Zionist/American Big Brother's fictitious enemy gets a new name: "Indefinitely Detained And Tortured Arabs..." together with the ASSADs Mafia, Assef Shawkat and the infamous White House Murder INC,...and the CIA2's rendition Airlines to Damascus....and the Crown Jewel assassination of IMAD F. MOUGHNIEH in Damascus by Asef Shawkat, Feb. 12th 2008....working on behalf of the Siamese twins; CIA2/MOSSAD.
Is it 1984 yet?
Room 101
For his dystopia, 1984, his classic novel of totalitarianism, George
Orwell created "Room 101," an interrogation room where a prisoner's
deepest fears were to be realized and applied. Tier 1 in Iraq's Abu
Ghraib prison, as the now-infamous photos indicate, was the Bush
administration's Room 101 for the "Arab mind," and so the crown jewel
of its global interrogation facilities; just as Guantanamo was the
"crown jewel" of the prison camps in its global Bermuda Triangle of
injustice; just as the new appointed "interim government" hidden
within the ever-more fortified Green Zone in Baghdad and led by a
prime minister and former CIA asset whose exile organization, we
learned this week, once set off car bombs in downtown Baghdad, is now
the crown jewel of "freedom and democracy" in the Middle East. This is
our "war against terrorism." Talk about an Orwellian world.
Obama's orders leave framework of torture, indefinite detention intact
http://www.wsws.org/articles/2009/jan2009/guan-j23.shtml
By Tom Eley
George Orwell... meet Franz Kafka
http://www.tomdispatch.com/post/1494/george_orwell_meet_franz_kafka
Quotes of the week:
"Congress lacks authority . to set the terms and conditions under
which the president may exercise his authority as commander in chief
to control the conduct of operations during a war.Congress may no more
regulate the president's ability to detain and interrogate enemy
combatants than it may regulate his ability to direct troop movements
on the battlefield. Accordingly, we would construe [the law] to avoid
this difficulty and conclude that it does not apply to the president's
detention and interrogation of enemy combatants." (From a 56-page
memo, "Detainee Interrogation in the Global War on Terrorism" written
by a legal team for the Secretary of Defense on the eve of the Iraq
War.)
"Congress shall have the power . to declare war and make rules
concerning captures on land and water . to define offenses against the
law of nations [and] to make rules for the government and regulation
of the land and naval forces." (From the Constitution, David G. Savage
and Richard B. Schmitt, Lawyers Ascribed Broad Power to Bush on
Torture, the Los Angeles Times)
"We need to have a less-cramped view of what torture is and is not."
(A military official explaining the approach of the team writing the
above memo, Jess Bravin, Pentagon Report Set Framework For Use of
Torture, The Wall Street Journal)
"It's a very cowboy kind of affair." (Lt. Col. Steven L. Jordan, who
controlled the Joint Interrogation and Debriefing Center at Abu Ghraib
prison, speaking of the actions of the CIA unit there, R. Jeffrey
Smith, Soldier Described White House Interest, the Washington Post)
Room 101
For his dystopia, 1984, his classic novel of totalitarianism, George
Orwell created "Room 101," an interrogation room where a prisoner's
deepest fears were to be realized and applied. Tier 1 in Iraq's Abu
Ghraib prison, as the now-infamous photos indicate, was the Bush
administration's Room 101 for the "Arab mind," and so the crown jewel
of its global interrogation facilities; just as Guantanamo was the
"crown jewel" of the prison camps in its global Bermuda Triangle of
injustice; just as the new appointed "interim government" hidden
within the ever-more fortified Green Zone in Baghdad and led by a
prime minister and former CIA asset whose exile organization, we
learned this week, once set off car bombs in downtown Baghdad, is now
the crown jewel of "freedom and democracy" in the Middle East. This is
our "war against terrorism." Talk about an Orwellian world.
As it happens, from the heart of Abu Ghraib's interrogation rooms and
the acts of, as our President and other administration officials have
repeatedly said, "a few people" or even "a few hillbillies," the
nature of, extent of, knowledge about, and responsibility for such
acts has been rapidly spreading outwards across the imperium, upwards
into the highest reaches of our government, and backwards in time. We
now know, for instance, that, to the various acts of horror caught on
camera in Abu Graib, we must add murder (or rather numerous murders)
in Afghanistan as well as Iraq, and the use of electric shocks on
prisoners, as the Marine Corps Times reported recently.
As for the acts we saw in the photographs, they too have "spread" and
knowledge of them reaches ever higher: To take but two examples,
Nakedness is now reported to have been used as a tool of humiliation
not just in Iraq but in Afghanistan and at Guantanamo, as it was used
in one of the earliest acts of American inhumanity in the war against
terrorism, the interrogation of John Walker Lindh in Afghanistan back
in 2001; while the "technique" of menacing prisoners with dogs -- "an
apparent violation of the Geneva Conventions and the Army's field
manual" -- has now been well documented at Abu Ghraib by the
Washington Post ("On Jan. 13, Spec. John Harold Ketzer, a military
intelligence interrogator, saw a dog team corner two male prisoners
against a wall, one prisoner hiding behind the other and screaming, he
later told investigators. 'When I asked what was going on in the cell,
the handler stated that he was just scaring them, and that he and
another of the handlers was having a contest to see how many detainees
they could get to urinate on themselves.'"); but it was also evidently
employed at Guantanamo, according to the Wall Street Journal.
In the meantime, responsibility for such actions has moved inexorably
upwards. We know now that interest in information gleaned from
interrogations, ranging from that of John Walker Lindh to those in
Iraq was requested at the highest official levels (not so surprising,
since our offshore mini-gulag was a pet project of top officials in
this administration): "The head of the interrogation center at the Abu
Ghraib prison in Iraq told an Army investigator in February that he
understood some of the information being collected from prisoners
there had been requested by 'White House staff,' according to an
account of his statement obtained by The Washington Post." Far more
specifically, R. Jeffrey Smith and Josh White of the Post reported
this Saturday that, despite his denials to Congress, in the fall of
2003, "Lt. Gen. Ricardo S. Sanchez, the senior U.S. military officer
in Iraq, borrowed heavily from a list of high-pressure interrogation
tactics used at the U.S. detention center in Guantanamo Bay, Cuba, and
approved letting senior officials at a Baghdad jail use military dogs,
temperature extremes, reversed sleep patterns, sensory deprivation,
and diets of bread and water on detainees whenever they wished,
according to newly obtained documents."
In turn, thanks to Jess Bravin and Greg Jaffe of the Wall Street
Journal, we now know that in December 2002 Donald Rumsfeld approved a
very similar list of "interrogation techniques" right down to those
dogs for Guantanamo: "U.S. military interrogators at Guantanamo Bay,
Cuba, could put prisoners in 'stress positions' for as long as four
hours, hood them and subject them to 20-hour-long interrogations,
'fear of dogs' and 'mild non-injurious physical contact,' according to
[a] list of techniques Defense Secretary Donald Rumsfeld approved in
December 2002." (The list was later rejiggered not because of any
qualms Rumsfeld had but due to complaints from military officers about
the severity of the methods suggested. The present list of approved
techniques remains classified, but will undoubtedly soon be leaked to
the press.)
The above can be traced back farther yet. According to "documents,
read to The [Los Angeles] Times by two sources critical of how the
government handled the Lindh case," writes journalist Richard Serrano,
"After American Taliban recruit John Walker Lindh was captured in
Afghanistan, the office of Defense Secretary Donald H. Rumsfeld
instructed military intelligence officers to 'take the gloves off' in
interrogating him. In the early stages, his responses were cabled to
Washington hourly, the new documents show. What happened to Lindh, who
was stripped and humiliated by his captors, foreshadowed the type of
abuse documented in photographs of American soldiers tormenting Iraqi
prisoners at Abu Ghraib."
This, of course, takes us not only to the top of the administration,
but back to the brink of the -- if I dare put it this way -- Ur-moment
in the setting up of what would become our offshore mini-gulag, those
months right after the 9/11 attacks when the Bush administration began
to set their system in place on the fly and, as Suzanne Goldenberg of
the British Guardian reported recently, on key issues without
initially even consulting White House or Pentagon lawyers.
"In one instance, President George Bush's military order of November
13 2001, which denies prisoner-of-war status to captives from
Afghanistan and allows their detention without charge or access to a
lawyer at Guantánamo, was issued without any consultations with
Pentagon lawyers, a former Pentagon official said. The military order
issued by Mr Bush in November 2001 was the first such directive since
the second world war, and the administration's failure to seek the
Pentagon's advice on what would emerge as the entire system of
detention at Guantánamo surprised Pentagon officials."
Add it all up -- only what's been revealed so far -- and you have a
global system of injustice and torture, purposely mounted in the moral
and legal darkness, beyond the reach or oversight of anyone but the
President, vice-president, secretary of defense and associated
officials, meant to extract information (and take revenge), meant as
in Kafka's fictional penal colony to write the sentence these men had
passed on the bodies of America's captives.
And talk about paper trails! If you need any evidence of the
combination of arrogance, incompetence, and plain stupidity of the
Bush administration, it now sits unavoidably before our eyes. Didn't
they know anything about deniability? Didn't they know that you can
get so much done without committing anything to paper? Didn't they
know that you can signal what you want from the top without issuing
orders, making direct demands, or demanding supporting opinions on
paper?
Note two things here: That almost all of the above, this whole little
global shop of horrors, is already documented -- quite literally in
papers pouring out of the bowels of this administration. These
documents are leaking daily from an administration that seems to have
split open along many angry rift lines. The British Telegraph this
week, writing of the leaking of a legal document on torture to the
Wall Street Journal commented, for example:
"The leak appears to be part of an extraordinary civil war in the
Pentagon between civilian officials and uniformed officers appalled by
what they have described as moves by political appointees to shroud
the war on terrorism in an 'environment of legal ambiguity'."
Some in the military, the intelligence community, the State
Department, administration legal offices, and possibly even the
Justice Department opposed the creation of our mini-gulag and the
kinds of interrogations and conditions planned for it; some simply
feared what the illegality might do to them or their careers,
including evidently Joint Chiefs of Staff Chairman Gen. Richard Myers
who fretted that he might become "a target for prosecution under laws
governing prisoner treatment"; some are undoubtedly settling scores;
others protecting tattered reputations; but it's now close to open
season on the administration from within.
Only today, the Los Angeles Times reported that, in a nearly
unprecedented act in our country, 26 ex-military and senior diplomatic
officials, "several appointed to key positions by Republican
Presidents Ronald Reagan and George H.W. Bush, plan to issue a joint
statement this week arguing that President George W. Bush has damaged
America's national security and should be defeated in November." And
retired officials almost invariably are speaking for larger
constituencies within the government -- all those potential leakers
and mutterers -- who fear speaking out publicly themselves.
Addressing an Asian security conference on the administration's "war
on terror," Donald Rumsfeld recently commented : "[T]he reality is
that today we remain closer to the beginning of this struggle than to
its end." The same might be said of the uncovering of responsibility
for our own global terror system. There will be so much more to learn.
Already, when it comes to Abu Ghraib, Iraq, and Afghanistan, the
Pentagon keeps heaping investigations on top of one another, each
subsequent one led by a figure with a higher rank and so more capable
of investigating responsibility at higher levels, and I think it can
be said with certainty that this will only get worse -- worse probably
than anything we now imagine. After all, to take but the smallest of
examples, CBS news reports that "of the 20 U.S.-run jails in
[Afghanistan], the Red Cross has only been allowed to visit one in
Kabul. Now one in Kandahar is being opened." Imagine what's been
happening at those other 18.
A world of tortured definitions
Here's what's clear. In the wake of the 9/11 attacks, the "tough guys"
of Bush's world promptly battened down the hatches and began preparing
for the war, and warfare state, of their dreams. Using the analogy of
the almost four-decade-long Cold War, which was their lifetime
experience (and with movie images of World War II dancing in their
heads), they announced that we were in a global war not against any
state (though they were already itching to hit Saddam's Iraq), but
against "terrorism" itself, an amorphous force -- actually, of course,
a tactic employed by scattered bands of Islamic fanatics (some
initially funded by men in this administration back when we were
fighting the Soviets by proxy in Afghanistan). This new "war," they
announced with a certain élan and self-satisfaction would, like the
previous cold one, last decades if not a lifetime. With Americans in
shock and fearful, they then began planning a no-holds-barred,
bring-'em-on style of warfare filled with acts of pitiless, unilateral
vengeance to be launched by the most powerful state on the planet in
the way of which nothing should get.
This was a war to be fought, to use a common Cold War catchphrase, "in
the shadows," and the shadows would soon enough include a global
imprisonment system that stretched from holding cells on aircraft
carriers to facilities in Afghanistan to Saddam's old prisons to
Guantanamo to military brigs in the United States and unnamed jails in
"friendly" foreign countries. In those shadows, beyond the eyes of
anyone, they had every intention of employing the sort of tactics that
they imagined would break the back of terrorism. These acts of
"information extraction" would be torture -- terror, that is -- by
another name or no name at all.
Looking back, it's curious how much of this was a war of words, a
redefinitional journey involving linguistic and legalistic contortions
of the most remarkable sorts. The first of these contorted definitions
was of "war" itself. We did not actually declare war. After all, who
was war to be declared against? We were simply defined as being "at
war." And from this, a series of other definitions followed. Perhaps
the most important had to do with the people captured in this "war."
It might seem apparent that, having declared yourself at war, the
people you thereafter captured might indeed be prisoners of war. But
this presented a problem since the rights of POWs were so clearly
defined internationally in treaties signed by the U.S. government. So
the administration simply redefined those captured in this redefined
war as "unlawful combatants" or "illegal combatants." This and other
terms used for them came out of a new Devil's dictionary; for once we
had defined them thusly, they could then enter our offshore world of
imprisonment -- at least in the minds of Bush administration officials
- as the sorts of captives to whom a whole new series of definitions
could be applied.
The third definitional problem was where to hold these prisoners, so
that the holding itself (without charge or trial, potentially to
eternity) could not be challenged either by the prisoners themselves
through any legal representation or through the courts of our own
country. The administration needed a place where it could publicly
practice its new definitional privacy - and that turned out to be our
military base at Guantanamo, which was redefined for the purposes of
the moment as under "Cuban sovereignty," though this was obviously a
brazen fiction. But even this wasn't satisfactory for them.
Guantanamo, off-limits as it was, still turned out to be far too
"public" for what they planned to do to their "highest value" captives
and so, for them, they developed a special, CIA-run system of
imprisonment that stepped beyond definition itself. As Human Rights
Watch puts it in an invaluable recent report on our global torture
system:
"Among the most disturbing cases, perhaps unprecedented in U.S.
history, are the detainees who have simply been 'disappeared.' Perhaps
out of concern that Guantánamo will eventually be monitored by the
U.S. courts, certainly to ensure even greater secrecy, the Bush
administration does not appear to hold its most sensitive and
high-profile detainees there. Terrorism suspects like Khalid Sheikh
Mohammed, accused architect of the September 11 attacks, and Abu
Zubaydah, a close aide of Osama bin Laden, are detained by the United
States instead in 'undisclosed locations,' presumably outside the
United States, with no access to the ICRC, no notification to
families, no oversight of any sort of their treatment, and in most
cases no acknowledgement that they are even being held. Human Rights
Watch has pieced together information on 13 such detainees,
apprehended in places such as Pakistan, Indonesia, Thailand, Morocco,
and the United Arab Emirates, who have 'disappeared' in U.S. custody."
At the same time, the administration was attempting to redefine
presidential power in such a way that the once normal Congressional
and court checks and balances of an American republic no longer
applied. In his power as commander-in-chief (again note that all other
redefinitions were based on the redefinition of "war"), the President
was, in various legal briefs meant for the highest officials in this
administration, pronounced to be beyond any control by Congress or the
courts in his acts. (See the initial quote above.)
Finally, having redefined the nature of war, the powers of the
president, the nature of captivity, and the places of imprisonment, it
was the most natural thing in the world to redefine "information
extraction" within such a system so that neither international
treaties like the Geneva Conventions, nor congressionally passed laws,
nor the Constitution itself was applicable to them. In this sense,
from the earliest days after the 9/11 attacks, the Bush administration
was focused on, above all else, setting up a global torture system by
another name.
Much of this has recently become clearer as a series of internal
documents produced by White House, Pentagon, and Justice Department
lawyers have leaked out in recent weeks. To offer a Vietnam analogy,
you might say that in the Vietnam era, The Pentagon Papers, that
revelatory secret study ordered up by Secretary of Defense Robert
McNamara and slipped to the New York Times by one brave whistleblower,
Daniel Ellsberg, were the private, confessional equivalent of liberal
guilt over the war; in the Bush era, these unbelievable lawyers'
memos, some also ordered up in the privacy of the administration by
the present Secretary of Defense, are the neocon equivalent of a
(legalistic) guilty conscience. They are, in some perverse fashion,
deeply confessional documents, and in the future, they will read that
way.
There were two parallel struggles here: One was to establish the war
they wanted to fight and this they largely did before they turned to
the lawyers; the other was to clear the decks legally for it. This
week - even while Ronald Reagan ruled -- Jess Bravin of the Wall
Street Journal produced a hard-hitting piece based on one of these
leaked documents that began a process not likely to go away soon. He
led off:
"Bush administration lawyers contended last year that the president
wasn't bound by laws prohibiting torture and that government agents
who might torture prisoners at his direction couldn't be prosecuted by
the Justice Department. The advice was part of a classified report on
interrogation methods prepared for Defense Secretary Donald Rumsfeld
after commanders at Guantanamo Bay, Cuba, complained in late 2002 that
with conventional methods they weren't getting enough information from
prisoners. at its core is an exceptional argument that because nothing
is more important than 'obtaining intelligence vital to the protection
of untold thousands of American citizens,' normal strictures on
torture might not apply. The president, despite domestic and
international laws constraining the use of torture, has the authority
as commander in chief to approve almost any physical or psychological
actions during interrogation, up to and including torture, the report
argued."
As Bravin reported:
"The report was compiled by a working group appointed by the Defense
Department's general counsel, William J. Haynes II. Air Force General
Counsel Mary Walker headed the group, which comprised top civilian and
uniformed lawyers from each military branch and consulted with the
Justice Department, the Joint Chiefs of Staff, the Defense
Intelligence Agency and other intelligence agencies. It isn't known if
President Bush has ever seen the report. A military lawyer who helped
prepare the report said that political appointees heading the working
group sought to assign to the president virtually unlimited authority
on matters of torture -- to assert 'presidential power at its absolute
apex.'"
Though the report has now been much quoted, it should be read in full.
Its flavor can hardly be grasped in tidbits. It may, in fact, be one
of the most tortured "legal" pieces ever written -- certainly ever
written in a democracy -- on the subject of redefining acts of
inhumanity and torture as something other than acts of inhumanity and
torture. (If your computer can handle pdf files, you can click here to
find it.) In it, Orwell's "doublethink" meets the lawyers and judges
of Kafka's The Trial head on, revealing a dark landscape of legalistic
legerdemain.
The report had two main purposes, as best I understand it -- to place
presidential power (in the form of the powers of the
commander-in-chief to prosecute war) outside any legal boundaries
whatsoever, thus removing from George Bush and his subordinates of any
responsibility for acts he may have ordered committed; and to redefine
torture so narrowly that it becomes the definitional property of the
torturer.
It's worth spending a little time with some of this document just to
get a feel for it. The lawyer-authors, for instance, expend much
effort acting as if they were part of a panel for a new edition of
some dictionary ("The word 'profound' has a number of meanings, all of
which convey a significant depth. Webster's New International
Dictionary 1977 [2nd ed. 1935 defines profound as...]") and, where
necessary, they don't hesitate to take up the role of psychiatrist
either. "We likewise think," they write at one point, considering what
might disrupt "profoundly the senses or personality" and so be
considered torture, "that the onset of obsessive-compulsive disorder
behaviors would rise to this level... Moreover, we think that pushing
someone to the brink of suicide [which could be evidenced by acts of
self-mutilation], would be a sufficient disruption of the personality
to constitute a 'profound disruption.'")
Their purpose in each case is to narrow drastically some previous
legal definition of torture. They spend much time, for instance,
considering how to define various parts of the well-accepted phrase
"severe physical or mental pain or suffering," always emphasizing the
word "severe" and then defining it in the most severe possible way:
"In order to prove 'severe mental pain or suffering,' the statute
requires proof of 'prolonged mental harm' that was caused by or
resulted from one of four enumerated acts... [T]he development of a
mental disorder such as posttraumatic stress disorder, which can last
months or even years, or even chronic depression... might satisfy the
prolonged harm requirement... [I]f a defendant [interrogator] has a
good faith belief that his actions will not result in prolonged mental
harm, he lacks the mental state necessary for his actions to
constitute torture. A defendant could show that he acted in good faith
by taking such steps as surveying professional literature, consulting
with experts, or reviewing evidence gained from past experience...
Because the presence of good faith would negate the specific intent
element of torture, good faith may be a complete defense to such a
charge."
In other words, the harm to a prisoner from what might ordinarily be
considered acts of inhumanity and torture must be "severe" indeed --
proof of that severity could even take several months to develop --
and in addition it would have to be proved that the interrogator
actually meant to create a state of, say, posttraumatic stress
disorder. In other words, the act of torture is not, in fact, torture
if the intent to torture is not there -- and, since it's a matter of
"good faith," the only person who could affirm that torture had taken
place would, in essence, be the torturer.
But even that's not enough. According to this administration's best
legal minds, even knowing in a general sense what ill results might
come from your acts does not necessarily make you a torturer, not if
you did not mean to cause such results. What must be proven is
"specific intent to cause pain," a phrase they then spend much space
redefining. They write:
"As a theoretical matter, therefore, knowledge alone that a particular
result is certain to occur does not constitute specific intent... if
causing such harm is not his objective, he lacks the requisite
specific intent... A defendant is guilty of torture only if he acts
with the express purpose of inflicting severe pain or suffering on a
person within his custody or physical control... Where a defendant
acts in good faith, he acts with an honest belief that he has not
engaged in the proscribed conduct."
This is, of course, but the briefest glimpse into the bizarre and
twisted definitional thinking that fills this 56-page document, much
of it focused on the problem of potential future "prosecutions arising
out of the exercise of the president's express authority as
Commander-in-Chief" to create what is essentially a torture regime
abroad. (Strangely enough, in the light of day this dark document
reads like a witness for the prosecution in any future
war-crimes-style trials of the members of this administration.) Just
to give a tiny flavor of this aspect of the document, here's an almost
random passage:
"Any effort by Congress to regulate the interrogation of unlawful
combatants would violate the Constitution's sole vesting of the
Commander-in-Chief authority in the President. There can be little
doubt that intelligence operations, such as the detention and
interrogation of enemy combatants and leaders, are both necessary and
proper for the effective conduct of a military campaign. Indeed such
operations may be of more importance in a war with an international
terrorist organization than one with the conventional armed forces of
a nation-state, due to the former's emphasis on secret operations and
surprise attacks against civilians. It may be the case that only
successful interrogations can provide the information necessary to
prevent the success of covert terrorist attacks upon the United States
and its citizens. Congress can no more interfere with the President's
conduct of the interrogation of enemy combatants than it can dictate
strategy or tactical decisions on the battlefield. Just as statutes
that order the President to conduct warfare in a certain manner or for
specific goals would be unconstitutional, so too are laws that seek to
prevent the President from gaining the intelligence he believes
necessary to prevent attacks upon the United States."
Finally, the authors of this document invoke the "superior orders"
doctrine (made famous at Nuremberg) commenting that:
"In sum, the defense of superior orders will generally be available
for U.S. Armed Forces personnel engaged in exceptional interrogations
except where the conduct goes so far as to be patently unlawful."
Of course, that wonderfully turned phrase "exceptional interrogations"
means "torture" (except that, by this point in the document, torture
itself no longer means torture); and while I'm no lawyer, the concept
of "patently unlawful" seems a curious one to me. I'd like to see that
brought into an everyday court of law. (The defendant throws himself
on the mercy of the court: "I did it, judge, and it was definitely
unlawful, but I plead innocent since it was not patently so.")
The Wall Street Journal "opinion" is but one of a series of internal
memorandums we now know about, written between January 2002 and early
this year, which seem to have much in common. For instance, in an
earlier legal memorandum, written in August 2002 by the Justice
Department for the CIA, "signed by Assistant Attorney General Jay S.
Bybee," addressed to White House counsel Alberto Gonzalez, and leaked
to the Washington Post, the writers also chewed over the issue of how
much pain constitutes torture. They wrote that the "inflicting [of]
moderate or fleeting pain does not necessarily constitute torture.
Torture, the memo says, 'must be equivalent in intensity to the pain
accompanying serious physical injury, such as organ failure,
impairment of bodily function, or even death.'" (Otherwise, assumedly,
you just scream.) Similarly, the writers suggest: "For purely mental
pain or suffering to amount to torture. it must result in significant
psychological harm of significant duration, e.g., lasting for months
or even years."
Let's remember that of the legal minds responsible for these
"opinions," Bybee is now a judge on the U.S. 9th Circuit Court of
Appeals in San Francisco; the Defense Department's general counsel,
William J. Haynes II has been nominated to be an appellate judge, in
the U.S. 4th Circuit in Richmond, Va.; and John Yoo, author of some of
the earliest of these memorandum, has returned to a professorship at
the University of California, Berkeley, where, in response to student
protests, he said: "I think the calls for my resignation are misguided
and don't show an understanding of the job of a lawyer."
And in this he's probably right. As the CIA produced the kited
"intelligence" the administration needed to go to war in Iraq, so its
various legal groups produced the memorandum it needed - again and
again and again - to imprison beyond the rule of law and torture those
whom it pleased. As Phillip Carter, a former U.S. Army officer, put it
in Slate: "[N]o amount of caveating can save the latest Defense
Department memorandum on the legality of torture. from being construed
as what it is: a cookbook on how to conduct illegal torture and get
away with it."
These are, in fact, documents of shame, symbolic of a kind of
bureaucratic lawlessness let loose at the heart of our government.
They are intent on creating a pseudo-legal basis for replacing the
rule of law with the rule of a commander-in-chief. As Robert Kuttner
put it in the Boston Globe, "For nearly three years, the Bush
administration has resorted to the most preposterous fictions to
define either locales or categories of people to whom the law does not
apply. If you connect the dots, the torture at Abu Ghraib is part of a
larger slide toward tyranny as the Bush administration tries to exempt
itself from the rule of law." As justifications for torture, these are
the sorts of documents one can imagine finding in the files of some
grim third world dictatorship or maybe the former Apartheid regime of
South Africa. As the Washington Post editorial page put it recently,
speaking of the authors of such memos and their masters, "Theirs is
the logic of criminal regimes." Were it ever to be made the law of the
land, our republic, such as it is, would quite literally be ended and
we would face some kind of one-party dictatorship. Were its
definitions of torture ever made the law of the land, every torturer
on earth would shout hosannas to it.
[Coming Tuesday, Part II: On our global torture system, the executive assassinations ring of Dick Cheney, the White House Murder INC, its history,
future presidential defenses, and the rise of the Nazi analogy....]
Room 101
For his dystopia, 1984, his classic novel of totalitarianism, George
Orwell created "Room 101," an interrogation room where a prisoner's
deepest fears were to be realized and applied. Tier 1 in Iraq's Abu
Ghraib prison, as the now-infamous photos indicate, was the Bush
administration's Room 101 for the "Arab mind," and so the crown jewel
of its global interrogation facilities; just as Guantanamo was the
"crown jewel" of the prison camps in its global Bermuda Triangle of
injustice; just as the new appointed "interim government" hidden
within the ever-more fortified Green Zone in Baghdad and led by a
prime minister and former CIA asset whose exile organization, we
learned this week, once set off car bombs in downtown Baghdad, is now
the crown jewel of "freedom and democracy" in the Middle East. This is
our "war against terrorism." Talk about an Orwellian world.
Obama's orders leave framework of torture, indefinite detention intact
http://www.wsws.org/articles/2009/jan2009/guan-j23.shtml
By Tom Eley
George Orwell... meet Franz Kafka
http://www.tomdispatch.com/post/1494/george_orwell_meet_franz_kafka
Quotes of the week:
"Congress lacks authority . to set the terms and conditions under
which the president may exercise his authority as commander in chief
to control the conduct of operations during a war.Congress may no more
regulate the president's ability to detain and interrogate enemy
combatants than it may regulate his ability to direct troop movements
on the battlefield. Accordingly, we would construe [the law] to avoid
this difficulty and conclude that it does not apply to the president's
detention and interrogation of enemy combatants." (From a 56-page
memo, "Detainee Interrogation in the Global War on Terrorism" written
by a legal team for the Secretary of Defense on the eve of the Iraq
War.)
"Congress shall have the power . to declare war and make rules
concerning captures on land and water . to define offenses against the
law of nations [and] to make rules for the government and regulation
of the land and naval forces." (From the Constitution, David G. Savage
and Richard B. Schmitt, Lawyers Ascribed Broad Power to Bush on
Torture, the Los Angeles Times)
"We need to have a less-cramped view of what torture is and is not."
(A military official explaining the approach of the team writing the
above memo, Jess Bravin, Pentagon Report Set Framework For Use of
Torture, The Wall Street Journal)
"It's a very cowboy kind of affair." (Lt. Col. Steven L. Jordan, who
controlled the Joint Interrogation and Debriefing Center at Abu Ghraib
prison, speaking of the actions of the CIA unit there, R. Jeffrey
Smith, Soldier Described White House Interest, the Washington Post)
Room 101
For his dystopia, 1984, his classic novel of totalitarianism, George
Orwell created "Room 101," an interrogation room where a prisoner's
deepest fears were to be realized and applied. Tier 1 in Iraq's Abu
Ghraib prison, as the now-infamous photos indicate, was the Bush
administration's Room 101 for the "Arab mind," and so the crown jewel
of its global interrogation facilities; just as Guantanamo was the
"crown jewel" of the prison camps in its global Bermuda Triangle of
injustice; just as the new appointed "interim government" hidden
within the ever-more fortified Green Zone in Baghdad and led by a
prime minister and former CIA asset whose exile organization, we
learned this week, once set off car bombs in downtown Baghdad, is now
the crown jewel of "freedom and democracy" in the Middle East. This is
our "war against terrorism." Talk about an Orwellian world.
As it happens, from the heart of Abu Ghraib's interrogation rooms and
the acts of, as our President and other administration officials have
repeatedly said, "a few people" or even "a few hillbillies," the
nature of, extent of, knowledge about, and responsibility for such
acts has been rapidly spreading outwards across the imperium, upwards
into the highest reaches of our government, and backwards in time. We
now know, for instance, that, to the various acts of horror caught on
camera in Abu Graib, we must add murder (or rather numerous murders)
in Afghanistan as well as Iraq, and the use of electric shocks on
prisoners, as the Marine Corps Times reported recently.
As for the acts we saw in the photographs, they too have "spread" and
knowledge of them reaches ever higher: To take but two examples,
Nakedness is now reported to have been used as a tool of humiliation
not just in Iraq but in Afghanistan and at Guantanamo, as it was used
in one of the earliest acts of American inhumanity in the war against
terrorism, the interrogation of John Walker Lindh in Afghanistan back
in 2001; while the "technique" of menacing prisoners with dogs -- "an
apparent violation of the Geneva Conventions and the Army's field
manual" -- has now been well documented at Abu Ghraib by the
Washington Post ("On Jan. 13, Spec. John Harold Ketzer, a military
intelligence interrogator, saw a dog team corner two male prisoners
against a wall, one prisoner hiding behind the other and screaming, he
later told investigators. 'When I asked what was going on in the cell,
the handler stated that he was just scaring them, and that he and
another of the handlers was having a contest to see how many detainees
they could get to urinate on themselves.'"); but it was also evidently
employed at Guantanamo, according to the Wall Street Journal.
In the meantime, responsibility for such actions has moved inexorably
upwards. We know now that interest in information gleaned from
interrogations, ranging from that of John Walker Lindh to those in
Iraq was requested at the highest official levels (not so surprising,
since our offshore mini-gulag was a pet project of top officials in
this administration): "The head of the interrogation center at the Abu
Ghraib prison in Iraq told an Army investigator in February that he
understood some of the information being collected from prisoners
there had been requested by 'White House staff,' according to an
account of his statement obtained by The Washington Post." Far more
specifically, R. Jeffrey Smith and Josh White of the Post reported
this Saturday that, despite his denials to Congress, in the fall of
2003, "Lt. Gen. Ricardo S. Sanchez, the senior U.S. military officer
in Iraq, borrowed heavily from a list of high-pressure interrogation
tactics used at the U.S. detention center in Guantanamo Bay, Cuba, and
approved letting senior officials at a Baghdad jail use military dogs,
temperature extremes, reversed sleep patterns, sensory deprivation,
and diets of bread and water on detainees whenever they wished,
according to newly obtained documents."
In turn, thanks to Jess Bravin and Greg Jaffe of the Wall Street
Journal, we now know that in December 2002 Donald Rumsfeld approved a
very similar list of "interrogation techniques" right down to those
dogs for Guantanamo: "U.S. military interrogators at Guantanamo Bay,
Cuba, could put prisoners in 'stress positions' for as long as four
hours, hood them and subject them to 20-hour-long interrogations,
'fear of dogs' and 'mild non-injurious physical contact,' according to
[a] list of techniques Defense Secretary Donald Rumsfeld approved in
December 2002." (The list was later rejiggered not because of any
qualms Rumsfeld had but due to complaints from military officers about
the severity of the methods suggested. The present list of approved
techniques remains classified, but will undoubtedly soon be leaked to
the press.)
The above can be traced back farther yet. According to "documents,
read to The [Los Angeles] Times by two sources critical of how the
government handled the Lindh case," writes journalist Richard Serrano,
"After American Taliban recruit John Walker Lindh was captured in
Afghanistan, the office of Defense Secretary Donald H. Rumsfeld
instructed military intelligence officers to 'take the gloves off' in
interrogating him. In the early stages, his responses were cabled to
Washington hourly, the new documents show. What happened to Lindh, who
was stripped and humiliated by his captors, foreshadowed the type of
abuse documented in photographs of American soldiers tormenting Iraqi
prisoners at Abu Ghraib."
This, of course, takes us not only to the top of the administration,
but back to the brink of the -- if I dare put it this way -- Ur-moment
in the setting up of what would become our offshore mini-gulag, those
months right after the 9/11 attacks when the Bush administration began
to set their system in place on the fly and, as Suzanne Goldenberg of
the British Guardian reported recently, on key issues without
initially even consulting White House or Pentagon lawyers.
"In one instance, President George Bush's military order of November
13 2001, which denies prisoner-of-war status to captives from
Afghanistan and allows their detention without charge or access to a
lawyer at Guantánamo, was issued without any consultations with
Pentagon lawyers, a former Pentagon official said. The military order
issued by Mr Bush in November 2001 was the first such directive since
the second world war, and the administration's failure to seek the
Pentagon's advice on what would emerge as the entire system of
detention at Guantánamo surprised Pentagon officials."
Add it all up -- only what's been revealed so far -- and you have a
global system of injustice and torture, purposely mounted in the moral
and legal darkness, beyond the reach or oversight of anyone but the
President, vice-president, secretary of defense and associated
officials, meant to extract information (and take revenge), meant as
in Kafka's fictional penal colony to write the sentence these men had
passed on the bodies of America's captives.
And talk about paper trails! If you need any evidence of the
combination of arrogance, incompetence, and plain stupidity of the
Bush administration, it now sits unavoidably before our eyes. Didn't
they know anything about deniability? Didn't they know that you can
get so much done without committing anything to paper? Didn't they
know that you can signal what you want from the top without issuing
orders, making direct demands, or demanding supporting opinions on
paper?
Note two things here: That almost all of the above, this whole little
global shop of horrors, is already documented -- quite literally in
papers pouring out of the bowels of this administration. These
documents are leaking daily from an administration that seems to have
split open along many angry rift lines. The British Telegraph this
week, writing of the leaking of a legal document on torture to the
Wall Street Journal commented, for example:
"The leak appears to be part of an extraordinary civil war in the
Pentagon between civilian officials and uniformed officers appalled by
what they have described as moves by political appointees to shroud
the war on terrorism in an 'environment of legal ambiguity'."
Some in the military, the intelligence community, the State
Department, administration legal offices, and possibly even the
Justice Department opposed the creation of our mini-gulag and the
kinds of interrogations and conditions planned for it; some simply
feared what the illegality might do to them or their careers,
including evidently Joint Chiefs of Staff Chairman Gen. Richard Myers
who fretted that he might become "a target for prosecution under laws
governing prisoner treatment"; some are undoubtedly settling scores;
others protecting tattered reputations; but it's now close to open
season on the administration from within.
Only today, the Los Angeles Times reported that, in a nearly
unprecedented act in our country, 26 ex-military and senior diplomatic
officials, "several appointed to key positions by Republican
Presidents Ronald Reagan and George H.W. Bush, plan to issue a joint
statement this week arguing that President George W. Bush has damaged
America's national security and should be defeated in November." And
retired officials almost invariably are speaking for larger
constituencies within the government -- all those potential leakers
and mutterers -- who fear speaking out publicly themselves.
Addressing an Asian security conference on the administration's "war
on terror," Donald Rumsfeld recently commented : "[T]he reality is
that today we remain closer to the beginning of this struggle than to
its end." The same might be said of the uncovering of responsibility
for our own global terror system. There will be so much more to learn.
Already, when it comes to Abu Ghraib, Iraq, and Afghanistan, the
Pentagon keeps heaping investigations on top of one another, each
subsequent one led by a figure with a higher rank and so more capable
of investigating responsibility at higher levels, and I think it can
be said with certainty that this will only get worse -- worse probably
than anything we now imagine. After all, to take but the smallest of
examples, CBS news reports that "of the 20 U.S.-run jails in
[Afghanistan], the Red Cross has only been allowed to visit one in
Kabul. Now one in Kandahar is being opened." Imagine what's been
happening at those other 18.
A world of tortured definitions
Here's what's clear. In the wake of the 9/11 attacks, the "tough guys"
of Bush's world promptly battened down the hatches and began preparing
for the war, and warfare state, of their dreams. Using the analogy of
the almost four-decade-long Cold War, which was their lifetime
experience (and with movie images of World War II dancing in their
heads), they announced that we were in a global war not against any
state (though they were already itching to hit Saddam's Iraq), but
against "terrorism" itself, an amorphous force -- actually, of course,
a tactic employed by scattered bands of Islamic fanatics (some
initially funded by men in this administration back when we were
fighting the Soviets by proxy in Afghanistan). This new "war," they
announced with a certain élan and self-satisfaction would, like the
previous cold one, last decades if not a lifetime. With Americans in
shock and fearful, they then began planning a no-holds-barred,
bring-'em-on style of warfare filled with acts of pitiless, unilateral
vengeance to be launched by the most powerful state on the planet in
the way of which nothing should get.
This was a war to be fought, to use a common Cold War catchphrase, "in
the shadows," and the shadows would soon enough include a global
imprisonment system that stretched from holding cells on aircraft
carriers to facilities in Afghanistan to Saddam's old prisons to
Guantanamo to military brigs in the United States and unnamed jails in
"friendly" foreign countries. In those shadows, beyond the eyes of
anyone, they had every intention of employing the sort of tactics that
they imagined would break the back of terrorism. These acts of
"information extraction" would be torture -- terror, that is -- by
another name or no name at all.
Looking back, it's curious how much of this was a war of words, a
redefinitional journey involving linguistic and legalistic contortions
of the most remarkable sorts. The first of these contorted definitions
was of "war" itself. We did not actually declare war. After all, who
was war to be declared against? We were simply defined as being "at
war." And from this, a series of other definitions followed. Perhaps
the most important had to do with the people captured in this "war."
It might seem apparent that, having declared yourself at war, the
people you thereafter captured might indeed be prisoners of war. But
this presented a problem since the rights of POWs were so clearly
defined internationally in treaties signed by the U.S. government. So
the administration simply redefined those captured in this redefined
war as "unlawful combatants" or "illegal combatants." This and other
terms used for them came out of a new Devil's dictionary; for once we
had defined them thusly, they could then enter our offshore world of
imprisonment -- at least in the minds of Bush administration officials
- as the sorts of captives to whom a whole new series of definitions
could be applied.
The third definitional problem was where to hold these prisoners, so
that the holding itself (without charge or trial, potentially to
eternity) could not be challenged either by the prisoners themselves
through any legal representation or through the courts of our own
country. The administration needed a place where it could publicly
practice its new definitional privacy - and that turned out to be our
military base at Guantanamo, which was redefined for the purposes of
the moment as under "Cuban sovereignty," though this was obviously a
brazen fiction. But even this wasn't satisfactory for them.
Guantanamo, off-limits as it was, still turned out to be far too
"public" for what they planned to do to their "highest value" captives
and so, for them, they developed a special, CIA-run system of
imprisonment that stepped beyond definition itself. As Human Rights
Watch puts it in an invaluable recent report on our global torture
system:
"Among the most disturbing cases, perhaps unprecedented in U.S.
history, are the detainees who have simply been 'disappeared.' Perhaps
out of concern that Guantánamo will eventually be monitored by the
U.S. courts, certainly to ensure even greater secrecy, the Bush
administration does not appear to hold its most sensitive and
high-profile detainees there. Terrorism suspects like Khalid Sheikh
Mohammed, accused architect of the September 11 attacks, and Abu
Zubaydah, a close aide of Osama bin Laden, are detained by the United
States instead in 'undisclosed locations,' presumably outside the
United States, with no access to the ICRC, no notification to
families, no oversight of any sort of their treatment, and in most
cases no acknowledgement that they are even being held. Human Rights
Watch has pieced together information on 13 such detainees,
apprehended in places such as Pakistan, Indonesia, Thailand, Morocco,
and the United Arab Emirates, who have 'disappeared' in U.S. custody."
At the same time, the administration was attempting to redefine
presidential power in such a way that the once normal Congressional
and court checks and balances of an American republic no longer
applied. In his power as commander-in-chief (again note that all other
redefinitions were based on the redefinition of "war"), the President
was, in various legal briefs meant for the highest officials in this
administration, pronounced to be beyond any control by Congress or the
courts in his acts. (See the initial quote above.)
Finally, having redefined the nature of war, the powers of the
president, the nature of captivity, and the places of imprisonment, it
was the most natural thing in the world to redefine "information
extraction" within such a system so that neither international
treaties like the Geneva Conventions, nor congressionally passed laws,
nor the Constitution itself was applicable to them. In this sense,
from the earliest days after the 9/11 attacks, the Bush administration
was focused on, above all else, setting up a global torture system by
another name.
Much of this has recently become clearer as a series of internal
documents produced by White House, Pentagon, and Justice Department
lawyers have leaked out in recent weeks. To offer a Vietnam analogy,
you might say that in the Vietnam era, The Pentagon Papers, that
revelatory secret study ordered up by Secretary of Defense Robert
McNamara and slipped to the New York Times by one brave whistleblower,
Daniel Ellsberg, were the private, confessional equivalent of liberal
guilt over the war; in the Bush era, these unbelievable lawyers'
memos, some also ordered up in the privacy of the administration by
the present Secretary of Defense, are the neocon equivalent of a
(legalistic) guilty conscience. They are, in some perverse fashion,
deeply confessional documents, and in the future, they will read that
way.
There were two parallel struggles here: One was to establish the war
they wanted to fight and this they largely did before they turned to
the lawyers; the other was to clear the decks legally for it. This
week - even while Ronald Reagan ruled -- Jess Bravin of the Wall
Street Journal produced a hard-hitting piece based on one of these
leaked documents that began a process not likely to go away soon. He
led off:
"Bush administration lawyers contended last year that the president
wasn't bound by laws prohibiting torture and that government agents
who might torture prisoners at his direction couldn't be prosecuted by
the Justice Department. The advice was part of a classified report on
interrogation methods prepared for Defense Secretary Donald Rumsfeld
after commanders at Guantanamo Bay, Cuba, complained in late 2002 that
with conventional methods they weren't getting enough information from
prisoners. at its core is an exceptional argument that because nothing
is more important than 'obtaining intelligence vital to the protection
of untold thousands of American citizens,' normal strictures on
torture might not apply. The president, despite domestic and
international laws constraining the use of torture, has the authority
as commander in chief to approve almost any physical or psychological
actions during interrogation, up to and including torture, the report
argued."
As Bravin reported:
"The report was compiled by a working group appointed by the Defense
Department's general counsel, William J. Haynes II. Air Force General
Counsel Mary Walker headed the group, which comprised top civilian and
uniformed lawyers from each military branch and consulted with the
Justice Department, the Joint Chiefs of Staff, the Defense
Intelligence Agency and other intelligence agencies. It isn't known if
President Bush has ever seen the report. A military lawyer who helped
prepare the report said that political appointees heading the working
group sought to assign to the president virtually unlimited authority
on matters of torture -- to assert 'presidential power at its absolute
apex.'"
Though the report has now been much quoted, it should be read in full.
Its flavor can hardly be grasped in tidbits. It may, in fact, be one
of the most tortured "legal" pieces ever written -- certainly ever
written in a democracy -- on the subject of redefining acts of
inhumanity and torture as something other than acts of inhumanity and
torture. (If your computer can handle pdf files, you can click here to
find it.) In it, Orwell's "doublethink" meets the lawyers and judges
of Kafka's The Trial head on, revealing a dark landscape of legalistic
legerdemain.
The report had two main purposes, as best I understand it -- to place
presidential power (in the form of the powers of the
commander-in-chief to prosecute war) outside any legal boundaries
whatsoever, thus removing from George Bush and his subordinates of any
responsibility for acts he may have ordered committed; and to redefine
torture so narrowly that it becomes the definitional property of the
torturer.
It's worth spending a little time with some of this document just to
get a feel for it. The lawyer-authors, for instance, expend much
effort acting as if they were part of a panel for a new edition of
some dictionary ("The word 'profound' has a number of meanings, all of
which convey a significant depth. Webster's New International
Dictionary 1977 [2nd ed. 1935 defines profound as...]") and, where
necessary, they don't hesitate to take up the role of psychiatrist
either. "We likewise think," they write at one point, considering what
might disrupt "profoundly the senses or personality" and so be
considered torture, "that the onset of obsessive-compulsive disorder
behaviors would rise to this level... Moreover, we think that pushing
someone to the brink of suicide [which could be evidenced by acts of
self-mutilation], would be a sufficient disruption of the personality
to constitute a 'profound disruption.'")
Their purpose in each case is to narrow drastically some previous
legal definition of torture. They spend much time, for instance,
considering how to define various parts of the well-accepted phrase
"severe physical or mental pain or suffering," always emphasizing the
word "severe" and then defining it in the most severe possible way:
"In order to prove 'severe mental pain or suffering,' the statute
requires proof of 'prolonged mental harm' that was caused by or
resulted from one of four enumerated acts... [T]he development of a
mental disorder such as posttraumatic stress disorder, which can last
months or even years, or even chronic depression... might satisfy the
prolonged harm requirement... [I]f a defendant [interrogator] has a
good faith belief that his actions will not result in prolonged mental
harm, he lacks the mental state necessary for his actions to
constitute torture. A defendant could show that he acted in good faith
by taking such steps as surveying professional literature, consulting
with experts, or reviewing evidence gained from past experience...
Because the presence of good faith would negate the specific intent
element of torture, good faith may be a complete defense to such a
charge."
In other words, the harm to a prisoner from what might ordinarily be
considered acts of inhumanity and torture must be "severe" indeed --
proof of that severity could even take several months to develop --
and in addition it would have to be proved that the interrogator
actually meant to create a state of, say, posttraumatic stress
disorder. In other words, the act of torture is not, in fact, torture
if the intent to torture is not there -- and, since it's a matter of
"good faith," the only person who could affirm that torture had taken
place would, in essence, be the torturer.
But even that's not enough. According to this administration's best
legal minds, even knowing in a general sense what ill results might
come from your acts does not necessarily make you a torturer, not if
you did not mean to cause such results. What must be proven is
"specific intent to cause pain," a phrase they then spend much space
redefining. They write:
"As a theoretical matter, therefore, knowledge alone that a particular
result is certain to occur does not constitute specific intent... if
causing such harm is not his objective, he lacks the requisite
specific intent... A defendant is guilty of torture only if he acts
with the express purpose of inflicting severe pain or suffering on a
person within his custody or physical control... Where a defendant
acts in good faith, he acts with an honest belief that he has not
engaged in the proscribed conduct."
This is, of course, but the briefest glimpse into the bizarre and
twisted definitional thinking that fills this 56-page document, much
of it focused on the problem of potential future "prosecutions arising
out of the exercise of the president's express authority as
Commander-in-Chief" to create what is essentially a torture regime
abroad. (Strangely enough, in the light of day this dark document
reads like a witness for the prosecution in any future
war-crimes-style trials of the members of this administration.) Just
to give a tiny flavor of this aspect of the document, here's an almost
random passage:
"Any effort by Congress to regulate the interrogation of unlawful
combatants would violate the Constitution's sole vesting of the
Commander-in-Chief authority in the President. There can be little
doubt that intelligence operations, such as the detention and
interrogation of enemy combatants and leaders, are both necessary and
proper for the effective conduct of a military campaign. Indeed such
operations may be of more importance in a war with an international
terrorist organization than one with the conventional armed forces of
a nation-state, due to the former's emphasis on secret operations and
surprise attacks against civilians. It may be the case that only
successful interrogations can provide the information necessary to
prevent the success of covert terrorist attacks upon the United States
and its citizens. Congress can no more interfere with the President's
conduct of the interrogation of enemy combatants than it can dictate
strategy or tactical decisions on the battlefield. Just as statutes
that order the President to conduct warfare in a certain manner or for
specific goals would be unconstitutional, so too are laws that seek to
prevent the President from gaining the intelligence he believes
necessary to prevent attacks upon the United States."
Finally, the authors of this document invoke the "superior orders"
doctrine (made famous at Nuremberg) commenting that:
"In sum, the defense of superior orders will generally be available
for U.S. Armed Forces personnel engaged in exceptional interrogations
except where the conduct goes so far as to be patently unlawful."
Of course, that wonderfully turned phrase "exceptional interrogations"
means "torture" (except that, by this point in the document, torture
itself no longer means torture); and while I'm no lawyer, the concept
of "patently unlawful" seems a curious one to me. I'd like to see that
brought into an everyday court of law. (The defendant throws himself
on the mercy of the court: "I did it, judge, and it was definitely
unlawful, but I plead innocent since it was not patently so.")
The Wall Street Journal "opinion" is but one of a series of internal
memorandums we now know about, written between January 2002 and early
this year, which seem to have much in common. For instance, in an
earlier legal memorandum, written in August 2002 by the Justice
Department for the CIA, "signed by Assistant Attorney General Jay S.
Bybee," addressed to White House counsel Alberto Gonzalez, and leaked
to the Washington Post, the writers also chewed over the issue of how
much pain constitutes torture. They wrote that the "inflicting [of]
moderate or fleeting pain does not necessarily constitute torture.
Torture, the memo says, 'must be equivalent in intensity to the pain
accompanying serious physical injury, such as organ failure,
impairment of bodily function, or even death.'" (Otherwise, assumedly,
you just scream.) Similarly, the writers suggest: "For purely mental
pain or suffering to amount to torture. it must result in significant
psychological harm of significant duration, e.g., lasting for months
or even years."
Let's remember that of the legal minds responsible for these
"opinions," Bybee is now a judge on the U.S. 9th Circuit Court of
Appeals in San Francisco; the Defense Department's general counsel,
William J. Haynes II has been nominated to be an appellate judge, in
the U.S. 4th Circuit in Richmond, Va.; and John Yoo, author of some of
the earliest of these memorandum, has returned to a professorship at
the University of California, Berkeley, where, in response to student
protests, he said: "I think the calls for my resignation are misguided
and don't show an understanding of the job of a lawyer."
And in this he's probably right. As the CIA produced the kited
"intelligence" the administration needed to go to war in Iraq, so its
various legal groups produced the memorandum it needed - again and
again and again - to imprison beyond the rule of law and torture those
whom it pleased. As Phillip Carter, a former U.S. Army officer, put it
in Slate: "[N]o amount of caveating can save the latest Defense
Department memorandum on the legality of torture. from being construed
as what it is: a cookbook on how to conduct illegal torture and get
away with it."
These are, in fact, documents of shame, symbolic of a kind of
bureaucratic lawlessness let loose at the heart of our government.
They are intent on creating a pseudo-legal basis for replacing the
rule of law with the rule of a commander-in-chief. As Robert Kuttner
put it in the Boston Globe, "For nearly three years, the Bush
administration has resorted to the most preposterous fictions to
define either locales or categories of people to whom the law does not
apply. If you connect the dots, the torture at Abu Ghraib is part of a
larger slide toward tyranny as the Bush administration tries to exempt
itself from the rule of law." As justifications for torture, these are
the sorts of documents one can imagine finding in the files of some
grim third world dictatorship or maybe the former Apartheid regime of
South Africa. As the Washington Post editorial page put it recently,
speaking of the authors of such memos and their masters, "Theirs is
the logic of criminal regimes." Were it ever to be made the law of the
land, our republic, such as it is, would quite literally be ended and
we would face some kind of one-party dictatorship. Were its
definitions of torture ever made the law of the land, every torturer
on earth would shout hosannas to it.
[Coming Tuesday, Part II: On our global torture system, the executive assassinations ring of Dick Cheney, the White House Murder INC, its history,
future presidential defenses, and the rise of the Nazi analogy....]
