TRUTH WILL OUT: THE SENATE REPORT CONTAINS SOME INCONVENIENT TRUTHS

senate_large_seal200px-CIA.svgBelow is my column today in USA Today on the torture report. This is the slightly longer version that ran on the Internet.
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As Shakespeare wrote in the Merchant of Venice, “truth will out.” The release of the report of the Senate Intelligence Committee was the long-awaited truth about one of this country’s most shameful chapters. Like water, truth has a way of finding its way out even against the determined obstruction. However, the question is what truth came out this week in the hundreds of pages of highly disturbing, and often disgusting, details of the “enhanced interrogation” program.

There are obvious “truths” about waterboarding being a crime and how torture is a poor vehicle for obtaining intelligence.

Then there are truths that are less obvious but equally clear in the pages of this report. Here are three such inconvenient truths that emerge from the Torture Report:

Truth #1: The CIA proved it is immune from legal restraints

As damaging as this report is to the reputation of the Agency, it reaffirms the underlying assumption that made the torture program possible: CIA officials enjoy effective immunity from the law.

The report details crimes that run gamut of the criminal code. It starts with torture itself that is not just a crime but a war crime. However, the report also details – and names some of those responsible – for destroying evidence, lying to Congress and obstructing investigations into the torture program. Former Director Michael V. Hayden is cited for actively telling employees to lie and for personally giving false information to Congress . CIA Deputy Director John McLaughlin was expressly called on the Senate floor by Sen. Dianne Feinstein for giving false information to Congress. CIA General Counsel Scott Muller in 2003 is quoted as lying to the White House about the existence of videotapes on the interrogations. The report details false statement after false statement given by past directors and high-ranking officials to Congress, to the White House and to the American people. It also details how, after CIA were told about inquiries into the legality of the torture program, officials promptly ordered the destruction of video tapes to get rid of the evidence.

Yet, what did all of that prove? It proved that the CIA could commit all of these crimes, even war crimes, and not face a single federal charge. Not one. The only thing more chilling than the torture carried out in our name was the fact that it was carried out with utter impunity.

Truth #2: The Justice Department First Facilitated Torture And Then Obstructed Its Prosecution

One of the least discussed “truths” in this study is the ignoble role played by the Justice Department. During the Bush Administration, figures like Jay Bybee and John Yoo issued the infamous “torture memos” that gave legal cover for the programs. The only thing more tortured than the subjects was the legal authority used to justify their abuse. However, the report also details how the Bush and Obama administrations obstructed the investigation at every turn. Six months after Congress began to investigate the program and was demanding to interview key players, Attorney General Eric Holder suddenly announced the Justice Department’s own investigation under John Durham. As soon as the Justice Department investigation was announced, virtually every key player refused to speak with congressional investigators in light of the internal investigation. As expected, Durham later found that not a single crime could be found. Not in the destruction of evidence. Not in the false statements. Certainly not in the torture itself.

Holder and the Justice Department proved as much enablers as did their predecessors in the Bush administration. Soon after taking office, President Obama shocked many by going to the CIA and assuring employees that, despite his recognition of the torture, no one would be prosecuted. Holder and the Justice Department played as great a role in fulfilling that pledge as Justice did in facilitating the program itself.

Truth #3: Torture remains a question of effectiveness for many in government

Perhaps the most chilling truth is that the CIA and key American leaders continue to deny the very premise of both international and domestic laws. The key response of the CIA was to insist that the program was “effective” – the very rationale that is expressly rejected in the Convention Against Torture and other laws. It does not matter if torture was useful or productive. It is a war crime. We should know. We wrote that language saying that no nation can justify torture due to “exceptional circumstances” or effectiveness. Yet, the very agency that committed these crimes has continued to argue that those crimes were productive exercises.

The current debate over whether torture works reveals how far we have fallen as a nation in our view of this war crime. Not only does our embrace of torture threaten our own soldiers and citizens abroad, we have lost the moral high ground internationally. The truth is that torture could easily return to the United States so long as it is viewed as a practical question instead of a moral one.

Jonathan Turley, a law professor at George Washington University, is a member of USA TODAY’s Board of Contributors.

448 thoughts on “TRUTH WILL OUT: THE SENATE REPORT CONTAINS SOME INCONVENIENT TRUTHS”

  1. I like it when people respond, but someone added an “s” to my last name. So thought I’d mention it’s Sandi Hemming. Only one of me. My husband couldn’t survive two!

  2. The Democrats have continued many of Bush’s policies. My point was in response to Sandi Hemmings, who said that most Republicans support the entire U.S. Constitution – which is not true – but so do many Democrats.

    1. I think Sandi Hemmings is absolutely correct.

      I don’t see much difference between Republicans and Democrats in regard to supporting or not supporting the entire Constitution. Most of them believe they are supporting the entire U.S. Constitution. They just have different ideas about how to interpret it and which parts are more important.

      Many Democrats blatantly say they do not support the entire Constitution in the same meaning as it was originally intended when it was written. They believe the Constitution is a living document whose meaning changes depending upon who is reading it and when it is being read. From my perspective, that kind of makes the Constitution meaningless. I don’t know any Republicans who embrace that ideology.

  3. David,

    The GOP controlled both houses of Congress for four years when Bush signed this legislation and launched his unconstitutional “Preemption Doctrine”. The Democrats haven’t been perfect either in supporting the U.S. Constitution.

    To be clear I don’t want to trade liberty for security for any constitutional right including the 2nd Amendment but why is it okay for the others?

    1. I meant democratic with a small d — having the support of representatives elected by the people. The Patriot Act had broad support among the Democratic Party. There was only 1 lone Senator who voted against it. The House of Representatives had more Nay votes, but they still had enough Yay votes to override any veto of the President if it were needed. My point is that the blame can’t all be laid to rest solely at Bush’s feet, nor solely at the feet of Republicans.

      As for preemption, Democratic President Obama uses that in his drone program. It seems to me that both political parties are to blame. If you want the strongest liberty person that was in Congress, it has got to be a Republican by the name of Ron Paul. He voted against the Patriot Act as well as the wars.

  4. SH,

    In 2014 most Americans that support 2nd Amendment gun rights (mostly Republicans and conservatives) refuse to trade liberty for added security that would save lives.

    Since 2001 this same group gladly traded liberty for security when it came to the 1st, 4th, 5th, 6th, 7th, 8th, 9th and 14th amendments of the U.S. Constitution. Today when trading liberty for security on the 2nd Amendment would save more lives (than any terrorist threat including 9/11) it’s totally off the table.

    Most Republicans and so-called conservatives supported violating the religious rights of American-Muslim citizens, warrantless searches and a guilty until proven innocent justice system.

    It’s simply not accurate.

    1. Ross, is there a poll or some objective data that indicates this was mostly Republicans and conservatives? A Republican President led it, but I thought a democratic Congress was responsible for voting all of this in.

      I am a Republican and I do not support warrantless searches. I do support gun rights and the second amendment, because it makes us safer. I saw this virtual state of the union address recently that makes the point.

      http://youtu.be/B5ELyG9V1SY

  5. You can’t just ignore that when asked, the victims of these prosecutions said they suffered no pain from the waterboarding. How can it have caused “severe pain” and thereby be torture if the victims said it was not painful? Why is this point always ignored by the advocates arguing that waterboarding is torture?

  6. David, people gave repeatedly showed why it is considered torture and that corresponds to the definition. You want your narrative to be true so you will twist and turn it every which way. Doesn’t matter what anyone says, if it is not your position, then you don’t care so I amnot even sure why you continue to debate it since you have shown nothing will change your stance on this

  7. People here, you I believe David asked if it had been prosecuted. I don;lt know how you can argue with facts: In fact, we did prosecute. Indeed, the International Military Tribunal for the Far East convicted and ultimately executed Japanese war criminals Akira Muto and Iwane Matsui for atrocities at Nanking. This included water boarding prisoner, though it was called “the water treatment” where “the victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach until he lost consciousness.”

    You are not an outlier ((*_*)) You have David and others who also cling to the same denial no matter what facts are presented. (Sorry have to be serious in my reply).

    1. leejcaroll – the technique used by the Japanese is different than the one used now. And those Japanese were NOT convicted for ‘water treatment’ torture alone. People are cherry picking.

    2. leejcaroll wrote: “the International Military Tribunal for the Far East convicted and ultimately executed Japanese war criminals Akira Muto and Iwane Matsui for atrocities at Nanking. This included water boarding prisoner, though it was called “the water treatment” where “the victim was bound or otherwise secured in a prone position; and water was forced through his mouth and nostrils into his lungs and stomach until he lost consciousness.”

      Please. No matter how much you twist the facts of history, the truth is that nobody was ever executed for waterboarding. Your attempt to deceive others into thinking that they were is deplorable. Go look at the case yourself rather than reading second hand reports. Execution was for murder. Furthermore, the techniques used there were different than the waterboarding of the CIA, and even then, when the victim was asked if the water cure was painful, the victim said NO. You cannot have torture which is defined as causing severe pain if the victim says it was not painful. The execution obviously was for murder, not for waterboarding.

      leejcaroll wrote: “You have David and others who also cling to the same denial no matter what facts are presented.”

      I see it the other way around. No matter what facts are presented, you cling to your own affirmation that waterboarding is torture. It matters to you not one lick that victims say it is not painful, and the definition of torture starts with the idea of causing “severe pain.”

      Why can’t we just agree that waterboarding is an inappropriate treatment for prisoners of war without this irrational sticking point that waterboarding is torture?

  8. Is waterboarding torture? Well Prof Turley thinks so and here is what he wrote: I have made long argued in my column as well as numerous blog postings that our country is legally bound to prosecute people responsible for ordering torture during the Bush Administration. There is no question that water boarding is torture as recognized by President Obama, Attorney General Holder, the United Nations and virtually every expert in this field.

    In case you haven’t gotten to his post yet: http://jonathanturley.org/2014/12/17/cheney-offers-tortured-view-of-history-in-defending-waterboarding/

    1. leejcaroll wrote: “Is waterboarding torture? Well Prof Turley thinks so …”

      Yeah, but professor Turley did not rationally prove his case. He has provided no evidence that anyone was convicted for waterboarding alone. It’s like quoting the description of prisoner mistreatment as: They beat him, kicked him, electrocuted him, and put lipstick on his face, and then arguing that putting lipstick on someone’s face is torture.

      Certainly there were people who considered waterboarding to be torture back then, just like some people today think it is. But where is the legal declaration of waterboarding being torture and where are the prosecutions for torture based upon waterboarding alone?

  9. @ Paul C. Schulte

    Were you in the custody of a foreign state at the time? Then one the Geneva Conventions might apply to you. Contact the International Red Cross.

    Were you in the custody of an American law enforcement agency? Then you might have a constitutional claim and/or a civil rights claim under federal law. Call your attorney and/or the U.S. Department of Justice.

    If you were not in the custody of any government agency, then it sounds like a common assault under your state’s law. Contact your local police.

    See, the way it works is that it all depends on who is doing what to whom. Different laws apply to different situations.

  10. Ross, I don’t know how you got the impression that Republicans only care about two parts of the Bill of Rights. So let me help. We believe, fervently, in every single one. We are the only party not wanting them touched.

    I’m not sure Democrats like any of them. They give the people rights Democrats can’t pick and choose from. They limit what government can do.Democrats think the government, actually just the President, can ignore them.

    Jeff, regarding nuanced,no problem. What may or may not have taken place on the battlefield when Germans and Japanese were surrendering is one thing. How POW’s were treated in camps was another.

    And whichever of you mentioned keeping detainees together and listening. Are you being sarcastic? Believe me, we’ve listened to everything, including farts!
    Apologies to those offended, but couldn’t get another word to make my point.

  11. Paul,

    Constitutional law works a little differently than non-constitutional law. It works also by “triangulation” of court rulings and the Judicial Branch of government is hierarchical unlike the other two branches (district courts, appellate courts and the U.S. Supreme Court). Lower courts must follow the rulings of higher courts.

    A federal appeals court ruling is the law of the land for an entire “region” of the United States, so an appeals court on the West Coast could have a different ruling than an appeals court on the East Coast. Lower courts are required to follow those rulings in that region. If a case is elevated to the U.S. Supreme Court, that ruling is the law of the land for the entire United States – all courts in the U.S. must follow that ruling.

    Example of how triangulation works: recently the U.S. Supreme Court ruled that warrantless GPS/cell-phone tracking by police was unconstitutional if done over a long period of time. Even though the cases were pertaining to GPS and cell-phone tracking, the wording of the ruling also applies to any kind of warrantless tracking or stalking (including non-electronic tracking). In other words even though there may not be a law addressing non-electronic tracking of a citizen (police following someone by car), that ruling still makes it unconstitutional and illegal for police to perform.

  12. When your Nation is Governed by people who break the Law with impunity…
    … Know that your Nation is Governed by criminals.

  13. Ross,
    It’s precisely because JT puts the Rule of Law first that I began following this blog. In my opinion, the participants of this blog are not much different than other websites with respect to party politics, with one notable exception; they are far cleverer in their interpretation of original intent. I certainly wouldn’t represent either party as ‘critics’ against violators of the U.S. Constitution or Bill of Rights. How can you be a critic for ‘some’ and not a critic for all? Like you said, it’s all or nothing.

  14. Olly:

    Most of us like Jonathan Turley because we agree with his views on the U.S. Constitution and rule of law. If any constitutional expert is non-partisan WITHOUT an agenda it’s Jonathan Turley.

    This website criticizes both parties and both presidents when they cross they violate the U.S. Constitution and our Bill of Rights.

    Just my opinion but it seems to me most Republicans support the 2nd and 10th Amendments of the U.S. Constitution (opposing the rest) and most Democrats support all the others but oppose the 2nd and 10th Amendments.

    In my view the Bill of Rights/U.S. Constitution are a complete package – you take all of it or none of it. If it is fundamentally flawed we amend it but don’t ignore it. That’s my agenda.

  15. @Paul C. Schulte

    No, I quoted those portions of the Geneva Conventions and Protocols and the Convention against Torture that are most relevant to the issue that has been under discussion.

    It appears that some who post here are under the impression that, in order to be a prohibited practice, an “enhanced interrogation technique” must have been specifically described in detail in some treaty. That is simply not the case; it never will be.

    If it is not obvious to you that such things as forced rectal rehydration are not degrading, inhumane, and intended to cause physical or mental suffering, then I don’t have anything further for you, except this:

    If the purpose of such “enhanced interrogation techniques” had not been to cause some kind of physical or mental suffering, then applying them would have been completely illogical in any event.

    If those techniques don’t cause suffering, then how would they motivate the subject to give up the information that is being sought by the interrogator? It can’t be that they feel so good that the subject wants more — I don’t think that Khalid Sheikh Mohammed told his interrogators that he really liked being waterboarded, so, if they promised to do it again a lot of times, he’d give them more information, but only on his schedule. I doubt that any detainee said, “I’m not cold enough yet, but if you give me the pleasant experience of standing here naked with my arms over my head for another day, I will feel so good that I will give you whatever you want.” Likewise, I have a hard time imagining that any detainee said, “I really like being slapped around, but that’s not enough to make me talk — what I really want is to be strapped down and given an enema — if you are nice enough to do that, then I will tell you everything.”

    On the other hand, if they do cause suffering they fall within the various definitions of torture; the only question is which convention would apply and why. By the way, the Taliban were the de facto government of almost all of Afghanistan in 2001 — that made their armed forces the armed forces of a state, with a command structure, etc. Afghanistan was a party to the Third Geneva Convention. So, to the extent that prisoners were Taliban, they would be protected by the Third Convention.

    1. Porkchop – I have had people attack with an attempt to be “degrading, inhumane, and intending to cause physical or mental suffering,” Have I been tortured?

    2. As of yet, no one, including the fact checkers for the Washington Post, has shown that the Japanese were convicted for water boarding alone.

      1. Paul Schulte wrote: “As of yet, no one, including the fact checkers for the Washington Post, has shown that the Japanese were convicted for water boarding alone.”

        Exactly. That crazy Washington Post article that gave Cheney three pinocchios tries to deceive people into thinking that an analysis was done that excluded clear forms of torture, but the truth is that they only excluded burning with cigarettes. If the person was beaten or even murdered in addition to being waterboarded, they still considered it a prosecution and conviction for waterboarding. How irrational is that!

    3. Porkchop wrote: “It appears that some who post here are under the impression that, in order to be a prohibited practice, an “enhanced interrogation technique” must have been specifically described in detail in some treaty. That is simply not the case; it never will be.”

      Nobody requires the law to be more specific. Waterboarding can be prohibited legally by regulations or policies defining waterboarding as torture. Nevertheless, the law or treaty also could very easily say that waterboarding is a form of torture and prohibited. Why doesn’t it? Because people disagree with that statement and so such a law would never pass. The people who vote for these laws want wiggle room to define the words the way they think is appropriate.

      Porkchop wrote: “If it is not obvious to you that such things as forced rectal rehydration are not degrading, inhumane, and intended to cause physical or mental suffering, then I don’t have anything further for you, except this: If the purpose of such “enhanced interrogation techniques” had not been to cause some kind of physical or mental suffering, then applying them would have been completely illogical in any event.”

      The logic was that these prisoners went on hunger strikes, so the proctoclysis treatments were done to give full control to the interrogators. It is a medical procedure often done with cancer patients. Consider the following abstract from a medical science publication that lacks the political motivation to demonize others:

      —-
      In a prospective, open study, 78 patients with terminal cancer received proctoclysis (rectal hydration) in four different centers. In all cases, a #22 French nasogastric catheter was inserted approximately 40 cm into the rectum and an infusion of normal saline (2 cases) or tap water (76 cases) was administered at a rate of 250 +/- 63 cc/hr. Hydration was maintained for 15 +/- 8 days. The main reason for discontinuation of hydration was death (60 cases). The mean visual analogue score for discomfort after infusion (0 = no discomfort, 100 = worst possible discomfort) was 19 +/- 14. The costs of proctoclysis was estimated at Can$0.08 compared with Can$4.56 per day for hypodermoclysis, and Can$2.78 per day for intravenous hydration. Our results suggest that proctoclysis is a safe, effective, and low-cost technique for the delivery of hydration in terminally ill cancer patients.
      —-
      http://www.ncbi.nlm.nih.gov/pubmed/9601155

      I hope you noticed the discomfort score was only 19 +/- 14 with 100 being the worst possible discomfort.

      Porkchop wrote: “If those techniques don’t cause suffering, then how would they motivate the subject to give up the information that is being sought by the interrogator? It can’t be that they feel so good that the subject wants more…”

      A famished person through hunger strike is not going to be able to talk much. Force feed him, and his mind and body will strengthen so he will be better able to talk.

  16. “The real story here is government officials have deemed themselves above the law and above the U.S. Constitution – the laws and legal precedent are actually pretty good if they were ever enforced by the DOJ, judges and justices.”

    Ross,
    YES IT IS!

    But just as in nearly every other topic; it’s not important IF it supports one’s agenda.

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