We knew, even before the convening authority of military commissions at Guantanamo, Susan Crawford, said it was torture, that it was torture. Systematic. Presidentially approved. Torture.
But now, as Meteor Blades, buhdydharma and valtin have pointed out on these pages, it's official. The ICRC report makes it so.
Article 3 common to the four Geneva Conventions also gives the ICRC the right to request access to persons detained in non-international armed conflicts. Under the statutes of the International Red Cross and Red Crescent Movement, the ICRC can also request access to persons detained in connection with situations of violence that fall below the threshold of armed conflict. These statutes were approved in 1986 by the International Conference of the Red Cross, of which all States party to the Geneva Conventions, including the United States, are members.
When the ICRC, acting its capacity as the arbiter of Article 3 of the Geneva Conventions, says it's torture, it's torture.
Which brings us back to the explosive story Mark Danner brought us this week, when he obtained a leaked copy of that report. The obscene and nauseating details of what was done to human beings in the name of "justice" has been detailed elsewhere. I want to focus on Danner's conclusions.
One. Beginning in the spring of 2002 the United States government began to torture prisoners. This torture, approved by the President of the United States and monitored in its daily unfolding by senior officials, including the nation's highest law enforcement officer, clearly violated major treaty obligations of the United States, including the Geneva Conventions and the Convention Against Torture, as well as US law.
Two. The most senior officers of the US government, President George W. Bush first among them, repeatedly and explicitly lied about this, both in reports to international institutions and directly to the public. The President lied about it in news conferences, interviews, and, most explicitly, in speeches expressly intended to set out the administration's policy on interrogation before the people who had elected him.
Three. The US Congress, already in possession of a great deal of information about the torture conducted by the administration—which had been covered widely in the press, and had been briefed, at least in part, from the outset to a select few of its members—passed the Military Commissions Act of 2006 and in so doing attempted to protect those responsible from criminal penalty under the War Crimes Act.
Four. Democrats, who could have filibustered the bill, declined to do so—a decision that had much to do with the proximity of the midterm elections, in the run-up to which, they feared, the President and his Republican allies might gain advantage by accusing them of "coddling terrorists." One senator summarized the politics of the Military Commissions Act with admirable forthrightness:
Soon, we will adjourn for the fall, and the campaigning will begin in earnest. And there will be 30-second attack ads and negative mail pieces, and we will be criticized as caring more about the rights of terrorists than the protection of Americans. And I know that the vote before us was specifically designed and timed to add more fuel to that fire.[16]
Senator Barack Obama was only saying aloud what every other legislator knew: that for all the horrified and gruesome exposés, for all the leaked photographs and documents and horrific testimony, when it came to torture in the September 11 era, the raw politics cut in the other direction. Most politicians remain convinced that still fearful Americans—given the choice between the image of 24 's Jack Bauer, a latter-day Dirty Harry, fantasy symbol of untrammeled power doing "everything it takes" to protect them from that ticking bomb, and the image of weak liberals "reading Miranda rights to terrorists"—will choose Bauer every time. As Senator Obama said, after the bill he voted against had passed, "politics won today."
Five. The political damage to the United States' reputation, and to the "soft power" of its constitutional and democratic ideals, has been, though difficult to quantify, vast and enduring. In a war that is essentially an insurgency fought on a worldwide scale—which is to say, a political war, in which the attitudes and allegiances of young Muslims are the critical target of opportunity—the United States' decision to use torture has resulted in an enormous self-administered defeat, undermining liberal sympathizers of the United States and convincing others that the country is exactly as its enemies paint it: a ruthless imperial power determined to suppress and abuse Muslims. By choosing to torture, we freely chose to become the caricature they made of us. [emphasis mine]
While it's not in vogue these days to recognize, much less follow, international law, the U.S. has binding treaty obligations--binding treaty obligations to pursue prosecutions. Glenn:
When there are credible allegations that government officials have participated or been complicit in torture, that Convention really does compel all signatories -- in language as clear as can be devised -- to "submit the case to its competent authorities for the purpose of prosecution" (Art. 7(1)). And the treaty explicitly bars the standard excuses that America's political class is currently offering for refusing to investigate and prosecute: "No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture" and "an order from a superior officer or a public authority may not be invoked as a justification of torture" (Art. 2 (2-3)).
There can be no more credible allegations than those laid out by the ICRC. There will be arguments from Bush administration officials that they were acting under legal cover provided by those perverted OLC memos. That's not enough legal cover to satisfy the Geneva Conventions, but it could provide cover for our current political leaders who would prefer to sweep this under our a big rug. There's a problem there, too, though pointed out by emptywheel. The ICRC report makes clear that the CIA made Abu Zubaydah a guinea pig for torture techniques--with the full knowledge of the White House--"before John Yoo wrote up an OLC memo authorizing torture."
The legal obligation of the United States to pursue prosecutions could not be clearer. It comes down, just as it did in the debate over the MCA, to whether politics trumps rule of law. Senator Obama spoke out against the crass politics winning the day in the Military Commissions debate. He was absolutely right to call that bill what it was and to vote against it. The question now is will President Obama have the same courage of his convictions now that he's got ultimate responsibility for our nation's reputation.
loblolly informs us of major electoral change in the formerly war-torn country of El Salvador and shares his own Peace Corps experience there in Right Wing Rule Ended in El Salvador After 20 Years. (Louisiana 1976)
