2010/03/10

Torture and the meanings of words

Karl Rove writes in his memoir:

"[T]he president never authorized torture. He did just the opposite by making sure the EITs [enhanced interrogation techniques on high-value terrorist detainees] did not cross the legal line into torture."

Of course, this immediately reminded me of Bill Clinton's famous line:

It depends on what the meaning of the word "is" is.

I don't think Rove is precisely lying in his sentence. Not precisely, anyway. But it seems to me that the sentence is very, very fuzzy. And deliberately so. What precisely does Rove mean by "EITs did not cross the legal line into torture"? Who exactly drew that line? How was the word "legal" defined? Using exactly what authority and which precise laws? "Torture?" Who defined torture for the purpose of this sentence?

As we read President G. W. Bush's order of 7Feb2002, it's very clear that Bush is not using the Geneva Conventions as his guide.

Our nation recognizes that this new paradigm - ushered in not by us, but by terrorists - requires new thinking in the law of war, but thinking that should nevertheless be consistent with the principles of Geneva.
2. Pursuant to my authority as commander in chief and chief executive of the United States, and relying on the opinion of the Department of Justice dated January 22, 2002, and on the legal opinion rendered by the attorney general in his letter...

a. I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with al-Qaida in Afghanistan or elsewhere throughout the world...
And Bush's qualification as to why we don't simply brutalize captured personnel:

3. Of course, our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. Our nation has been and will continue to be a strong supporter of Geneva and its principles. As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.
4. The United States will hold states, organizations, and individuals who gain control of United States personnel responsible for treating such personnel humanely and consistent with applicable law.
What's not at all clear from this description is why the order was written in the first place. If US forces are going to deal with captives "in a manner consistent with the principles of Geneva," why not just keep the Conventions in force? Why go to all the trouble of saying what the US was and wasn't legally permitted to do if al Qaeda and/or Taliban personnel were in US custody? The Torture Memo Analysis (TMA) has numerous links to what it considers relevant documents and it doesn't contain anything that answers this question.


BTW, an analysis written on 30Jan2003 disputes the logic in the Bush order of 7Feb2002:


If asked, most states would point to numerous provisions of Hague and Geneva Law as still binding on this conflict [The US vs al Qaeda & the Taliban], even though it does not meet the definition of armed conflict in those instruments.
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This is not to suggest that every scenario in the "war on terrorism" is addressed by customary international law.
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The question, however, is whether those ambiguities can and should be resolved through a new round of codification, or whether other methods are open to decisionmakers.
The burden needs to be on those calling for revision to demonstrate exactly what needs to be improved.

As we know, of course, the Bush Administration never applied to any international bodies to resolve any such disputes. Bush relied instead on memos written by subordinates. As the aforementioned TMA makes clear, the 22Jan2002 memo from Jay Bybee is simply making an argument that the Geneva Conventions aren't applicable, the memo is not stating that as a fact.


As the TMA makes clear:


5) That protection is not merely procedural. As long as the Convention protects an individual, grave breaches of its provisions constitute a breach of both U.S. and international law.
6) Article 130 of the Convention provides that grave breaches include "... any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention."

Looking at the photos of how captured personnel were treated at the Iraqi prison known under both the dictator Saddam Hussein and the US occupation of Iraq as Abu Ghraib, I don't believe there can possibly be any serious question that Article 130 of the Convention was very consciously, willfully and deliberately violated.


Bush admitted in 2008 that:


I was the Commander-in-Chief of a military where these disgraceful acts took place

He tried to add lots of qualifications and exceptions, trying to distance himself from those horrific acts, but as a piece by the Center for American Progress makes clear:


We now know that Major General Antonio Taguba produced a 53-page report detailing alleged torture in Abu Ghraib for Lieutenant General Ricardo Sanchez, senior commander in Iraq. Sanchez received this report in February 2004 – two months before the first graphic photos of abuses were shown publicly on 60 Minutes II.
Taguba's report documents numerous instances of "sadistic, blatant, and wanton criminal abuses at Abu Ghraib" dating from October to December 2003.

If the President and his subordinates were not fully aware of these abuses, they most certainly should have been. Also, Sourcewatch details the reaction of an Administration that just didn't really feel much concern over how persons in US custody were treated. 

It says absolutely nothing good about the Office of Professional Responsibility that it cleared Presidential subordinates John Yoo and (now Judge) Jay Bybee of "professional misconduct" meaning they were not referred to a bar association for them to lose their legal licenses, but were merely guilty of exercising "poor judgment." Still, that's not exactly a resounding declaration of good legal analysis.


So, did the President "authorize torture"? Personally, I think he did, but he did so via winks and nods and through, at best, poorly written memorandums that were highly questionable from a legal standpoint. So is Rove being truthful? Perhaps in a very highly technical, very carefully qualified sense, he is.

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