Legal Swirl over Waterboarding

THIS nation, a republic, prides itself on the rule of law. The rule of law is the single barometer or guidepost that guarantees political, economic and social stability, philosophically speaking. The rule of law is the only unassailable pillar of this republic; it is the only “objective” standard. The rule of law is objective because of its universality. For instance, one federal law guarantees one objective: that all U.S. citizens, regardless of color, have the right to vote; it doesn’t guarantee the popular vote to white men only. President Andrew Jackson signed a congressional bill into law in 1870; this law was then amended to the U.S. Constitution. This federal law is the Fifteenth Amendment to the U.S. Constitution.

James Madison, one of the founding fathers of this republic, once remarked that this nation is a nation of laws, not men. In response to a woman’s question at the close of the Constitutional Convention concerning what kind of government would arise from the U.S. Constitution, Benjamin Franklin replied: “A republic, if you can keep it”.

In response to the many human rights abuses perpetrated by agents of modern nations in times of war during the 20th century, modern nations have found it imperative to adhere to strict yet objective rules of conduct in future wars. Ratified in 1950 through the Geneva Conventions after World War II, some 47 modern nations now recognize international laws or treaties concerning “detainees” that lay strict ground-rules for whoever captures civilians in times of war. One particular tactic used whenever civilians are captured is to gather intelligence by interrogation methods. Among others, waterboarding stands out as an “enhanced interrogation technique”. This is a fancy way of saying that waterboarding is a more severe interrogation technique than others, and there are many – forced nakedness, sexual humiliation, electric shock, sensory and sleep deprivation. Spanish interrogators used the waterboarding technique during the Spanish Inquisition in 1478 to establish Christian orthodoxy; waterboarding is now a “modern” version today. Waterboarding is a much more careful and controlled practice, asserted Stephen Bradbury, acting head of the Justice Departments’ Office of Legal Counsel; there is no jumping on the victim’s stomach or vomiting of blood.

What is waterboarding? It is an interrogation technique whereby “detainees” are subjected to simulated drowning. It involves strapping a person down and pouring water over his or her cloth-covered face to create the sensation of drowning.

Is waterboarding, which both Amnesty International and the U.N. High Commissioner for Human Rights, Louise Arbour, torture? Here’s what Louise Arbour had to say on this subject last Friday: “I would have no problems with describing this practice as falling under the prohibition of torture”. In other words, torture is illegal under international law.

So, then, is waterboarding illegal under U.S. law? Not really. The Bush Administration hasn’t declared this “enhanced” interrogation technique illegal or not. This republic, along with other modern nations, is obligated to recognize and adhere to international law regarding torture.

President Bush is currently on a five-day trip to the African continent, where he hopes to highlight how American financial aid has helped fight poverty and disease, among them AIDS. The President hopes to highlight his legacy as a “compassionate conservative”. George Bush hopes that many of us will see that his administration has done more than wage a war of aggression in Iraq. But Mr. Bush also defended his administration’s criminal record of torture and repression, acts that have wantonly disregarded established standards of international law and have lowered this republic’s moral standing worldwide. Asked by Matt Frei of the BBC whether threatening to veto a law that restricts waterboarding didn’t send the “wrong message” to the world, Mr. Bush insisted that the legislation would result in “imposing a set of standards on our intelligence communities in terms of interrogating prisoners that our people will think will be ineffective” [italics mine]. If laws are to be objective, then a set of standards is precisely what is needed.

This republic is on record as saying that it champions the struggle against torture. In June of 2003, President George W. Bush said:

“The United States is committed to the world-wide elimination of torture and we are leading this fight by example. I call on all governments to join with the United States and the community of law-abiding nations in prohibiting, investigating, and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment. I call on all nations to speak out against torture in all its forms and to make ending torture an essential part of their diplomacy”.

The President made this proclamation a few weeks after Khalid Sheikh Mohammed was taken into U.S. custody. Now we know that he was subsequently subjected to waterboarding. Khalid Sheikh Mohammad’s confession of being responsible for the 9/11 attacks on New York and Washington, for the murder of Jewish journalist Daniel Pearl, for the 2002 disco bombings and for a host of lesser plots, have been debunked by legal experts, who say that he appeared to be exaggerating his role for his own self-aggrandisement and may also have deliberately issued false claims. Torture, according to a majority of interrogation experts, cannot yield accurate intelligence.

Two weeks ago Vice President Dick Cheney, whom Democratic contender Hillary Rodham-Clinton calls “Darth Vader”, vigorously defended the use of waterboarding on a few suspected terrorists, declaring that the methods made up “a tougher program for tougher customers”. These “high-value targets”, such as Khalid Sheikh Mohammed, were questioned, er, tortured, at a time when another attack on this republic was imminent. After saying that the C.I.A. executes interrogation techniques safely and professionally, Mr. Cheney said this: “The United States is a country that takes human rights seriously. We do not torture – it’s against our laws and against our values”. Is the vice-president saying that the Bush administration has the right to waterboard “tough customers” and not others? What sliding scale is being used to determine this judgment?

Stephen Bradbury, acting head of the Justice Department’s Office of Legal Counsel, whose legal opinions guide the U.S. attorney general, Michael Mukasey and the White House, testified before the House Judiciary Committee. This is what he said: “There has been no determination by the Justice Department that the use of waterboarding…would be lawful under current law”. Putting fancy words aside, Mr. Bradbury is saying that the Justice Department cannot determine whether waterboarding is illegal, either under “current law” or previously during 2002-2003, when the C.I.A. waterboarded three detainees.

The Office of Legal Counsel is a small cadre of politically appointed attorneys who advise the President. They are charged with interpreting federal anti-torture laws. In 2005, Mr. Bradbury issued a series of classified legal memos designed to circumvent anti-torture statutes to legitimize torture. Similar legal memos were issued in 2001 and 2002.

Legal memos are documents written by lawyers to determine whether a client, in this case, anyone who had been, currently is and will be tortured in the future, can prosecute the U.S. government by squaring existing statutes with ordinary facts. Given such facts, are there any federal statutes that support such facts and, if, so, does the client have a case to prosecute or not?

The U.S. Congress passed the Federal Anti-Torture statute in 1994 to fulfill U.S. obligations under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, or C.A.T., which the U.S. signed in 1988. Article 1 of the C.A.T. prohibits torture, which it defines as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person”. The language of the statute creates an objective test for mental torture. It defines severe mental pain simply as “the prolonged mental harm caused by or resulting from” specific acts, including the intentional infliction of severe physical pain and suffering, the administration of mind-altering substances to disrupt the victim’s senses, the threat of imminent death, or the threat that another person will imminently be subjected to death. A plain reading of the Federal Anti-Torture statute upholds an absolute prohibition of torture. Yet a 2004 legal memo issued by the Office of Legal Counsel interpreted the statute to satisfy the Bush administration by separating the act itself from the consequences of the act. The interpretation of the statute insists that “prolonged mental harm” is an independent element required for the crime of mental torture. This reading of the statute requires a separate litmus test: that prolonged mental torture or “prolonged mental harm” may not follow the act itself. According to this litmus test, no act, however obviously damaging to the victim “by its very nature” is psychological torture per se.

To put it simply, “prolonged mental harm may” not be the consequence of the act itself. This means that an interrogator no longer has to avoid perpetrating the prohibited acts in the statute. The prohibited acts are no longer outlawed. Instead, the interrogator simply adopts a “wait-and-see” approach to ascertain whether a particular victim “might suffer prolonged psychological harm as a result” of the act.

The Bush administration is in a legal swirl concerning torture, and is using legal “slide-rules” to define its own legal conditions to skirt anti-torture statutes and the Geneva Conventions. They are drafting new legal proposals that aim to avoid criminal liability for U.S. personnel who engage in torture. The Bush administration cannot be allowed to order the C.I.A. to use such barbaric interrogation techniques as it sees fit. This flagrant disregard for international law must not be allowed to continue, if only for God’s Sake

The writer is a recent revert to Islam and can be contacted at: drummondhugh@verizon.net