Monday, July 23, 2007

Allowing The Abuse of Prisoners Must Make Him Feel Like A Tough Guy

From Bush's Torture Ban is full of Loopholes by David Cole.

Once upon a time, a U.S. official's condemnation of torture was a statement of moral principle. Today, it is an opportunity for obfuscation. We have learned that when President Bush says, "We don't torture," it's important to read the fine print. So it was once again on July 20, when Bush issued a long-awaited executive order purporting to regulate interrogation tactics used by the CIA in the "war on terror." According to a White House press release, the order provides "clear rules" to implement the Geneva Conventions governing treatment of detainees in wartime -- rules the administration insisted did not even apply to the "war on terror" until the Supreme Court ruled otherwise last summer. But while the new rules reflect a significant retreat by the administration from its initial torture policies, they are anything but "clear," come far too late in the day, and in any event are unenforceable.

The executive order prohibits the CIA from using torture and cruel, inhuman and degrading treatment, sexual abuse, denigration of religion and serious "acts of violence" in its interrogations. While one might have thought that the impermissibility of such tactics in official U.S. interrogations would go without saying, it has not been so since 9/11. This is an administration that narrowly defined "torture" to permit the use of sexual abuse, stress positions, injecting suspects with intravenous fluids until they urinate on themselves, prolonged sleep deprivation, exposure to extreme heat and cold and "waterboarding," i.e., simulated drowning. This is an administration that adopted as official legal policy the counterintuitive and deeply immoral position that international law's ban on "cruel, inhuman and degrading treatment" did not apply to foreigners held by the U.S. outside U.S. borders. And this is an administration that opined that the president could order torture itself if he so chose as a way of "engaging the enemy," notwithstanding a federal criminal statute and ratified treaty banning torture under all circumstances, including war.

In light of that history, an executive order that categorically bans torture and cruel, inhuman and degrading treatment is a significant step in the right direction. And make no mistake -- the administration would never have taken this step of its own accord. President Bush was forced to act by a combination of the Abu Ghraib photographs, international and domestic condemnation of the administration's torture tactics, Congress' overwhelming and veto-proof repudiation of the administration's interpretation of "cruel, inhuman and degrading treatment," and the Supreme Court's rejection of the contention that the Geneva Conventions do not apply to the conflict with al-Qaida.

But how much of a step the administration has really taken remains a serious question. The actual tactics the CIA is authorized to use remain classified, based on the bogus claim that agency interrogators need to keep detainees guessing about how far they can go in order to interrogate effectively. The Army, by contrast, has set forth for the world to see the specific tactics its interrogators can employ -- in the Army Field Manual. And of course, it is black-letter law that no use or threat of physical force is permissible for state and federal police interrogations. Yet both the Army and domestic police obtain useful information from interrogations every day. The limits do not need to be secret for interrogation to be effective.

While the executive order flatly forbids torture and cruel, inhuman and degrading treatment, its failure to specify permissible and impermissible techniques seems designed to leave the CIA wiggle room. A prohibition on "acts of violence," for example, applies only to those violent acts "serious enough to be considered comparable to murder, torture, mutilation, and cruel or inhuman treatment," as defined by the Military Commissions Act. The MCA, in turn, limits "cruel and inhuman treatment" to the infliction of bodily injury that entails: "(i) a substantial risk of death; (ii) extreme physical pain; (iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or (iv) significant loss or impairment of the function of a bodily member, organ, or mental faculty." In other words, the president's order appears to permit cutting or bruising a suspect so long as the injury does not risk death, significant functional impairment or "extreme physical pain," an entirely subjective term.

Article continues at Salon.

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