No Comment — July 26, 2007, 4:12 pm

The President’s Torture Order

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.”

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

Get access to 167 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

February 2018

The Bodies in The Forest

= Subscribers only.
Sign in here.
Subscribe here.

The Minds of Others

= Subscribers only.
Sign in here.
Subscribe here.

Modern Despots

= Subscribers only.
Sign in here.
Subscribe here.

Before the Deluge

= Subscribers only.
Sign in here.
Subscribe here.

Notes to Self

= Subscribers only.
Sign in here.
Subscribe here.

Within Reach

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
The Minds of Others·

= Subscribers only.
Sign in here.
Subscribe here.

Progress is impossible without change,” George Bernard Shaw wrote in 1944, “and those who cannot change their minds cannot change anything.” But progress through persuasion has never seemed harder to achieve. Political segregation has made many Americans inaccessible, even unimaginable, to those on the other side of the partisan divide. On the rare occasions when we do come face-to-face, it is not clear what we could say to change each other’s minds or reach a worthwhile compromise. Psychological research has shown that humans often fail to process facts that conflict with our preexisting worldviews. The stakes are simply too high: our self-worth and identity are entangled with our beliefs — and with those who share them. The weakness of logic as a tool of persuasion, combined with the urgency of the political moment, can be paralyzing.

Yet we know that people do change their minds. We are constantly molded by our environment and our culture, by the events of the world, by the gossip we hear and the books we read. In the essays that follow, seven writers explore the ways that persuasion operates in our lives, from the intimate to the far-reaching. Some consider the ethics and mechanics of persuasion itself — in religion, politics, and foreign policy — and others turn their attention to the channels through which it acts, such as music, protest, and technology. How, they ask, can we persuade others to join our cause or see things the way we do? And when it comes to our own openness to change, how do we decide when to compromise and when to resist?

Illustration (detail) by Lincoln Agnew
Article
Within Reach·

= Subscribers only.
Sign in here.
Subscribe here.

On a balmy day last spring, Connor Chase sat on a red couch in the waiting room of a medical clinic in Columbus, Ohio, and watched the traffic on the street. His bleached-blond hair fell into his eyes as he scrolled through his phone to distract himself. Waiting to see Mimi Rivard, a nurse practitioner, was making Chase nervous: it would be the first time he would tell a medical professional that he was transgender.

By the time he arrived at the Equitas Health clinic, Chase was eighteen, and had long since come to dread doctors and hospitals. As a child, he’d had asthma, migraines, two surgeries for a tumor that had caused deafness in one ear, and gangrene from an infected bug bite. Doctors had always assumed he was a girl. After puberty, Chase said, he avoided looking in the mirror because his chest and hips “didn’t feel like my body.” He liked it when strangers saw him as male, but his voice was high-pitched, so he rarely spoke in public. Then, when Chase was fourteen, he watched a video on YouTube in which a twentysomething trans man described taking testosterone to lower his voice and appear more masculine. Suddenly, Chase had an explanation for how he felt — and what he wanted.

Illustration by Taylor Callery
Article
Before the Deluge·

= Subscribers only.
Sign in here.
Subscribe here.

In the summer of 2016, when Congress installed a financial control board to address Puerto Rico’s crippling debt, I traveled to San Juan, the capital. The island owed some $120 billion, and Wall Street was demanding action. On the news, President Obama announced his appointments to the Junta de Supervisión y Administración Financiera. “The task ahead for Puerto Rico is not an easy one,” he said. “But I am confident Puerto Rico is up to the challenge of stabilizing the fiscal situation, restoring growth, and building a better future for all Puerto Ricans.” Among locals, however, the control board was widely viewed as a transparent effort to satisfy mainland creditors — just the latest tool of colonialist plundering that went back generations.

Photograph from Puerto Rico by Christopher Gregory
Article
Monumental Error·

= Subscribers only.
Sign in here.
Subscribe here.

In 1899, the art critic Layton Crippen complained in the New York Times that private donors and committees had been permitted to run amok, erecting all across the city a large number of “painfully ugly monuments.” The very worst statues had been dumped in Central Park. “The sculptures go as far toward spoiling the Park as it is possible to spoil it,” he wrote. Even worse, he lamented, no organization had “power of removal” to correct the damage that was being done.

Illustration by Steve Brodner
Post
CamperForce·

= Subscribers only.
Sign in here.
Subscribe here.

After losing their savings in the stock market crash of 2008, seniors Barb and Chuck find seasonal employment at Amazon fulfillment centers.

Cost of a baby-stroller cleaning, with wheel detailing, at Tot Squad in New York City:

$119.99

Australian biologists trained monitor lizards not to eat cane toads.

Trump tweeted that he had created “jobs, jobs, jobs” since becoming president, and it was reported that Trump plans to bolster job creation by loosening regulations on the global sale of US-made artillery, warships, fighter jets, and drones.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Report — From the June 2013 issue

How to Make Your Own AR-15

= Subscribers only.
Sign in here.
Subscribe here.

By

"Gun owners have long been the hypochondriacs of American politics. Over the past twenty years, the gun-rights movement has won just about every battle it has fought; states have passed at least a hundred laws loosening gun restrictions since President Obama took office. Yet the National Rifle Association has continued to insist that government confiscation of privately owned firearms is nigh. The NRA’s alarmism helped maintain an active membership, but the strategy was risky: sooner or later, gun guys might have realized that they’d been had. Then came the shootings at a movie theater in Aurora, Colorado, and at Sandy Hook Elementary School in Newtown, Connecticut, followed swiftly by the nightmare the NRA had been promising for decades: a dedicated push at every level of government for new gun laws. The gun-rights movement was now that most insufferable of species: a hypochondriac taken suddenly, seriously ill."

Subscribe Today