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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?