warprompts

Torture in the House: Marjorie Cohn’s Testimony

Read an excerpt from Marjorie Cohn’s testimony before the U.S. House Judiciary Committee Subcommittee on the Constitution, Civil Rights and Civil Liberties.

She speaks of the law and torture…

What does torture have in common with genocide, slavery, and wars of aggression? They are all jus cogens. That’s Latin for “higher law” or “compelling law.” This means that no country can ever pass a law that allows torture. There can be no immunity from criminal liability for violation of a jus cogens prohibition.

The United States has always prohibited torture in our Constitution, laws, executive statements, judicial decisions, and treaties. When the U.S. ratifies a treaty, it becomes part of American law under the Supremacy Clause of the Constitution.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, says, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.”

Whether someone is a POW or not, he must always be treated humanely; there are no gaps in the Geneva Conventions.

The U.S. War Crimes Act, and 18 USC sections 818 and 3231, punish torture, willfully causing great suffering or serious injury to body or health, and inhuman, humiliating or degrading treatment.

The Torture Statute criminalizes the commission, attempt, or conspiracy to commit torture outside the United States.

John Yoo’s criminal role…

The Constitution gives Congress the power to make laws and the President the duty to enforce them. Yet Bush, relying on memos by lawyers including John Yoo, announced the Geneva Conventions did not apply to alleged Taliban and Al Qaeda members. But torture and inhumane treatment are never allowed under our laws.

Justice Department lawyers wrote memos at the request of Bush officials to insulate them from prosecution for torture. In memos dated August 1, 2002 and March 14, 2003, John Yoo wrote the DOJ would not enforce U.S. laws against torture, assault, maiming and stalking, in the detention and interrogation of enemy combatants.

The maiming statute makes it a crime for someone “with the intent to torture, maim, or disfigure” to “cut, bite, or slit the nose, ear or lip, or cut out or disable the tongue, or put out or destroy an eye, or cut off or disable a limb, or any member of another person” or throw or pour upon another person any scalding water, corrosive acid, or caustic substance.

Yoo said, “just because the statute says — that doesn’t mean you have to do it.” In a debate with Notre Dame Professor Doug Cassell, Yoo said there is no treaty that prohibits the President from torturing someone by crushing the testicles of the person’s child. It depends on the President’s motive, Yoo said, notwithstanding the absolute prohibition on torture.

Yoo twisted the law and redefined torture much more narrowly than the Torture Convention and the Torture Statute. Under Yoo’s definition, you have to nearly kill the person to constitute torture.

Yoo wrote that self-defense or necessity could be defenses to war crimes prosecutions, notwithstanding the Torture Convention’s absolute prohibition against torture in all circumstances.

DOJ Memos…

After the August 1, 2002 memo was made public, the DOJ knew it was indefensible. It was withdrawn as of June 1, 2004, and a new opinion, dated December 30, 2004, specifically rejected Yoo’s definition of torture, and admitted that a defendant’s motives to protect national security won’t shield him from prosecution. The rescission of the prior memo is an admission by the DOJ that the legal reasoning was wrong. But for the 22 months it was in effect, it sanctioned and caused the torture of myriad prisoners.

Yoo and other DOJ lawyers were part of a common plan to violate U.S. and international laws outlawing torture. It was reasonably foreseeable their advice would result in great physical or mental harm or death to many detainees. Indeed, more than 100 have died, many from torture. Yoo admitted recently he knew interrogators would take action based on what he advised.

The torture architects and their liability…

Dick Cheney, Condoleezza Rice, Donald Rumsfeld, Colin Powell, George Tenet, and John Ashcroft met in the White House and micromanaged the torture by approving specific torture techniques such as waterboarding. Bush admitted he knew and approved of their actions.

They are all liable under the War Crimes Act and the Torture Statute. Under the doctrine of command responsibility, commanders, all the way up the chain of command to the commander in chief, are liable for war crimes if they knew or should have known their subordinates would commit them, and they did nothing to stop or prevent it. The Bush officials ordered the torture after seeking legal cover from their lawyers.

The President can no more order the commission of torture than he can order the commission of genocide, or establish a system of slavery, or wage a war of aggression.

A Select Committee of Congress should launch an immediate and thorough investigation of the circumstances under which torture was authorized and rationalized. The high officials of our government, and the lawyers who advised them, should be investigated and prosecuted by a Special Prosecutor, independent of the Justice Department, for their roles in misusing the rule of law and legal analysis to justify torture and other crimes in flagrant violation of our laws.



June 1, 2008 Posted by | Torture News, Yoo Torture Memo | , , , , , , , , , , , , | Leave a comment

Torture Comes Home, McCain and Torture

How is the torture mandate in the so-called War on Terror affecting domestic policing? Well, if the following story is any indication, it’s bleeding through:

A man alleges that police entered his home illegally and ripped a catheter from his body during a child pornography investigation that led to the arrest of two neighbors.

[Name redacted by warprompts], 60, of New Britain filed a notice with the city Thursday that he intends to pursue a federal civil rights lawsuit. He accused the officers of inflicting severe injuries as he was recovering from intestinal surgery in February.

[Name redacted’s] lawyer, Paul Spinella, said police entered [the] apartment Jan. 30 and Feb. 28. Glover wasn’t involved in child pornography, has not been charged and has no criminal record, Spinella said.

“The poor guy,” Spinella said. “They ripped the catheter off his person. They assaulted the guy. He’s got major problems as a result of this. He’s a mess now.”

Lt. James Wardwell, a police spokesman, said Friday that the department had not received the intent-to-sue notice and would not comment. A message was left for the city’s corporation counsel

[Name redacted] has two years to file a lawsuit in U.S. District Court.

Read this for a good commentary on the Connecticut man’s assault.

Andrew Sullivan argues that John McCain “single-handedly wrested the GOP from its pro-torture position, which is a huge, by no means inevitable, advance over Bush-Cheney.” Sullivan writes:

Yes, he has made a few compromises that were disappointing – and more disappointing for those of us who admire him. But he took on the issue when it could have hurt him badly – against demagogues like Giuliani and say-anything opportunists like Romney – and stood up for American and Western values. Because of McCain, we now know that the next president, unlike the current one, will not be a war criminal.

Oh, has he?

[T]he Senate brought the Intelligence Authorization Bill — which contained a provision banning waterboarding — to the floor for a vote. Sen. John McCain (R-AZ), an outspoken waterboarding critic, voted against the bill.

At the time, ThinkProgress questioned whether McCain would stand with Bush’s threatened veto of the legislation. Today, the AP reports that McCain has come out saying Bush should veto the measure, which would make the Army Field Manual the standard for CIA interrogations.

(Source: Think Progress)

Glenn Greenwald reports that the Military Commissions Act, another bill that McCain voted for, actually gives the Bush administration power to torture:

An article by The New York Times’s Mark Mazzetti this morning discloses a letter (.pdf) from the Justice Department to Congress which asserts “that American intelligence operatives attempting to thwart terrorist attacks can legally use interrogation methods that might otherwise be prohibited under international law.” In other words, even after all of the dramatic anti-torture laws and other decrees, the Bush administration insists that American interrogators have the right to use methods that are widely considered violations of the Geneva Conventions if we decide that doing so might help “thwart terrorist attacks.”

There are two reasons, and two reasons only, that the Bush administration is able to claim this power: John McCain and the Military Commissions Act. In September, 2006, McCain made a melodramatic display — with great media fanfare — of insisting that the MCA require compliance with the Geneva Conventions for all detainees. But while the MCA purports to require that, it also vested sole and unchallenged discretion in the President to determine what does and does not constitute a violation of the Conventions

As Columbia Law Professor Michael Dorf wrote at the time:

Americans following the news coverage of the debate about how to treat captives in the ongoing military conflicts could be forgiven for believing that the bill recently passed by Congress, the Military Commissions Act (“MCA”), was a compromise between a White House seeking far-reaching powers, and Senators seeking to restrain the Executive. After all, prior to reaching an agreement with the President, four prominent Republican Senators — Susan Collins, Lindsey Graham, John McCain, and John Warner — had drawn a line in the sand, refusing to go along with a measure that would have redefined the Geneva Conventions’ references to “outrages upon personal dignity” and “humiliating and degrading treatment.” No doubt many Americans believe that because these four courageous Senators stood on moral principle, the bill that emerged, and which President Bush will certainly sign, reflects a careful balance between liberty and security. Yet if that is what Americans believe, they are sorely mistaken. On nearly every issue, the MCA gives the White House everything it sought. It immunizes government officials for past war crimes; it cuts the United States off from its obligations under the Geneva Conventions; and it all but eliminates access to civilian courts for non-citizens — including permanent residents whose children are citizens — that the government, in its nearly unreviewable discretion, determines to be unlawful enemy combatants.

The blog Bootstrapping Andrew Sullivan points out that:

McCain has voted for legislation with enough ambiguity for the CIA to conduct … enhanced interrogation.

At the end of the day, all that is unique to McCain is that he is visibly opposed to waterboarding, while his “friends” are not or won’t say (cf. Mukasey).

Still, McCain, so far as I know, has not said anything about how his administration would pursue a Truth Commission on what occurred under the GOP’s Bush-Cheney regime …

Even if he promised anything, we couldn’t take it seriously. If he was distancing himself from “torture”, then why did he go to see George Bush, immediately after having secured the nomination?

Sullivan articulates a McCain myth (one of the many propagated by the media) that gets frequent play in the mainstream media. Again, the brilliant Glenn Greenwald

That’s John McCain — and his Principled Maverickism and alleged torture opposition — in a nutshell. He continuously preens as some sort of independent moralizer only to use that status to endorse and enable that which he claims to oppose. In Great American Hypocrites, I wrote about his numerous deceitful maneuvers to legalize torture as follows:The mirage-like nature of McCain’s alleged convictions can be seen most clearly, and most depressingly, with his public posturing over the issue of torture. Time and again, McCain has made a dramatic showing of standing firm against the use of torture by the United States only to reveal that his so-called principles are confined to the realm of rhetoric and theater, but never action that follows through on that rhetoric.

In 2005, McCain led the effort in the Senate to pass the Detainee Treatment Act (DTA), which made the use of torture illegal. While claiming that he had succeeded in passing a categorical ban on torture, however, McCain meekly accepted two White House maneuvers that diluted his legislation to the point of meaningless: (1) the torture ban expressly applied only to the U.S. military, but not to the intelligence community, which was exempt, thus ensuring that the C.I.A.—the principal torture agent for the United States—could continue to torture legally; and (2) after signing the DTA into law, which passed the Senate by a vote of 90–9, President Bush issued one of his first controversial “signing statements” in which he, in essence, declared that, as President, he had the power to disregard even the limited prohibitions on torture imposed by McCain’s law.

McCain never once objected to Bush’s open, explicit defiance of his cherished anti-torture legislation, preferring to bask in the media’s glory while choosing to ignore the fact that his legislative accomplishment would amount to nothing. Put another way, McCain opted for the political rewards of grandstanding on the issue while knowing that he had accomplished little, if anything, in the way of actually promoting his “principles.”

The myth that McCain is anti-torture persists. In today’s Washington Post Dick Morris writes,

McCain needs to not run as a traditional Republican, which is easy, since he’s not one. After all, how did an anti-torture, anti-tobacco, pro-campaign finance reform, anti-pork, pro-alternative-energy Republican ever emerge from the primaries alive?

May 18, 2008 Posted by | Media Criticism, Torture News | , , , , , , , , , , , , , , , , , , , | Leave a comment