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Roger Fitch Esq
22 October, 2006  
Our Man in Washington

So what is torture? The difference between coercion and torture is wafer-thin, and torture evidence still will be admissible at the Guantanamo trials. In the meantime, despite their best endeavours, the CIA and the Bush lawyers may not have got themselves entirely off the war crimes hook

imageAt the end of September Congress passed the Military Commissions Act 2006 and on October 17 it received the Royal signature.

We are now in a quiet period preceding the coming civil liberties storm that is sure to follow the implementation of the MCA by a demonstrably mala fides government. Newspapers, mostly muted during the Congressional debate, are belatedly professing shock at the new legislation.

Dahlia Lithwick calls it a clear case of Congress behaving badly.

As Michael Dorf has noted in FindLaw’s Writ, the MCA is “no moderate compromise”.

During this brief interlude, while some of us are contemplating the rights we are about to lose, the topic of torture, allegedly committed by Americans, has suddenly filled the news.

One reason is the nexus between provisions of the MCA allowing “coerced” testimony, and the overt granting of backdated war crimes immunity for people who did the coercing.

Many people have further noted that the Act appears to allow the admission into evidence of testimony that a military judge might classify as “coerced”, but others call torturous.

Much of what the government considers mere coercion violates the US War Crimes Act. Thus the Bush lawyers thought it prudent to amend that Act. In my last post, I noted that the Military Commissions Act was being used as a means to immunise government employees from prosecution under the War Crimes Act by amendments to that Act.

The Detainee Treatment Act of last year is also implicated. A discussion of the likely result is here.

Even before the bill passed, the profs at Georgetown were warning of the predictable consequences of these amendments:

“it is simply not true that the proposed legislation prohibits US agents from ‘inflicting severe physical or mental pain or suffering for the purpose of obtaining information or a confession’ ... it does not even prohibit US agents from knowingly inflicting [these] for th[at] purpose… Rather, the bill merely prohibits US agents from specifically intending to inflict these harms.”

But, as the article notes, “Common Article 3 does not explicitly limit torture to cases of specifically intended harms…”. A lower threshold, general intention, is believed to apply.

So what is “torture”? It is widely acknowledged that a number of the 14 “high value detainees” recently transferred to Guantanamo have received the “water cure”. That is to say, they have been “waterboarded”, or subjected to near-drowning.

These include the notorious Khaled Sheikh Mohammed (KSM) and the possibly insane Abu Zubaydah. In addition, the torture of Mr al-Libi has been widely reported. Al-Libi, you may recall, conveniently (if falsely) implicated Saddam Hussein in al-Qaeda plots; whether his interrogation was also aquatic, we don’t yet know.

In fact, we should not be surprised if all 14 of the “ghost” detainees just shipped from “black sites” to Guantanamo have been subjected to treatment that anyone but a Bush lawyer would regard as torture.

Incredible as it may seem, the US government may be intending to “try” these men using “evidence” obtained through such torture. Hence the need to create a new “legal” regime outside the US’s civil and military systems and international law, neither of which recognises such evidence.

The Center for Defense Information has more on the MCA’s special military courts and how the ability to admit “coerced” testimony, notwithstanding the purported ban on torture in the same Act, could lead to a Rumsfeld-appointed military judge admitting waterboard testimony based on a claimed dispute as to the level of coercion. The Bush administration, moreover, refuses to say whether waterboarding is considered torture.

imageThe curious thing is how the universal view of the “water cure” as being indeed torture was somehow forgotten. In the debate on the MCA, Senator Kennedy (snap) argued that the US obtained war crime convictions against Japanese soldiers who employed the tactic on captured Americans.

The loss by the US of historical perspective on water torture has now been given exhaustive treatment in a forthcoming article by Evan Wallach to be published in the Columbia Journal of Transnational Law (see draft here). The rejection of such “evidence” throughout the history of US jurisprudence is clear.

Even the usually Bush-friendly Washington Post has (belatedly) highlighted the waterboard issue. And torture was the topic du jour at the October 5 internationally videocast, Guantanamo teach-in at Seton Hall University Law School. Joe Margulies of the Center for Constitutional Rights moderated the Seton Hall teach-in and the webcasts, featuring outstanding speakers, may be downloaded for 30 days.

Margulies recently wrote an op-ed in the Post pointing out that American airmen captured in the Korean War were subjected to the very “stress” techniques advocated by the Bush administration. The 36 men ultimately admitted to being part of a plot to bomb civilians with bacteriological weapons. They confessed to whatever was asked of them.

The CCR, by the way, has just filed a habeas action in Washington on behalf of former Baltimore resident Majid Khan. Khan is another member of the Gang of 14, and his habeas petition alleges that he, too, was subjected to torture.

It’s unlikely that the Bush administration will reject such tainted testimony. In a thoughtful piece in FindLaw’s Writ Joanne Mariner notes that the provisions of the MCA protecting classified “sources, methods, or activities” against being revealed would likely bar any inquiry into the interrogation process in order to determine whether it was “mere” coercion or torture. After all, “torture” is a “method”.

The MCA also contains provisions designed to protect those among the military or CIA interrogators who have already applied the waterboard technique. Now, Scott Horton has raised the possibility that the MCA’s impunity provisions are there to protect, not so much the “interrogators” as the torture enablers, i.e. the “lawyers” of the Justice and Defence Departments.

According to Horton, these Republican political appointees bear direct comparison with the lawyers of the “Justice Department” of the Third Reich. He gave his reasons in a speech to the American Society of International Lawyers.

In fact, as Jennifer Van Bergen and Douglas Valentine have set out in a recent law review article torture is the inevitable result of indefinite detentions.

Another interesting point has been made by David Scheffer, Clinton’s Ambassador for War Crimes Issues. He notes that the Military Commission Act specifically withdraws from the status of a war crime, the …

“passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples.”

This is the provision of Common Article Three that the Supreme Court cited in Hamdan to strike down the military commissions.

As others have written, the US itself vigorously prosecuted the Japanese for passing such sentences against Americans. More importantly, if the law says it is no longer a war crime to not give a fair trial, it would seem to be an admission that the military commissions will not conform to Geneva requirements.

In a final irony, the amendments to the War Crimes Act may have the very opposite effect from that intended. Rather than providing immunity from prosecution for CIA interrogators, the Act may expose US officials to an increased risk of prosecution abroad.

By making prosecution impossible in the US, the door is opened to prosecution overseas in those countries whose war crimes statutes recognise universal jurisdiction. Prosecutions, such as the one against Donald Rumsfeld in Germany, were aborted on the basis that the US was able to prosecute. But now that’s all changed, as prosecutions in the US will be unlikely.

Still, future US administrations can always fall back on the “Hague Invasion Act”. That’s the common name for the American Service-Members’ Protection Act, a Republican initiative which provides that:

“The President is authorized to use all means necessary and appropriate to bring about the release of any person [described in the Act] who is being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.”

The final provision of this anti-ICC law says that:

“Nothing in this title shall prohibit the United States from rendering assistance to international efforts to bring to justice Saddam Hussein, Slobodan Milosovic, Osama bin Laden, other members of Al Qaeda, leaders of Islamic Jihad, and other foreign nationals accused of genocide, war crimes or crimes against humanity.”

Just don’t ask for Donald Rumsfeld, Richard Cheney or George W. Bush.


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