It's Official: The United States Sanctions Torture

The Republican so-called "rebels" and the White House have agreed on legislation governing the interrogation and prosecution of detainees the government decides are terrorists. It's not good:

Senators Snatch Defeat From Jaws of Victory: U.S. to be First Nation to Authorize Violations of Geneva

Marty Lederman

I hope that that headline is a gross exaggeration, but based on a few quick seconds purusing the "compromise," I'm afraid it's not. [The Administration appears to agree. Stephen Hadley was crowing to reporters within minutes that the bill would authorize the CIA "program" to "go forward."] [NOTE: I will be updating this post as we learn more, and if I have any time to parse the language more closely. I would dearly love if my initial impression -- and Hadley's -- is proven to be dead wrong. So I sincerely invite folks from the Senate staffs and elsewhere to write in with comments and corrections.]

Here's the language. It's not subtle at all, and it only takes 30 seconds or so to see that the Senators have capitualted entirely, that the U.S. will hereafter violate the Geneva Conventions by engaging in Cold Cell, Long Time Standing, etc., and that there will be very little pretense about it. In addition to the elimination of habeas rights in section 6, the bill would delegate to the President the authority to interpret "the meaning and application of the Geneva Conventions" "for the United States," except that the bill itself would define certain "grave breaches" of Common Article 3 to be war crimes. [UPDATE: I hear word that Senator McCain thinks the definition of "grave breaches" covers the "alternative" CIA techniques. I hope he can make that interpretation stick somehow, but on quickly reading the language, it still seems to me as if it's carefully crafted to exclude the CIA techniques. See, most importantly, the limiting language defining "serious physical pain or suffering," which is carefully drafted to exclude the CIA techniques such as Cold Cell and Long Time Standing. Also, some Senators apparently are taking comfort in the fact that the Administration's interpretation would have to be made, and defended, publicly. That's a small consolation, I suppose; but I'm confident the creative folks in my former shop at OLC -- you know, those who concluded that waterboarding is not torture -- will come up with something. After all, the Administration is already on record as saying that the CIA "program" can continue under this bill, so the die apparently is cast. And the courts would be precluded from reviewing it.]

And then, for good measure -- and this is perhaps the worst part of the bill, for purposes going far beyond the questions of torture and interrogation -- section 7 would preclude courts altogether from ever interpreting the Geneva Conventions -- any part of them -- by providing that "no person may invoke the Geneva Conventions or any protocols thereto in any habeas or civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States, is a party as a source of rights, in any court of the United States or its States or territories." [UPDATE: I've heard some people argue that this language would retain the power of courts to construe Geneva in a criminal proceeding. That remains to be seen (the language is not clear). But even if that's so, it's not at all obvious how or why the question of the meaning and application of Common Article 3 would ever be one that a court would have occasion to resolve in a criminal proceeding.]

If I'm right, and if this is enacted, the only hope would be the prospect of the Supreme Court holding that both the habeas cut-off, and the "no person may invoke Geneva" provision, are unconstitutional.

Minstrel Boy, writing at Big Brass Blog, says he's disgusted that we're even debating the use of torture in the first place:

That, in a nutshell, is my position on the whole torture, extraordinary rendition, secret prisons, wiretapping, and every other liberty and right a bunch of frightened cowards have chosen to trample in their endless War on Terror.

I have tried being pragmatic, talking about how torture simply does not work. If your goal is to produce valid, actionable intelligence, you will not be torturing people. If you're a sick, twisted piece of shit who enjoys inflicting pain to make yourself feel omnipotent and stuff put on some leather chaps and chains, go to a bar where people think that kind of thing is sexy, hire a pro, and have at it. If you want to save the lives of our men and women out there on the fields of battle, you need to get the truth. Truth does not spring from torture. Even in the cases where almost by accident some bits and snips of truth fall to the floor of the torture dungeon they are surrounded by fantasy and lies which are produced by somebody in unimaginable torment in the vague hope that this will somehow fucking stop.

I have seen torture. I have seen it on the battlefield where the "ticking time bomb" was no mere philosophical conceit. I have seen wounded, frightened prisoners, bound and helpless in a group as an interrogator with a pistol in his hand shot the first one without so much as an acknowledgement that this was ever a human being. The next one was shot because the interrogator (an ARVN "officer") didn't like the look on his face. The third victim was crying when the torturer stood in front of him. He was the first one to be asked a question. It was a simple "How many of you are there?" He was too frightened to respond, he was choking on the snot and blood from his cut lip. He was pistol whipped and the question was asked again. Again, there was not an acceptable or understandable response. This might have be a result of his jaw now being broken too, but he might have been a hardened communist, that implacable foe we were all supposed to fear. The fourth prisoner didn't wait to be asked any questions, he told the man with the pistol that he was a member of the 4th NVA division, the name of the commander, the name of his lieutenant and where he had last seen all his comrades two days ago when they had been dropped off and told to hold their position in the city of Hue. I thought that this was going to be the end of the session. I was wrong. The man that just gave that information was shot in the kneecap. It kept going on. I couldn't watch anymore. When I was finished throwing up I returned to my unit and told them that there was nothing to do here.

Thank you to Chief for the BBB link.