December 03, 2005
Torture, U.S. Foreign Policy, and International Law: The Truth Can Sting
I had the opportunity this week to hear John Yoo, the author of the infamous U.S. Justice Department torture memo speak in justification of physical mistreatment of alleged Al-Qaeda operatives because they are ostensibly not protected by the Geneva Conventions, debate a prominent human rights law expert on the legality of this practice under U.S. and international law. (Disclosure: I’ve known Doug Cassel professionally for years, and in a prior life was privileged to provide interpretation services for his expert testimony in political asylum cases.) This memo has been used by the Bush administration to justify interrogation methods which any normal person with morals would agree constitute mistreatment of alleged Al-Qaeda detainees in Afghanistan and Guantánamo.
Yoo (whose primary authorship of the memo had been disputed, but essentially admitted authorship during the post-debate Q&A session) argues that because Al-Qaeda operatives (even if they have not been formally accused of such, let alone been conclusively proven to be such, and even if the evidence against them is kept classified) are not subject to the protections of the Geneva Convention on the treatment of prisoners of war, which prohibits torture of POWs, and that the President, in his role as Commander in Chief, has the authority to override Congress in deciding whether to violate international treaties in the name of national security.
However, what is even more mind-boggling is that Yoo argues that only treatment which intentionally causes pain equivalent to the loss of an organ, or the permanent impairment of a major bodily function, constitutes torture; any treatment not rising to this level is merely “prolonged interrogation techniques” or “oral questioning.” Apparently if you, for example, break a non-POW detainee’s arm, but it’s an accident, and it heals within a few weeks – or if you threaten chained detainees with growling guard dogs – or if you, say, pile a bunch of naked detainees up and take pictures of them being humiliated by a guard – this does not constitute torture, and is therefore A-OK, on the same level with “prolonged interrogation techniques” like questioning someone for 16 hours, maybe even yelling at him a little, and then only allowing him to sleep 6 hours. As Doug Cassel pointed out, by the latter criteria, many people in the lecture audience are probably subjected to torture on a fairly routine basis in the course of their employment.
What Yoo admitted he did not know would make a long list: a) whether torture even accomplishes its stated military goals, as research in the intelligence and military communities suggests information obtained under torture is inherently unreliable, because people will tell their interrogators anything to make the pain stop; b) whether torture, or even “prolonged interrogation techniques,” have aided U.S. forces in saving even a single life; and c) whether torture, if it saves any lives at all by obtaining information that aids in stopping terrorist acts, causes the loss of more lives than it saves by creating an atmosphere of sheer hatred of Americans, leading in turn to additional lethal attacks.
The whole experience basically left me wanting to vomit. However, I was at least a bit heartened by the obvious disgust of the entire audience for Yoo’s opinions (the booing can’t all have been due to Doug Cassel’s home-court advantage), and the presence of some very well-behaved protestors wearing orange jumpsuits and black hoods, who managed to seat themselves at the front table, at the foot of Yoo’s podium, and who stood in a row behind him as he signed copies of his latest book.
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For whom was he signing his book if everyone disapproved of his position? That's just a bit confusing.
Posted by: pantom at December 3, 2005 11:55 PM
Dunno - there were a couple hundred people there, and maybe half a dozen waited in line to talk to him. He was pretty outnumbered.
Posted by: Eva Luna at December 3, 2005 11:57 PM
I very much dislike those involved with the Bush admin and I agree with the vast majority of your post. However, after having looked at the Geneve convention on the treatment of prisoners of war, I don't see how that convention applies to them. Since you have more experience with the law than I, perhaps you can show me where I go wrong on the law.
Is there any need to show that they are part of Al-Qaeda? Isn't showing that they are irregular hostiles part of an organisation that does not enter under any section of Article 4 of the convention enough?
"A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces. "
Does "Party" mean a State? This section seems to be about regular forces.
"2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) That of being commanded by a person responsible for his subordinates; "
That's not known at this point.
"(b) That of having a fixed distinctive sign recognizable at a distance; "
Do they use such signs? Let me know if this practice is the rule rather than the exception.
"(c) That of carrying arms openly; "
They don't do that either.
"(d) That of conducting their operations in accordance with the laws and customs of war. "
Section 2 is the one that had a fair chance of applying to irregular infantry, such as the people captured in battles. As for people arrested outside battles, I'm not sure what the law is. Seems it would be similar to arresting a guerilla leader (when the guerilla force itself does not enter under Article 4). What's the law on that?
"3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. "
Doesn't apply to irregular infantry.
"4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model. "
Doesn't apply to irregular infantry.
"5. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law."
Doesn't apply to irregular infantry.
"6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war."
After two years, it's not spontaneous anymore. In any case, they don't carry arms openly and they don't respect the laws and customs of war.
Note [my note, not the convention's] that when it comes to respecting the laws and customs of war, it's the preponderance of the practice that counts. If a Party has a habit of respecting it but fails a few times, its members are still protected.
Posted by: Baal Shem Ra at December 4, 2005 02:58 AM
I'm not arguing that the Geneva Conventions apply to AQ operatives. I'm arguing that
a) the vast majority of those held by US forces are not AQ operatives at all; most have not been charged with anything, and we have no idea what, if any, evidence there is that they have commited any wrongdoing at all, let alone their level of involvement in terrorist acts;
b) even if every person held were an AQ operative, as Doug Cassel put it during the Q&A session, even convicted mass murderers are entitled under international law not to be tortured; and
C) torture consists of a far wider scope of activities than what Mr. Yoo argues in his memo - can any reasonable person really argue that breaking someone's lim, or sticking pins under his fingernails, or threatening him with being ripped apart by dogs, doesn't fall under the plain-language definition of torture?
Posted by: Eva Luna at December 4, 2005 10:33 AM
I was also covering the debate for Revolution Newspaper and I agree with you comments. However you left out the most glaring and outrageous exchanges of night:
Cassel: If the president deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?
Yoo: No treaty
Cassel: Also no law by Congress -- that is what you wrote in the August 2002 memo...
Yoo: I think it depends on why the President thinks he needs to do that.
check out the audio here:http://rwor.org/a/026/torture-victims-confront-advocate.htm
Posted by: philip watts at December 8, 2005 11:24 PM
Hey, it was a long day, and I can't remember everything verbatim...but believe me, the gist will not be forgotten. There were so many questions I wanted to ask, like Mr. Yoo, have you ever read Article 6 of the U.S. Constitution? The one that reads, in part, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." So, for instance, the Convention Against Torture is on an equal footing (or should be) with U.S. law, and teir definition of torture is considerably wider than Yoo's.
Posted by: Eva Luna at December 9, 2005 01:34 AM
I am working on a speech in my college,"what constitutes torture under international law"? Please help me with some information leading to this subject.
Posted by: David M. Woodtor at March 4, 2006 07:27 AM