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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.



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

White House Tortured

No surprise here: ABC News reported that,

The discussions in the White House were top secret and sources say, involve some of the President’s most senior and influential advisors, principals of the National Security Council. In dozens of private talks and meetings, sources said that a handful of top advisors discussed specific high-value al Qaeda prisoners and exactly how those prisoners would be interrogated. Whether, for example, they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding. The discussion about the “enhanced interrogation techniques” were so detailed, sources said, the interrogations were almost choreographed, down to the number of times the CIA could use a specific tactic. Former CIA director George Tenet, in an interview last year with ABC News told Charles Gibson.

And the Associated Press reported on 08/10/08 that:

Bush administration officials from Vice President Dick Cheney on down signed off on using harsh interrogation techniques against suspected terrorists after asking the Justice Department to endorse their legality, The Associated Press has learned.

The officials also took care to insulate President Bush from a series of meetings where CIA interrogation methods, including waterboarding, which simulates drowning, were discussed and ultimately approved…

The meetings were held in the White House Situation Room in the years immediately following the Sept. 11 attacks. Attending the sessions were then-Bush aides Attorney General John Ashcroft, Secretary of State Colin Powell, CIA Director George Tenet and national security adviser Condoleezza Rice.

Reactions, coverage and commentary:

Buzzflash.com:

If you recall, Ashcroft was the one who resisted, from his hospital bed, a White House effort to strong arm him into signing off on actions that he deemed unConstitutional. When you have John Ashcroft as a conscientious objector, you know that Cheney Inc. has crossed the line into uber illegal activity

Brains and Eggs:

There’s no blaring headline in the Washington Post online about this story. Nothing even very significant that I can find from the source, ABC News, on their website. There is a story there, however about how “absolutely appalling” Dick Cheney thinks Rev. Wright’s comments were.

deadlineUSA (The Guardian)

But will this get any traction? Will people at the top of the Bush administration including Dick Cheney, Condoleezza Rice, Donald Rumsfeld, Colin Powell, George Tenet, and John Ashcroft be held responsible? I doubt it. It would appear Barack Obama’s bowling prowess or lack thereof garners more attention in the mainstream media.

Salon.com (Glenn Greenwald):

In the past two weeks, the following events transpired. A Department of Justice memo, authored by John Yoo, was released which authorized torture and presidential lawbreaking. It was revealed that the Bush administration declared the Fourth Amendment of the Bill of Rights to be inapplicable to “domestic military operations” within the U.S. The U.S. Attorney General appears to have fabricated a key event leading to the 9/11 attacks and made patently false statements about surveillance laws and related lawsuits. Barack Obama went bowling in Pennsylvania and had a low score.

Here are the number of times, according to NEXIS, that various topics have been mentioned in the media over the past thirty days:

“Yoo and torture” – 102

“Mukasey and 9/11” — 73

“Yoo and Fourth Amendment” — 16

“Obama and bowling” — 1,043

“Obama and Wright” — More than 3,000 (too many to be counted)

“Obama and patriotism” – 1,607

“Clinton and Lewinsky” — 1,079

Center for Constitutional Rights:

American torturers must not go unpunished.

The Center for Constitutional Rights has, since 2006, been pursuing high-level Bush administration officials in national courts across Europe for their program of torture and coercive interrogations…

CCR represents men who were tortured while held in U.S. custody… Mohammed al Qahtani, who has been at Guantanamo since 2002, was subjected to a brutal interrogation program – specifically authorized by Donald Rumsfeld – that included 20-hour interrogations, physical abuse, sexual abuse, and severe sleep deprivation, among other tactics. The government is seeking the death penalty against al Qahtani based on evidence that was likely obtained through torture.

And check out the excellent coverage found in these outlets:

Daily Mail (UK)

Crooks and Liars

Emptywheel

Left in the West

IntoxiNation

Make it matter. Contact your representatives and demand they investigate these war crimes.

And speaking of making it matter… The National Lawyers Guild is calling on Berkeley to dismiss John Yoo, “whose torture memos led to commission of war crimes.” Help out their effort by contacting Yoo’s dean and asking why they have a war criminal on staff.

April 13, 2008 Posted by | Media Criticism, Torture News, Yoo Torture Memo | , , , , , , , , , , , , , , , , , , , | 1 Comment

The Torture Paper Trail: from legal memos to pleas for help

Human Rights Watch has released a new report — Double Jeopardy: CIA Renditions to Jordan — which reports that the US Central Intelligence Agency (CIA) transferred at least 14 terrorist suspects to Jordanian custody for interrogation and torture since the September 11, 2001 attacks:

Based largely on firsthand information from Jordanian former prisoners who were detained with the non-Jordanian terrorism suspects, the report describes eight previously unknown cases of rendition. The new cases include Ibrahim Abu Muath al-Jeddawi, whose statements may have been relied upon as evidence in US status review proceedings at Guantanamo Bay, and Khayr al-Din al-Jazaeri, whose alleged activities were mentioned in a high-profile terrorism prosecution in France. None are known to have been charged with a criminal offense.

The report also excerpts a handwritten note from one of the rendered prisoners, Ali al-Hajj al-Sharqawi, which he wrote while in Jordanian custody in late 2002. The note, which al-Sharqawi marked with his thumbprint, says that GID interrogators beat him “in a way that does not know any limits.”


The note continues: “They threatened me with electricity, with snakes and dogs …. [They said] we’ll make you see death …. They threatened to rape me.”

House Judiciary Committee Chairman John Conyers, Jr. (D-MI) plans to hold a May 6th hearing to examine the Yoo torture memo and “the issue of executive power as it relates to interrogation an war-making authority. Conyers also sent a letter today to Berkeley professor John Yoo asking him to testify at the hearing. Read his letter to Yoo here.

When the Yoo memo was released Sen. Patrick Leahy (D-VT) made exactly this point in his 04/01/08 statement: It has been more than four months since I asked the White House — again — to declassify the secret Justice Department opinions on interrogation practices. Today’s declassification of one such memo is a small step forward, but in no way fulfills those requests. The administration continues to shield several memos even from members of Congress. The memo they have declassified today reflects the expansive view of executive power that has been the hallmark of this administration.

The Washington Post reports on the still hidden torture memos:

The release last week of a Justice Department memo that authorized the military to pursue harsh interrogation techniques torture has ignited new demands for documents that underpin the Bush administration’s most sensitive policies, including the treatment of detainees and the warrantless surveillance of U.S. citizens. [correction mine]

One psychologist’s campaign to change the American Psychological Association’s participation in torture. Psychologist Steven Reisner is currently running for president of the APA. Reisner writes:

“My candidacy calls for a clear departure from the complicity of psychologists in state-sponsored abuses of human rights, whether these take place at Guantánamo, CIA black sites, or domestic supermax prisons.

I have been told that psychologists might fear for their jobs if we hold to a principled stance on detainees’ basic human rights. I fear for our nation and our profession if we don’t. And I hope that there are enough psychologists who feel similarly to me, so that the APA might at last join the other health professions in unambiguously opposing the practices that have brought shame to our profession and our nation.”

April 11, 2008 Posted by | Torture News, Yoo Torture Memo | , , , , , , , | Leave a comment

Torture at the Highest Level

In The Green Light, Vanity Fair reports on how torture starts at the top. (I have to say that I’m no Vanity Fair fan since they published their anti-Mumia dribble several years ago, plus their parade of sexist covers.)

From The Green Light:

Starting in late 2002 a detainee bearing the number 063 was tortured over a period of more than seven weeks. In his story lies the answer to a crucial question: How was the decision made to let the U.S. military start using coercive interrogations at Guantánamo?

The Bush administration has always taken refuge behind a “trickle up” explanation: that is, the decision was generated by military commanders and interrogators on the ground. This explanation is false. The origins lie in actions taken at the very highest levels of the administration—by some of the most senior personal advisers to the president, the vice president, and the secretary of defense… This is the story of how the torture at Guantánamo began, and how it spread.

The senior managing attorney of the Guantánamo project at the Center for Constitutional Rights writes on the Torture Memo, the Vanity Fair piece and the documents that still remain hidden:

[W]e know that many other specific memos exist but have yet to be declassified or leaked to the public:

  • a 2001 directive to CIA authorizing it to set up overseas detention facilities;
  • an August 2002 authorizing CIA to use specific interrogation methods (including waterboarding);
  • a memo of October 23, 2001, arguing that the Posse Comitatus Act, which places restrictions on the use of the armed forces to quell unrest within the United States, cannot bind the President in efforts to “prevent and deter terrorism” domestically, and arguing that the Fourth Amendment generally does not place restrictions on such presidential military activities domestically (keep in mind the NSA is a branch of the Department of Defense, and protections against indiscriminate warrantless wiretapping derive from the Fourth Amendment.

One woman protesting torture in her neighborhood and how you can too.

Read letters to the New York Times from readers who react to the Torture Memo.

Psychologists and torture:

Check out this website for psychologists who withhold dues to protest the APA’s policy that “promotes the participation of psychologists in interrogations at Guantanamo Bay and other military and CIA facilities where suspected terrorists are detained without due process.”

The American Psychological Association (APA): “seeks critical incidents/vignettes concerning the casebook/commentary on psychological ethics and national security. The goal of the casebook/commentary is to provide ethical guidance to psychologists advising or consulting to national security-related interrogations.”

Read some of the the submissions from the Coalition for an Ethical APA. One scenario submitted:

In 2003, the CIA acknowledged that it had kidnapped two children of a suspected terrorist, ages 7 and 9, and held them at a CIA ‘black site.’ Before their father was captured, the children were interrogated so that the CIA might discover from them their father’s whereabouts. After their father was captured, the detained children were held as hostages to pressure their father into giving up information.

By one account, the two children were pressured into giving up information by having insects put on their legs to scare them. [Testimony of Ali Khan, father of Guantánamo prisoner Majid Khan, submitted to the Combatant Status Review Tribunal at Guantánamo in March 2007.]

CIA interrogators stated at the time that, “We have child psychologists on hand at all times and they are given the best of care.”

Is it ethical for a child psychologist to offer care in such a circumstance?
Is it ethical for a child psychologist to permit his or her treatment of these children to be the basis of a propaganda statement for the U.S. government? For instance, how can it be said that children who have been kidnapped and are being held as hostages, away from home and family, in order to facilitate the interrogation of their father, be considered are held under “the best of care”?
Is it ethical for the child psychologist to allow the dissemination of such a statement to legitimize the governmental use of children for coercive purposes?


April 9, 2008 Posted by | Torture News, Yoo Torture Memo | , , | 1 Comment

Torture Memo released

John Yoo’s memo that told the president torture is okay has been declassified and released publicly in response to an ACLU lawsuit. It states, in part:

If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network… In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions….

Another criminal statute applicable in the special maritime and territorial jurisdiction is
-18 U.S.C. § 114. Section 114 makes it a crime for an individual (1) ”with the intent to torture (as
defined in section 2340), maim, or disfigure” to (2) “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.” 18 U.S.C. § -114. It further prohibits individuals from
“throw[ing]or pour[ing] upon another person-any scalding water, corrosive acid, or caustic
substance” with like intent. Id.35

So good so far, right? You can’t do this shit… Until:

The offense requires the specific intent to torture, maim or disfigure. [emphasis mine] See United States v.
Chee, No. 98-2038, -1999 WL 261017 at *3 (lOth Cir. May 3, 1999) (maiming is a specific intent
crime) (unpublished opinion); see also United States v. Salamanca, 990 F.2d 629, 635 (D.c. Cir.
1993) (where defendant inflicted “enough forceful blows to split open [the victim’s] skull,
shatter his eye socket, knock out three of his teeth, and break his jaw” requisite specific intent
had been established;). Moreover, the defendant’s method of maiming must be one of the types
the statute specifies-i.e., cutting, biting, slitting, cutting out, disabling, or putting out-and the
injury must be to a body part the statute specifies-i.e., the nose, ear, lip, tongue, eye, or limb.
See United States v. Stone, 472 F.2d 909, 915 (5th Cir. 1973). Similarly, the second set of acts
applies to a very narrow band of conduct. It applies only to the throwing or pouring of some sort
of scalding, corrosive, or caustic substance. See id.

Here, so long as the interrogation methods under contemplation do not involve the acts
enumerated in section 114, the conduct of those interrogations will not fall within the purview of
this statute. Because the statute requires specific intent, i.e., the intent to maim, disfigure or
torture, the absence of such intent is a complete defense to a charge of maiming.
[emphasis mine]

Damn we just love using legalese to sterilize, modernize, and Westernize government sanctioned terror

Take action and tell Yoo now a law professor at Berkeley, and his dean, Christopher Edley, Jr., what you think of his torture memo.

Here’s some more commentary on the memo:

Harper’s

Slate

Kansas.com

Khaleej Times Online

April 6, 2008 Posted by | Torture News, Yoo Torture Memo | , , | 2 Comments

From Elmira to Fallujah

Sorry I’ve been remiss in my posting duties. I was at a work conference on wrongful convictions in the US last weekend. It was inspiring to see all of the men and women exonerated (through DNA and non-DNA) but I couldn’t help but think of all the people left behind in US prisons. (Some have tried to estimate the number of innocents.)

And now, thanks to the War on Terror, we’ve exported our prison system that dehumanizes, degrades and tortures the guilty, along with the innocent. Read about how Charles Graner abused inmates in Pennsylvania — including a man later exonerated — and then in the prison that needs no introduction, Abu Ghraib.

Wikileaks has released a classified military memo exposing inhumane conditions in Iraq’s Fallujah jail:

The document, written last month by the commander of U.S forces in western Iraq, Maj. Gen. John Kelly, describes “unbelievable overcrowding, total lack of anything approaching even minimal levels of hygiene for human beings, no food, little water, no ventilation… There is zero support from the (Iraqi) government for any of the jails in Anbar. No funds, food or medical support has been provided from any ministry.” and says “We need to go to general quarters on this issue right now… To state that the current system is broken would erroneously imply that there is a system in place to be broken.”

The jail is situated next to the U.S. Joint Communications Center in downtown Fallujah. It was built in 2005 by U.S. contractors to house 110 prisoners, but now reportedly holds around 900, mostly awaiting trial or transfer to Baghdad.

The British Army is accused of torturing and abusing a respected Shia elder, Jabbir Hmoud Kammash, aged 70, and his family:

“The interrogator accused me of using my house for terrorist activities and asked me to confess. I explained that I am an elderly man in a house full of women and children, and the thorough search of the house had revealed no weapons at all.

“They re-hooded me and dragged me back to the open ground, where they made me sit on rough gravel on my knees. Every time I felt sleepy or tired and my back bent forward, a soldier kicked my back with his boots or the rifle butt to keep me awake. They were absolutely merciless considering my age.”

During the raid Mr Kammash’s son Ammar, 25, claims he was badly beaten in front of his mother because he had tried to reassure her there was nothing to worry about.

“Soldiers started beating me to stop me talking,” he said. “They were very selective in choosing the areas where they beat me – I was hit on my ribs, stomach, thighs and shoulders. It seemed to me that their intention was not to cause lasting or apparent damage to my body. They used their boots, fists, rifle butts and helmets.”

He claims that during his interrogation a British officer threatened that if he did not confess “they would bring my wife and sisters and rape them in front of me.”

Under a resolution proposed in the California senate, health professionals would be warned of the professional perils of participating in torture:

Under a resolution that state Sen. Mark Ridley-Thomas plans to put to a vote Thursday, California regulators would notify physicians and other health professionals that they could lose their license and be prosecuted by the state if they are involved in the torture of suspected terrorists…

The senator said physicians have reportedly advised interrogators whether prisoners were fit enough to survive “physical maltreatment, informed interrogators about prisoners’ phobias and other psychological vulnerabilities that could be exploited.”

April 6, 2008 Posted by | Torture News | , , , , , | Leave a comment