[THS] What Torture Is and Why It`s Illegal and Not Poor Judgment

[Peter Webster]

http://www.truthout.org/what-torture-is-and-why-its-illegal-and-not-poor-judgment57622

What Torture Is and Why It's Illegal and Not "Poor Judgment"

Saturday 13 March 2010

by: Andy Worthington, t r u t h o u t | News Analysis

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(Image: Lance Page / t r u t h o u t; Adapted: alumbis, *terry)

It's now over three weeks since veteran Justice Department (DOJ) lawyer David
Margolis dashed the hopes of those seeking accountability for the Bush
administration's torturers, but this is a story of such profound importance that it must
not be allowed to slip away.

Margolis decided that an internal report into the conduct of John Yoo and Jay S.
Bybee, who wrote the notorious memos in August 2002, which attempted to redefine
torture so that it could be used by the CIA, was mistaken in concluding that both
men were guilty of "professional misconduct," and should be referred to their bar
associations for disciplinary action.

Instead, Margolis concluded, in a memo that shredded four years of investigative
work by the Office of Professional Responsibility (OPR), the DOJ's ethics watchdog,
that Yoo and Bybee had merely exercised "poor judgment." As lawyers in the Office
of Legal Counsel (OLC), which is charged with providing objective legal advice to the
executive branch on all constitutional questions, Yoo and Bybee attempted to
redefine torture as the infliction of physical pain "equivalent in intensity to the pain
accompanying serious physical injury, such as organ failure, impairment of bodily
function, or even death," or the infliction of mental pain which "result[s] in significant
psychological harm of significant duration e.g. lasting for months or even years."

Yoo, notoriously, had lifted his description of the physical effects of torture from a
Medicare benefits statute and other health care provisions in a deliberate attempt to
circumvent the UN Convention Against Torture, signed by President Reagan in 1988
and incorporated into US federal law, in which torture is defined 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, 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 ...

Obsessed with finding ways in which "severe pain" could be defined so that the CIA
could torture detainees and get away with it, Yoo drew on some truly revolting
examples of physical torture, citing a particularly brutal case, Mehinovic v. Vuckovic,
in which, during the Bosnian war, a Serb soldier named Nikola Vuckovic had tortured
his Bosnian neighbor, Kemal Mehinovic, with savage and sadistic brutality. Yoo
dismissed the possibility that other torture techniques - waterboarding, for example,
which is a form of controlled drowning, and prolonged sleep deprivation - might
cause "significant psychological harm of significant duration," or physical pain rising
to a level that a judge might regard as torture.

In both of his definitions, however, Yoo was clearly mistaken. No detailed studies
have yet emerged regarding the prolonged psychological effects of the torture
program approved by Yoo and Bybee, largely because lawyers for the "high-value
detainees" in Guantánamo have been prevented - first under Bush, and now under
Obama - from revealing anything publicly about their clients.

However, lawyers for Ramzi bin al-Shibh, who was charged in the Bush
administration's military commissions, made a good show of demonstrating that bin
al-Shibh is schizophrenic and on serious medication, when they argued throughout
2008 that he was not fit to stand trial, and I have seen no evidence to suggest that
bin al-Shibh was in a similar state before his four years in secret CIA prisons.

An even more pertinent example is Abu Zubaydah, a supposed high-value detainee,
held in secret CIA prisons for four and a half years, for whom the torture program
was originally developed. Zubaydah's case may well be the most shocking in
Guantánamo, because, although he was subjected to physical violence and
prolonged sleep deprivation, was confined in a small box and was waterboarded 83
times, the CIA eventually concluded that he was not, as George W. Bush claimed
after his capture, "al-Qaeda's chief of operations," but was, instead, a "kind of travel
agent" for recruits traveling to Afghanistan for military training, who was not a
member of al-Qaeda at all.

Zubaydah was clearly mentally unstable before his capture and torture, as the result
of a head wound sustained in Afghanistan in 1992, but as one of his lawyers, Joe
Margulies, explained in an article in the Los Angeles Times last April, his subsequent
treatment in US custody has caused a profound deterioration in his mental health
that would certainly constitute "significant psychological harm of significant duration."
Margolis wrote:

    No one can pass unscathed through an ordeal like this. Abu Zubaydah paid with
his mind. Partly as a result of injuries he suffered while he was fighting the
communists in Afghanistan, partly as a result of how those injuries were exacerbated
by the CIA and partly as a result of his extended isolation, Abu Zubaydah's mental
grasp is slipping away. Today, he suffers blinding headaches and has permanent
brain damage. He has an excruciating sensitivity to sounds, hearing what others do
not. The slightest noise drives him nearly insane. In the last two years alone, he has
experienced about 200 seizures.

Moreover, when it came to defining physical torture, the OPR report's authors noted
that, as so often in the memos, Yoo had ignored relevant case history. The key
passage in the report deals with the US courts' decisions regarding the Torture Victim
Protection Act (TVPA). Yoo had drawn on Mehinovic for his description of physical
torture "of an especially cruel and even sadistic nature," and, as the authors noted,
he also argued that only 'acts of an extreme nature' that were 'well over the line of
what constitutes torture' have been alleged in TVPA cases."

The authors continued:

    Thus, the memorandum asserted, "there are no cases that analyze what the
lowest boundary of what constitutes torture."[sic]

    That assertion was misleading. In fact, conduct far less extreme than that
described in Mehinovic v. Vuckovic was held to constitute torture in one of the TVPA
cases cited in the appendix to the Bybee memo. That case, Daliberti v. Republic of
Iraq, 146 F. Supp. 2d 146 (D.D.C. 2001), held that imprisonment for five days under
extremely bad conditions, while being threatened with bodily harm, interrogated and
held at gunpoint, constituted torture with respect to one claimant.

A close inspection of Daliberti (which dealt with US personnel seized by Iraqi forces
between 1992 and 1995) is revealing, as the DC District Court held, "Such direct
attacks on a person and the described deprivation of basic human necessities are
more than enough to meet the definition of 'torture' in the Torture Victim Protection
Act." The judges based their ruling on the following:

    David Daliberti and William Barloon allege that they were "blindfolded,
interrogated and subjected to physical, mental and verbal abuse" while in captivity.
They allege that during their arrests one of the agents of the defendant threatened
them with a gun, allegedly causing David Daliberti "serious mental anguish, pain and
suffering." During their imprisonment in Abu Ghraib prison, Daliberti and Barloon
were "not provided adequate or proper medical treatment for serious medical
conditions which became life threatening." The alleged torture of Kenneth Beaty
involved holding him in confinement for eleven days "with no water, no toilet and no
bed." Similarly, Chad Hall allegedly was held for a period of at least four days "with
no lights, no window, no water, no toilet and no proper bed." Plaintiffs further proffer
that Hall was "stripped naked, blindfolded and threatened with electrocution by
placing wires on his testicles ... in an effort to coerce a confession from him."

Yoo and his apologists will undoubtedly quibble yet again. There is the threat of
electrocution, a threat made with a gun and deprivation of water, in one case for 11
days, none of which feature in the OLC's memos. However, outside of the specific
torture program approved by the OLC, numerous prisoners who were held at Bagram
before being transported to Guantánamo have stated that they were actually
subjected to electric shocks while hooded (rather than being threatened with
electrocution), and that being threatened at gunpoint was a regular occurrence.

Moreover, it has also been stated that the withholding of medication was used with
Abu Zubaydah after his capture, when he was severely wounded, and it should also
be noted that numerous ex-prisoners have stated that, in Guantánamo, it was routine
for medical treatment to be withheld unless prisoners cooperated with their
interrogators.

Most of all, however, a comparison between Daliberti and the OLC memos reveals the
extent to which the techniques approved by Yoo resulted in "severe pain or suffering,
whether physical or mental," which clearly exceeded that endured by David Daliberti
and his fellow Americans in Iraq.

First of all, there is waterboarding, an ancient torture technique that has long been
recognized as torture by the United States. As Eric Holder noted during his
confirmation hearing in January 2009, "We prosecuted our own soldiers for using it in
Vietnam." With this in mind, it ought to be inconceivable that anyone could argue
that waterboarding Abu Zubaydah 83 times and Khalid Sheikh Mohammed 183 times
could be anything less than torture.

In addition, the prolonged isolation, prolonged sleep deprivation, nudity, hooding,
shackling in painful positions, cramped confinement, physical abuse, dousing in cold
water, beatings and threats endured by the CIA's high-value detainees (as revealed
in the leaked International Committee of the Red Cross (ICRC) report based on
interviews with the 14 men transferred to Guantánamo from secret CIA prisons in
September 2006) completes a picture that surely "shocks the conscience" more than
the torture described in Daliberti, especially as those held were subjected to these
techniques for far longer periods.

Should any further doubts remain about the definition of torture - and how it was
implemented in the "War on Terror" - these should have been dispelled in January
2009, when, shortly before President Bush left office, Susan Crawford, the retired
military judge who was the Convening Authority for the Military Commissions at
Guantánamo (responsible for deciding who should be charged) granted the most
extraordinary interview to Bob Woodward of the Washington Post.

Crawford told Woodward that the reason she had not pressed charges against
Mohammed al-Qahtani, a Saudi who was initially put forward for a trial by Military
Commission, along with Khalid Sheikh Mohammed, Ramzi bin al-Shibh and three
other men, was because he was tortured in Guantánamo.
"We tortured Qahtani," she said. "His treatment met the legal definition of torture."

"The techniques they used were all authorized, but the manner in which they applied
them was overly aggressive and too persistent," Crawford explained. "You think of
torture, you think of some horrendous physical act done to an individual. This was
not any one particular act; this was just a combination of things that had a medical
impact on him, that hurt his health. It was abusive and uncalled for. And coercive.
Clearly coercive. It was that medical impact that pushed me over the edge," and to
conclude that it was torture.

As I explained in an article at the time:

    Al-Qahtani's treatment was severe, of course. As Time magazine revealed in an
interrogation log that was made available in 2005, he was interrogated for 20 hours a
day over a 50-day period in late 2002 and early 2003, when he was also subjected to
extreme sexual humiliation, threatened by a dog, strip-searched and made to stand
naked, and made to bark like a dog and growl at pictures of terrorists. On one
occasion he was subjected to a "fake rendition," in which he was tranquilized, flown
off the island, revived, flown back to Guantánamo, and told that he was in a country
that allowed torture.

In addition, as I explained in my book The Guantánamo Files:

    The sessions were so intense that the interrogators worried that the cumulative
lack of sleep and constant interrogation posed a risk to his health. Medical staff
checked his health frequently - sometimes as often as three times a day - and on one
occasion, in early December, the punishing routine was suspended for a day when,
as a result of refusing to drink, he became seriously dehydrated and his heart rate
dropped to 35 beats a minute. While a doctor came to see him in the booth,
however, loud music was played to prevent him from sleeping.

The techniques used on al-Qahtani were approved by defense secretary Donald
Rumsfeld, but the impetus came from the torture memos written and authorized by
Yoo and Bybee. Moreover, although Crawford was not so principled when it came to
considering the treatment to which the high-value detainees had been subjected in
CIA custody - on the basis, presumably, that such information would be easier to
conceal in a Military Commission than al-Qahtani's well-publicized ordeal - it is clear
from the ICRC report on the high-value detainees that their treatment also "met the
legal definition of torture." In addition, it seems probable that the treatment of the 80
other prisoners held in secret CIA prisons, the treatment of prisoners in Afghanistan,
before their arrival in Guantánamo and the treatment of over 100 prisoners in
Guantánamo, who were subjected to versions of the "enhanced interrogation
techniques" used on al-Qahtani would also constitute torture.

For these reasons, David Margolis' whitewash of Yoo and Bybee cannot be the final
word. In his memo to Attorney General Eric Holder, dismissing the report's
conclusions, Margolis tried to claim that it was important to remember that Yoo and
Bybee were working in extraordinary circumstances, striving to prevent another
major terrorist attack. In an early version of the report, OPR head Mary Patrice Brown
dismissed this argument, asserting, "Situations of great stress, danger and fear do
not relieve department attorneys of their duty to provide thorough, objective and
candid legal advice, even if that advice is not what the client wants to hear."

This is correct, but another authoritative source also explains why there are no
excuses for twisting the law out of all shape in an attempt to justify torture. As the UN
Convention Against Torture stipulates (Article 2.2), "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."

The UN Convention also stipulates (Article 4. 1) that signatories to the Convention
"shall ensure that all acts of torture are offences under its criminal law" and requires
each state, when torture has been exposed, to "submit the case to its competent
authorities for the purpose of prosecution" (Article 7.1). As with Article 2.2, there are
no excuses for not taking action, and that includes political expediency, or, as Barack
Obama described it, "a belief that we need to look forward as opposed to looking
backwards."