Everybody breaks under torture. From Winston Smith to Jason Bourne.
Torture would work on me, for example.
If somebody starts crushing my fingertips with a pair of pliers, I’m going to tell them my ATM PIN, Batman’s secret identity, whatever.
But if you asked me where Bin Laden was, then I’m not the only person who has a problem.
Because I don’t know where Bin Laden is, but if you think I do, and keep torturing me, you’re going to get a lot of disinformation.
“Ticking time bombs” do exist, I suppose, and perhaps once in a blue moon timely torture saves the day.
But “ticking time bombs” are disproportionately invoked by torture apologists to justify quotidian torture a.k.a. “enhanced interrogation techniques” a.k.a. “coercive interrogation” a.k.a. “the third degree” as an instrument of law enforcement/national security practice. And it’s pretty clear that routine torture doesn’t yield good data, certainly not the “actionable intelligence unavailable by other means” that is torture’s holy grail.
That’s because the martyrs and no-goodniks who expect to be tortured develop countermeasures.
And because torturers usually go too far, out of stupidity, sadism, or failing to make a careful plan to retrieve a discrete piece of information. The weak signal—truthful information—is often overwhelmed, almost instantaneously, by the noise generated by the torturers’ poorly formulated questions and the victims’ disoriented responses. The response to this disappointing state of affairs is often more torture, more bad data, more torture ad infinitum.
Somewhere, I know, there is a generously funded program applying Claude Shannon’s information theory to optimize torture processes.
Of course, another reason to invoke the efficacy of torture is to jazz up TV and movie depictions of counter-terrorism operations. “24” and “Zero Dark Thirty” might get pretty draggy if they showed that successful interrogation usually involves endless cups of coffee and hours of tedious chitchat about some dirtbag’s boring family until the guy’s past loyalties are so far in the rearview mirror that he feels comfortable switching his allegiance to his captors.
When one views the fictionalized torture scene in Zero Dark Thirty, it should be recalled that the “torture gave us the intel” argument has been largely debunked.
Also remember that KSM was waterboarded 183 times during the real life hunt for Bin Laden…
…while he was interrogated as to the location of Bin Laden…
…and he gave wildly conflicting replies…
…just like I would.
…be under questioning so many statement which been some of them I make up stories just location UBL. Where is he? I don’t know. Then he torture me. Then I said yes, he is in this area …
An alternate depiction of the Bin Laden hunt–call it 183-Zero–might show the lovely and fragile Jessica Chastain determinedly and repeatedly waterboarding KSM, then spending a few dusty months in Kandahar chasing down false leads. Finally, she gets her hands on the guy she knows is the link to Bin Laden, she knows if she doesn’t get this guy to spill his guts pronto OBL will slip through her fingers, so she gives him the third degree with mustard on it at Bagram and he tells her…
…he tells her she’s got to talk to KSM at Guantanamo.
I see Terry Gilliam directing.
I’ve written on torture a few times, including an entire print issue of Counterpunch on the issue of the Wickersham Commission, the Hoover-era investigation that concluded that the third degree was counterproductive, thereby laying the evidentiary foundation for the Miranda ruling.
Here are a couple of pieces on torture that “worked” but somehow “didn’t work” in KMT China and Bush-era Guantanamo.
Tuesday, July 28, 2009
Keeping Up With the Wickershams
I have an article in the current print edition of Counterpunch on the Wickersham Commission report on Lawlessness in Law Enforcement, under the pen name of Peter Lee.
This article will provide enlightenment to anyone who ever wondered why the abusive apes in Dr. Seuss’s Horton Hears a Who were named the “Wickersham Brothers”.
More significantly, this report, prepared eight decades ago for Herbert Hoover by Harvard law professor Zechariah Chafee, the most distinguished guardian of civil rights in the first half of the twentieth century, anticipates and repudiates virtually all of the arguments in favor of—and abuses committed under the color of—“enhanced interrogation techniques” or, as they were known back in the Roaring Twenties, “the third degree”.
Chafee identified four reasons why beating people up to get information was a bad idea: false confessions, the corruption of police procedure as “fists trump wits”; the tainting of prosecutions; and the collapse of police reputation in the public eye.
Somewhat prescient, n’est pas?
If the Bush administration held motivations beyond mere retributive atavism, it might have referred to the Wickersham Report—which underlies the current federal protections against self-incrimination in the United States—before it embarked on its ruinous program of “enhanced interrogation techniques” in 2002-2003.
As it is, EIT is a signature Bush policy: dishonest, ineffective, and with catastrophic consequences that will long survive its morally and intellectually obtuse authors.
Typically, the Bush administration spent more mental energy defending the program than it did in its design or execution, first in the reams of bogus legal opinions enshrined as the “torture memos”, and currently with the non-stop spin by ex-Bush officials concerning the purported efficacy of the odious methods.
A good deal of rhetorical gymnastics is devoted to efforts to evade the “torture” label for enhanced interrogation techniques. As far as the impact, consequences, and shortcomings of coercive interrogation, it’s a distinction without a difference. Chafee uses the terms “torture”, “abuse”, and “the third degree” interchangably in his report.
The only reason everybody is loath to apply the description of “torture” to the intense mental and physical duress inflicted on detainees during the Global War on Terror is that the U.S. is a signatory to the U.N. Convention Against Torture, which is specifically designed to remove any and all justifications for giving torturers legal impunity…and Congress, in the reign of Bush I, enshrined the obligation to prosecute U.S. torturers under U.S. Statute 2340, the domestic enabling legislation for the treaty.
The Obama administration is also determined to obfuscate the issue, because frankness and honesty on the issue would expose U.S. practitioners and sanctioners of torture to prosecution both under U.S. statute and, under the principle of” universal jurisdiction” by other signatories to the U.N. Convention Against Torture and cause no little political heartburn for the current administration.
Coercive interrogation is an issue that’s the subject of a lot of confusion, muddled thinking, and outright dishonesty. Hopefully the article on the Wickersham Commission will help clear things up.
The subscription link for the Counterpunch print edition is here.
The one issue that the Wickersham Report does not address is the favored excuse of those who condone torture: the ticking time bomb defense.
The fact that torture has defused few if any ticking time bombs has not dimmed the ardor of its champions.
I can bring some perspective to this issue from Asia and justify a China Matters link to the debate.
The historical record indicates that motivated and trained terrorists and insurgents anticipate torture and have already developed effective countermeasures to protect their conspiracies and their networks.
As Claude Shannon, the father of information technology, might put it, the problem with torture is the signal to noise ratio.
All that’s needed to degrade the transmission of useful information is to bury it in increasing amounts of useless noise.
China in the 1930s and 1940s witnessed the life-and-death battle between the Kuomintang and the Chinese Communist Party.
It seems the only successful organization inside the dysfunctional KMT was Dai Li’s burgeoning and remorselessly efficient secret police empire.
Did Dai Li waterboard?
Among other things.
In 1932 [Harold] Isaacs summarized the Guomindang methods of torture as follows: beatings, pouring kerosene, urine, and feces through the nose of the victim and having the guards drive their knees into the stomach of the victim; strapping prisoners to chairs and giving them intermittent electric charges; placing pieces of bamboo between the fingers, which were then crushed; intermittent dislocation of bone joints; “tiger’s bench”, an ancient Chinese method of torture “by which the ligaments beneath the knee are pulled out”; imprisonment for months in cages where the prisoner must crouch like an animal for weeks or months; single or double pairs of shackles; and mutilating the reproductive organs of both sexes.
From Frederic Wakeman, Spymaster: Dai Li and the Chinese Secret Service, University of California Press; Berkeley 2003
Dai Li had an unwavering commitment to torture.
And torture, in its simplest iteration works. Everybody breaks down sooner or later.
But, as the Chinese say, for every tactic there is a countertactic.
In its struggle with Chiang Kai-shek’s KMT, the Chinese Communists figured out how to deal with torture of their operatives, as Wakeman writes:
In fact, most people broke sooner or later under secret police torture. What Communist prisoners appeared especially skillful at doing—perhaps because they were trained ahead of time for the experience of interrogation—was providing false information that would help other members of their organization get away. Often, for instance, a CCP agent being tortured in the zhencha dadui would pretend to reveal the location of the headquarters organization but actually give an address one or two blocks away. Until the secret police caught on to this trick, they would launch a raid against a totally harmless address close enough to the real headquarters to alert the party leadership to seek safer refuge elsewhere.
Apparently energetic application of torture sans scruples, restraint, or any legal hindrance was unable to save the KMT from eventual defeat by the Communists.
One might notice how insidious the red herring defense is.
Once Dai Li’s secret police “caught on to this trick”, they would have to torture beyond the original legend to get at the truth.
But what if the second confession was still a fraud?
And how would they know?
The more Dai Li tortured, the more the noise of additional bogus confessions would overwhelm the unrecognized signal—the truth.
It wasn’t just a problem for Dai Li.
As someone who participated in coercive interrogations of high-value targets inside Iraq told Human Rights Watch:
If [the detainees] were going to lie, they were going to stick with it—
unless it became too harsh and they would break, or whatever. But then
you get into the too-harsh area. . . and that’s when you don’t know if
you’re getting the right information—are they doing it just because of
the pain or the discomfort?
Jeff said he was concerned that harsh tactics were not as effective as more traditional
interrogation methods. When detainees provided information, yielding to abusive or
harsh techniques, it would take time to corroborate and determine whether the
information was accurate, whereas with traditional techniques, interrogators would
usually determine immediately whether the information was accurate.
You know, the time difference of checking out the story, and this and
that. Because if you’re talking to somebody and you break them using a
mental tactic or so forth, you just know when that person breaks. But
from what I’ve seen of harsh physical tactics, where they supposedly
break, that’s harder to tell [whether the information is accurate] because
they’re just saying something to stop the discomfort.
From No Blood, No Foul; Soldiers’ Accounts of Detainee Abuse in Iraq, Human Rights Watch, 2006.
Recall that Khalid Sheihk Mohammed was waterboarded 183 times. Potentially, that’s 183 different stories.
KSM’s statements at his Combatant Status Review Tribunal offer little reassurance that the United States got a lot of actionable, real time intel out of him:
…be under questioning so many statement which been some of them I make up stories just location UBL. Where is he? I don’t know. Then he torture me. Then I said yes, he is in this area …KSM CSRT transcript pg. 15
Saturday, August 01, 2009
America’s torture dilemma boils down to three letters: CAT.
They stand for the “United Nations Convention Against Torture”, a treaty that the United States ratified and made part of U.S. law under Statute 2340.
Under U.S. law, the United States is obligated to prosecute its torturers. The door is also open for other nations to detain and prosecute alleged torturers under the principle of “universal jurisdiction”.
Certain do-gooder states such as Spain have even asserted their right to try torturers in their courts even if offenses weren’t committed against their own nationals.
Because the United States did, by its own admission, torture during the first administration of George W. Bush.
And the people we tortured-especially the so-called 20th hijacker, Mohammed al-Qahtani–would appear to have the right to their day in court.
This has created some embarrassment for the Obama administration as well.
The U.S. detention system has produced significant suffering, both through design and abuse, for foreigners detained during the Global War on Terror at Guantanamo, camps and jails in Iraq and Afghanistan, and in black site prisons around the world. Physical and psychological maltreatment were (and apparently still are) employed as a “control measures” to render detainees cowed and compliant; to soften them up for interrogation; and during the interrogation process itself.
Sometimes the methods, crudely and zealously applied with the tacit or express approval of superiors, resulted in the death of detainees.
Fortunately for the guards and interrogators who screamed, slapped, punched, kicked, clubbed, and pepper-sprayed their way through the Global War on Terror, CAT exempts ordinary brutality– a.k.a. “cruel, inhuman or degrading treatment or punishment”-from its purview.
However, what the United States did to high-value al-Qaeda detainees at Guantanamo rose to a higher level: torture.
CAT defines torture 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”.
Under the euphemism of “enhanced interrogation techniques”, U.S. government behavioral scientists working under General Geoffrey Miller at Guantanamo developed and applied a program of intense physical and psychological coercion, fully documented by meeting minutes and logs and acknowledged by Bush administration in the intensive efforts by the Department of Justice’s Office of Legal Counsel to provide a legal color to the proceedings.
A statement by a CIA functionary during one of the meetings called to design the program gives an idea of where things were headed:
If the detainee dies you’re doing it wrong…Any of the techniques that lie on the harshest end of this spectrum must be performed by a highly trained individual. Medical personnel should be present to treat any possible accidents. (Counter Resistance Strategy Meeting Minutes, October 2, 2002 cited in Guantanamo and Its Aftermath, Human Rights Center, University of California, Berkeley, Nov. 2008 Appendix A)
Mohammed al-Qahtani was apparently the guinea pig for this program. The United States totally went to town on this guy and gave him 40 days of hell.
A 2007 article by Steven Miles in the American Journal of Bioethics drew upon interrogation logs to describe what was done to Qahtani during five weeks of interrogations in December 2002 and January 2003. It should be quoted at length to give a full idea of the program, in terms of its severity and also its systematic and planned character.
Connoisseurs of bureaucratic mil-speak will note the creation of standardized DoD gobbledy-gook (Pride Down; Ego Down) to describe the psychological strategies that, if successful, would presumably be applied to conduct subsequent interrogations (and advance careers) inside the American Gulag.
The Interrogation of Prisoner 063
According to the Army investigation, the log covers a period in the middle of al-Qahtani’s interrogation that began in the summer of 2002 and continued into 2003. For eleven days, beginning November 23, al-Qahtani was interrogated for twenty hours each day by interrogators working in shifts. He was kept awake with music, yelling, loud white noise or brief opportunities to stand. He then was subjected to eighty hours of nearly continuous interrogation until what was intended to be a 24-hour recuperation. This recuperation was entirely occupied by a hospitalization for hypothermia that had resulted from deliberately abusive use of an air conditioner. Army investigators reported that al-Qahtani’s body temperature had been cooled to 95 to 97 degrees Fahrenheit (35 to 36.1 degrees Celsius) and that his heart rate had slowed to thirty-five beats per minute.
While hospitalized, his electrolytes were corrected and an ultrasound did not find venous thrombosis as a cause for the swelling of his leg. The prisoner slept through most of the 42-hour hospitalization after which he was hooded, shackled, put on a litter and taken by ambulance to an interrogation room for twelve more days of interrogation, punctuated by a few brief naps. He was then allowed to sleep for four hours before being interrogated for ten more days, except for naps of up to an hour. He was allowed 12 hours of sleep on January 1, but for the next eleven days, the exhausted and increasingly non-communicative prisoner was only allowed naps of one to four hours as he was interrogated. The log ends with a discharge for another sleep period.
Medical Treatment during Interrogation
Clinicians regularly visited the interrogation cell to assess and treat the prisoner. Medics and a female medical representative checked vital signs several times per day; they assessed for dehydration and suggested enemas for constipation or intravenous fluids for dehydration. The prisoner’s hands and feet became swollen as he was restrained in a chair. These extremities were inspected and wrapped by medics and a physician. One entry describes a physician checking for abrasions from sitting in the metal chair for long periods of time.
The doctor said everything was good. Guards, medics and a physician offered palliative medications such as aspirin to treat his swollen feet.
Intravenous fluids were regular administered over the prisoner’s objection. For example, on November 24, the prisoner refused water. A Captain-interrogator advised him that the medic can administer IV [sic: the log’s contraction for intravenous fluids of an unspecified volume is used throughout this article] fluids once the Captain and the Doctor on duty are notified and agree to it. Nine hours later, after taking vital signs, medical personnel administered two bags of intravenous fluids. Later that day, a physician evaluated al-Qahtani in the interrogation room and told him that he could not refuse medications or intravenous fluids, and that he would not be allowed to die.
The next day, interrogators told the prisoner that he would not be allowed to pray if he would not drink water. Neither a medic nor a physician could insert a standard intravenous catheter, so a physician inserted a temporary shunt to allow an intravenous infusion. The restrained prisoner asked to go the bathroom and was given a urinal instead. Thirty minutes later, he was given three and one-half bags of IV [sic]?and he urinated twice in his pants. The next day, the physician came to the interrogation room and checked the restrained prisoner’s swollen extremities and the shunt. The shunt was removed and a soldier told al-Qahtani that he could pray on the floor where he had urinated.
From December 12 to 14, al-Qahtani’s weight went from 119 to 130 pounds (54 to 59 kilograms) after being given six IVs. On December 14, al-Qahtani’s pulse was 42 beats per minute. A physician was consulted by phone and said that operations could continue since there had been no significant change. Al-Qahtani received three more IVs on the December 15 and complained of costophrenic pain. A physician came to the interrogation cell, examined him, made a presumptive diagnosis of kidney stones and instructed the prisoner to take fluids. The next day blood was drawn in the cell.
Psychological Treatment During Interrogation
In October 2002, before the time covered by the log, Army investigators found that dogs were brought to the interrogation room to growl, bark and bare their teeth at al-Qahtani. The investigators noted that a BSCT psychologist witnessed the use of the dog, Zeus, during at least one such instance, an incident deemed properly authorized to exploit individual phobias. FBI agents, however, objected to the use of dogs and withdrew from at least one session in which dogs were used. Major L., a psychologist who chaired the BSCT at Guantanamo, was noted to be present at the start of the interrogation log. On November 27, he suggested putting the prisoner in a swivel chair to prevent him from fixing his eyes on one spot and thereby avoiding the guards. On December 11, al-Qahtani asked to be allowed to sleep in a room other than the one in which he was being fed and interrogated. The log notes that BSCT advised the interrogators that the prisoner was simply trying to gain control and sympathy.
Many psychological approaches or themes were repetitively used. These included: Failure/Worthless, Al Qaeda Falling Apart, Pride Down, Ego Down, Futility, Guilt/Sin Theme (with Evidence/Circumstantial Evidence, etc. Al-Qahtani was shown videotapes entitled Taliban Bodies and Die Terrorist Die. Some scripts aimed at his Islamic identity bore names such as Good Muslim, Bad Muslim, Judgment Day, God’s Mission, and Muslim in America. Al-Qahtani was called Unclean and Mo [for Mohammed]. He was lectured on the true meaning of the Koran, instruction that especially enraged him when done by female soldiers. He was not told, despite asking, that some of the interrogation took place during Ramadan, a time when Moslems have special obligations. He was not allowed to honor prayer times. The Koran was intentionally and disrespectfully placed on a television (an authorized control measure) and a guard intentionally squatted over it while harshly addressing the prisoner.
Transgressions against Islamic and Arab mores for sexual modesty were employed. The prisoner was forced to wear photographs of sexy females and to study sets of such photographs to identify whether various pictures of bikini-clad women were of the same or a different person. He was told that his mother and sister were whores. He was forced to wear a bra, and a woman’s thong was put on his head. He was dressed as a woman and compelled to dance with a male interrogator. He was told that he had homosexual tendencies and that other prisoners knew this. Although continuously monitored, interrogators repeatedly strip-searched him as a control measure. On at least one occasion, he was forced to stand naked with women soldiers present. Female interrogators seductively touched the prisoner under the authorized use of approaches called Invasion of Personal Space and Futility. On one occasion, a female interrogator straddled the prisoner as he was held down on the floor.
Other degrading techniques were logged. His head and beard were shaved to show the dominance of the interrogators. He was made to stand for the United States national anthem. His situation was compared unfavorably to that of banana rats in the camp. He was leashed (a detail omitted in the log but recorded by investigators) and made to stay, come, and bark to elevate his social status up to a dog. He was told to bark like a happy dog at photographs of 9/11 victims and growl at pictures of terrorists. Some psychological routines referred to the 9/11 attacks. He was shown pictures of the attacks, and photographs of victims were affixed to his body. The interrogators held one exorcism (and threatened another) to purge evil Jinns that the disoriented, sleep deprived prisoner claimed were controlling his emotions. The interrogators quizzed him on passages from a book entitled, What makes a Terrorist and Why?, that asserted that people joined terrorist groups for a sense of belonging and that terrorists must dehumanize their victims as a way to avoid feelings of guilt at their crimes.
Yes, that’s torture.
And in 2008 the Bush administration itself let the torture CAT out of the bag:
“We tortured [Mohammed al-]Qahtani,” said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. “His treatment met the legal definition of torture. And that’s why I did not refer the case” for prosecution.…
Detainee Tortured, Says U.S. Official, Bob Woodward, Washington Post, Jan. 14, 2009
The Bush administration had been acutely aware of the legal jeopardy involved, both to the interrogators and to the administration officials-all the way up to the president-who reviewed and authorized the program.
Unwilling to take the political step of withdrawing from the CAT or attempting to repeal its enabling U.S. statute, the Bush administration turned its lawyers loose on the problem, resulting in the notorious memos of 2002.
Beyond asserting a special, protected role for the president of the United States to disregard U.S. law as commander in chief in time of war, the primary purpose of these memos was to raise the bar for the definition of torture-and for legal jeopardy of U.S. personnel-so high it would never be cleared.
The Department of Justice’s Jay Bybee obligingly defined torture as “not the mere infliction of pain or suffering on another, but is instead a step removed. The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result.”
Also, according to the logic of the Department of Justice lawyers, anything an interrogator did still wasn’t torture unless it met the also rather subjective criterion that it was inflicted for the purpose of gratuitous recreational sadism, and not to extract information.
In the words of the Bybee memo:
“…because 2340 requires that a defendant act with the specific intent to inflict severe pain, the infliction of such pain must be the defendant’s precise objective…If the defendant acted knowing that severe pain or suffering was reasonably likely to result from his actions, but no more, he would have acted only with general intent.”
“Further, a showing that an individual acted with a good faith belief that his conduct would not produce the result that the law prohibits negates specific intent…A good faith belief need not be a reasonable one.” [emph. added]
The clear intent of the Bush administration was to create a definitional muddle that would hamstring any efforts to accuse anybody of torturing, let alone prove it.
Apparently these tortured rationales were unpersuasive to the FBI and significant elements inside the Department of Defense (the CIA and its contractors apparently had fewer qualms), especially since the tormented detainees were apparently producing little in the way of useful intelligence.
During the second Bush administration, the effort to establish “enhanced interrogation techniques” as the official norm for dealing with important detainees apparently collapsed.
The legal mess-and the fear of interrogators and bureaucrats that they could be hailed into court for prosecution on torture charges–remained for the Obama administration to try to clean up.
The Obama administration has, rather commendably, decided to make an effort to repair America’s international standing by officially acknowledging the obvious fact that the United States had tortured-and by promising never to do it again.
However, it does not wish to alienate the U.S. national security apparatus or a sizable portion of the U.S. electorate by handing over Bush administration authorizers or practitioners of torture to courts at home or abroad.
Mr. Qahtani, by the way, is unlikely to obtain his day in court to sue his abusers. He is still under extralegal detention while the FBI works to build a “clean” case that will obtain his conviction without using information obtained or tainted by his torture.
President Obama has refused to endorse an independent truth commission to investigate torture.
On April 16, 2009, the Department of Justice issued a statement indicating that government employees who followed the flawed Bush administration guidelines in good faith had nothing to fear from the Obama Department of Justice.
Quite the contrary, in fact:
Holder also stressed that intelligence community officials who acted reasonably and relied in good faith on authoritative legal advice from the Justice Department that their conduct was lawful, and conformed their conduct to that advice, would not face federal prosecutions for that conduct.
The Attorney General has informed the Central Intelligence Agency that the government would provide legal representation to any employee, at no cost to the employee, in any state or federal judicial or administrative proceeding brought against the employee based on such conduct and would take measures to respond to any proceeding initiated against the employee in any international or foreign tribunal, including appointing counsel to act on the employee’s behalf and asserting any available immunities and other defenses in the proceeding itself.
To the extent permissible under federal law, the government will also indemnify any employee for any monetary judgment or penalty ultimately imposed against him for such conduct and will provide representation in congressional investigations.
“It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department,” Holder said.
Attorney General Eric Holder, recently portrayed on the cover of Newsweek magazine standing on a Washington street corner in an attitude of befuddled nobility, has, in the form of a classified report by the CIA’s inspector general, powerful documentation of U.S. torture that he finds difficult to ignore.
Holder would like to prosecute American torturers who exceeded even the Bush guidelines in their mistreatment of detainees.
However, the Obama administration doesn’t even want to go there.
The torturers’ defense would undoubtedly involve an excruciating parsing of the torture memos. This would expose both retired and serving government bureaucrats to embarrassment or worse.
Court proceedings would inevitably involve the presentation of evidence that other national courts might seize upon on the principle of universal jurisdiction, especially if the U.S. courts acquitted (or even worse, the Obama administration pardoned) offenders in an attempt to secure what CAT is specifically designed to preclude: legal impunity for torturers.
The Obama administration is working overtime to pre-empt the possibility of foreign prosecution of American torturers. For the most part, the European countries have been obliging.
Certainly, the German government under Angela Merkel was unwilling to countenance a war crimes indictment against U.S. government and military officials.
In a 2007 decision quashing a war crimes suit filed by Abu Ghraib and Guantanamo victims against Donald Rumsfeld et. al., the Prosecutor General at Germany’s Federal Supreme Court availed himself of the excuse that, although the purpose of the law was to compel war crimes prosecutions when the home jurisdiction declined to do so, the German courts could still decline to pursue the case if they decided ahead of time that they couldn’t convict:
[I]t is necessary to counteract the danger that complainants will seek out certain states as sites of prosecution-like Germany in this case-that have no direct connection with the acts complained of, simply because their criminal law is favorable to international law (so-called forum shopping; Kurth, ZIS 2006, 81, 83; Ambos, NStZ 2006, 434, 435), and in this way force investigative authorities into complicated, but ultimately unsuccessful investigations.
The Spanish government, with the joint approbation of the United States, Israel, and China, is seeking to rein in its National Court, which is investigating 16 cases of genocide, war crimes, and crimes against humanity under the principle of broad “universal jurisdiction” i.e. when no Spanish link exists, including two Guantanamo cases.
However, the universal refusal of national courts to hear war crimes cases against American officials cannot be assumed. There is always the threat of what Jay Bybee referred to as “rogue prosecutors”.
And there is the danger that persuasive documentation of actual abuses during interrogations will sway public opinion and the courts in some country to push for indictment of American government officials.
Under these circumstances, it would not appear prudent for the Obama administration to provide carefully-vetted, U.S. government-endorsed evidence of torture that could be used in foreign courts.
Therefore, the White House appears determined to deny foreign courts the hard evidence of actual torture that they would need to conduct meaningful prosecutions.
In CIA Director Panetta’s declaration opposing the ACLU’s Freedom of Information Act request for information concerning “enhanced interrogation techniques” or EITs, he makes the awkward but necessary distinction that it was one thing to release the Office of Legal Counsel memos detailing “EIT descriptions in the abstract” but records of actual “EITs as applied” “must continue to be classified TOP SECRET”.
The Obama administration has demonstrated that it has no stomach for an emotional and divisive debate that forces it to stand with decency and tortured foreigners and puts it on the wrong side of the national security and sovereignty equation.
The Newsweek article itself, while presenting Eric Holder as a decent and capable Attorney General, clearly communicated the idea that he was out of step with the White House on the torture issue and he would be hung out to dry if he persists on the issue.
In the best “going forward” tradition, the United States will be happy to say that “torture happened”.
However, as to “who did what, where and when and to whom”, it doesn’t look like the victims-or the American people-will get many answers for now.
Jessica Chastain picture from http://www.slantmagazine.com/house/2012/12/oscar-prospects-zero-dark-thirty/
Horton image from http://kids-apps.mobi/horton-hears-a-who/
al-Qahtani photograph by APF