Posts Tagged ‘Jay S. Bybee’

REPRISE: Consorting with the Devil? The Debate over the Efficacy of Torture

Sunday, May 15th, 2011

Given the renewed debate in the U.S over the efficacy of torture in the wake of Bin Laden’s death, the article republished below, written on April 24, 2009 and first published here on October 1, 2009, puts current arguments in perspective.

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CONSORTING WITH THE DEVIL? THE DEBATE OVER THE EFFICACY OF TORTURE

April 24, 2009–The current debate over whether the use of torture by the Bush administration produced valuable information throws into sharp relief the moral depths to which the United States has sunk–from leading politicians and policymakers to large portions of the press and millions of average citizens. One cannot but wonder whether the rampant corruption in the mortgage market, in stock analysts’ recommendations, and in financial behavior which has brought this country to a new nadir, might not be related to a general lack of ethical and spiritual moorings in broad swathes of the population.

Painfully few religious, business or other leaders have taken continued, strong public stands against our use of torture. With notable exceptions, journalists even today shrink from describing so-called “harsh interrogation techniques” including water boarding as “torture”. Fear of litigation should not completely muzzle the press. The lack of awareness of history reflected in news reports and analyses and debates among officials is astounding, and suggests that the education of even many of our most educated public servants and journalists has a glaring gap at its moral core. That is, even with the best educations at the best universities, this ethical gap and lack of a moral core has not been remedied.

The principle of due obedience, rejected at Nuremberg and accepted but only for a while in Argentina, is quietly accepted without reference to either of those precedents. Or to the facts and considerations that led to the adoption and ratification of the torture convention.

To a nation which cheered episodes of “24” depicting torture by U.S. agents, the correct principle seems to be: “If torture works, we should use it to protect ourselves.”

It is a matter of immense sorrow to note that our leading pundits make scant reference to the fact that the sons and daughters of the Enlightenment, including the drafters of our own Constitution, rejected torture on moral, not utilitarian, grounds.

Let us then, for the sake of argument, postulate that torture in some cases produces useful information. Assuming, arguendo, that this is the case, the question for debate is simply this: “Is the use of torture, if effective, state behavior that is morally justified?

In other words, let’s skip the efficacy debate, which debases all who defend torture on utilitarian grounds. Let us debate the central moral issue: “Is torture, even if effective, morally acceptable, and why or why not?”

In this debate, it is worth bearing in mind that the entire edifice of international human rights rests on the inviolability of the physical integrity of the human person. This core principle is deeply rooted in the religious belief that in each human being there resides a part of the divine. It is a stunning testimony to the depths to which our nation has sunk to listen to the debate over the efficacy of torture as if effectiveness were the essential question. Instead of spymasters and doctors and psychologists who have consorted with the devil, it is time for us to listen to others, to our religious and moral leaders, and to politicians and other leading figures who believe there is a moral framework within which our actions—both as individuals and as a nation–are to be judged. It is time for these leaders to stand up and to speak out loudly and clearly on the morality of torture. It is time for them to take an unequivocal position on the torture our government has adopted as a policy and executed in the bowels of hell. It is time for them to demand the full truth and details of what our government has done, acting in our name.

There is no more fundamental human right than the right to the physical integrity of the human person. This right was recognized at Nuremberg, and enshrined in the Universal Declaration of Human Rights and the American Declaration of the Rights and Duties of Man, in 1948. It was specifically protected in the Geneva conventions on the law of war (humanitarian law), in 1949. The right is the cornerstone of numerous human rights treaties to which the U.S. is a party including the U.N. Convention on Civil and Political Rights, and the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The right is also fully protected in the European Convention on Human Rights, which establishes the constitutional norms and fundamental law on the subject in the nations of Europe.

So let’s hear the debate on whether the underpinnings of these human rights conventions are to be ripped out by allowing torture, and on the ultimate issue of the morality of the use of torture by the state against the individual. In engaging in this discussion, let us also avoid any semblance of the sophomoric debates that took place in our government, in which the question of torture was addressed as if it were a tabula rasa, in blithe ignorance of the history, religious positions, and legal developments that had taken place in the past.

The Trenchant Observer

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observer@trenchantobserver.com

See also

The Trenchant Observer, “Bin Laden and the Debate Over Torture–Revived, May 7, 2011 ;

Mark Benjamin, “The torture debate is back, but what about the criminal probe?” TIME, May 4, 2011;

The Trenchant Observer, “The Clock is Ticking: U.S. Application of the Torture Convention,” February 20, 2010; and

The Trenchant Observer, “Craig’s Departure, the Ban on Publication of Any Torture Photograph, and Reaffirmation of the Prohibition Against Torture,” November 25, 2009

Bin Laden and the Debate Over Torture–Revived

Saturday, May 7th, 2011

Some former U.S. officials responsible for torture under the Bush administration have claimed that the trail to Bin Laden was uncovered by the use of torture. The Telegraph (London) reports:

Jose Rodriguez, the agency’s former head of counterterrorism, said vital information had come from bin Laden deputies Khalid Sheikh Mohammed and Aby Faraj al Libbi, who were subjected to “enhanced interrogation techniques”.

–Gordon Rayner, “Osama bin Laden dead: torture unlocked bin Laden hideout ex-CIA man says — Key intelligence that led the US to Osama bin Laden’s hideout was obtained under torture in secret “black site” prisons, a former CIA officer has claimed, The Telegraph, May 5, 2011.

John Yoo, the author the legal memoranda authorizing torture under the Bush administration, writes is on Op-Ed piece in the Wall Street Journal:


Sunday’s success also vindicates the Bush administration, whose intelligence architecture marked the path to bin Laden’s door. According to current and former administration officials, CIA interrogators gathered the initial information that ultimately led to bin Laden’s death. The United States located al Qaeda’s leader by learning the identity of a trusted courier from the tough interrogations of Khalid Sheikh Mohammed, the architect of the 9/11 attacks, and his successor, Abu Faraj al-Libi.

Armed with the courier’s nom de guerre, American intelligence agencies later found him thanks to his phone call to a contact already under electronic surveillance. Last August, the courier traveled to bin Laden’s compound, but it took another eight months before the CIA became certain that the al Qaeda leader was hiding inside.
Armed with the courier’s nom de guerre, American intelligence agencies later found him thanks to his phone call to a contact already under electronic surveillance. Last August, the courier traveled to bin Laden’s compound, but it took another eight months before the CIA became certain that the al Qaeda leader was hiding inside.

–John Yoo (Op-ed), “From Guantanamo to Abbottabad,” Wall Street Journal, May 4, 2011.

The apologists for the torture policy of the Bush administration raise a hard question for President Obama, but not the one they think:

Why have John Yoo and other architects of the Bush administration’s policy of torure not been prosecuted, in accordance with U.S. law and the international legal obligations of the United States under the Convention Against Torture?

See Mark Benjamin, “The torture debate is back, but what about the criminal probe?” TIME, May 4, 2011.

The Trenchant Observer, “The Clock is Ticking: U.S. Application of the Torture Convention,” February 20, 2010.

The Trenchant Observer, “Craig’s Departure, the Ban on Publication of Any Torture Photograph, and Reaffirmation of the Prohibition Against Torture,” November 25, 2009

The claims of the torture apologists have been rebutted by a number of current and past U.S. officials, though that is really beside the point here.

On the fundamental moral issues involved in the debate over the efficacy of torture, see The Trenchant Observer, “Consorting with the Devil? The Debate over the Efficacy of Torture,” October 1, 2009 (written April 24, 2009).

Meanwhile, there appear to be few moral doubts about the efficacy of torture among the leaders of Libya, Syria, and many other countries.

Are we OK with their use of torture? If not, what can we say to them to urge them to stop?

The Trenchant Observer

www.twitter.com/trenchantobserv

The Clock is Ticking: U.S. Application of the Torture Convention

Saturday, February 20th, 2010

The U.S. Justice Department issued a report on February 19, 2010 finding that the lawyers who drafted “the torture memos” in the Bush administration were not guilty of professional misconduct. According to the New York Times,

After five years of often bitter internal debate, the Justice Department concluded in a report released Friday that the lawyers who gave legal justification to the Bush administration’s brutal interrogation tactics for terrorism suspects used flawed legal reasoning but were not guilty of professional misconduct.

The report, rejecting harsher sanctions recommended by Justice Department ethics lawyers, brings to a close a pivotal chapter in the debate over the legal limits of the Bush administration’s fight against terrorism and whether its treatment of Qaeda prisoners amounted to torture.

The ethics report is not the last word on the emotional national dispute about torture. In August, Attorney General Eric H. Holder Jr. opened a criminal investigation to determine whether the C.I.A. interrogation program broke the law, and that inquiry is expected to continue for months.

Eric Lichtblau and Scott Shane, New York Times, February 20, 2009

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.

Each party is obligated under Article 4 to ensure that acts of torture as defined in the convention are crimes under its domestic law, as follows:

Article 4
1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

The obligations to arrest, investigate and prosecute or extradite to another party are clearly established in the Convention.

Article 5 sets forth the obligations of a party such as the United States to prosecute individuals for torture when the crimes were committed within its territory or by its nationals:

Article 5
1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:
(1) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;
(2) When the alleged offender is a national of that State;

The authority and obligation of other countries who are parties to the Convention to arrest and prosecute or extradite individuals who may be guilty of torture are set forth in Arts. 6 and 7, in the following terms:

Article 6
1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present, shall take him into custody or take other legal measures to ensure his presence….
2. Such State shall immediately make a preliminary inquiry into the facts.

4. When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said State and shall indicate whether it intends to exercise jurisdiction.

Article 7
1. The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

Studied Inaction

While President Barack Obama has ordered an end to torture on his watch, his actions in the area of bringing to justice those who may have violated the Torture Convention have been disappointing.

Obama has not separated from government service those who it has been acknowledged played a significant role in the torture program.

Obama’s Secretary of Defense, Robert Gates, has issued an overly broad directive banning the release to the public of any photograph relating to the commission of torture by U.S. officials from September 11, 2001 through January 22, 2009.

Now, the Justice Department internal review of the conduct of the lawyers who wrote and approved the “torture memos” has concluded, in what the New York Times described as the Department’s “final judgment”, that these individuals were not guilty of “professional misconduct” and that the corresponding legal opinions were “flawed but not grossly incompetent or unethical”.

To be sure, Attorney General Eric H. Holder, Jr. opened a criminal investigation—finally–in August, 2009 to determine whether the CIA interrogation program broke the law. According to the New York Times, quoted above, “that investigation is expected to continue for many months.”

When Chickens Come Home to Roost

Justice indefinitely delayed amounts to justice denied.

To avoid this result, the U.N. Convention Against Torture provides for arrest and prosecution by other Parties when the country with the primary responsibility fails to prosecute as required by the Convention.

Up until now, parties to the Convention have given the United States considerable leeway in dealing with apparent violations of the Convention by officials during the George W. Bush administration (2001-2009), for offenses that happened as long as seven to or eight years ago.

They have shown continuing forbearance in granting Obama time to investigate and prosecute those responsible for violations of the treaty. When it becomes clear to them that the president has no intention to prosecute these individuals, however, this forbearance could suddenly come to an end, at least in the mind of a prosecutor or an investigating magistrate in one or another country that is a party to the Convention.

Recommended Steps

At a minimum, the President should seek an opinion from the Legal Adviser at the State Department regarding the international legal obligations of the United States under the Torture Convention to prosecute those individuals responsible for violating the Convention’s prohibitions, and make that opinion public.

Moreover, he should instruct Attorney General Holder to broaden his inquiry beyond the CIA to include all government officials—not just CIA officials–who might have been guilty of violating the Convention and who the United States is obligated to prosecute under its terms.

Congress should hold monthly or at least quarterly hearings requiring the attendance of Attorney General Holder and full reporting by the Justice Department of the activities it has undertaken in its investigation(s) into the possible commission of torture or related crimes, the remaining steps to be undertaken by the Justice Department, and when the report and indictments where appropriate might be expected.

Some Obama supporters will argue that his administration should drag the investigation out, at least past the November 2010 elections. This may in fact be prudent and justifiable if such action is supported by legal and not merely political considerations. However, it will not be possible to drag the investigation out past the presidential elections in 2012.

The Clock is Ticking

If Obama does not get out in front of this issue, he could be thrown into a politically disastrous position if and when the judiciary of another country that is a party to the Convention arrests or issues an arrest warrant for an individual wanted for prosecution under the terms of the Convention.

The President should act now to avoid this eventuality.

Torture will not be done with him, or with us, until we are all done with torture.

The Trenchant Observer

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E-mail: observer@trenchantobserver.com
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