by Andrew Zajac
The furor in the Justice Department over -- take your pick -- the firings of U.S. attorneys, warrantless surveillance, the limits of executive power, the stewardship of Atty. Gen. Alberto Gonzales, has overshadowed the still-simmering debate over how the CIA treats captives in its custody.
That debate now explicitly encompasses how foreign governments treat American prisoners, and includes the possible willingness of the U.S. government to tolerate increased abuse of its citizens held captive abroad, according to the letter below from Illinois Democratic Sen. Dick Durbin to Gonzales.
August 2, 2007
The Honorable Alberto R. Gonzales
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
Dear Attorney General Gonzales:
I write in reference to your sworn testimony last week to the Senate Judiciary Committee regarding the President’s Executive Order interpreting Common Article 3 of the Geneva Conventions as applied to CIA detention and interrogation. Your testimony raises serious questions regarding whether that Executive Order complies with the law and would prohibit illegal and abusive interrogation techniques.
In particular, I want to give you an opportunity to clarify your troubling suggestion that it would be legal for enemy forces to subject American citizens to cruel and inhumane interrogation techniques, including waterboarding and mock execution.
During the July 24th hearing, I identified five interrogation techniques: 1) painful stress positions, 2) threatening detainees with dogs, 3) forced nudity, 4) waterboarding (i.e., simulated drowning) and 5) mock execution. I explained that the Judge Advocates General, the highest-ranking attorneys in each of the four military services, have stated that each of these techniques is illegal and violates Common Article 3 of the Geneva Conventions. I then asked you, “Would it be legal for a foreign government to subject a United States citizen to these so-called enhanced interrogation techniques which I just read?” You responded, “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” (emphasis added).
It is deeply troubling that you refuse to state unequivocally that it would be illegal for enemy forces to subject American citizens to these inhumane techniques. Your failure to make this clear may embolden our enemies to abuse American prisoners. I want to give you an opportunity to clarify your views on this vitally important question.
1. For each of the five techniques named above, please respond to the following questions:
a. Would it be legal for enemy forces to use this technique on an American detainee?
b. Would it violate Common Article 3 of the Geneva Conventions for enemy forces to use this technique on an American detainee?
2. Do you agree that all interrogation techniques used by the CIA must comply with Common Article 3?
3. If all CIA interrogation techniques must comply with Common Article 3, could enemy forces legally use all such techniques against American detainees?
4. If the United States does not explicitly and publicly prohibit the five techniques named above, how can we plausibly argue that it would be illegal for enemy forces to subject Americans to such treatment?
During the July 24th hearing, you also suggested that Common Article 3 would not apply to some detainees held by the United States, which ironically would entitle al Qaeda detainees to a higher standard of treatment than other detainees. This is the first time an Administration official has publicly claimed that such a legal loophole exists. I asked you, “Do you now agree that Common Article 3 applies to all detainees held by the United States?” You responded:
What I can say is that certainly Common Article 3 applies to all detainees held by the United States in our conflict with al Qaeda. … If there were a different kind of conflict that on its face isn’t covered by Common Article 3, then obviously we would not be legally bound by Common Article 3.
This is a misinterpretation of Common Article 3 and the Supreme Court’s Hamdan v. Rumsfeld decision. As you acknowledged in your testimony before the Senate Armed Services Committee on August 2, 2006, Common Article 3 is “the baseline standard that now applies to the conduct of U.S. personnel in the War on Terror.” The law is clear: Common Article 3 protects all detainees, regardless of their status. The Hamdan court cited the official commentary on the Geneva Conventions, which states simply, “nobody in enemy hands can be outside the law.”
5. What is the legal basis for your view that Common Article 3 does not apply to all detainees held by the United States?
6. What legal protections apply to detainees who are not covered by Common Article 3?
7. Does the Executive Order regarding Common Article 3 apply to all detainees in CIA custody?
8. Are any detainees currently in U.S. custody not protected by Common Article 3?
9. Does Common Article 3 apply to all detainees held in connection with the conflict in Afghanistan?
10. Does Common Article 3 apply to all detainees held in connection with the war in Iraq?
I am also concerned that the Executive Order might permit abusive treatment that violates Common Article 3, even for those detainees who are covered by its terms. The Military Commissions Act reaffirmed the President’s authority to interpret the meaning and application of the Geneva Conventions, just as he may interpret any treaty. The MCA did not grant the President the authority to redefine or narrow the Geneva Conventions. In fact, during consideration of the MCA, Congress specifically rejected the Administration’s request to redefine Common Article 3.
Nonetheless, the Executive Order redefines the meaning of Common Article 3 in a manner that would permit abusive interrogation techniques. As P.X. Kelley and Robert Turner wrote in a recent Washington Post column, “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.”
Common Article 3 states that “outrages upon personal dignity, in particular humiliating and degrading treatment” are absolutely prohibited (emphasis added). The Executive Order, on the other hand, prohibits “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” (emphasis added). In other words, humiliating and degrading treatment, which Common Article 3 absolutely prohibits, is permitted under the Executive Order as long as it is not “willful and outrageous” or a reasonable person would not consider it “beyond the bounds of human decency.” Moreover, the Executive Order permits the CIA to subject a detainee to willful and outrageous acts of personal abuse as long as they are done for some purpose other than humiliating or degrading the detainee, e.g., protecting national security.
11. What is the legal basis for the Executive Order’s narrowing definition of Common Article 3?
12. Please explain how the Executive Order complies with our nation’s legal obligations under Common Article 3?
13. The Justice Department reportedly issued an opinion approving the legality of interrogation techniques authorized pursuant to the Executive Order. Will you provide a copy of this opinion to the Senate Judiciary Committee and the Senate Select Committee on Intelligence? If not, please explain the specific legal basis for your refusal to provide the opinion.
Due to the gravity of this matter, I request that you respond to this letter as soon as possible, and in no case later than Thursday, August 9.
Sincerely,
____________________
Richard J. Durbin
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Comments
Item #4 is the one people who care about the welfare of our military should concentrate on.
To be able to expect proper treatment of our military who may become POWs, we have to be consistent in how we treat prisoners.
It also just happens to be good foreign policy. Any time we can be seen as trying to hold consistent, high moral and ethical ground it is better for our standing in the world. Just as the Abu Ghraib prison scandal caused us big problems, equivicated testimony by Alberto Gonzales causes us problems.
Mr. Gonzales should answer Senator Durbin's questions promptly, succinctly and unparsed.
After that, he should resign.
Posted by: Doug Zook | August 3, 2007 6:55 AM
Of course this administration does not care how US POWs are treated. Individuals are not important to fascists, only the state. Supporting the troops is lip service to these guys.
Posted by: Bill H. | August 3, 2007 8:46 AM
Well all now Dickie Durbin wants us to give head-chopping terrorists tea, cookies and crumpets, as well as daily massages, prayer to Mecca five times a day, clean bedding daily, Serta pillow-topped sleeper beds, laundered/dry clean clothes on a daily basis, and foot rubs.
Posted by: John D | August 3, 2007 8:59 AM
Oh and let's not forget their choice of a candy mint or Mrs. Field's cookie on the pillow with turn down service before bedtime.
Posted by: John D | August 3, 2007 9:00 AM
Forgive me for getting too technical here, but ...
Durbin's letter gives Gonzo too much wiggle room by focusing on Common Article 3 of the Geneva Conventions. There are, in fact, circumstances - arguably applicable to our fight with Al Qaeda and the Taliban - that would make Common Article 3 inapplicable.
In particular, Common Article 3 only applies to non-international conflicts all within the territory of one state. By definition, then, it doesn't apply to "international" conflicts in which a state is merely one theater of operation. Furthermore, it's application also (arguably) requires the existence of a state which is capable of complying with Common Article 3's dictates. Thus, in the case of a "failed state," where there is no government to comply with the dictates of Common Article 3, the provision may not apply either.
Plumbing the facile (read evil) mind of a certain person in the Justice Department, whose name and title bear the initials A.G., one can see both circumstances as a basis for wiggle. You can just hear him claim that Common Article 3 doesn't apply because we are in an "international" armed conflict with Al Qaeda, and Afghanistan has merely been one battlefield in that war. Equally plausible is the prospect that A.G. will claim that Afghanistan was a "failed state" under the Taliban that was neither capable or willing to comply with Common Article 3; in which case persons captured there before the current government under Karzai came into existence are also not entitled to the protections of Common Article 3.
Durbin would have been wise to press A.G. as to whether some of those described activities are also illegal because they constitute torture. Water boarding and mock executions fall within the definition of illegal torture under U.S. law because, at a very minimum, they are calculated to make the victim apprehend his own imminent death. Federal law recognizes that the "severe mental pain or suffering" resulting from "the threat of imminent death" constitutes the crime of torture. (See 18 U.S.C. §§ 2340(2)(C) and 2340A.) He might also ask him about the state of FM 2-23-3 [The Human Intelligence Collector Operations Manual], which the McCain Amendment made the standard for lawful interrogations. At one time, that manual prohibited not only torture but also the use of cruel or inhumane treatment to gather intelligence. Certainly, the other activities Durbin questioned would fall within those prohibitions to one degree or another.
Posted by: John W. | August 3, 2007 9:29 AM
Well all now Dickie Durbin wants us to give head-chopping terrorists tea, cookies and crumpets, as well as daily massages, prayer to Mecca five times a day, clean bedding daily, Serta pillow-topped sleeper beds, laundered/dry clean clothes on a daily basis, and foot rubs.
Posted by: John D | August 3, 2007 8:59 AM
I'm sorry; somehow I missed that part of the letter.
Posted by: a blinkin | August 3, 2007 11:17 AM
John D., do you think waterboarding torture is okay? How about electrical shocks to the genitals? Okay with you?
Don't use "they're chopping people's heads off" as an excuse. Two wrongs don't make a right, do they? Aren't we supposed to be better than they are? Aren't we supposed to model the behavior we expect from others, regardless of their crimes?
Posted by: snalg | August 3, 2007 11:40 AM
Once again, saintly John D has hit the nail on the head. He has quickly and thoroughly read the article and correctly come to the conclusion that nothing referenced in the article should be given consideration or thought. That being the case, Saint John has correctly employed the only possible course of action which, of course, is to attack the messenger with sarcasm and rightfully ignore any content.
All hail John D
Posted by: Anonymous | August 3, 2007 12:27 PM
Dickie Durbin accused American soldiers on the Senate Floor to Soviets in their gulags, Pol Pt and others.
Dickie is just using a long legalease letter to show us how intelligent he is which all of us in Illinois really know he's not too bright or he wouldn't be a tax and spend liberal.
Last week, Dickie decided that some mean Republican with all kinds of money might run against him so he suggested taxing TV ad revenue at TV stations to pay for his and other Dems congress and Senate elections. The quickest way to break up a crowd is to pass the hat but, Dickie has no pride he wants the money in your wallet to pay his campaign expenses.
Strangely, Jim Hightower wrote how fair Dickie is to suggest this TV ad tax.
But, Hightower and Durbin are not fair at all they want to confiscate money from others called taxation. It's the same as putting a gun in your ribs and say stickem up.
But, what el Durbo hasn't figured out is the TV stations would out source these news programs off shore so, they couldn't be taxed and what about the workers displaced. The TV shows would be coming from second world countries and Chicago and Springfield news shows would be produced with accents not familiar in northern and central Illinois or wherever.
Of course, socialists don't think like capitalists Dougie Zook is thrilled Dickie causing poor Alberto problems. As you can see in this Dem world it's only depends on whose ox is getting gored.Jerry White, Springfield, IL
Posted by: Jerry White | August 3, 2007 2:10 PM
Which brave Republic has stepped forward to take on Mr.Durbin in the next election?
Will it be little Johnny(me me me me me)Murano or Jumpin Jerry White?
Could always call Alan Keyes again!
Posted by: Raving Loon | August 3, 2007 3:01 PM
"SENATOR DURBIN"
NOW YOU KNOW THIS IS A C GRADE ADMINISTRATION, AND YOU ARE ASKING A GRADE QUESTIONS.
GONZALES CAN'T GO UNTIL CONGRESS GIVES THE PRESIDENT HIS RUBBER STAMP AND GET OUT OF JAIL FREE CARD.
AMERICA CAN HANDLE THE TRUTH. WE WANT THE TRUTH.
QUESTIONS PERTAINING TO THE CONSTITUTION OF THE UNITED STATES CANNOT BE ANSWERED BY THIS CONTEMPT, CORRUPT DEPARTMENT OF JUSTICE. AT FIRST, IF HE COULD QUOTE THE CONSTITUTION WOULD BE THE FIRST QUESTION.
YOUR COMMENTS ARE ALL "I, MY STAFF, AND MY CONSTITUENTS DO NOT UNDERSTAND THE CONSTITUTION AND UNDER EXECUTIVE PRIVILEGE TODAY I TOO DO NOT RECALL.
"FBI DIRECTOR MUELLER SAID RIGHT ABOUT THIS TIME LAST YEAR THAT "HIS STRONGEST SUIT AND TERRIFYING PEOPLE OVER TERROR CAN WIN VOTES FOR HIM AND HIS PARTY"
"THE DRUM BEAT GOES ON"
CIRCUMVENTING THE LAW, AND THEN ADDRESSING IT AS THOUGH, YOU NEED TO FIX IT NOW, SO THAT I DO NOT GO TO JAIL LATER. YEA RIGHT.
NO VOTES ON FISA UNTIL THE ATTORNEY GENERAL CAN ILLUSTRATE WHY IT NEEDS TO BE CHANGED AND WHAT LAWS HAVE BEEN BROKEN IN THE MIDST OF THESE CHANGES. UNTIL THEN NO COMPROMISE UNTIL AFTER THE ELECTIONS OF O8.
IF WE ARE GOING TO GO DOWN ON HIS WATCH AS THE DO NOTHING CONGRESS AFTER THE DID NOTHING CONGRESS FOR FIVE YEARS THEN SO BE IT.
I'M WITH YOU AND YOU WILL NOT LOSE MY VOTE. YOU WILL ENERGIZE IT BY ITS OWN WORD OF MOUTH. AND OUR NATION IS ONE NATION.
RESIGNATION IS NEXT WEEK, DON'T WORRY. JUST DON'T CHANGE THE LAW BEFORE THEN.
Posted by: Roger Morris | August 3, 2007 3:19 PM
I'd consider votin' fer Jerry White. It would seal the deal if I knew how he felt about brown people.
Posted by: Ronnie Rey Starling, Jr | August 3, 2007 3:31 PM
Snalg, yeah, I don't mind if a head-chopper is tortured, especially if it results in getting info that prevents the slaughter of thousands of innocent lives.
Posted by: John D | August 3, 2007 4:11 PM
So Johnny Torture, do you want the torture made legal under international and US law?
Is torture only ok when Americans are the torturers?
If it could possibly save the lives of thousands of innocents, would it be ok to torture an american citizen?
Posted by: Tony | August 3, 2007 4:31 PM
Snalg, yeah, I don't mind if a head-chopper is tortured, especially if it results in getting info that prevents the slaughter of thousands of innocent lives.
Posted by: John D | August 3, 2007 4:11 PM
For anyone lacking proof that the Republicants just don't get, consider Exhibit A, above.
The question is whether torturous means are ever acceptable, regardless of what the torturer perceives the noble ends to be. For whatever reason, the Pro-Death party can't grasp that concept.
Posted by: a blinkin | August 3, 2007 4:37 PM
the dems should call off recess-- if not agag will quietly resign, and bush will appoint another douchebag with no confirmation required...
Posted by: seth | August 3, 2007 4:43 PM
the clearest proof yet that john D is (no good):
"Well all now Dickie Durbin wants us to give head-chopping terrorists tea, cookies and crumpets, as well as daily massages, prayer to Mecca five times a day, clean bedding daily, Serta pillow-topped sleeper beds, laundered/dry clean clothes on a daily basis, and foot rubs."
Posted by: seth | August 3, 2007 5:00 PM
I don't mind if a head-chopper is tortured,
Posted by: John D | August 3, 2007 4:11 PM
But you don't want to offend President Musharraf and kill the leaderhip of headchoppers?
PS Remember the Canadian "headchopper" that we apologized to after torturing? He told us he was an Al-Qaeda terrorist and went to Pakistan to train despite the fact he and Canada had absolute proof that he was in Canada at the time he claimed to be in a terrorist training camp. People will say anything to avoid further torture, Johnny D. Not only does it dehumanize us, it does not lead to accurate information.
Posted by: jethro | August 3, 2007 5:05 PM
it should suffice to say that '(no good)' is not the exact verbage i used...
Posted by: seth | August 3, 2007 5:08 PM
Doug,
I lookedd at those five torture techniques:1) painful stress positions, 2) threatening detainees with dogs, 3) forced nudity, 4) waterboarding (i.e., simulated drowning) and 5) mock execution.
Only one of those five would result in physical harm - the first. The other four are purely methods that play on the mind. Eliminate the first one for sake of arguement, what is wrong with the other four? What is wrong with scaring the detainee with a dog, a fake execution, their own drowning, or humiliating them by standing nude? These are not std POW's that have rights under the Geneva Convention.
Posted by: Terry | August 3, 2007 10:05 PM
Hey Lefties, if it came down to saving innocent Americans or the torturing of a head chopper, most Americans would come down on the side of the Americans. But then most Lefties are not Americans.
Posted by: John D | August 4, 2007 1:57 AM
Terry:
Read my post (above). It will tell you what is wrong. Some of the techniques you mention constitute torture. It doesn't have to include actual infliction of physical pain to be torture. It can consist entirely of inflicting sever mental pain and suffering - by convincing a detainee that he is about to die. It is against the law, even if one believes it is a good method of getting human intelligence.
But the other thing wrong is the belief that such techniques produce good intelligence. They do not. A person subject to extreme duress and torture has only one thing in mind: making the pain stop. A person under such circumstances will say just about anything, including outright fabrications, to make the pain stop, even temporarily. History has already shown this. It is recognized and embedded in American law, for instance, that a confession or admission obtained through these techniqes is inadmissible in court. This evidence is not excluded only because it was obtained in violation of the accused's rights. Court's have long been excluding this evidence primarily because such evidence is inherently unreliabile.
In other words, torture and duress do not pay.
I'm glad I could help.
Posted by: John W. | August 4, 2007 5:43 AM
John W,
Thanks for you help, but a couple of points:
"Some of the techniques you mention constitute torture." If that's how you define torture, yes it does.
They have said the playing of loud music is considered torture. I suppose if it was "rap" music they would have I point, I would rather be wtaerboarded:)
"...the other thing wrong is the belief that such techniques produce good intelligence." I have seen mixed opinions on this.
So your opinion is we treat the non-American citizen terrorist just as we would treat an enemy solider?
I'm not talking about doing this to an American citizen, I am talking about terrorist picked-up on the battlefield (make note I am not saying enemy soliders).
Posted by: Terry | August 4, 2007 11:15 AM
John D:
Okay - let's just say for discussion that torturing head choppers is okay to protect innocent lives. What about those who are not head choppers but never have the chance to prove it because Cheneybush holds them without charges or trials.
Regarding protecting innocent lives: are the only lives worth saving American lives? How many dead babies and grandmas have the cheneybush regime piled up?
Are you so sure that, just because someone MIGHT be guilty of something, it's okay torture them? Might be guilty???? Is it only Americans on the planet with this grand and glorious right you've just granted us?
AND - aren't we supposed to be better than them?
Posted by: snalg | August 4, 2007 12:50 PM
Terry:
1. It's not how I define torture. It's how federal law defines torture. 18 U.S.C. §§ 2340(2)(C) and 2340A define torture that way. So any disagreement you may have is with federal law, and not with me.
2. Yes, I suppose one can play music so loud and continuously with the intent to inflict severe mental and physical pain and suffering - so as to constitute torture. I think the Army played Led Zeppelin for Noriega, at a blistering volume, to get him to flee his sanctuary in Panama. Celine Dion singing "My Heart Will Go On" would do that to me because I hate the fake, sensitive stuff. To each his own.
3. I wasn't advocating any particular treatment of all detainees other than adherence to certain minimum standards. We are duty bound by international treaties and our own domestic laws to treat anyone in custody in accordance with basic human rights. The rule of law says we must obey these treaties and laws. I believe in the rule of law. Don't you?
Posted by: John W. | August 4, 2007 5:46 PM
I do believe in teh rule of law and like you say, it is the law that I question.
Celine Dion??? Isn't that you parties presidebntial canidates favorite?
Posted by: Terry | August 4, 2007 7:38 PM
Terry:
The law is as I described it. If you don't believe me, then you should go look it up. You are free to read it yourself and challenge me if you think I've reported it incorrectly. I don't have an axe to grind. I would just like things to go the way the law says for them to go.
But what I'd really like to know is what you meant by that crack about Celine Dion. To which party do you think I belong?
Or better yet, to which party do you think I currently belong, which I might be leaving soon if it doesn't get its act together a whole lot better? I'll give you a hint. I'm not a Democ-rat.
Posted by: John W. | August 4, 2007 10:16 PM
John W,
Don't have a quarrel with your interpretation of the law - I'll take your word. I have a question with the law.
I jump to the conclusion of you being a dem based upon some posts I had read. Sorry for the insult.
Posted by: Terry | August 5, 2007 2:56 PM