The Latest Torture Twists & Turns

The American Conservative today put online my article updating the torture scandal.

We Have Ways…..             American Conservative, November 5, 2007

by James Bovard

On Oct. 4, the New York Times blew another ten-foot hole in the Bush administration’s torture cover-up. The Times revealed that the Justice Department produced a secret legal opinion in early 2005 permitting CIA interrogators to use “combined effects” on detainees, including head slapping, waterboarding, frigid temperatures, manacling for many hours in stress positions, and blasting with loud music to assure sleep deprivation. The Times labeled the memo as an “expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.”

Within hours of the paper hitting the streets, President Bush issued the same moth-eaten denial he has used many times since Abu Ghraib: “This government does not torture people. You know, we stick to U.S. law and our international obligations.” But it is the “law” as contorted by administration lawyers who rubberstamp whatever methods Bush or Cheney demand. The same lawyers who tell Bush he has “inherent authority” to wiretap Americans’ phone calls also tell him he has authority to redefine torture, regardless of the English-language precedents dating back to Chaucer.

The Times detailed how, after 9/11, the CIA constructed an interrogation program by “consulting Egyptian and Saudi intelligence officials and copying Soviet interrogation methods long used in training American servicemen to withstand capture.” For decades, the United States government condemned Soviet, Egyptian, and Saudi torture. But interrogation systems designed to compel victims to sign false confessions now provide the model for protecting America in the new millennium.

In late 2005, Congress passed the McCain Detainee Treatment Act, which prohibited the U.S. government from using “cruel, inhumane, or degrading” interrogation methods. The Times revealed that the Justice Department responded to the new law with another secret memo declaring that all the techniques listed above were not “cruel, inhumane or degrading.” The secret torture memos, written by Steven Bradbury, the head of the Justice Department Office of Legal Counsel, relied on “a Supreme Court finding that only conduct that ‘shocks the conscience’” would go too far.

While Bush may believe he has sole discretion to define torture, CIA interrogators increasingly fear facing grand juries. The Times noted, “From the secret sites in Afghanistan, Thailand and Eastern Europe where C.I.A. teams held al-Qaeda terrorists, questions for the lawyers at C.I.A. headquarters arrived daily. Nervous interrogators wanted to know: Are we breaking the laws against torture?”

According to Joanne Mariner, a lawyer with Human Rights Watch, the purpose of the secret Justice Department memos was to “to immunize US officials from prosecution for abusive conduct. They were meant to facilitate abuses, not to prevent them.” The fact that the Justice Department officially blessed torturous methods makes it far more difficult to prosecute CIA and other interrogators for breaking the law.

As usual, the administration claimed it was doing Americans a favor by keeping them in the dark. White House Press Secretary Dana Perino declared, “It’s appropriate that applications of the laws and techniques are kept secret. And I don’t think that providing those to the American public would serve them well.” Yale law Professor Jack Balkin summed up the administration’s position: “I could tell you why what I’m doing is legal, but then I’d have to shoot you.”

As part of the procedure for establishing the “legal” limits of interrogation, last year’s Military Commission Act required the president to put in writing his definition of what constitutes “outrages upon personal dignity, in particular humiliating and degrading treatment.” The executive order that Bush finally issued on July 20 decreed that everything in CIA detention and interrogation programs was legal—even though the secret CIA prison sites scattered around the globe clearly violate the Geneva Conventions, which are binding under U.S. law.

Bush offered a “good intention” definition of non-torture. He stressed that interrogators were prohibited from “intentionally causing serious bodily injury” and “acts intended to denigrate the religion, religious practices, or religious objects of the individual.” He banned “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 … 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…”

Former Marine Corps Commandant Paul X. Kelley condemned the new guidelines for encouraging abuses: “As long as the intent of the abuse is to gather intelligence or to prevent future attacks, and the abuse is not ‘done for the purpose of humiliating or degrading the individual’—even if that is an inevitable consequence—the president has given the CIA carte blanche to engage in ‘willful and outrageous acts of personal abuse.’” Georgetown University law Professor David Cole noted that Bush’s order “appears to permit cutting or bruising a suspect so long as the injury does not risk death, significant functional impairment or ‘extreme physical pain,’ an entirely subjective term.”

The key portion of the executive order—the list of approved techniques—was kept secret. Tom Malinowski of Human Rights Watch observed, “All the order really does is to have the president say, ‘Everything in that other document that I’m not showing you is legal — trust me.’”

To prevent detainees and former detainees from disclosing to their defense attorneys the specific extreme interrogation methods used against them, the Bush administration is using claims of “state secrets.” A Justice Department spokeswoman asserted that letting a former Maryland resident tell his lawyer the methods he suffered would be “inadequate to protect unique and potentially highly classified information that is vital to our country’s ability to fight terrorism.”

Unfortunately, the Supreme Court appears to be swallowing this argument. On Oct. 9, the Court refused to hear the case of Khaled el-Masri, a German of Lebanese descent who was kidnapped by the CIA during a 2003 vacation in Macedonia. He was stripped, beaten, shackled, and flown to a secret interrogation center in Afghanistan, where he was tortured for four months. The CIA eventually realized that they had the wrong guy, so Masri was flown to Albania and dumped on the side of the road.

German Chancellor Angela Merkel said that Secretary of State Condoleezza Rice admitted to her that the CIA had mistakenly grabbed Masri. The European Union confirmed Masri’s allegations, and the German government issued arrest warrants for 13 CIA agents earlier this year for their role in Masri’s kidnapping and torture. Masri’s story was all over Europe and he was interviewed by “60 Minutes” and other American media.

Masri sued CIA chief George Tenet, three private aviation companies, and 20 unnamed employees of the CIA and the companies. The ACLU, which represented him, declared that the Supreme Court should not allow the “government to engage in torture, declare it a state secret and … avoid any judicial accountability.”

But the Court accepted the Justice Department’s claims and banned Masri from American courtrooms. Apparently, as long as the U.S. government has not publicly confessed, then it is still a “state secret” that U.S. officials committed heinous crimes. (A similar case, involving an innocent Canadian who was seized at JFK International Airport and flown to Syria for torturing, continues to percolate in the U.S. courts.)

In his Oct. 5 statement, Bush declared, “the techniques that we use have been fully disclosed to appropriate members of the United States Congress.” But House Speaker Nancy Pelosi and Sen. Jay Rockefeller, the chairman of the Senate Intelligence Committee, angrily denied having been informed.

Not that they are doing much about it. Bush continues to benefit from a largely spineless Congress. Michael Ratner, president of the Center for Constitutional Rights, said, “Congress by its actions and inactions is the handmaiden of the torture program. Despite the publicly revealed memos authorizing torture and the testimony of its widespread use, Congress, even under the Democrats, has yet to hold even one hearing regarding the responsibility of high administration officials.” Congressional Democrats apparently believe that being criticized by Bush is a fate worse than torture. One exception is Sen. Ron Wyden of Oregon, who singlehandedly recently blocked the nomination of John Rizzo, who approved of the administration’s extreme definitions of torture, to be the general counsel of the CIA.

The Democrats initially indicated that they would refuse to hold confirmation hearings for Michael Mukasey, Bush’s nominee for attorney general, until they received the confidential legal rationales on interrogation policy and other matters. But fearing criticism, Democratic leaders dropped the demand.

There is little reason to expect that Mukasey, if confirmed, will rein in federal torture. According to Newsweek, he assured the Bush administration in private meetings that he “understood the need for the CIA to use enhanced interrogation methods” and that he did not support naming a special prosecutor for potential Bush administration crimes. In a 2004 speech, Mukasey declared, “the hidden message in the structure of the Constitution” is that the government is entitled to “the benefit of the doubt.” Does he believe government deserves a codified benefit of the doubt, regardless of perpetual misconduct or perfidy?

Still—gutless congressmen and compliant lawyers notwithstanding—the administration’s torture policy is under a Damocles Sword. The New York Times article caused a far greater splash than the Bush team expected. And if the memos themselves or Bush’s secret order to the CIA authorizing torture-like methods leak out, the White House could find itself in far more peril.   

James Bovard is the author of Attention Deficit Democracy and eight other books.


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20 Responses to The Latest Torture Twists & Turns

  1. alpowolf November 6, 2007 at 9:18 pm #

    I was giving the Democrats the benefit of the doubt, by calling them cowards. No more. Now I’ve lost what little doubt that I still had that the Democrats are in on the whole sordid business.

  2. Dirk W. Sabin November 7, 2007 at 3:36 pm #

    Once again, we have the Democrats quivering at the top of the stairs while Stanley screams “Nookyouler ” at the bottom of the stairs. The United States of A Streetcar Named Desire fistfights along. At least when China demands Yahoo’s complicity in violating a citizen’s rights, it is something to be expected. Unlike, of course, listening to the windbag Lantos reprimanding Yahoo while materially ignoring our own government’s complicity in a veritable smorgasborde of unconstitutional behavior, not the least of which is a gaily serialized discussion of torture.

    His Smirkness has a real career in comedy awaiting to fill his time between post White House (pardon me , was that the Blank House or the Blanche House)speaking engagements to refill the coffers. He can star as Elmer Fudd in a Broadway Revival of The Warner Brothers Cartoon “The Rabbit Hunt”. He’ll be a natural at bringing down the house every night as the show starts and there, in the brush is Elmer, finger erect in front of his lips and whispering back to Harry Reid dressed in a nice Bunny Suit ….

    “Be vewy vewy Q…U…I…E..T!”.

    Maybe the Grand Deecider of What Torture Is can resolve the question once and for all by joining his entire Cabinet in some Army Surplus Gynocological Exam tables where they can show the world just how benign a little water boarding and some pointed questions with a gene-enhanced ethanol corncob are. Masri should be put in charge of the veep’s un-torture……Metaphorically speaking of course.

    Some things are disgraceful and then , well, some things occupy a realm beyond words.

  3. Tory November 7, 2007 at 5:00 pm #

    Read Jacob Hornbergers’ Wednesday blog (excellent):

    Paralyzing Silence Among the Neocons:

    Ron Paul raised over $4 million in one day on the internet !

  4. Annie November 8, 2007 at 1:01 pm #

    “The secret torture memos, written by Steven Bradbury, the head of the Justice Department Office of Legal Counsel, relied on “a Supreme Court finding that only conduct that ‘shocks the conscience’” would go too far.”

    The problem with this argument is that anyone capable of working as an interrogator who engages in torture has already lost touch with his own conscience; he’s not going to feel a thing, until maybe later on, down the night, when he starts having his own nightmares.

    “Bush continues to benefit from a largely spineless Congress. Michael Ratner, president of the Center for Constitutional Rights, said, ‘Congress by its actions and inactions is the handmaiden of the torture program. Despite the publicly revealed memos authorizing torture and the testimony of its widespread use, Congress, even under the Democrats, has yet to hold even one hearing regarding the responsibility of high administration officials.’ ”

    I am disappointed that there is so little attention being paid to Dennis Kucinich. The attention he does get is usually ridicule. Even if people don’t like the idea of him as president, what he has to say should be heard. I have been hugely impressed by him the last two days; he is one of the few sane members of Congress. Even Ron Paul has said they are good friends, and except for his being a Democrat, might be supportive of him as a candidate if he himself were not in the race. YouTube.

  5. Mace Price November 9, 2007 at 6:38 am #

    …Dude…Ya gotta expect paralyzing silence from the neo-Cons–Particularly when you consider that their core Leadership were all formerly hard, ardent, Leftists. Through their Administrative approach toward, and subsequent effects of synthesizing Public Opinion; do they now control US Foreign Policy, Military Intelligence and virtually all the mechanisms of Power in Government…Given the appalling ignorance and indifference of The American electorate, it should come as no surprise that such consequences as we presently face were to be expected…I dunno…But it’s said that the trouble with refusing to participate in Politics, is that you end up being ruled by your inferiors…Witness the Cabal of villains presently exercising their rationalized concepts of Democracy, as well as its export by Military Occupation, all at taxpayer expense.

    While this business of War and the so called “Unitary Executive” should not be tolerated by a Civilized electorate—And I use the term Civilized loosely–The real tragedy is the fraudulent, duplicitous, and transparent connivance of the, so called, alternative, anti-War movement. Currently alleged to be on the Political Agenda, and amongst the Assets of the Democratic Left. This pretense is particularly mortifying when checking the mounting casualty reports, and considering the nearly Trillion dollars squandered at the behest of none other than AIPAC, solely for the identification of Israel, a Nation subsidized by The US for 60 years, and, as a gesture of gratitude still conducts active Espionage operations against it. All toll? I find that to be the unkindest cut of all.

  6. Mace Price November 9, 2007 at 6:43 am #

    …Sorry about the double post brethren

  7. Mace Price November 11, 2007 at 9:22 am #

    …Try this here quote on fer size Jimmy! “We’re an Empire now, and when we act, we create our own Reality. And while you’re studying that Reality–Judiciously as you will–We’ll act again, creating other new Realities, which you can study too. And that’s how things will sort out. We’re History’s actors…and you, all of you, will be left to study just what we do.”

    –Attributed to a Bush Administration Official in a conversation with Reporter Ron Suskind

    …That’s precisely how far things of gone. he’s insane enough to believe he and the others actually create Reality. Conversely, they may be correct…and end up creating one they won’t be nearly as intoxicated with…Past that? This is the worst Goddamn thing I think I’ve read in 40 years.

  8. Tom Blanton November 12, 2007 at 11:17 am #

    An interesting article appeared in the The Observer this weekend about mercenary interrogators being pressured to obtain information from Iraqis that can be used for propaganda for a war against Iran. Can we call this Operation Waterboarding For War?,,2208997,00.html

  9. Mace Price November 12, 2007 at 12:53 pm #

    …Call it what you want, I call it Tyranny…Why? It remains this Goddamned simple and this sickeningly brief Gentlemen: If they can Waterboard them on a Subjective Basis? They can Waterboard—or drown—You too. And they will…After all, if Mr. Suskind is to be believed, they now “Create Realities of their own for you to study” They are: “History’s Actors”—Knowing at least a few things about History, I can tell you that that level of self referential self aggrandizing threat, is a Goddamned aberration right out of Orwell…I further believe, as proclaimed by this singular mental case, it is a state of affairs that holds every potential of becoming Draconian. It is nothing less than a menacing advertisement for an insane synthesis to be imposed at a future juncture. One that should not, and cannot be tolerated by a Free and Democratic people.

  10. Tory November 12, 2007 at 6:33 pm #

    Both sides are destroying America; one with foreign policy the other with socialism. Both create leviathan (the problem).

  11. Jim November 13, 2007 at 12:07 am #

    Annie – you’re right – Kucinich should be getting more respect. He has more courage on the war than the other Dem. candidates combined.

  12. Jim November 13, 2007 at 12:10 am #

    Tom – Thanks for posting the link to the excellent UK piece on torturing for war. I had missed that story.

    I wonder if the SS did the same thing with the Polish prisoners they shot before invading on September 1, 1939.

  13. Dirk W. Sabin November 13, 2007 at 11:24 am #

    As much as one might disagree with Kucinech on a host of issues, one has to admit that he establishes positions based upon his own reasoning and then holds them and defends them comes what may. He and Ron Paul represent a strain of American Politics that has been lacking for too long. While everyone else scrambles for consensus or obfuscation enroute to a majority, these men hold to reason in vain hope that their might be some faint love of it remaining within the easily distracted American.

    Both have my admiration if for no other reason than they continue to adhere to the Framer’s game plan of informed reason, principle and steadiness in the face of the current self-destructive American Politics of Chicanery. A collegial conversation between these two belligerants would be an education for every American.

  14. Tory November 13, 2007 at 2:33 pm #

    He’s a socialist who wants to spend the money Bush spends in Iraq here on gov’t programs and more central planning.

    The Framers game plan included an armed citizenry.

    Cleveland is getting a reputation for ignoring the US Constitution and state laws too. So much for the rule of law.

    Hitler prohibited Jews from possessing guns. The SS confiscated them. Auschwitz was built in Poland (as planned) in the heart of its natural resources. After the SS rounded up all the disarmed Jews they were shipped (like cattle) to Auschwitz. The men were separated from the rest for slave labor; the rest were exterminated. Kucinich believes we are not responsible enough or mature enough to keep our handguns. People like Kucinich believe what happened in Germany can’t happen here; for now that’s true until we elect enough politicians like him. After all the Kucinichs’ have their way, there will be no way we ever stop US foreign imperialism.

    I don’t know how anyone can equate Ron Paul to Kucinich. Hillary (like many other democrats) will continue the occupation. At least republicans leave us with the tools needed to stop them. [This is the crap Bush creates.]

    The socialists are as bad as the others. FDR, LBJ, etc.

  15. Tory November 13, 2007 at 5:18 pm #

    Kucinich Takes House Floor to impeach Cheney:

    Nothing wrong with that.

    “We gottem on their last throes” (Cheney,2003)

  16. Tory November 13, 2007 at 5:50 pm #

    Which candidate does the military like the most ?

    RonPaul (RP) on YouTube:

    There is nothing negative to say about Ron Pauls’ campaign for President – nothing. Imagine the pleasure of walking into a polling booth and seeing Ron Pauls’ name on the ballot.

  17. Mace Price November 14, 2007 at 4:34 am #

    …Kucinich is a comitted Leftist. He’s been as much all of his Political career.

  18. Tory November 15, 2007 at 9:51 am #

    The courts never learn. They admit the Japanese/American internment was their worst period, but they still lean towards our gov’t that can do no wrong. They still lean towards providing for the public’s safety and the age old excuse ‘national security’, even after it’s so obvious we are no less safe.

    They give away our freedom only to be politically correct.

    It’s been a training ground for political appointees (SCOTUS).

  19. Mace Price November 15, 2007 at 7:25 pm #

    …One established Politician’s worth 6 or 7 Federal Judges.


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