The Boston Progressive - Under The Fold

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Tuesday, November 15, 2005

Background for a failing policy

Torture.

Alone, the word either has no referent, or presents implications of brutality, sadism and lawlessness in retaliations. Or more chilling, thought brings examples of cold and disinterested violence with no cause but to provide an example to inspire terror and compliance.

For most of us the very word is one that brings repugnance, as being against the very fabric of our civilization, as something that crosses the line of justice in any war.

Acts that, with used against an enemy, serve either to frighten into submission (as intended) or stiffen opposition against all reason, out of the perception that horrific fates will result even in otherwise honorable surrender.

There is a broad historical understanding of the use, utility and consequences of torture. In the "modern" world the basic prohibitions lead back to St. Aquinas and his germinal writings on "just war" itself, and the conduct expected by those waging that war.

But this series of articles are meant to treat the current discussion of torture, as performed or sanctioned by the instrumentalities for the United States, such as the armed forces, the intelligence communities, the Department of Defense, the Department of Justice and Executive branch of the United States government.

First, a textbook definition. The USAF Air War College has a WWW page of "Military Law and Legal Links". On that page the definition of "torture" is the one articulated by use law;

TITLE 18 > PART I > CHAPTER 113C > § 2340
§ 2340. Definitions
As used in this chapter—
(1) "torture" means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) "severe mental pain or suffering" means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and
(3) "United States" includes all areas under the jurisdiction of the United States including any of the places described in sections 5 and 7 of this title and section 46501 (2) of title 49.


The United States has had explicit prohibitions against the use of torture by its armed forces. The intelligence services have usually been regarded as being subject to either "ordinary" civilian law or laws formulated specifically to apply to them and the actions of their members.

However, after the 9/11 hijacking of, and subsequent crashes into the NYC World Trade Center towers, of fully fueled commercial airliners, there has been a call, from a sizable minority in the country, that suspected terrorists and "illegal combatants" are not entitled to be accorded the same rights as "ordinary citizens," or, one suspects, "ordinary criminals."

President Bush has so declared, and has formulated a whole new realm of extrajudicial detention and treatment for those apprehended in the "war on terror." Others have maintained that torture and "harsh interrogation" should be the norm when dealing with suspected terrorists.

Recently, the United States Senate passed a resolution, tied as an amendment to another bill, that categorically denied the use and practice of torture to all instrumentalities of the United States. This resolution passed 90-9. I will let pass the fact that, in essence, 9 Senators (all members of the GOP) voted to endorse torture.)

President Bush has declared that, if the bill comes before him, with the amendment attached, that he will veto the bill. Vice President Cheney, and the head of the CIA, Porter Goss, have each appealed to Sen. John McCain (R-Arizona), a primary sponsor to the amendment, to provide an exemption for the CIA (considering that McCain himself is a victim of torture this could charitably classed to fit both the definitions of "chutzpah" and "tough house.")

President Bush has recently declared that "We do not torture." Yet Cheney and Goss still want that exemption for the CIA. (I have to wonder why? Just in case Bush "changes his mind?")

For the legal justification of this extraordinary state of affairs permitting these unique actions of the Administration, the Bush White House had declared that the "illegal combatants" had forfeited and rights to required treatment under the Geneva accords that govern prisoners taken during wartime.

The reasoning for this is shown in several documents that were passed back and forth between the Department of Justice and the Department of State, with the State Department urging greater and greater caution. The memos directly concern the conflict in Afghanistan, but they are the basis for the US policy currently in place in regards to treatment of prisoners captured in the "war on terror."

These memos also reveal, to me, a perception that those who have claimed that Bush has been aiming for an "Imperial Presidency" may indeed be understating the case.
(The memos are all in .PDF format. The first is 40 pages long, the others run to 5 pages each)

The first memo is dated Jan 11, 2002, and is from William Taft, legal advisor with the State Department, to John Yoo, Deputy Assistant AG with the Department of Justice Ofice of Legal Counsel. (The Office of the Legal Counsel assists the Attorney General in his function as legal advisor to the President.)

The memo is an analysis and response to a draft opinion that the Office of Legal Counsel (OLC) had sent to the State Department for review. In it, the OLC had proposed that the United States should consider Afghanistan as a "failed state," and as such, if that would enable the U.S. to unilaterally be able to declare that treaty obligations would be nullified, not by the President's action, but by the lapse of treaty reference because the state of Afghanistan no longer existed, as a state. However, a "failed state" is still considered to be a treaty obligator under both custom and international law. Part of the memo also inquired of the possibility of treating the Taliban and Al Quada as being outside the protections of the Geneva Accords.

The Draft opinion also stated that the President has plenary powers over enforcement and interpretation of treaties and international law. The State department did not agree, and were of the opinion that neither the Congress nor the U.S. Supreme Court would agree, either. The draft opinion also showed, or indicated, a profound ignorance of the difference between the Taliban (who were the recognized government of Afghanistan) and Al Quada, which was a group operating under the protection of the Taliban but was separate and distinct from them.

The second memo,dated 01/14/2002 is from Yoo to Taft. In it, Yoo again maintains his misunderstanding of the "failed state" concept, but persists in linking the "failed state" with the President's ability to abrogate the United States treaty obligations towards Afghanistan on that basis. Indeed, part of the "discussion" is the inability for the President to cease enforcement of *part* of the Geneva Accords and comply with others. (Rather, from my opinion, the question should be why the President feels that there is reason to not comply with the Geneva Accords in full)

Yoo also appears frustrated that Taft is not willing to concede all the points the OLC wants, and considers Taft as being incompetent because he (Taft) opines that the United States is subject to any international jurisdiction or law at all. Again, OLC is showing a Boltonesque taste for interpretation of international law.

The third memo is dated 1/23/2002, and is from Taft to Yoo, with an added cover letter to Gonzalez. In this memo Taft comments upon a revised Draft Opinion that the OLC has sent. His tone is not one of being impressed.

Rather cogently, Taft notes:

"...In essence, the current line of argument seems to be that we can treat the Taliban forces now and in the future in whatever way we wish in order to punish the Taliban for their past breaches of the treaty. This argument has three major flaws: First, it depends on the ability of the President to make a retroactive determination of suspension {of the Geneva Accords], despite the fact that such a retroactive determination may not be allowed under international treaty law. Second, it does not explain how such a determination with respect to the Taliban in the past would relieve us of our current obligations to the recognized government of Afghanistan in the present. The detentions in Guantanamo are not in the past, they are in the present and future, so it is our current obligations that would apply. Finally, the line of argument in the OLC opinion fails to take into account that reciprocal mistreatment is not a recognized remedy for breach under the Geneva Convention."


The forth memo is from Taft to Gonzalez, detailing the objections that the State Department has to suspending the Geneva Accords during the Afghanistan conflict.

In the text of the memo, Taft notes:

"...The President should know that a decision that the conventions do apply is consistent with the plain language of the Conventions and the unvaried practice of the United States in introducing its forces into conflict over fifty years. It is consistent with the DOS lawyers and, as far as is known, the position of every other party to the Conventions. It is consistent with UN Security Council Resolution 1193 affirming that 'All parties to the conflict [in Afghanistan] are bound to comply with their obligations under international humanitarian law and in particular the Geneva Conventions...' "


In the attached working draft opinion (presumably what the memo is in reference to) there is a notation that
"CIA lawyers believe that, to the extent that the GPW's protections do not apply as a matter of law but those protections are applied as a matter of policy, it is desirable to circumscribe that policy so as to limit its application to the CIA. The other lawyers involved did not disagree with or object to CIA's view"


The fifth memo of the group is from Yoo to Taft, in which he (Yoo) again takes issue with Taft's refusal to agree to the OLC interpretation of a "failed state" in regards to law or international treaty, that the OLC feels, contrary to what the Department of State analysis indicates, that the Taliban itself does not warrant recognition as an armed force where the members would be accorded POW status when captured.

Yoo takes extreme exception to the recommendation of the State Department that *all* parties to the conflict, Taliban, al Quada, US and allied forces and civilians must be treated to the most favorable interpretation of the Geneva Convention.

Yoo also notes that the underlying basis for the conclusions that the OLC and the President are making should not be made public. Especially not to make public the conclusions that the State Department has made in regards to this matter.

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