Brennan unclear in confirmation hearing as to whether “waterboarding” constitutes “torture” (with transcript)—The John Brennan File #2

The transcript of John Brennan’s confirmation hearing, before the Senate Select Committee on Intelligence on February 7, 2012, deserves a very close examination by the Senators and the public before the nominee to be Director of Central Intelligence (CIA Director) is confirmed.

See United States Senate Select Committee on Intelligence, “Open Hearing on the Nomination of of John O. Brennan to be Director of the Central Intelligence Agency,” Washington, D.C., February 7, 2013.

(Members Present: Senators Feinstein, Chambliss, Rockefeller, Burr, Wyden, Risch, Mikulski, Coats, Udall, Rubio, Warner, Collins, Heinrich, King, & Levin)

The following exchange, in a hearing to confirm an official whose job will require that he prevent those under him from engaging in or being complicit in acts of torture, is particularly revealing:

SENATOR LEVIN: Thank you.

Thank you for your willingness to serve here, Mr. Brennan.

You’ve said publicly that you believe waterboarding is inconsistent with American values; it’s something that should be prohibited, and it goes beyond the bounds of what a civilized society should employ.

My question is this: in your opinion, does waterboarding constitute torture?

MR. BRENNAN: The attorney general has referred to waterboarding as torture. Many people have referred to it as torture. The attorney general, premiere of law enforcement officer and lawyer of this country. And as you well know, and as we’ve had the discussion, Senator, the term “torture” has a lot of legal and political implications. It is something that should have been banned long ago. It never should have taken place in my view. And, therefore, if I were to go to CIA, it would never, in fact, be brought back.

SENATOR LEVIN: Do you have a personal opinion as to whether boarding is torture?

MR. BRENNAN: I have a personal opinion that waterboarding is reprehensible, and it’s something that should not be done. And, again, I am not a lawyer, Senator, and I can’t address that question.

SENATOR LEVIN: Well, you’ve read opinions as to whether or not waterboarding is torture. And I’m just — do you accept those opinions of the attorney general? That’s my question.

MR. BRENNAN: Senator, you know, I’ve read a lot of legal opinions. I’ve read an Office of Legal Counsel opinion in the previous administration that said in fact waterboarding could be used. So, from the standpoint of that, you know, I cannot point to a single legal document on this issue.

But, as far as I’m concerned, waterboarding is something that never should have been employed, and, as far as I’m concerned, never will be, if I have anything to do with it.

SENATOR LEVIN: Is waterboarding banned by the Geneva Conventions?

MR. BRENNAN: I believe the attorney general also has said that it’s contrary, in contravention, of the Geneva Convention.

Again, I am not a lawyer, or a legal scholar, to make a determination about what is in violation of an international convention.

–Transcipt, pp. 73-74.

The Trenchant Observer can point to a single document on the issue of waterboarding and torture.

Under the U.N. Convention Against Torture and and Other Cruel, Inhuman or Degrading Punishment or Treatment, the United States, which is a party to the treaty, is obligated to prosecute or extradite individuals found within its jurisdiction who evidence suggests are guillty of torture.

Torture is defined in Art. 1(1) of the Convention as:

…any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

There are no exceptions to the prohibition against torture, and superior orders are no excuse. Art. 2(2) and Art. 2(3) provide:

2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Mr. Brennan’s responses to Senator Levin’s question suggest that the nominee to be CIA Director still has a big problem saying the word “torture”.

The euphemistic term “enhanced interrogation techniques”, referred to by Brennan and some Senators in the hearing as “EITs”– in an Orwellian formulation that surpasses even the original– does not wholly occlude the terror involved in waterboarding.

Waterboarding, beyond any scintilla of a doubt, constitutes “torture” under both U.S. and international law. The reservations the U.S. entered upon depositing its ratification of the U.N. convention in no way dilute this statement of fact.

The Convention Against Torture, the Geneva Conventions, and other international law, as well as U.S. law, prohibit the commission of acts of torture by any individual, not just lawyers, with or without the illusory protection of a twisted legal opinion.

If John Brennan doesn’t know that waterboarding constitutes torture and is an international crime, how can he lead the CIA and its employees in a manner that ensures that no acts of torture will be committed or tolerated?

The Trenchant Observer

See also the following previous articles by The Trenchant Observer:

Drone Killings, the Constitution, International Law, and the John Brennan File, February 7, 2013.

Key CIA official involved in Bush torture program criticizes “Zero Dark Thirty” for inaccurate depiction of “enhanced interrogation techniques”
Monday, January 7, 2013

REPRISE: “A time to break silence”: Dr. King on the Vietnam war, and President Carter on America’s human rights violations, January 6, 2013

REPRISE: Consorting with the Devil? The Debate over the Efficacy of Torture, May 15, 2011

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.

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