africa's president from 1994 to 1999, Nelson Mandela.  In Eastern Europe following the fall of communism, several former dissidents who had been imprisoned (but not tortured) for their anti-communist activities, including Václav Havel in Czechoslovakia and Lech Wałęsa in Poland, assumed the leadership of their states.

Torture from the Inside

Worth watching.

Human Rights in Africa: Will South Africa Lead?

Last week, a South African court ruled that South Africa, under its International Criminal Court Act, has a legal obligation to investigate crimes against humanity and that, consequently, it must investigate officials from neighboring Zimbabwe who are suspected of having tortured opposition figures in 2007.  A group of Zimbabweans who fled to South Africa in the wake of election-related violence in 2007-2008 were among those who brought the case.

Peter Godwin, president of the PEN American Center, wrote in the New York Times earlier this week that the ruling "could cement South Africa's commitment to protecting human rights and broaden the application of universal jurisdiction."  He also notes, however, that South African authorities are reportedly planning to appeal the ruling in an effort to side-step the diplomatic problems that would accompany police investigations of Zimbabwean officials who travel to South Africa frequently for both official and personal reasons.

The court's ruling, as it ought to be, is based on principles of justice and the rule of law.  President Zuma's concern with the ruling, on the other hand, is for its possible political impact.  Zuma is currently acting as a mediator between political factions in Zimbabwe to try to ensure that the next national election will be free and fair.

The UN Special Rapporteur and Pfc. Manning

Juan Mendez, the UN special rapporteur for torture, has concluded that the United States subjected Pfc. Bradley Manning to cruel, inhuman, and degrading treatment or punishment.  Manning is the soldier who was arrested on May 29, 2010, in Iraq and accused of leaking classified documents to Wikileaks.  According to Mendez, Manning's solitary confinement for 23 hours a day over the course of  the11 months after his arrest constituted a violation of Article 16 of the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.  The article states:

1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.

2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion.

Mendez indicated that Manning's treatment might have constituted torture, but this could not be determined with certainty without an interview with Manning in private, something the U.S. government refused to permit.

The Italian Case

In Milan today, an Italian court found 23 Americans guilty of kidnapping a Muslim cleric and sending him to Egypty for interrogation in 2003. All of the defendants were working for the CIA. All were tried in absentia. It is the first conviction gained anywhere in the world against Americans on charges related to extraordinary rendition, the policy of sending terrorism suspects abroad to be interrogated, often with torture, beyond the reach of U.S. or international legal protections.

If prosecutors obtain international arrest warrants, the Americans convicted today, most of whom have retired from the CIA, could be subject to arrest in virtually any country to which they might travel outside the United States.

Another Torture Report

A 2004 report by the CIA's inspector general detailing interrogation methods used against suspected terrorists will be released next week under a court order. Newsweek has been briefed by two sources familiar with its contents and reports that one individual, Adb al-Rahim al-Nashiri, was threatened with a gun and a power drill and was exposed to a mock execution in the room next to where he was being interrogated. (The Torture Victim Protection Act of 1991 prohibits threatening any person under U.S. custody, whether in the U.S. or abroad, with death.)

CIA director Porter Goss and Gen. Michael Hayden reportedly argued against the release of the report on the grounds that doing so would damage the reputation of the United States abroad. Yes . . . well. That is precisely why Adm. Stansfield Turner, who directed the CIA during the Carter administration, argued that the question of whether a particular covert operation ought to be undertaken should include consideration of the consequences of its revelation to the public.

Justice for Torturers

"To read the four newly released memos on prisoner interrogation written by George W. Bush’s Justice Department is to take a journey into depravity." Thus begins the lead editorial in today's New York Times.

The Times points out that the memos "were written to provide legal immunity for acts that are clearly illegal, immoral and a violation of this country’s most basic values." If the values they violate are to be vindicated, those who wrote the memos--including one attorney appointed to the federal bench by Bush--must be punished. Thus the Times calls--appropriately--for the impeachment of Jay Bybee.

On Thursday, Amnesty International executive director Larry Cox said, "The president said today that this is 'a time for reflection not retribution.' The United States has had plenty of time for reflection--there is very little information in the newly released material that hadn't leaked out long before. He also said that the United States is a nation of laws. But laws only have meaning if they are enforced."

The United States has often called for justice for torturers in other countries. An important test of our integrity as a nation is now upon us as we determine whether we are willing to pursue justice for torturers at home.

Bush, McCain, and Torture

Today Senator John McCain goes to the White House to pick up the endorsement of President George W. Bush. He will almost certainly go out of his way to avoid President Bush for the remainder of the campaign.

But given the timing of this brief meeting, it is worth thinking about where Senator McCain and President Bush have been in the "torture debate." James Carroll provides a helpful entry into the subject.

Carroll's column in the Boston Globe on Monday notes that President Bush is poised to veto the Intelligence Authorization Act of 2008 because it seeks to tie CIA interrogation methods to the standards articulated in the US Army Field Manual. This would prohibit "acts of violence or intimidation, including physical or mental torture, or exposure to inhumane treatment."

Senator John McCain (as noted here) voted against this provision, apparently sacrificing his principles to the demands of the Republican presidential primary process, which effectively ended last night as McCain secured enough delegates to win the Republican nomination and his one remaining challenger, Mike Huckabee, bowed out. As Carroll notes, Senator McCain explained his vote against the provision this way: "What we need is not to tie the CIA to the Army Field Manual, but rather to have a good faith interpretation of the statutes that guide what is permissible in the CIA program."

The former director of the Defense Intelligence Agency, Lieutenant General Harry Soyster is not impressed by Senator McCain's reasoning: "As Senator McCain well knows, the Bush administration has never provided a good faith interpretation of laws prohibiting torture; instead it has produced--and continues to produce--legal opinions that downgrade the definition of torture to the point where the term becomes virtually meaningless and any conduct at all is permissible."

Carroll concludes:

That torture is even a subject of debate in this country is a flabbergasting development. That dozens of America's most admired military leaders find themselves openly opposing the commander in chief on such a question is equally surprising. Another astonishment is that McCain, avatar of military honor, finds it necessary, according to his perceptions of what politics requires, to trim his opposition to torture. It may be just that unthinkable now that Bush will sign the bill before him. But who knows? On torture, the shocks abound.

Water Tortures, Then and Now

Karen J. Greenberg, the executive director of the NYU School of Law's Center on Law and Security and the editor of three books on torture and the war on terror, looks at the history of waterboarding as it is depicted in Prague's Torture Museum and finds that neither the practices nor the rationalizations have changed much from medieval Europe to modern America.

Backtracking on Torture

John McCain squandered his reputation as a principled opponent of torture with his vote earlier today on the Intelligence Authorization bill. Kevin Drum tells us why he had to do it.

Waterboarding the Mentally Ill

Michael Hayden, director of the CIA, testified before Congress today that the United States waterboarded three terrorism suspects in 2002 and 2003: Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks; Abd al-Rahim al-Nashiri, the Al Qaeda operative who allegedly planned the bombing of the USS Cole in 2000, and Abu Zubaydah.

Who is Abu Zubaydah? On April 9, 2002, speaking to the Connecticut Republican Committee, President Bush had this to say about him:

The other day we hauled in a guy named Abu Zubaydah. He's one of the top operatives plotting and planning death and destruction on the United States. He's not plotting and planning anymore. He's where he belongs. (Applause.)

Journalist Ron Suskind, however, found a different assessment of Abu Zubaydah among the experts. According to Suskind (in The One Percent Doctrine), the FBI's principal Al Qaeda expert, Dan Coleman, told one of his superiors, "This guy is insane, certifiable, split personality." And yet he was tortured--or waterboarded, for those who, unlike Director of National Intelligence Michael McConnell, don't mind a little water up their noses--and his coerced testimony was thought to be trustworthy. In fact, Director Hayden told reporters today that Khalid Sheikh Mohammed and Abu Zubaydah provided a quarter of the CIA's information on Al Qaeda derived from human sources.

FBI Director Robert Mueller was also present at today's hearing of the Senate Select Committee on Intelligence. Someone should have asked him if his agency concurred with the CIA in its assessment of the utility of waterboarding the mentally ill.

The New Litmus Test

Rosa Brooks makes the point today in her Los Angeles Times column that, as a political litmus test, torture is the new abortion. You can read her argument here.

Mukasey and Waterboarding

It's almost as if Alberto Gonzales had never left.

Michael Mukasey, President Bush's nominee to head the Department of Justice in the aftermath of the Gonzales disaster, has told members of the Senate Judiciary Committee considering his nomination that he's not sure if waterboarding violates laws prohibiting torture.

In a four-page letter [.pdf] to the Democratic members of the Judiciary Committee, Mukasey stated:

I was asked at the hearing and in your letter questions about the hypothetical use of certain coercive interrogation techniques. As described in your letter, these techniques seem over the line or, on a personal basis, repugnant to me, and would probably seem the same to many Americans. But hypotheticals are different from real life, and in any legal opinion the actual facts and circumstances are critical.

Senator Richard Durbin (D-IL) pinpointed the problem with Mukasey's letter:

We asked Judge Mukasey a simple and straightforward question: Is waterboarding illegal? While this question has been answered clearly by many others . . . Judge Mukasey spent four pages responding and still didn't provide an answer.

Let's spell this out for Judge Mukasey: Waterboarding is a type of torture. As such, it violates both domestic and international law.

Period.

Briefly Noted

Jane Mayer, who has written about torture for the New Yorker on a number of occasions, has a story in the current issue on the CIA's "black sites" and Khalid Sheikh Mohammed's numerous confessions. It's available here.

Wednesday's New York Times carried an op-ed by Gen. Wesley Clark and Kal Raustiala on the distinction between terrorists and combatants ("unlawful" or otherwise). It's an important distinction that the United States has been getting wrong since the beginning of the so-called "war on terror."

Bush and Torture: "Trust Us"

President Bush today signed a long-awaited Executive Order that seeks to clarify which methods of interrogation are banned by Common Article 3 of the Geneva Conventions. Here is the key section of the new guidance:

I hereby determine that a program of detention and interrogation approved by the Director of the Central Intelligence Agency fully complies with the obligations of the United States under Common Article 3 [of the Geneva Conventions], provided that:

(i) the conditions of confinement and interrogation practices of the program do not include:

(A) torture, as defined in section 2340 of title 18, United States Code;

(B) any of the acts prohibited by section 2441(d) of title 18, United States Code, including murder, torture, cruel or inhuman treatment, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, taking of hostages, or performing of biological experiments;

(C) other acts of violence serious enough to be considered comparable to murder, torture, mutilation, and cruel or inhuman treatment, as defined in section 2441(d) of title 18, United States Code;

(D) any other acts of cruel, inhuman, or degrading treatment or punishment prohibited by the Military Commissions Act (subsection 6(c) of Public Law 109 §366) and the Detainee Treatment Act of 2005 (section 1003 of Public Law 109 §148 and section 1403 of Public Law 109 §163);

(E) willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency, such as sexual or sexually indecent acts undertaken for the purpose of humiliation, forcing the individual to perform sexual acts or to pose sexually, threatening the individual with sexual mutilation, or using the individual as a human shield; or

(F) acts intended to denigrate the religion, religious practices, or religious objects of the individual.

While the prohibitions listed are important, especially in light of the fact that many of them have not been observed in the past, it is worth noting that the Executive Order defines the exclusions of Common Article 3 in terms of other legal guidance that also has not been observed in the past by the Bush Administration. President Bush is, in other words, continuing to kickthe can down the road.

So what is now off-limits? Practices banned by the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment and the statute implementing the Convention (Section 2340 of Title 18) are banned by this Executive Order. So are practices that were banned by the Detainee Treatment Act of 2005. And practices that were prohibited by the Military Commissions Act. And so on. But we knew this already. And we also knew already that America's torture problem was the way the Bush Administration was interpreting--or simply ignoring--these rules.

After all the bureaucratic warfare that allegedly occurred over this Executive Order, the only significant guidance that has emerged from it is this: "The Director of the Central Intelligence Agency shall issue written policies to govern the program" of interrogation.

Those written policies will, of course, be secret.

The Gators

Washington Post writer Laura Blumenfeld, whose book Revenge: A Story of Hope recounts her effort to find the terrorist who shot her father in Jerusalem in 1986, has an interesting story in today's paper about three interrogators (or "gators," as they're called in the U.S. military)--one who worked in Iraq, one who worked in Northern Ireland, and one who worked in Israel.