On Friday afternoon, as I was on my way out to the airport for a flight overseas, the White House issued an order on interrogation techniques. This definitively puts an end to the torture question, White House spokesmen said—we don’t allow torture. I read through the text once quickly. It didn’t sit right with me. Indeed, if the White House wanted to do away with torture, that would be easy enough. But instead this order was filled, stem to stern, with slippery evasive words—I’ve spent enough time tracking this issue, listening to Alberto Gonzales, Dick Cheney, David Addington, Stephen Cambone, Donald Rumsfeld, Jim Haynes and others, to know that they have developed their own “wink, nod” vocabulary. They use words in a way that defies the usual understanding. And this order was sprinkled from start to end with weasel words.
The question at this point is pretty simple. It boils down to a list of roughly a dozen techniques developed by CIA contractors for use, originally by the Pentagon and CIA. In the meantime we know who the contractors are, who wrote the contracts, and what techniques they prescribed. And we know enough to label this entire enterprise as a criminal conspiracy which is likely at some point in the future to be the subject of a serious investigation and prosecutions. (That is, when the criminals and political sycophants are chased out of the Department of Justice and people sworn to uphold the law are reinstalled there).
Of the dozen techniques, four are, in my mind, particularly troubling: waterboarding, the cold cell or hypothermia, long-time standing, and sleep deprivation in excess of two days. Each of these techniques is well established under U.S. law as torture, and its use is a felony. However, the Bush administration’s weasel lawyers don’t see it that way. And for the record, their view is that they’re “confused.”
Alberto Gonzales is, of course, the Bush Administration’s star witness on this point. Back during his confirmation hearing, Senator John McCain asked him whether it was lawful in his mind to waterboard someone outside of the United States? And the nation’s chief law enforcement officer to be responded with 110 seconds of embarrassed silence, followed by a promise to look into that question and get back (which, characteristically, he never did).
And just two days ago, during an appearance before a Senate committee in which he racked up more perjuries than any witness since the organized crime bosses were called in, this is how Gonzales responded to Senator Durbin’s question. Durbin asked would it be legal, in Gonzales’s view, for foreign nations to apply the four techniques I just named to nonuniformed U.S. citizens?
“Senator, you’re asking me to answer a question which, I think, may provide insight into activities that the CIA may be involved with in the future. . . . [I]t would depend on circumstances, quite frankly.”
I heard this and imagined flag officers in the U.S. armed forces around the world expressing their collective revulsion at the gutter this Government has fallen into. In fact, the TJAGs, the most senior lawyers of each of the uniformed services, had absolutely no problem answering that question. Their answer, expressed in memos that Senator Lindsey Graham put in the Congressional Record, was that these practices are all criminal acts which should be severely punished.
We should be under no illusions. The president’s Executive Order, for all its slippery language, is intended to sanction torture and to give persons acting under color of authority of the United States the right to torture those held in their power. Like Abu Ghraib, Bagram and Guantánamo, it constitutes another enormous stain on the honor and reputation of the United States.
Today, two conservative Republicans stepped forward to call this just what it is: a war crime. They are General P.X. Kelley, who was Ronald Reagan’s Commandant of the Marine Corps, and Robert F. Turner, a lawyer who served in a senior position in the Reagan White House. Their op-ed is run in the Washington Post and it merits being read start to finish.
Last Friday, the White House issued an executive order attempting to “interpret” Common Article 3 with respect to a controversial CIA interrogation program. The order declares that the CIA program “fully complies with the obligations of the United States under Common Article 3,” provided that its interrogation techniques do not violate existing federal statutes (prohibiting such things as torture, mutilation or maiming) and do not constitute “willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency.” In other words, as long as the intent of the abuse is to gather intelligence or to prevent future attacks, and the abuse is not “done for the purpose of humiliating or degrading the individual” — even if that is an inevitable consequence — the president has given the CIA carte blanche to engage in “willful and outrageous acts of personal abuse.”
It is firmly established in international law that treaties are to be interpreted in “good faith” in accordance with the ordinary meaning of their words and in light of their purpose. It is clear to us that the language in the executive order cannot even arguably be reconciled with America’s clear duty under Common Article 3 to treat all detainees humanely and to avoid any acts of violence against their person. In April of 1793, Secretary of State Thomas Jefferson wrote to President George Washington that nations were to interpret treaty obligations for themselves but that “the tribunal of our consciences remains, and that also of the opinion of the world.” He added that “as we respect these, we must see that in judging ourselves we have honestly done the part of impartial and rigorous judges.”
To date in the war on terrorism, including the victims of the Sept. 11 attacks and all U.S. military personnel killed in action in Afghanistan and Iraq, America’s losses total about 2 percent of the forces we lost in World War II and less than 7 percent of those killed in Vietnam. Yet we did not find it necessary to compromise our honor or abandon our commitment to the rule of law to defeat Nazi Germany or imperial Japan, or to resist communist aggression in Indochina. On the contrary, in Vietnam — where we both proudly served twice — America voluntarily extended the protections of the full Geneva Convention on prisoners of war to Viet Cong guerrillas who, like al-Qaeda, did not even arguably qualify for such protections. The Geneva Conventions provide important protections to our own military forces when we send them into harm’s way. Our troops deserve those protections, and we betray their interests when we gratuitously “interpret” key provisions of the conventions in a manner likely to undermine their effectiveness. Policymakers should also keep in mind that violations of Common Article 3 are “war crimes” for which everyone involved — potentially up to and including the president of the United States — may be tried in any of the other 193 countries that are parties to the conventions.
In a letter to President James Madison in March 1809, Jefferson observed: “It has a great effect on the opinion of our people and the world to have the moral right on our side.” Our leaders must never lose sight of that wisdom.
To General Kelley and Mr. Turner, thanks for a message well delivered. Or as my nautical friends say, “bravo zulu.”