A New York Times article on the new study examining differences in the consequences of physical vs. psychological torture (which I posted about a couple of days ago ) contains an important statement:
“A spokesman for the Justice Department, Erik Amblin, declined to specify what treatments would be cruel and degrading but would not qualify as torture.
Mr. Amblin did say, however, that ‘acting with the specific intent of causing prolonged mental harm’ would be illegal under United States and international law.”
There are three critical points here.
- Years after Abu Ghraib, Guantanamo, Bagram, the CIA black sites, the US government is completely unwilling to specify what is and isn’t allowed. The only possible reason is that they want to avoid stating this in order to maintain “flexibility” in how they treat detainees. If you don’t call it “torture,” it isn’t. As was evident in the recent film, the Ghosts of Abu Ghraib, to leave these definitions vague is a recipe for abuse. As occurred at Abu Ghraib, it is also an extreme risk to US soldiers and others involved in detention and interrogations: If the boundaries of what is allowed and not allowed are not perfectly clear, those at the bottom can always be denounced as “a few bad apples” and scapegoated if and when abuses become public.
- Note the crucial words ” ‘acting with the specific intent of causing prolonged mental harm’ would be illegal.” This is one of those weasel techniques the [In]ustice Department, and other administration officials, have repeatedly used to claim legal permission to use torture. When the United States signed the UN Convention Against Torture, they inserted a number of reservations. Among these reservations is: “the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering.” They argued in memos — including, the infamous Bybee memo of August 2002 [Bybee was then Assistant Attorney General for the Office of Legal Counsel (OLC)], in the Defense Department Working Group Report on Detainee Interrogations in the Global War on Terrorism, and in the Department of Defense Joint Task Force 170 Memorandum on Counter-Resistance Strategies –that virtually any “interrogation” techniques were OK as long as they were not “intended” to cause “severe” harm.
- Note the term “prolonged mental harm.” In the US Reservations, the US specifically stated that “mental pain or suffering refers to prolonged mental harm.” Thus, the US explicitly tried to restrict the definition of torture based, not on the intensity of the mental suffering, but only on how long that suffering lasted. This clause has the perverse result that someone who is more resilient is able to be subjectedto harsher treatment before they suffer “prolonged harm.”
It is important to remember that the US Reservations were inserted under President Clinton. The US has long been a nation committed to retaining its right to abuse [aka "torture"] through redefining the term “torture” to be as restrictive as possible. The quote from the Justice Department shows that they are still up to their old tricks. The New York Times article includes quotes around the clever phrase, but does not tell the readers the import of its careful wording. The Justice Department is still protecting the torturers instead of prosecuting them.
UPDATE: Bioethicist Steven Miles, author of Oath Betrayed: Torture, Medical Complicity, and the War on Terror send this comment:
Amblin actually did even worse than you suggest.
“It would not be appropriate for the Department of Justice to speculate about whether a particular hypothetical act might constitute torture or cruel, inhuman and degrading treatment,” Erik Ablin, a spokesman there, said in a statement.
LA Times 3/6 and many other papers.
In fact, DoD and DoJ must not only speculate but define whether a particular act constitutes torture, cruel, inhuman, or degrading treatment as a part of its daily obligation to comply with the Detainee Treatment Act even with the President’s signing statement, ”The executive branch shall construe [the law] in a manner consistent with the constitutional authority of the President . . . as Commander in Chief,” Bush wrote, adding that this approach ”will assist in achieving the shared objective of the Congress and the President . . . of protecting the American people from further terrorist attacks.”
Thus, it is entirely appropriate, even necessary for DoD or Mr. Amblin to disclose the techniques and criteria for choosing them. The fact that he fails to do so (and the ongoing lack of transparency in the prisons and the exclusion for the CIA and the classified nature of the addendum to the new Army interrogation rules) strongly indicate that US policy is to continue highly coercive interrogations while striving to avoid Abu Ghraib type publicity.
Further, the degree of DOD responsibility is made clear in this November 3, 2005 DOD Directive: DoD Intelligence Interrogations, Detainee Debriefings, and Tactical Questioning setting forth official DOD policy:
4.5. The Chairman of the Joint Chiefs of Staff shall provide appropriate oversight to the Commanders of the Combatant Commands to ensure their intelligence interrogation operations, detainee debriefings, and tactical questioning policies and procedures are consistent with this Directive.
4.6. The Commanders of the Combatant Commands shall:
4.6.1. Develop and submit Combatant Command level guidance, orders, and policies (to include policies governing third-party interrogations) implementing this Directive through the Chairman of the Joint Chiefs of Staff to USD(I) for review in accordance with paragraph 4.1.4., and to the Director of DIA, as the Defense HUMINT Manager.
4.6.2. Plan, execute, and oversee Combatant Command intelligence interrogation operations, detainee debriefings, and tactical questioning in accordance with this Directive.
4.6.3. Ensure all intelligence interrogation and detainee debriefing plans, policies, orders, directives, training, doctrine, and tactics, techniques, and procedures issued by subordinate commands and components are consistent with this Directive and USD(I) approved policies, and that they and are subject to periodic review and evaluation.
4.6.4. Ensure personnel who may be involved in intelligence interrogations have been trained and certified consistent with the standards established according to this Directive.
4.6.5. Ensure personnel who may be involved in detainee debriefings and tactical questioning have been appropriately trained.
4.6.6. Ensure third-party interrogations are conducted in accordance with subparagraph 220.127.116.11.
So Mr. Amblin is clearly expressing a position in violation of DOD policy, in addition to one that is both ridiculous and horrendous.
March 7th, 2007