Maybe I'm Naive But . . .

Since I've written about the topic on the past, readers might wonder where I am on the question of "torture-lite," "enhanced interrogation techniques" and so on. The consensus of people on my side bar is clear. Mark Shea, for example, has made the new bill, based on the compromise between the White House and Republican Senators like John McCain and Lindsey Graham, the basis for officially any abandoning support of the Republican party, consigning it, like the pro-abort Democrats, to the ranks of parties in favor of gravely evil acts -- in this case torture (example here). Others speak of the shame of America, and so on.

Call me naive, but it seemed to me that a bait and switch was going on -- aided by the posturing of the White House. Up until the actual bill, the issue was specific "torture-lite" techniques: is waterboarding acceptable or not? Prolonged sleep-deprivation? Cold cells? But once the bill was passed, the word habeas corpus became the big thing.

Now, habeas corpus is important, but denying it isn't torture. It's not torture, for one thing because denial of the privilege of habeas corpus is explicitly provided for in the US Constitution as an expected consequence of domestic insurrection or foreign invasion (Article I, section 9: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it"). In short, whether the current war on terror is of a scale or nature to merit denial of habeas corpus is a purely prudential question. It has nothing to do with "intrinsically immoral" acts, the "shame of America," or "everything our religious values stand for" (this last is a quote from an email I received from the National Religious Coalition Against Torture) -- their position can be read here.

Puzzled by this unanimity about what seemed to me, on the actual question of torture, a satisfactory resolution, I actually looked up the text of the law that was passed S 3930 (click on version 4, the final one). And there in "Section 6: Implementation of Treaty Obligations," I found this:

(c) Additional Prohibition on Cruel, Inhuman, or Degrading Treatment or Punishment-

(1) IN GENERAL- No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

(2) CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT DEFINED- In this subsection, the term `cruel, inhuman, or degrading treatment or punishment' means cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

(3) COMPLIANCE- The President shall take action to ensure compliance with this subsection, including through the establishment of administrative rules and procedures.

Section 948r says of the use of evidence:

`(d) Statements Obtained After Enactment of Detainee Treatment Act of 2005- A statement obtained on or after December 30, 2005 (the date of the enactment of the Defense Treatment Act of 2005) in which the degree of coercion is disputed may be admitted only if the military judge finds that--

`(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value;

`(2) the interests of justice would best be served by admission of the statement into evidence; and

`(3) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment prohibited by section 1003 of the Detainee Treatment Act of 2005. [This is the law passed by McCain and co. that caused the CIA to stop using using their "enhanced interrogation techniques" despite the White House claim that the methods were legal.]

I can't see any way around it: what was in question before December, 2005, is now very definitely illegal. Can waterboarding be used on detainees in the war on terror? Only if it's constitutional to use on an armed robbery or breaking and entering suspect in the local precinct. Ditto for cold cells and prolonged sleep deprivation.

As far as I can tell, the deal worked like this: the administration gave in on torture but in return, the administration got its viewpoint on habeas corpus and what exact rights unlawful combatants have written into law, and it got its military tribunals. The deal also went to great lengths to prevent detainees not under US jurisdiction from turning the Geneva Conventions into a basis for suing the US government (a right by the way POWs, let alone unlawful combatants, have never had), and to preserve the principle that we in the US will say what we mean by torture, and will not allow international decisions to define it for us. To me this is more part of the on-going debate about whether the US is bound by "evolving norms of international behavior" (i.e. consensus of NGOs, UN officials, EU lawyers, and law school graduates) than about torture. Again an important debate, but one in which in general I'm on the other side.

So, as I see it, with the witting or unwitting cooperation of the administration (looking like you're sticking it to the wimps who won't "do what's necessary" can win votes, even if it's not true), the human rights/civil liberties organizations were able to pull a bit and switch: get people all riled up by torture and then switch that outrage to habeas corpus and US legal go-it-alone-ism. Indeed, the administration's position made it very easy, almost irresistable, to do so. And one can certainly adopt the line that the administration should be condemned for even trying to regularize torture-lite for "high-value" unlawful combatants. My already very low opinion of Dick Cheney is certainly lower as a result of his attempt to legalize "moderate" torture. But the reality is, in the end, the attempt failed. And very few of the public opponents of torture-lite are noting this fact.

I thought I must be the only one thinking this, until I read this opinion piece by the Washington office head for George Soros's Open Society Institute. As he points out, the administration is claiming victory on detainee treatment, but the cold language of the text means CIA interrogators are risking serious punishment if they continue to use waterboarding, cold cells, prolonged sleep deprivation and the like:

On rare occasions, President Bush and his toughest critics agree on something. That will happen today when Bush signs the Military Commissions Act, while claiming "clear" authorization from Congress for "enhanced" CIA interrogations. Many critics claim the bill authorizes torture. Fortunately, both sides are wrong.

You have to register to read the whole piece, but I think people should read it, so I'll risk copyright infringement by pasting the bulk of it in here:

The bill's language on torture is far from perfect, and it has many other objectionable provisions. It should have been rejected. [That's the habeas corpus, legal go-it-alone-ism, etc., issues] But on its face it criminalizes cruel treatment [emphasis added -- score one for the ability of an ordinary person to understand legal language]. An interrogator can go to prison if a court finds that the techniques used caused "serious" mental or physical "suffering," which need not be "prolonged." According to Sen. Lindsey Graham (R-S.C.), the administration agrees that this rules out waterboarding.

As for hypothermia, prolonged sleep deprivation and stress positions, does the CIA really want to put that question to a jury? Legions of highly qualified experts would line up to testify that these techniques cause severe, prolonged suffering. The CIA knows this. It funded some of the seminal studies on the subject.

As for Congress, administration supporters made general claims about the importance of continuing "the program" and its legality. But Graham said specifically that the bill "reined in the [CIA] program." McCain said it can be interpreted to mean that "extreme deprivation -- sleep deprivation, hypothermia and others -- would be not allowed." Sen. John Warner (R-Va.) said that such abusive techniques are "clearly prohibited by the bill."

"Reined in," "not allowed," "clearly prohibited" -- that's from the bill's Republican sponsors in the Senate. The House was no more supportive. The chairman of the Armed Services Committee, Rep. Duncan Hunter (R-Calif.), said it is "absolutely false" to claim that the bill authorizes the "enhanced" techniques. Another senior House Republican, Rep. Christopher Shays of Connecticut, said that "any reasonable person" would conclude that the CIA's techniques "clearly cause 'serious mental and physical suffering.' " That's congressional approval?

Another inconvenient fact for the White House: The bill emphatically reaffirmed the McCain amendment -- the law that led the CIA to demand clear authorization in the first place.
The Bush administration has been pushing the idea that the McCain amendment is infinitely elastic, banning only what "shocks the conscience" -- that no technique is prohibited if interrogators need the information badly enough. Under this preposterous theory, Japanese Americans could have been tortured after Pearl Harbor if authorities thought it would reveal an imminent attack on the West Coast. It's really "in the eye of the beholder," said Cheney.
But if a CIA interrogator is indicted after this administration leaves office, it will not matter whether keeping a naked prisoner standing for 40 straight hours shocks Dick Cheney. It will matter whether it shocks the court.

U.S. courts know cruelty when they see it, even if the Bush Justice Department doesn't. The Supreme Court agreed decades ago that sleep deprivation "is the most effective torture" and said that "the blood of the accused is not the only hallmark of an unconstitutional inquisition . . . the efficiency of the rack and the thumbscrew can be matched . . . by more sophisticated modes of 'persuasion.' "

Much will depend on implementation. But to say, "America," through her elected representatives, or the "Republican Party" has approved torture is just plain wrong. It is grotesque that the White House insists on pretending that it has received approval to do something that is indeed intrinsically immoral, when in fact it hasn't. It's also sad that it's saying so not just to preserve face, but probably also because it perceives a significant "pro-torture" vote out there. But at the end of the day, the reality is that the US Congress has done its best (given the other important legal values that have to be considered) to ensure that even the CIA does not use cruel, inhuman, or degrading interrogation techniques.