Senate Torture Report Revisited

The earlier post on this subject ended up more rambling than I had hoped.  The salient points were there but may have been lost to the reader because I was not sufficiently concise.  Let me try again.

a)  The Senate Select Committee's report was a terribly one-sided, partisan attack on the Bush      administration.

b)  The news media is incorrectly reporting that the CIA under Bush engaged in torture.  This is not a fact but strictly the opinion of a few lawmakers and biased reporters.

c)  There is certainly room for concluding that torture resulted during the first few years after 9/11 for the non-sanctioned activities of a few CIA operatives but even those conclusions are opinions.

d)  Careful reading of the applicable statutes reveals that the so-called "enhanced interrogation techniques" we're not necessarily torture.  That interpretation remains in the eye of the beholder until the criminal courts interpret the law.

e)  in spite of its inadequacies, release of the Senate report is good for the country as long as everyone understands that it is biased.

Point a) is clearly fact.  For whatever reasons, the Republicans on the Senate Select Committee decided not to participate in the "investigation".  My calling the report an attack on the Bush administration is opinion but any reading of the report should lead to the same conclusion based on the biased language used in the "findings."

Point b) is also fact.  There have been no court interpretations of the CIA actions with respect to the relevant law.  There have been ample opinions expressed by lawmakers and innumerable opinion pieces masquerading as news articles claiming the same thing.  We are all free to draw our own conclusions but for those of us outside the judiciary, those conclusions remain opinion.  

As to point c), in my own mind, I believe that some of the detainee treatment by US personnel amounted to torture.  Treatment under the auspices of the enhanced techniques is less clear in my minds and would have to be evaluated on a case-by-case basis.

Looking at point d), let's examine the applicable laws.  First, we look at the Geneva convention and the associated UN adoption and treaty.  With respect to the Geneva convention, our Department of Justice (DOJ) concluded that both Al Queda and the Taliban were non-signers of the convention, did not afford US personnel the same accords, and hence were not required to be treated the same as conventional soldiers upon captivity.  This decision was ultimately overturned by executive order but, lacking court action, was the law at the beginning of the conflict.

Looking at the UN accords on torture, which we signed, the Senate, in approving the accord, restricted US compliance to the limits of our constitution as defined in the 5th, 8th, and 14th amendments.  Further, the US Torture Statue, (18 US Code Part I Chapter 11) was enacted in response to the limited acceptance of the UN accords and was explicitly stated to be the only requirement required to implement the US obligation under the accords.  In conclusion, the UN accords requiring that a signing country actively prosecute torture is limited to enforcement of the US statute.

Below, then, is the full text of the statute's definition of torture:

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and

(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United stages.

Here we clearly see the potential dichotomy of opinion.  What, for example, constitutes the "infliction of severe physical pain"?  Interpreting slapping or stress positions alone as severe pain certainly is problematic.  Evidence not in the statute contends that maintaining a single position for a long extended time (greater than 12-24 hours) can lead to excruciating pain.  So, application of stress positions and maintaining fixed standing positions might legitimately be construed as torture depending upon the duration of the treatment.  Slapping might be a shock but certainly does not constitute severe pain.  Prolonged sleeplessness in absence of the stress positions does not fit the statute definition of torture.  Waterboarding likewise does not constitute severe pain.

Waterboarding, on the other hand, might be construed as threatening imminent death even though there was no such intent on the part of the practitioners.  Again, the torture conclusion is rooted in opinion and for criminal acts or torts, only the opinions of the judiciary matters  and that is absent.

So, did torture happen to detainees under direct US control.  Use your own judgement but lacking any direct criminal prosecution, we would have to say strictly no.  Does this mean that we should approve these actions in the future?  I think the general consensus on the left and right is a resounding no.  Further there is the contention that torture is ineffective compared to other means of interrogation although no one is giving specific studies that prove this contention.

In conclusion, the decision by the DOJ to not prosecute CIA personnel is a tacit acceptance of actions under the Bush administration as legal.  We have new executive orders in place to restrict interrogation methods in the future, and the general opinion of the citizenry is that  we should not engage in the practices of the past.

It is time to move past this debate.

References:

http://i2.cdn.turner.com/cnn/2014/images/12/09/sscistudy1.pdf Senate Select Intelligence Committee Study of the Central Intelligence Agency 's Detention and Interrogation Program 

http://detaineetaskforce.org/pdf/Full-Report.pdf  Constitution Project Report on Detainee Treatment

http://www.law.cornell.edu/uscode/text/18/part-I/chapter-113C  U.S. Torture Statute 

http://www.nytimes.com/ref/us/AP-Guantanamo-Geneva-Conventions.html  Article 3 of the Geneva Convention 

http://en.m.wikipedia.org/wiki/Enhanced_interrogation_techniques#Development_of_techniques_and_training  Wikipedia article on Enhanced Interrogation 

http://www.washingtonpost.com/wp-srv/nation/pdf/OLCmemo_May30_Part1.pdf  page 1 of CIA memo for John Rizzo

http://www.washingtonpost.com/wp-srv/nation/pdf/OLCmemo_May30_Part2.pdf page 2 of CIA memo for John Rizzo

Guy Dilno