Below is my column today in USA Today on the torture report. This is the slightly longer version that ran on the Internet.
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”
There are such things as “illegal” laws and statutes passed by Congress and state legislatures, including federal laws like the Patriot Act. Don’t confuse lack of enforcement by the U.S. Department of Justice and lack of judicial review (overturning unconstitutional legislation by Congress) by the U.S. Supreme Court for legality or constitutionality. We simply have a corrupt justice system at the moment that refuses to enforce the torture statutes and abide by international treaties – there are essentially no cops on the beat at this level.
As I clarified in my previous posting, under the Supremacy Clause of the U.S. Constitution [Article VI, section 2] – the United States is required to abide by and enforce binding international treaties. As I understand torture laws and treaties, once a terror suspect is captured and in U.S. custody they have due process rights.
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.
I found that your link to the WAPO article on water boarding did not work for me in my browser.
I think this might be the article you mentioned, or a similar one:
I am listing it here in case there are others that might be interested in reading about techniques used in other wars similar the CIA’s water boarding.
I found the picture of Viet Nam era soldiers particularly interesting.
Jeff to say German and Japanese were not tortured is naive. On the battlefield many things are done. Germans surrendering were shot in the head. They weren’t tortured if they got to a POW camp
That some American soldiers took matters in their own hands and committed a war crime on the battlefield does not change the fact that it was not official American policy to torture Germans and Japanese once in custody in a POW camp. Is that distinction too nuanced for you?
Jeff Silberman – it was official policy to violate the rights of POWs and secretly record their personal conversations. Both the British and the United States did this. It was official policy to violate the neutality of the Red Cross and send escape materials to POWs in Care Packages along with coded messages. These included maps, radios, etc.
There still is a lot of stuff that is classified about WWII so I don’t think I would go out on a limb and say it was not official policy not to torture POWs once in camp. I do know we tried and hung them for murder while they were in the POW camp.
Perhaps we should have placed detainees together and listened to their conversations instead of torturing them. Excellent point!
Jeff Silberman – we did do that. The British used high ranking officers, we used sergeants and below. The problem is that it violate the Geneva Conventions. 🙂 Nothing they got could be used during the Nuremberg Trials. However, they did learn about the Holocaust, V1 and V2 rockets, etc. Nothing actionable at the time. Not sure what the Americans got. The transcripts have just come to light. The stuff from the British has been out in public for some time.
Yes, I read that article in the German magazine as I am a student of WWII. I must be too obtuse to understand how violating one clause of the Geneva Convention justifies violating another. Please elucidate.
Jeff – At this point I am not sure what you are complaining about. 😉 Just what part of the GC has been violated and by whom? And by doing what? This discussion has been all over the board so I cannot always keep track of where everybody is. I vaguely remember asking you or somebody to parse the GC to show exactly how the United States had violated the GC, but they never did. I am doing a lot of multi-tasking today so I am going to have to depend on you to do your job.
Porkchop did an admirable job explaining why the CIA violated the GC. You brought up the point that Americans violated the GC during wartime by surreptitiously recording the conversations of prisoners of war. I find it odd that it is against the GC to record conversations without coercion but not against the code to extract information with coercion!
Jeff Silverman – I asked that the GC be parsed so we could see exactly what was being charged. What we had was the entire section. What we needed was the parts of the section that were pertained to this case. Porkchop was using the shotgun approach. Throw the whole statute out there and something should stick. However, I believe in the rifle approach. Show me the bullet to the heart of the matter.
I am begining to think that the only way to get you to acknowledge that waterboarding is torture is to waterboard you.
Jeff – If you are talking to me, take your best shot, it will be your last.
Your reading of the definition of torture is rather selective.
“For the purposes of this Convention, torture means 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. ”
You have read mental pain or suffering out of the definition. “Enhanced interrogation techniques” were clearly intentionally inflicted on detainees for purposes of obtaining information – – that is inherent in the concept of “interrogation”. I think it is reasonable to infer that waterboarding, stress positions, etc. were intended to inflict physical or mental pain or suffering in order to more forcefully “interrogate.”
With respect to waterboarding, you seem to be fixated on the question of physical pain to the exclusion of the question of whether the experience of near-drowning results in physical or mental suffering. I don’t know about your experience, but everyone I know feels that involuntary suffocation is (or would be) an unpleasant, terrifying experience involving both physical and mental suffering.
First of all, “a lawful sanction” refers to the imposition of a penalty for failure to abide by some law or regulation. “Sentence first – verdict afterwards” is not generally the way “lawful sanctions” are determined. Moreover, your second point is basically circular. You are arguing that waterboarding was lawful because we said it was. In any event, that is plainly prohibited by Article 2, Clause 3:
” 1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
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.”
You should also read Article 16, Clause 1:
“1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture or references to other forms of cruel, inhuman or degrading treatment or punishment.” I hope you would agree that waterboarding and other “enhanced interrogation techniques” were and are cruel, inhuman, or degrading.
Finally, the reference to non-state communications has nothing to do with who can or cannot be tortured — it has to do with who can complain about it to the Committee against Torture. The US has recognized that, by the terms of the convention, only parties to the Convention can communicate to the Committee. See Article 21.
That does not mean that it is perfectly all right to torture people who are not citizens of a signatory state. Even if that were the case, Afghanistan and Saudi Arabia have been signatories for decades, well before 2001.
Porkchop wrote: “You have read mental pain or suffering out of the definition.”
No, I am simply paying attention to the phrase, “severe pain.” In regards to physical pain, slapping someone causes pain but not severe pain. So it would not be considered torture. Beating someone causes severe pain. Likewise, an interrogator telling a prisoner that he enjoyed sex with his mama might cause mental pain, but it would not be severe mental pain and therefore not be torture. In the case of waterboarding, I go off what a World War II officer reported about his experience of being waterboarded at the hands of the Japanese interrogators. The prisoner interrogated by one of them that was convicted and executed for torture and murder plainly said that the experience did not cause him pain. He simply lost consciousness several times. Now you come along and claim that it causes severe pain, but you probably have never been waterboarded yourself.
Porkchop wrote: “… everyone I know feels that involuntary suffocation is (or would be) an unpleasant, terrifying experience involving both physical and mental suffering.”
I agree that being waterboarded would be unpleasant. Physical and mental suffering might be too strong a word. Going without food for a week or two is unpleasant, but I would not call it physical and mental suffering. In regards to waterboarding, I just don’t believe it causes SEVERE PAIN, either physical or mental, which is a requirement of the definition of torture.
Porkchop wrote: “You are arguing that waterboarding was lawful because we said it was. In any event, that is plainly prohibited by Article 2, Clause 3…”
No it is not. You have to assume that waterboarding is torture for that clause to apply, and you have not proven that point. After torture laws are passed, regulations and policies define what is and what is not torture. The policies said that things like playing loud music and waterboarding were not torture.
In regards to Article 16, Clause 1, now you are introducing new terms that are just as broad and vague and “severe pain.” It might be argued that keeping someone in a cell is cruel, inhuman or degrading treatment. Solitary confinement also might be argued to be that. The truth is that I would rather be waterboarded than kept in a cell for years.
Previously you convinced me that it should not be done on the basis of a person’s right to be silent (right not to be interrogated). Prior to this thread, I had not considered that at all. I appreciate that point. It shaped my own personal policy on this issue. Why not come to agreement on this basis that waterboarding violates human rights? Why is it so important to you that waterboarding must be considered torture?
I respectfully disagree. The Judicial Branch of government (courts) operate primarily using “legal precedent” in nearly 100% of all cases. Attorneys that can successfully cite legal precedence almost always win the case. In most cases the only thing that supersedes legal precedent is “constitutionality”. Example: women’s voting rights, slavery and equal marriage rights were contrary to legal precedent (or legal tradition) because those traditions violated the U.S. Constitution.
Article VI [section 2] of the U.S. Constitution makes the Convention Against Torture (binding treaty) actually part of the U.S. Constitution that supersedes legal precedent.
Torture actually meets both tests. It violates the U.S. Constitution but also violates legal precedent as well. The United States has viewed waterboarding as torture since World War Two and has prosecuted soldiers or waterboarding.
Like gun rights or attending church on Sundays, most rights in the U.S. Constitution are NOT spelled out for every unique circumstance but are interpreted through triangulation by the courts. The 9th Amendment was created for just that purpose, to address rights not enumerated.
Ross, you are just blowing smoke and I think you know it. You have several problems:
1) Where is the legal precedent that defines waterboarding as torture?
This mantra often is repeated, but rarely backed up with links to actual court cases. The closest case is a Texas case in 1983 against a Texas Sheriff of of San Jacinto County and three of his deputies, but even that case was not about simply waterboarding. The Sheriff was involved in extortion and operating a marijuana trap. Furthermore, it concerns an interrogation technique on U.S. soil and as far as I know, it still does not identify waterboarding as torture. The case is United States v. Parker et. al., 1983, cited in an appeal for severance pay by one of the deputies in United States v. Lee. Good luck finding the actual case United States v. Parker et. al. If you find an actual link, please pass it on. Virtually all the precedence involves much more than just waterboarding. Is there even one legal case anywhere that someone was convicted for torture because he waterboarded someone? Any court case at all in the history of the United States?
1) The Convention Against Torture does not mention water or waterboarding anywhere within it. Clearly, it does NOT define waterboarding as a form of torture.
2) In defining torture, Article I specifically says, “it does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” Because the Bush regulations made waterboarding enemy combatants on foreign soil a lawful sanction for the CIA to use, it is excluded by the Convention.
3) When the United States ratified the treaty, they specifically stated: “The United States declares, pursuant to article 21, paragraph 1, of the Convention, that it recognizes the competence of the Committee against Torture to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the Convention. It is the understanding of the United States that, pursuant to the above-mentioned article, such communications shall be accepted and processed only if they come from a State Party which has made a similar declaration.” Because the terrorists we fight are not a State Party, nor have they made a similar declaration against torture, we are not obligated under this Convention to prohibit any form of torture against them.
Now let me be clear that I am against using enhanced interrogation, but please use rational reasons for being against it. Defining coercive interrogation like waterboarding as torture is not rational because waterboarding does not cause severe pain, and that is the definition of torture in every statute or convention that you might present.
Maybe we should approach this from a different direction. Our national security agencies like the CIA, FBI, NSA, Homeland Security, etc. have some great personnel that are very dedicated but have an “ends justify the means” mentality – sometimes acting as a nanny-state.
American citizens that follow the law also have the right “to be left alone” by those agencies except for extremely rare instances (that are temporary in nature). In other words not everything is the business of those agencies.
When those agency personnel trespass onto private citizens’ constitutional rights – those citizens have a right to sue or have those agency personnel arrested and convicted.
James Madison and the Framers didn’t design a nanny-state. Americans have the right to be left alone. That’s why we need to make these agencies honor their oath of office to uphold the U.S. Constitution.
There is a difference between “suspects” vs. those “convicted”. The term suspect or person of interest means doubt (not certainty). A trial means to “test” the evidence. If possible the “accuser” (under penalty of perjury) is also at risk when alleging guilt because the “accused” is allowed to see the evidence and testimony against them. Otherwise we don’t know if they are guilty.
If they are on an actual battlefield and one is 100% they are guilty is one thing but the vast majority are “suspects” that may not be guilty at all. Nobody has compassion for the genuinely guilty.
When our weaponized government finally decides to expand targeting beyond conservative groups then you might discover your compassion for terrorists may take on a different perspective.
Why just accuse me of having compassion for terrorists? While you are at it, why not accuse me of lending aid and comfort like some on Fox do? Is there a politically correct way of acknowledging abuses by a few Americans without being accused of siding with the enemy? Anyone?
Whether we are talking about terror suspects or criminal suspects (here or abroad) we have to remember in most cases we don’t know for 100% whether the “suspects” are innocent or guilty. It doesn’t matter whether it’s the military justice system or the domestic justice system – there has to be some evidence or sworn testimony to make that determination.
For example: The optimal situation on a real battlefield would be if there were two shooters in a building that was completely surrounded by U.S. troops. When the building was breached there were only two people inside. That is pretty solid circumstantial evidence.
What if the above example had two shooters but 100 people inside a large apartment building surrounded by U.S. troops? We know that two people (or 2%) are guilty but what about the rest of the occupants? Do we torture them for over a decade without charge?
The above examples are the rare exceptions in military justice. Most detainees and torture victims weren’t within 100 miles of any battlefield and there was no solid evidence linking them to terrorist acts.
We are making more enemies and have lost this so-called War on Terror with these policies. We are making it less safe for U.S. troops in the future and Americans here at home.
You often hear the argument by the conservatives: “What would you rather have done to you- to be killed in a drone attack or be waterboarded?” I also would prefer to have my fingernails pulled-out instead of being droned, but that hardly justifies the former. You would think they would be able to recognize this fallacy. Conservatives now readily acknowledge that good ends justify bad means. Hereafter, they lose the moral standing to condemn liberals of passing Obamacare “fraudulently.” If the U.S. can beat the Germans and Japanese without the need to torture prisoners of war, I think we can lick the terrorists the good old-fashioned way!
Jeff Silberman – we tortured prisoners during WWII, we killed them in cold blood, we raped women, we killed and maimed civilians. Don’t ever buy the story that The Greatest Generation” was squeaky clean.
So two wrongs make a right? Is that your logic?
Jeff Silberman – your major premise was wrong. You need a different premise to come to a logical conclusion. I got an A in my Logic class in grad school. If the major premise is wrong then the conclusion will be wrong.
” If the major premise is wrong then the conclusion will be wrong.”
If pigs can fly, then the sun will rise tomorrow.
bfm – exactly. Tomorrow it will be cloudy all day. 🙂
To which major premise are you referring? I’ve made a lot of arguments. Help me out here!
With many policy or political issues, there are ambiguities that lead to the
necessity of compromise. This is not the case with the policy of torture. Based on
the available facts and research findings, it is clear that the use of torture-based
interrogations should end. Torture-based interrogations are ineffective as a means
of extracting reliable information and are likely to produce faulty intelligence.
Torture has severe, long-term negative consequences for survivors, perpetrators,
and communities. More broadly, the use of torture has far-reaching consequences:
it damages the reputation of the United States, creates hostility toward our troops,
provides a rationale for cruelty against U.S. soldiers and citizens, places the United
States in the company of some of the most oppressive regimes in the world, and
undermines our credibility when we argue for international human rights or any
moral imperative. Any purported benefits of torture must be weighed against these
substantial proven costs.
Those here who want to continue to press that it works and is appropriate will not care to read the research so I have decided not to do as I usually do and give at least 2 links.
Jeff, anyone having no problem chopping a head off a child deserves the most vigorous interrogation possible. Not to worry, we seem to think water boarding, which you live through, is beyond the pale so it shouldn’t be too tough. Can’t be too tough no matter how evil you are.
Wow, take a couple of days off and the comments pile up!
1: I didn’t say SERE taught our military how to torture. I said if our military has to go through it, why not a POW?
2: Brian Lamb is the best interviewer I have ever listened to. If he developed a show, of at least an hour preferably two, between two people form each side with Brian controlling the debate, what a show! The problem is 75% of the people would never watch it! even getting on the Internet later. For the 25% who would appreciate this! information could be learned and passed along. Perhaps it should be an hour of debate. Then a later hour after Brian’s staff checked facts, etc. However, run them together. We could all record it as proof when sharing info with friends.
3: love the comment about war crimes when we don’t have a declared war. I am not against interrogation, enhanced or otherwise, how can we ever stop this madness unless we know everything we can? This is not a uniformed army, directed by an existing country. Shoot at Americans, get caught, interrogation.
4. If I see Bush or Obama in the comment I skip it. This thread is about torture. Not a place to empty your soul. Keep the discussion about the topic.
Thanks Jeff and Paul S., your comments are worth reading.
I’m now going to attempt to finish the rest of the comments.
You say “too lazy”, and I say “wanting to use time efficiently”.
So for those of us who don’t want to spend the time watching video, what were the articulate GITMO guy’s points? What is he doing these days? Was/is he an al qaeda guy, or was he wrongfully imprisoned?
Inga, I found your 1:31 very constructive up until the last sentence.
If you think that a guy who was on tv this am had new and useful info, how can you say that people who hadn’t taken it into account previously are “pretty shameful”?
Also, since I (and presumably many others) didn’t see that show, why don’t you take the time to summarize this guy’s arguments for us? Do you simply want to strike a pose?
Darren, Joe Biden would fudge his undies and then have a stroke.
ChipS, Great comment. We have discussed in another venue that these wars are asymmetrical. The combatants do not wear uniforms. They do not represent a country, but an ideology. New warfare, new rules need to be enacted. I think NO BEHEADINGS might be a good place to start, not like they will abide an rules or laws. But, @ least get them on the books for future war crimes.
There was a piece on MTP this morning. Obama has drone rules of engagement that allows the killing of SUSPECT vehicles w/ more than one male NEAR a terrorist encampment. This is much more blatant than waterboarding. But, the cultist here have already said it’s less offensive. It’s more clinical and remote, just like the Commander in Chief who orders these murders.
I think it would help clarify and tighten the arguments in this thread, and the inevitable future ones, by referring to this simple representation of the issues.
1. Define “international terrorist”
2. Are international terrorists covered by the Geneva Conventions? If “yes”, END. If “no”, then go to step 3.
3.Is waterboarding completely ineffective? If “yes”, END. If “no”, then go to step 4.
4. Is waterboarding morally justifiable under any circumstances? If “no”, END. If “yes”, then continue to step 5.
5. Determine the circumstances under which waterboarding is morally justifiable.
Note that this does not involve references to the US Constitution or the interrogation practices of the police.
Also, I’d be skeptical of any argument claiming that international law is clear on Step 2, but any lawyers with particular expertise in this area may be able to enlighten me and others w/o such expertise. I think the series of decisions in Hamdan v. Rumsfeld indicates that legal reasoning alone is insufficient to resolve the issue.
I view the question in terms of what seems to be the logic of the Geneva Conventions, which appears to be that of the “tit-for-tat” strategy of game theory. Under that strategy, all entities reciprocate the actions of their opponents. It’s quite feasible for governments to follow this, since they’re able to discipline their soldiers for violations. As a matter of strategy (leaving morality aside), it makes no sense to take this approach to enemies who clearly do not and will not reciprocate.
I understand that lawyers generally prefer to argue text rather than logic, and so will reject my argument. The problem with that, IMO, is that the text in question was written before the advent of international terrorists with the technological ability and the will to inflict mass casualties on noncombatants. I believe that an article explicitly dealing with the treatment of terrorists is called for.
I don’t see how any of the steps I’ve listed above can be dismissed as settled issues one way or the other, despite the many assertions to the contrary in this thread.
Chip – you did some coding back in the day. 🙂
You can see why athletes have such a hatred of the press when you listen to a presser and hear the stupidest questions ever. Jorge Ramos, a Mexican journalist, had more balls than any American journalist in questioning Obama on immigration. Ramos is up on my list of interviewers. Jake Tapper is good, as is Bob Costas, although Costas is full of himself.
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