Gyroscope

A newsletter for those unmoved by spin.
No. 41, June 7, 2004

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by John Nordin
Is the Supreme Court listening?

“Suppose the executive says, `Mild torture, we think, will help get this information,’” Ginsburg said to Deputy Solicitor General Paul Clement. “Some systems do that to get information.”

“Well, our executive doesn't,” Clement replied. “And I think the fact that executive discretion in a war situation can be abused is not a good and sufficient reason for judicial micromanagement in overseeing of that authority. You have to recognize that in situations where there is a war, where the government is on a war footing, that you have to trust the executive.” Oral arguments before the U.S. Supreme Court in Hamdi vs. Rumsfeld, April 28th, quoted on MSNBC.

"Trust the executive?" "Our executive doesn't" engage in "mild torture"?

In theory, the Supreme Court should not be influenced by what it sees on TV or, indeed, on anything that is not presented to it in arguments, briefs, and records of court proceedings, the text of laws and the Constitution. But in this case the Executive presented factual claims to the court. These factual claims are not true. Anyone who reads history should have known they wouldn't prove to be true, but events since April 28th should amply prove that.

Let us review the extent to which these claims have been proven false. The Administration still tries to present the Abu Ghraib prison scandal as an affair of a few renegade troops. No one can accept that any more.

"The US said today that it had broadened its investigation into the torture of detainees ... Donald Rumsfeld ... said he had asked the navy's inspector-general to investigate conditions at Guantanamo Bay ... It is one of six investigations launched since January into allegations of abuse associated with US interrogation of prisoners. ... US military officials yesterday also acknowledged publicly that they were willing to use "aggressive" interrogation techniques to extract information from prisoners. ... extreme techniques such as sleep deprivation and forcing detainees to stand for hours must be authorized by senior officers." Financial Times, p.2, May 5th.

Several things are worth noting there: officials knew of a problems before it became public and its wider than Abu Ghraib. And note the discussion of there being policies and procedures for 'aggressive' interrogation, you might call it 'mild torture.' It's not low level: its policy. They have already admitted that.

"A special-access program, or SAP —subject to the Defense Department’s most stringent level of security—was set up, with an office in a secure area of the Pentagon. The program would recruit operatives and acquire the necessary equipment, including aircraft, and would keep its activities under wraps. ...

In theory, the operation enabled the Bush Administration to respond immediately to time-sensitive intelligence: commandos crossed borders without visas and could interrogate terrorism suspects deemed too important for transfer to the military’s facilities at Guantánamo, Cuba. They carried out instant interrogations—using force if necessary—at secret C.I.A. detention centers scattered around the world. The intelligence would be relayed to the sap command center in the Pentagon in real time, and sifted for those pieces of information critical to the “white,” or overt, world." Semour Hershe, The New Yorker, May 24

Coercive interrogation methods endorsed by members of the US government amount to torture or cruel, inhuman or degrading treatment and violate international law and the USA's treaty obligations, Amnesty International said today, as it called on the US government to end its practice of holding detainees incommunicado and in secret detention. As with the mistreatment of prisoners, Amnesty International has continually raised concerns about illegal interrogation practices with senior White House and Department of Defense officials, starting in December 2002 and January 2003

Separately, Secretary of Defense Donald Rumsfeld told a Senate committee yesterday that Pentagon lawyers had approved methods of interrogation in Iraq such as "sleep management," "dietary manipulation" and "stress positions." Such so-called "stress and duress" techniques have been widely alleged by former detainees held in US custody in Afghanistan, some of whom were subsequently transferred to Guantánamo Bay.

Under questioning by the committee, Secretary Rumsfeld said that: "Any instructions that have been issued or anything that's been authorized by the Department have been checked by the lawyers" and "deemed to be consistent with the Geneva Conventions."

Amnesty International press release, May 13.
"Last week, a leaked report from the International Committee of the Red Cross - presented to the White House in February - said that the "degrading" treatment of Iraqi prisoners was not isolated to Baghdad, and described the abuse of Iraqi inmates as "tantamount to torture." Guardian Weekly, p. 5, May 13.

In the face of widening international criticism and congressional scrutiny, the US Army said Friday that it had overhauled interrogation procedures used for Iraqi detainees and banned the use of techniques such as placing hoods over the heads of prisoners or forcing them to stand naked.

Interrogators will also no longer be able to expose prisoners to military dogs, deprive them of sleep or force them to stand or squat in uncomfortable positions — techniques that have been criticized as beyond the limits of the Geneva Convention. Los Angeles Times, May 15
If you change the rules to prevent abuse, then the rules obviously allowed abuse and it implies that abuse was part of the policy.

"People in Iraq must understand that I view these practices as abhorrent." George Bush, Vancouver Globe and Mail, May 6, p.1

Also notes Rumsfeld's comment not denying the report or the rules, but saying "lawyers had checked this out."

I once attended a workshop for mystery writers that discussed police interrogation procedures and how to tell if people were lying. A key point was that, despite what you might think, many who deceive go to great lengths to avoid telling an outright lie. The example they were using was Martha Stewart's line on her website to the effect that "I want you to know that I am innocent." This line, seemingly identical to the statement "I am innocent," in fact is miles apart, the presenter claimed. One is direct, the other, all about what I want you to think. Notice Bush's line, using an almost identical indirection. He isn't outraged himself, he just wants you to have the opinion that he is outraged.

Of course an interrogator can't jump to conclusions on one sentence, but someone conducting the sort of 'mild torture' on Bush that he thinks is useful would sure want to follow up this indirect answer. Rumsfeld also refuses to deny directly, but hides behind the lawyers.

I think there is ample evidence on the record that there was a policy of 'mild torture.'

But that is not the end of the evidence.
"Several high-ranking military legal officers believe the Pentagon used private contractors to interrogate prisoners in Iraq and Afghanistan in a deliberate attempt to obscure aggressive practices from congressional or military oversight, according to a civilian lawyer who has spoken with them. ... JAG lawyers have also raised concerns about the Pentagon's decision to bar them from interrogations ... Private contractors are not subject to the same military legal code as uniformed soldiers. They have also been exempted form local laws in Iraq, under a decree passed by the Coalition Provisional Authority." Financial Times, p. 6, May 31.
"The CIA practice of keeping some detainees in Abu Ghraib prison off the official rosters so concerned a top Army officers and a civilian official there that they reached a written agreement early this year to stop. ... Maj. Gen. Antonio M. Taguba, ... concluded in his classified report that the practice of allowing what he called "ghost detainees" at the prison was "deceptive, contrary to Army Doctrine, and in violation of international law." He complained that military guards were being enlisted to hide the prisoners from the Red Cross." The New York Times, p. A13, May 25

The article goes on to cite the example of a prisoner kept off the books who was beaten to death.

Well, there is one more dodge, the apologists for 'mild torture' use: necessity to save lives. "You soft civilians just can't stomach what must be done to keep you safe. Lives are at risk, and this torture gives intelligence that saves lives." A parallel argument is that "if you go out and bomb civilians and murder kids, then you should expect to get a little abuse in return." We get information, and these people are guilty are the claims. Neither claim is remotely close to true.

"The questioning of hundreds of Iraqi prisoners last fall in the newly established interrogation center at Abu Ghraib prison yielded very little valuable intelligence, according to civilian and military officials. ... Most of the prisoners held in the special cellblock that became the setting for the worst abuses at Abu Ghraib apparently were not linked to the insurgency, they said." The New York Times, p. A1, May 27.
House Raids Many detainees are taken in violent midnight house raids that terrify and sometimes injure entire families, destroy property, and detain multiple innocent persons along with the guilty.

Confiscation of Property CPT and other human rights organizations have documented innumerable cases in which soldiers confiscated money and property without giving receipts (as is required by US military procedures). Families have lost homes and entire savings because of unjust confiscation.

Lack of Information Although the list of detainees is now published online in Arabic, there is a minimum two-week gap in which detainees are undocumented. Most families do not know the list is published, and have great difficulty locating their loved ones or even determining whether they are dead or alive. Many “ghost detainees,” as well as persons detained before May 1, 2003, have never been accounted for.

Christian Peacemaker Teams, Statement of May 9
"By any measure Amer Al-Saadi ought to feel vindicated. The dapper British-eductated scientist who was the Iraqi government's main link to the UN inspectors before the US invasion repeatedly insisted that Iraq had destroyed its weapons of mass destruction years earlier. David Kay, the US inspector who led the Iraq Survey Group .. not accepts Dr. Saadi was right. So does Hans Blix. ... Yet, astonishingly, Dr. Saadi does not know of their change of mind or of the political fallout their views have caused ... Held in solitary confinement in an American prison at Baghdad's international airport, Dr. Saadi is denied the right to read newspapers, listen to the radio or watch television. "My handlers have appealed to higher authorities for my release, but it seems it's political and God doesn't meddle in politics," Dr. Saadi wrote in one letter. ... He is kept in his cell all day except for an hour of exercise." Guardian Weekly, p. 2, May 13.

The Administration authorized breaking the law, breaking the law did no good, they broke the law for no good purpose, and they broke the law to punish the innocent. Could one imagine a greater set of mistakes?

But is it just a mistake - or is this a threat to democracy? Does this issue pose issues of fundamental concern to the survival of liberty in the United States?

"Atrocities are entirely predicable wherever absolute power holds the utterly helpless in secret: that is a universal law of human nature. In peace that is as true of old people, the mentally ill and children in institutions hidden from view. In war degraded captives bring out an instinctive disgust, contempt an violence in the captors who degrade them. That is why habeas corpus was the founding principle of British justice." Polly Toynbee, P. 13, Guardian Weekly, May 13.
"There is not very much doubt that liberal democracy's very history and identity is tied up in a absolute prohibition of torture ... For torture, when committed by a state, expresses the state's ultimate view that human beings are expendable. This view is antithetical to the spirit of any constitutional society whose raison d'être is the control of violence and coercion in the name of human dignity and freedom." Michael Ignatieff, Carr professor and director of the Carr Center of Human Rights Policy at Harvard University. Financial Times, page W4, May 15.

More than a violation of policy, more than an error, more than a policy that was mistaken, more than regrettable necessity in time of war, this whole complex of situations, abuses and cases go to the foundation of America's claim to be a democracy. If there is any situation where a US citizen or someone controlled by the authority of the US or those acting on their behalf can be made to 'disappear' from the control of the courts then anyone can be made to vanish. Perhaps a judge can be detained because he might rule in a way those in authority do not like.

Is the Supreme Court listening?
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