The Torture Follies

Revelations concerning the use of torture against detainees held by the US in the so-called global war on terror (GWOT) have been slowly but steadily leaking out over the past few years. The pace seems to have quickened in the past few weeks, so much so that in recent days the Bush Administration has been rather shockingly upfront in confirming various allegations about the CIA's use of waterboarding (aka water-torture) as an interrogation technique, perhaps as a way of getting out in front of and controlling what appears to be an evolving scandal. On Tuesday CIA Director Michael Hayden confirmed during Congressional testimony that the CIA had indeed waterboarded three detainees, but he also insisted that since those earlier interrogations the "technique" had not been used again. However, given this Administration's record of veracity on the question of torture, it would only seem prudent to take Hayden's assertions with a grain (or several) of salt.

Today the plot thickened even further. Statements from the very top of the Administration, from Tony Fratto in the White House, and from newly minted Attorney General Michael Mukasey, asserted that not only was waterboarding not torture, but that it was actually legal! Moreover, Fratto asserted that the President retained the authority to order its use again should certain conditions be met. The irony here is thicker than mud, as recall that Mukasey faced rather severe specific questioning concerning the legality of waterboarding during his Senate confirmation hearings. One wonders what those Democrats on the Senate judiciary committee who in the end agreed to support Mukasey's confirmation, such as NY's Chuck Shumer, are thinking tonight after his statements today?

All this takes place at a time when the Congress was beginning to feel that it had managed to, if not stop altogether, then at least put the brakes on the Administration's love affair with keeping the torture option available. Passage of the Detainee Treatment Act in 2005 and the Military Commissions Act in 2006--which ban the use of harsh interrogation methods and require U.S. agencies to comply with the Constitution and the Geneva Conventions--would have appeared to have done just that. However, no one should underestimate the willingness of this Administration to ignore the law, simply look at the record of Bush's recent signing statements if you need convincing.

The most ironic and astonishing thing in all this, including the desire by some members of Congress to pass new legislation banning torture, is that torture is indeed illegal (and has been for decades) under US law! Congress did not, and does not need to pass ANY new laws to make torture a crime. Indeed, under existing US and International laws that have full jurisdiction in US courts, those implicated on suspicion of committing or abetting the commission of torture could be indicted and arrested tomorrow by agents of the Justice Department, assuming, that is, that those in the Justice Department with such authority had any intention of actually enforcing these existing laws and fulfilling the oaths they took to do so upon taking office. Clearly Mr. Mukasey had no such intent or he would have immediately opened a criminal investigation of the CIA after Hayden's public admission of the use of waterboarding by the agency, rather than squelching one.

While recent Congressional actions and legislation provide the impression that Congress is intent upon trying to hold the White House accountable on torture, the details are rather more murky. As noted above the prohibition on torture present in US law prior to the Detainee Treatment and Military Commission acts is unequivocal. Torture has been and is illegal, and the US is bound under that existing body of law to prosecute torturers. Now, the Detainee Treatment and Military Commissions acts contain language that either creates a defense for particular individuals implicated in torture, or forgives past violations of the Geneva Conventions, as Michael Ratner has pointed out. So, you be the judge, do these new acts strengthen or attempt to weaken the legal proscription of torture?

The actions of Congress in regard to the torture allegations (now admissions) have been frustratingly similar to its behavior in the face of other Administration wrongdoing, for example, the clear violations of FISA by the President's warrantless spy program. Rather than forcefully hold the administration accountable to existing law, the opposition party in Congress has repeatably sought to accomodate the law breaking so as not to appear "soft" on so-called Homeland Security issues (read terrorism). Thus, we are treated to statements from Congressional Democrats such as Senator Diane Feinstein (CA), "The national debate over torture will end if this amendment to place the CIA under the Army Field Manual becomes law. At that point, all U.S. government interrogations - military and civilian - would be conducted under the same rules and regulations, and eight specific techniques, including waterboarding, would be prohibited.” Feinstein still doesn't seem to understand that it is NOT a legislation problem. Here she falls for one of the Administration smoke-screens, that particular "techniques" need to be individually proscribed. No, the law bans ALL torture, or cruel and degrading treatment, a laundry list of prohibited conduct is not needed, just as murder is murder, regardless of the means used to carry it out. What is it about Feinstein's new legislation that she believes would "end the torture debate?" In deciding to torture detainees the Administration clearly thumbed its nose at the extensive, existing body of law against torture, what is it that makes Feinstein believe that this new bill will have any restraining effect? It won't, this is simply an "easy out" for the spineless Democrats, they can claim to have stood up to Bush on torture without really having done so. And so, undoubtedly, we have not seen the end of the torture debate, or for that matter, the torture.