Yes, on torture, leadership counts

Six days ago, I argued in my column in The Christian Science Monitor
that if torture in US-run detention facilities around the world is to be
stopped, then we need top-level leadership from President Bush that articulates
and then verifiably implements a stance of “zero tolerance for torture.”

My fear was that without such clear and unambiguous leadership, tortures
and abuses of various forms would continue to be perpetrated by lower-level
US government personnel and contractors. I knew that in matters like
this one, clear and forceful leadership counts.

Little did I suspect that there has indeed been high- and perhaps even
top-level leadership on this issue–but in completely the wrong direction.
Yesterday, the Wall Street Journal published a piece by Jess
Bravin describing a “draft” memo of March 6, 2003 that she had seen in which
advisers to Defense Secretary Rumsfeld marshalled the arguments as to why
employees in U.S.-run facilities could indeed be justified in the use
of torture.

And the story has only snowballed further since then.

The main argument presented in the March 2003 memo seemed to be a version of the hoary old
defense that “I was just following orders”. (Never mind that that
defense actually had its validity completely skewered in the fourth of the “Nuremberg
Principles”* that were compiled in 1950 on the basis of the Nuremberg court’s judgments.) What
the authors of the March 2003 memo were arguing was essentially that if
government agents felt they needed to use torture they could invoke the
“only following orders” defense, and then that the President’s unbounded
powers to do whatever he wants in war-time could cover them with the grace
of the Prez’s own impunity.

Welcome to the view of the world as enunciated by the courtiers of His
Most Sublime Excellency the Lord of all World Known and Unkown (and the
Unknown Unknowns), the Defender of all that is Gracious, George Bush II.

Bravin wrote about the memo that it:

elaborated the Bush administration’s view that the prersident
has virtually unlimited power to wage war as he sees fit, and neither Congress,
the courts nor international law can interfere. It concluded that
neither the president nor anyone following his instructions was bound by
the federal Torture Statute [the domestic law that enacted the international
Convention against Torture]…

“In order to respect the president’s constitutional authority to
manage a military campaign … (the prohibition against torture) must be construed
as inapplicable to interrogations undertaken pursuant to his commander-in-chief
authority,” the report asserted.

In today’s NYT, Neil Lewis and Eric Schmitt elaborate
on the issue further, with reference to additional Pentagon documents
and some early response from Pentagon Spokesman Larry Di Rita. According
to this piece, the March 2003 (draft) memo was part of a series of position
papers that were developed within the administration from January 2002 onwards,
that specifically argued
that existing international and domestic legal constraints on both “torture”
and “cruel, inhuman and degrading treament” need not be considered as
applying to actions taken by US personnel during the war on terror.

According to these writers these memos included:

• A Jan. 22, 2002, memorandum from the Justice Department that
  … was used extensively as a basis for the March memorandum on avoiding proscriptions
  against torture. [This memorandum] concluded that administration officials
  were justified in asserting that the Geneva Conventions did not apply to
  detainees from the Afghanistan war.
• Another memorandum [dated Feb. 2, 2002] obtained by The Times [that]
  indicates that most of the administration’s top lawyers, with the exception
  of those at the State Department and the Joint Chiefs of Staff, approved
  of the Justice Department’s position that the Geneva Conventions did not
  apply to the war in Afghanistan. In addition, that memorandum … noted that
  lawyers for the Central Intelligence Agency had asked for an explicit understanding
  that the administration’s public pledge to abide by the spirit of the conventions
  did not apply to its operatives.

As for the memo of March 6, 2003, it was reportedly drafted after interrogators
at Gitmo and Pentagon lawyers voiced some concerns,

after Mr. Rumsfeld approved a set of harsher interrogation
techniques in December 2002 to use on a Saudi detainee, Mohamed al-Kahtani,
who was believed to be the planned 20th hijacker in the Sept. 11 terror plot.

Mr. Rumsfeld suspended the harsher techniques, including serving the detainee
cold, prepackaged food instead of hot rations and shaving off his facial
hair, on Jan. 12, pending the outcome of the working group’s review.

So there is Bombs-Away Don’s own office reported as having direct input into
which techniques could be used there. (Right, so in December 2002,
15 months after 9/11, was anyone claiming that Qahtani had any up-to-date
“information” that might constitute the “ticking bomb”?)

Lewis and Schmitt reported that Di Rita said that within the working group
that then set to work,

the Pentagon officials were focused primarily on the interrogation
techniques, and that the legal rationale included in the March memo was mostly
prepared by the Justice Department and White House counsel’s office.

The memo showed that not only lawyers from the Defense and Justice departments
and the White House approved of the policy but also that David S. Addington,
the counsel to Vice President Dick Cheney, also was involved in the
deliberations. The State Department lawyer, William H. Taft IV, dissented,
warning that such a position would weaken the protections of the Geneva Conventions
for American troops.

They wrote that on Monday, Pentagon officials,

sought to minimize the significance of the March [2003] memo…
as an interim legal analysis that had no effect on revised interrogation
procedures that Mr. Rumsfeld approved in April 2003 for the American military
prison at Guantánamo Bay, Cuba.

“The April document was about interrogation techniques and procedures,” said
Lawrence Di Rita, the Pentagon’s chief spokesman. “It was not a legal analysis.”

But it was related to the preceding legal analyis how, Larry? Are
you claiming there was no relationship between the legal brush-clearing
done in the March memo and the “interrogation techniques and procedures”
permitted in the April document?

And then, this:

Mr. Di Rita said the 24 interrogation procedures permitted at
Guantánamo, four of which required Mr. Rumsfeld’s explicit approval,
did not constitute torture and were consistent with international treaties.

Well, well, well. Rumsfeld is clearly in this up to his elbows. Not
to mention John Ashcroft’s Dept. of so-called “Justice”, White House Counsel
Alberto Gonzalez, and Unca Dick’s office at the Veepery. And just lest
we forget what this kind of “leadership” at the highest echelons can lead
to lower down the chain of command, today’s Times also has a
piece by Kate Zernike and David Rohde describing in hideous detail how,

forced nudity of prisoners was pervasive in the military intelligence
unit of Abu Ghraib, so much so that soldiers later said they had not seen
“the whole nudity thing,” as one captain called it, as abusive or out of
the ordinary.

While there have been reports of forced nakedness at detention facilities
in Afghanistan and at Guantánamo Bay, Cuba, the practice was apparently
far more aggressive at
Abu Ghraib, according to interviews, reports from human rights groups
and sworn statements from detainees and soldiers. The detainees said leaving
prisoners naked started as far back as last July, three months before the
seven soldiers now charged and their military police company arrived at the
prison. It bred a culture, some soldiers say, where the abuse captured on
film could happen.

Detainees were paraded naked past other prisoners and guards; some were ordered
to do jumping jacks and sing “The Star-Spangled Banner” in the nude, according
to a several witnesses…

Today, according to this
story by Neil Lewis in the Wednesday NYT, Attorney-General Ashcroft
was sharply questioned by the Senate Judiciary Committee about his department’s
involvement in drafting the March 2003 memo. Teddy Kennedy captured the importance
of the whole question of the President’s leadership role on the torture issue
exactly right, in my opinion:

“In other words, the President of the United States has the responsibility,”
he said holding up a photograph of prisoners cowering before American guards
and their dogs at Abu Ghraib. “We know when we have these kinds of orders,
what happens. We get the stress test, we get the use of dogs, we get the
forced nakedness that we’ve all seen on these and we get the hooding. This
is what you get with those kind of memoranda out there.”

Onward and upward, I say. It seems the time is right for a campaign
for truly “zero tolerance” policy regardinhg torture, cruel, inhuman, and degrading
treatment, and all other forms of physical and mental abuse of detainees. These
guys in the Bush administration are dangerous! There are a lot of them. They make extremely
dangerous and anti-democratic arguments. And the kinds of behavior
that those arguments condone and encourage will only continue without a clear
and verifiable turnaround from the very top.

(Btw, where does John Kerry stand on “tolerance for torture”? Can
anyone tell me?)

——–

The site linked to there for the Nuremberg Principles is run by UC Berkeley. The text of Principle IV is: “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.” It notes at the end of that web-page that, ” The Principles are set forth in Dep’t of the U.S. Army, Field Manual FM2710, The Law of Land Warfare sec. 498511(1956).
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