April 24, 2009

U.N. Orders Obama to Prosecute Bush Officials for "Torture"

All right, not quite exactly the United Nations itself; but the U.N. special rapporteur on torture issues, Manfred Nowak, announced that the United Nations Convention against Torture obliges us to prosecute those attorneys who opined that the harsh interrogation techniques used against terrorist detainees at the Guanatanamo Bay Detention Facility -- making them stand up for a long time, shouting at them, occasionally slapping them, and in the case of three specific terrorists, waterboarding -- were legal under U.S. law, including all international law that we specifically incorporated by treaty or international agreement:

Manfred Nowak, who serves as a U.N. special rapporteur in Geneva, said Washington is obligated under the U.N. Convention against Torture to prosecute U.S. Justice Department officials who wrote memos that defined torture in the narrowest way in order to justify and legitimize it, and who assured CIA officials that their use of questionable tactics was legal.

"That's exactly what I call complicity or participation" to torture as defined by the convention, Nowak said at a news conference. "At that time, every reasonable person would know that waterboarding, for instance, is torture."

(Of course! Because anybody who didn't believe that pouring water in the face of a terrorist constituted "torture" was, by definition, unreasonable. No circular logic here...)

I expecially love the unbiased and non-argumentative adjectival phrase, "U.S. Justice Department officials who wrote memos that defined torture in the narrowest way in order to justify and legitimize it." Another way to put that is: U.S. Justice Department officials who wrote memos analyzing the specific interrogation techniques vis-a-vis the United States criminal code on torture -- 18 U.S.C. § § 2340-2340A -- and all common-law precedents came to the conclusion that the techniques did not meet the legal definition of "torture" -- which is now and has been for decades illegal in the United States, even for the CIA. (But of course, that phrase isn't quite as useful in damning George W. Bush as torturer in chief, is it?)

Even though this decision is not a legally binding U.N. resolution, the opinion by the relevant U.N. authority may well supply President Barack H. Obama -- who I believe is actively looking for an excuse to prosecute those Bush administration officials the Democrats hate most -- with the fig leaf he needs to cover his animus with a facade of international law. In fact, I'm not even sure he would veto such a resolution were the UN Security Council to enact it.

Besides waterboarding, what techniques is Nowak talking about? What "gruesome" tortures do we stand accused of perpetrating on innocent beheaders? Read the following, and see if a shiver of guilt-driven terror runs up and down your spine:

The memos authorized keeping detainees naked, in painful standing positions and in cold cells for long periods of time. Other techniques included depriving them of solid food and slapping them. Sleep deprivation, prolonged shackling and threats to a detainee's family also were used.

I wonder a bit about that last one; threats of what sort? Where does this charge come from? I don't recall any memo specifically authorizing, for example, the threat to kill a detainee's wife, mother, or children, or any such a thing. The closest I can find is a memo sent February 12th, 2002, by the General Counsel of the Department of Defense, responding to "a request by the Commander of Joint Task Force 170 (now JTF GTMO) for approval of counter-resistance techniques to aid in the interrogatin of detainees at Guantanamo Bay."

In the original request, JTF Guantanamo Bay requested permission to use various harsh interrogation techniques (none of which amount to being "gruesome," in my understanding of that word) divided into three categories of increasing severity. Category three included the following request:

(1) The use of scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family.

This would certainly qualify as the "threats to a detainee's family" mentioned above except that -- in response, the General Counsel approved everything in categories I and II but withheld blanket approval of techniques in category III:

While all Category III techniques may be legally available, we believe that, as a matter of policy, a blanket approval of Category III techniques is not warranted at this time. Our Armed Forces are trained to a standard of interrogation that reflects a tradition of restraint.

In other words, the Office of the General Counsel of the Department of Defense denied permission to Gitmo interrogators to threaten either the detainee or his family with "[imminent] death or severely painful consequences."

This conclusion was agreed to after consultation with General Counsel William J. Haynes II, Deputy Secretary of Defense Douglas Feith, and Chairman of the Joint Chiefs of Staff Gen. Richard Myers... the first two of whom would top the list of lawyers that Obama's friends want to see prosecuted (along with Assistant Attorney General for the Office of Legal Counsel Jay Bybee and Deputy Assistant Attorney General in the OLC John Yoo).

It's passing odd that these attorneys (and Gen. Myers) are now routinely accused of having authorized such threats to (presumably innocent) family members of detainees when in fact they denied the request; but of course, accusers needed some crime that sounds more "gruesome" than chest-poking, yelling, making detainees stand at attention, and pouring water in their faces. Or putting a detainee (Abu Zubaydah), believed to have entomophobia (fear of insects), into a box with a caterpillar. Accusing the U.S. of approving threats to kill, rape, or torture detainees wives, children, and mothers is conveniently horrific... even if it suffers from the minor drawback of being provably false.

I think I see where Nowak's problem emanates: In the United States, we have rule of law; that means that people can only be convicted of, hence prosecuted for, specific crimes; those crimes must meet the specific definitions enacted by legislation and fall under the interpretation of that legislation by courts in previous cases (case law or common law).

Unlike most countries in Europe and elsewhere, we do not allow defendants to be prosecuted under the catchall crime of "every reasonable person knows" that he's guilty... which appears to be the standard modus operandi of putative "international courts," such as the International Court of Justice at the Hague, the International Criminal Court (also at the Hague), and any of the various European countries that claim "universal jurisdiction" over any crime they decide has been committed anywhere, regardless of the alleged perpetrator, the alleged victim, and the alleged country in which the alleged crime allegedly occurred.

I believe that Special Rapporteur Nowak has simply confused the normal activity of lawyers in the United States -- parsing the actual meaning of the actual words of a criminal statute and the actual decisions handed down by courts -- with "defin[ing] torture in the narrowest way in order to justify and legitimize it;" or as the New York Times puts it, "devising arguments to avoid constraints against mistreatment and torture of detainees."

I imagine this private conversation Nowak is probably having with his little buddies:

(At least until the next time we're hit, if we have the audacity to hit back again.)

I suspect that this attitude -- deriding the absurdity of actually analyzing the law before offering an opinion, rather than operating from pure politics -- is far more widespread than just a few officials at the U.N. and the elite media pundits here and abroad; sadly, I suspect that more than half of all Democrats would agree with Manny Nowak.

When exactly did "rule of law" become a suspect philosophy? It must have been sometime before George W. Bush came along -- but when?

Hatched by Dafydd on this day, April 24, 2009, at the time of 3:50 PM

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The above hissed in response by: GW at April 24, 2009 11:42 PM

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