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A drip-drip of revelations

Written by Administrator

Sunday, 09 December 2007

The waterboarding controversy has lifted the veil on the fact that the Bush White House gave the CIA a green light to use illegal torture techniques

The debate about waterboarding in the US continues down a long and winding road. The latest developments include an effort by US Senators and Congressmen to adopt federal legislation that would prohibit the CIA from using harsh interrogation techniques (including waterboarding), the news that, in November 2005, the CIA destroyed video evidence that may show the use of waterboarding against Abu Zubaydah and another high-value al-Qaida detainee, and the revelation that the State Department legal adviser John Bellinger was making confidential recommendations to new Attorney General Michael Mukasey and putting forward his own "strong views on a number of these practices".

Yet the CIA still seems to proceed on the basis that it is a law unto itself, and somehow exempt from general international obligations prohibiting torture and other acts of cruelty. In September 2006, the US military adopted a new edition of its field manual, confirming that Common Article 3 of the Geneva Conventions applied to any person held by the US Department of Defense, and thereby outlawing any act that might constitute torture, cruelty or humiliation. This followed the judgment of the US Supreme Court in Hamdan v Rumsfeld, which ruled that President Bush's decision limiting the application of Common Article 3 was wrong as a matter of US constitutional law.

But the field manual does not apply to the CIA, which remains subject to its own rules and procedures. CIA director Michael Hayden has reportedly claimed that CIA interrogators are older and generally better trained than military interrogators, and that the CIA wasn't consulted about the army field manual. "No one ever claimed that the army field manual exhausted all the lawful tools that America could have to protect itself," he has apparently said.

It may be useful to get back to first principles. CIA operatives, like everyone else in the United States, are subject to the international rules set forth in the 1984 Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment. That convention establishes the international definition of torture and confirms that acts of torture are to be treated as international crimes. Moreover, when a state has reason to believe that a person who is alleged to have committed torture, or been complicit in an act of torture, it must investigate and, as appropriate, subject that person to criminal prosecution or extradite him to a place where he will be prosecuted. There are no exceptions.

Against that background, it is mystifying indeed that anyone in the US might wish to leave the door open to acts that reasonable people elsewhere in the world would consider to amount to torture. Waterboarding and similar acts plainly fall into that category. Yet, normally sensible people in the US seem to have a blindspot on this issue.

Take Jack Goldsmith, who now teaches at Harvard Law School but previously headed the Office of Legal Counsel at the US Department of Justice. He has written a fascinating book (The Terror Presidency) on aspects of his times at the OLC, including his reaction to a legal memo written in August 2002 by other Justice Department lawyers that apparently gave a green light to waterboarding and other techniques.

At page 155, you will find the following surprising statement on these techniques of interrogation approved for CIA use:

"I wasn't as confident that the CIA techniques could be approved under a proper legal analysis. I didn't affirmatively believe they were illegal either, or else I would have stopped them. I just didn't yet know."

I assume he would have a rather more immediate reaction to the prospect of waterboarding or similar techniques being used on his compatriots by foreign intelligence services, under any circumstances. I wonder whether he advised the CIA director of the international risks to which he and other employees of the CIA would be exposed if they persisted in the use of these techniques. There is no indication in the book that he did. Little surprise, then, that some have suggested that a more apt title for his book, and the approach to which the CIA director still seems so attached, might have been The Torture Presidency.

It is time to put this issue away, once and for all. The administration should decisively and clearly reject any reliance by anyone in US government on any person at any time or place of any technique that would constitute torture under international law.

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