A Tortured Defense;
The guessing game is over. We know the U.S. government OK’d and utilized waterboarding. So what — if anything — are we going to do about it?
Consumers are often faced with difficult choices between product styles in today’s diverse market. There is Chicago vs. New York style pizza. Memphis vs. Texas style barbecue. Swedish vs. Japanese style massages. It is not surprising, therefore, that when the Bush administration decided to get into the torture business, it had to shop around.
This shopper’s dilemma of choices was evident in the twisted testimony given this month by Steven Bradbury, the acting chief of the Justice Department’s Office of Legal Counsel and one of the central figures in the Bush torture controversy. While it received relatively little attention, Bradbury not only acknowledged a formal program of waterboarding, he also casually distinguished President Bush’s approach from historical models such as waterboarding by the Spanish Inquisition. Though Bradbury insisted that the “only thing in common is, I think, the use of water,” he omitted that other common denominator: pain. Indeed, the primary difference appears to be that the administration rejected water ingestion rather than water saturation to cause the pain. It turns out that the administration thought seriously about its own style of waterboarding and opted for a Khmer Rouge style over the Spanish style.
For civil libertarians, it was like having the Inquisition’s Tomas de Torquemada calmly testifying on “10 charming facts about torture.” Yet, while members of Congress are falling over themselves this month to demand criminal charges in the scandal over performance-enhancing drugs in baseball, there is a conspicuous silence in the wake of Bradbury’s torture tour de force.
For months, both parties hid behind the rationalization that the torture program remained a mere allegation to avoid the looming criminal question. Indeed, Attorney General Michael Mukasey refused to recognize that waterboarding has been declared as torture by both domestic and international courts — noting that it would be speculative. After Democrats rescued his nomination from imminent failure over the torture question, Mukasey simply refused to answer the question even after the torture program was confirmed.
The company we keep
Even our closest allies, such as Britain, have stated the obvious: The United States is now an official member of torture-practicing nations. We share this distinction with such kindred spirits as North Korea, Egypt, Saudi Arabia, Iran and Burma. It has been disclosed that both Democratic and Republican members of Congress have known for years about the torture program. Current and former officials have confirmed the use of waterboarding. One of the CIA’s interrogators, John Kiriakou, publicly discussed the use of waterboarding on detainees and agreed that it was torture.
The question now is how do you ignore a torture program that is hiding in plain view? After all, Bradbury did everything short of cheerfully demonstrating the technique on a detainee for the education and amusement of House members.
Bradbury helpfully explained that the administration did not adopt the Inquisition technique of forcing the suspect to swallow large amounts of water and stomping on his stomach. In fact, Bradbury’s quaint historical discussion might have been a bit off on this point. The toca or tortura del agua, as it was known, varied, and one technique involved putting a cloth into the mouth of the victim and then forcing water to be ingested to simulate drowning. One does not use the stomach-stomping approach when one is trying to torture suspects into giving up information (as opposed to converting or killing heretics). They have a nasty habit of dying.
As Bradbury’s testimony and various reports indicate, the Bush administration opted for the standard variation of the tortura del agua of putting a cloth or a piece of plastic over the face of the victim while pouring water over his face. It achieves the same sensation of drowning and the inability to breathe. This technique was used by governments such as Cambodia’s Khmer Rouge under Pol Pot.
Perhaps there will be some who might be offended that we are importing torture techniques rather than producing our own “made in America” style. But there is one unique element to American waterboarding: Our legal system denies the president the power to order criminal acts.
Blame the lawyers
In refusing to allow a criminal investigation, therefore, Mukasey has chosen an argument often used by criminal defendants: He blamed the lawyers. It was not a crime, Mukasey has said, because Bush relied on advice from his handpicked lawyers. Because the lawyers said it was OK, it was: “Whatever was done as part of a CIA program at the time that it was done was the subject of a Department of Justice opinion through the Office of Legal Counsel and was found to be permissible under the law as it existed then.”
Of course, any crime could be magically transformed into a non-crime by simply hiring clueless or collusive counsel. Ironically, while Bradbury was one of those misguided lawyers, Mukasey is seeking his confirmation as one of his top lawyers. It is enough to make the most mobbed-up lawyer blush.
After Bradbury’s useful primer on torture, the only uncertain thing about waterboarding is not the program but any remaining principles in Congress. If Mukasey refuses to fulfill his oath and investigate a criminal torture program, Congress has the power to investigate these crimes and demand a special prosecutor. Regardless of whether we like our waterboarding with a Latin or Asian flare, it remains torture, and torture remains a crime — not a question of style. We just need someone in Congress who can see — and act on — the difference.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s board of contributors.
USA TODAY: February 27, 2008
20 thoughts on “The Tortura De Bush and the Administration’s Taste for Khmer-Style Waterboarding”
“Torture is prohibited by law throughout the United States. It is categorically denounced as a matter of policy and as a tool of state authority. Every act constituting torture under the Convention constitutes a criminal offense under the law of the United States. No official of the government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture. U.S. law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a “state of public emergency”) or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension. The United States is committed to the full and effective implementation of its obligations under the Convention throughout its territory.”
This was the United States talking. The State Department specifically in its Oct 15, 1999 report to UNCAT. These are official declarations, uncaveated, unhedged, as to our nation’s legal relation to torture. Note the prohibition on the use of emergency or exigent situations to justify torture.
Contrast with Mr. Bush’s veto of the anti-torture bill.
DW, you’re probably right that they’d find a way to wrap themselves up in the American flag if we floated the PRO-TORTURE label in their direction. I still think it should be floated anyway, just to see how they actually DO react.
And, in my best Margaret Hamilton (wicked witch of the west) voice, “…but that’s not what’s worrying me. It’s HOW to do it. These things must be done DELicate-ly. Or you hurt the spell.” Okay, I admit it, that last word needs a more appropriate substitution. But you get the general idea. 🙂
I think that even were we to pin that label on them, they would find a way to wrap it all in the Flag and claim that they were saving American lives… Which they may or may not be doing…coerced testimony being so unreliable.
I really thought highly of the argument made a while back that our international reputation post WWI, WWII, and even Vietnam, was of a country that tried to be “good guys”.
There were surreptitious tape recordings made of nazi Generals incarcerated in the same cell during the Nuremberg trials. In the cell they conversed about alot of things, but one thing came up: how the soldiers preferred to surrender to the Americans rather than to the Soviets. One of the german generals said it was because we were known to be “good guys”. A lot of lives were saved by those surrenders.
Later in the first Gulf War, the same thing happened, mass surrenders based on the reputation we had earned as straight shooters and lenient captors. A lot of American lives were saved by those surrenders.
Now that the word is our that we torture, we may never see those type of surrenders again. Our victories are going to costlier in American lives.
The same ones the torturers would try to save.
So even in utilitarian terms of argument, torture is self-defeating.
DW, I believe those in Congress who refuse to do or even say anything about the hideous practice of torture, no matter WHAT form it is, are too afraid of getting the “Soft on Terror” label put on them by their ultra-right-wing colleagues to take the necessary stand against it.
Well, maybe we citizens should design a new label for THEM. I wonder if they would like being publicly labeled PRO-TORTURE better? After all, if they’re going to support torture publicly, they should have the guts to be honest about it!
Thank you, JT, for writing this excellent article. I’d love to see even MORE of them!
I don’t believe the US currently recognizes any jurisdiction to the ICC which is the most probable venue of such proceedings. Plus the EU is stalemated on these issues because of the beliefs of some of the member states that are similar to attitudes currently dominant in Congress.
Steven Bradbury and his immediate enabler, AG Mukasey, are candidates for a war crime tribunal. If Congress cannot or will not hold the torturers and those that ordered the torture liable for their crimes against humanity; maybe a fair and impartial tribunal similar to the show trials at Gitmo, is what they deserve.
To counter Bradbury’s testimony that our version of waterboarding is tame stuff…we want to point out that waterboarding is just one of the 24 or so authorized interrogation tactics. But even if it were the only one, there is this testimony that was given to the Senate Select Committee on Intelligence in September of last year:
Actually Bob, I confused your note with another earlier objection on the torture issue. That is why I deleted it after sending it when the confusion became clear. I found the comment that you referenced and tried to release it. I am not particularly adept at this system.
Turley: “I am not sure what you are talking about. I do not manage comments. The system appears to take out very long data dumps or spam. I tried to look in the comment section and there is a cut and paste of the McCarthy criticism of my past work, which I have previously cited with a link on this blog. No conspiracy.”
I’m not familiar with the McCarthy criticism you mentioned; however, in a previous post regarding dual federalism I did cite your closing remarks in
”From Pillar to Post”: The Prosecution of American Presidents, 37 Am. Crim. L. Rev. 1049 (2000) — at “House Defies Bush: Allows Surveillance Law Expire”
My post here earlier dealt with the question of “whatever happened to the concepts of Specifically Enumerated Powers & Dual Federalism?”
I cited the exchange between Gonzales & the Senate Judiciary Committee and the failure to recall that the Constitution does not confer any rights whatsoever…
I remarked that the wholesale failure over the years to recall the foregoing maxim has led not only to an inability to comprehend the 9th ‘Amendment’ & Hamilton’s Fed 84 reasoning for including same, but a complete disregard for Dual Federalism & INHERENT STATE POLICE POWERS; including the power to enforce Fed Law when the Fed fails to do so.
“the [state] police power, is an exercise of the sovereign right of the government to protect the lives, health, morals, comfort, and general welfare of the people” Manigault v. Springs, 199 U.S. 473 (1905) (See also Sturges v. Crowninshield, 17 U.S. 4 Wheat. 122 122 (1819)
Finally, per the issue of Preemption; aside from the case law reaffirming that state officers have inherent authority to enforce federal law, I mentioned that we should not forget that Article V precludes any & all branches of the Federal Government from making an end-run around the Constitution by effectively amending it. This analytic judgment (in the Kantian sense of the term) was set forth rather clearly in REID v. COVERT, 354 U.S. 1 (1957):
“In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.”
In a nutshell, I fail to see why everyone looks to Congress and only Congress to check an Executive hell bent on “exercising power, beyond right, which no body has a right to.” — J. Locke.
Waiting to see this get banned (for some reason) as well…
Very truly yours,
P.S. The other post dealt with New York State Constitutional Law, Dual Federalism and that eloquent holding you cited from United States v. Lee in ”From Pillar to Post”: The Prosecution of American Presidents, 37 Am. Crim. L. Rev. 1049 (2000)
“The healthy man does not torture others – generally it is the tortured who turn into torturers” — Carl Jung
You’re multiple o’s give me the strength to continue.
Ditto, JT! Wooooooooohooooooooo!
What exactly triggers the “Your comment is awaiting moderation” block; the citing of case law?
Great article for the public to read! Thank you sincerely for the service.
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