The Gestation of Bradbury’s Torture Memos

I’m increasingly certain that Jello Jay put together the SSCI narrative as a way to demonstrate that the CIA did not inform Congress it had tortured Abu Zubaydah until well after (six months–and longer for Jello Jay himself) they had done so.

But I suspect one of the other things he tried to document with the narrative is the apparent resistance (or inability) on the part of OLC to write a memo arguing our torture program complied with Article 16 of the Convention Against Torture, which reads:

  1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.
  2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion.

Or, to contextualize this even further, Jello Jay wants to document OLC’s difficulties with refuting the conclusions of the CIA IG Report, which we know concluded that the interrogation program did violate Article 16.

The report, by John L. Helgerson, the C.I.A.’s inspector general, did not conclude that the techniques constituted torture, which is also prohibited under American law, the officials said. But Mr. Helgerson did find, the officials said, that the techniques appeared to constitute cruel, inhuman and degrading treatment under the convention.

Let’s look at how Jello Jay depicted OLC’s attempt to refute this conclusion.

The 10-Month Gestation of the Bradbury Memos

In response to the CIA IG Report, the narrative explains, the CIA asked for an opinion that addressed this problem. As Jello Jay helpfully explained, that means they were asking for an assessment of whether the program violated the Fifth, Eighth, and Fourteenth Amendments.

After the issuance of that review, the CIA requested that OLC prepare an updated legal opinion that incorporated actual CIA experiences and practice in the use of the techniques to date included in the Inspector General review, as well as legal analysis as to whether the interrogation techniques were consistent with the substantive standards contained in the Senate reservation to Article 16 of the Convention Against Torture.

Article 16 of the Convention Against Torture requires signatories to “undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman and degrading treatment which do not amount to torture.” The Senate reservation to that treaty defines the phrase “cruel, inhuman and degrading treatment” as the treatment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution. Thus, the CIA requested that OLC assess whether the interrogation techniques were consistent with the substantive provisions of the due process clause, as well as the constitutional requirement that the government not inflict cruel or unusual punishment.

As Jello Jay portrays it, CIA asked OLC for a new memo incorporating Article 16, but needed to be reminded by Congress that this should address the Constitutional issues as well. (Note, the narrative also shows that Addington went to DOJ and cracked some heads earlier than this, which may be relevant, but the narrative does not say that pertains directly to the problems under CAT.)

In July 2004, the CIA briefed the Chairman and Vice Chairman of the Committee on the facts and conclusions of the Inspector General special review. The CIA indicated at that time that it was seeking OLC’s legal analysis on whether the program was consistent with the substantive provisions of Article 16 of the Convention Against Torture.

According to CIA records, subsequent to the meeting with the Committee Chairman and Vice Chairman in July 2004, the CIA met with the NSC Principals to discuss the CIA’s program. At the conclusion of that meeting, it was agreed that the CIA would formally request that OLC prepare a written opinion addressing whether the CIA’s proposed interrogation techniques would violate substantive constitutional standards, including those of the Fifth, Eighth and Fourteenth Amendments regardless of whether or not those standards were deemed applicable to aliens detained abroad.

Or more specifically, it looks like DOJ needed to be reminded that the Senate considered not just the Fifth Amendment (giving us the "shocks the conscience" clause), but also the Eighth and Fourteenth Amendments to comprise our compliance with CAT.

On July 14, 2004, in unclassified written testimony before the House Permanent Select Committee on Intelligence, an Associate Deputy Attorney General explained the Department of Justice’s understanding of the substantive constitutional standards embodied in the Senate reservation to Article 16 of the Convention Against Torture. The official’s written testimony stated that under Supreme Court precedent, the substantive due process component of the Fifth Amendment protects against treatment that “shocks the conscience.” In addition, his testimony stated that under Supreme Court precedent, the Eighth Amendment protection against Cruel and Unusual Punishment has no application to the treatment of detainees where there has been no formal adjudication of guilt.

So to review thus far: CIA’s IG tells the Agency they’re in violation of CAT. The Agency asks OLC to do a memo assessing the torture program’s compliance with CAT. DOJ goes to Congress and say, "we think we only need to worry about the Fifth Amendment." To which Jello Jay and Pat Roberts respond, "Nuh uh. You’ve got to address ‘Cruel and unusual,’ and–with the Fourteenth–due process, too." So the CIA slunks back to the NSC and–together–they concede they’ve got to address the Fifth, Eighth, and Fourteenth Amendment as part of that review.

So OLC–at that point, largely Dan Levin–got to work.

Following the withdrawal of the unclassified August 1, 2002, opinion in June 2004, OLC began work on preparing an unclassified opinion concerning its interpretation of the anti-torture statute. At the same time, in accord with the request described above, OLC worked on classified opinions that would evaluate the specific techniques of the CIA program, individually and in combination, under its revised interpretation of the anti-torture statute, as well as an opinion that would evaluate whether the program was consistent with the substantive provisions of Article 16 of the Convention Against Torture.

During this time, however, the CIA continued to torture (though not to waterboard), based on okays but not formal analysis from Ashcroft and Levin.

While OLC worked on drafting new opinions with respect to the CIA program, the CIA continued its interrogation of high-value Al-Qa’ida detainees in U.S. custody. On July 22, 2004, the Attorney General confirmed in writing to the Acting Director of Central Intelligence that the use of the interrogation techniques addressed by the August 1, 2002, classified opinion, other than waterboarding, would not violate the U.S. Constitution or any statute or treaty obligation of the United States, including Article 16 of the Convention Against Torture. On August 6, 2004, the Acting Assistant Attorney General for OLC advised in writing that, subject to the CIA’s proposed limitations, conditions and safeguards, the CIA’s use of waterboarding would not violate any of those legal restrictions. The letter noted that a formal written opinion would follow explaining the basis for those conclusions.

On December 30, 2004–five months after Congress sent the CIA and DOJ back to work on CAT–DOJ released Dan Levin’s opinion. Levin’s opinion mentions CAT. But it discusses only Article 1 of CAT, not Article 16.

Congress enacted sections 2340-2340A to carry out the United States’ obligations under the CAT. See H.R. Conf. Rep. No. 103-482, at 229 (1994). The CAT, among other things, obligates state parties to take effective measures to prevent acts of torture in any territory under their jurisdiction, and requires the United States, as a state party, to ensure that acts of torture, along with attempts and complicity to commit such acts, are crimes under U.S. law. See CAT arts. 2, 4-5. Sections 2340-2340A satisfy that requirement with respect to acts committed outside the United States. (12) Conduct constituting "torture" occurring within the United States was–and remains–prohibited by various other federal and state criminal statutes that we do not discuss here.

The CAT defines "torture" so as to require the intentional infliction of "severe pain or suffering, whether physical or mental." Article 1(1) of the CAT provides:

For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

The Senate attached the following understanding to its resolution of advice and consent to ratification of the CAT:

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 and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.

S. Exec. Rep. No. 101-30, at 36 (1990). This understanding was deposited with the U.S. instrument of ratification, see 1830 U.N.T.S. 320 (Oct. 21, 1994), and thus defines the scope of the United States’ obligations under the treaty. See Relevance of Senate Ratification History to Treaty Interpretation, 11 Op. O.L.C. 28, 32-33 (1987). The criminal prohibition against torture that Congress codified in 18 U.S.C. 2340-2340A generally tracks the prohibition in the CAT, subject to the U.S. understanding. [my emphasis]

Imagine how pissed Jello Jay must have been after specifically telling CIA and OLC to consider Article 16–and therefore the Fifth, Eighth, and Fourteenth Amendments–to see this unclassified opinion that asserted that 18 USC 2340-2340A "defines the scope of the United States’ obligation under" CAT.

So they asked Alberto Gonzales about it at his confirmation hearing. And he said, "we’re working on it."

In January of 2005, in response to a question for the record following his confirmation hearing, Attorney General Gonzales indicated that “the Administration . . . wants to be in compliance with the relevant substantive constitutional standard incorporated in Article 16 [of the Convention Against Torture], even if such compliance is not legally required.” Attorney General Gonzales further indicated that “the Administration has undertaken a comprehensive legal review of all interrogation practices. . . . The analysis of practices under the standards of Article 16 is still under way.”

And they asked again when they got their next torture briefing, in March. And they were told, "we’re working on it."

The CIA briefed the Chairman and Vice Chairman of the Committee on the CIA’s interrogation program again in March 2005. At that time, the CIA indicated that it was waiting for a revised opinion from OLC.

Which is how, ten months after Congress insisted that OLC analyze the torture program with an eye towards the Fifth, Eighth, and Fourteenth Amendments, we finally get to the Bradbury opinions.

After a 10-Month Wait, Bradbury Still Tells Congress Not to Worry about the Constitution

The May 10 opinions fulfill one part of what OLC had set out to do the previous June–to come up with an opinion that "incorporated actual CIA experiences and practice in the use of the techniques to date." Or, to put it another way, to come up with an opinion that could dismiss unsavory details like the 183 times Khalid Sheikh Mohammed had been waterboarded, yet still declare the program itself legal. But those memos still address only 18 USC 2340-2340A. The Techniques memo, for example, includes a footnote acknowledging the existence of CAT, but it still uses the standards: severe physical pain or suffering, severe mental pain or suffering, and "specifically intended" as laid out in the Levin memo.

It’s only with the May 30 memo–at least ten full months after Congress said, "we’ve got this thing called a Constitution"–did OLC get around to considering whether or not torture violates CAT.

Before I get to the May 30 memo, though, it might be relevant to point out that Jim Comey, who went on to predict we’d be "ashamed" when we got to see at least the May 10 opinions, but who didn’t manage to convince Alberto Gonzales not to approve them, resigned on April 20. And, sometime in May, Jello Jay asked for a document dump of materials cited in the IG Report, which of course the CIA refused.

In May 2005, I wrote the CIA Inspector General requesting over a hundred documents referenced in or pertaining to his May 2004 report on the CIA’s detention and interrogation activities. Included in my letter was a request for the CIA to provide to the Senate Intelligence Committee the CIA’s Office of General Counsel report on the examination of the videotapes and whether they were in compliance with the August 2002 Department of Justice legal opinion concerning interrogation. The CIA refused to provide this and the other detention and interrogation documents to the committee as requested, despite a second written request to CIA Director Goss in September 2005.

It was during this 2005 period that I proposed without success, both in committee and on the Senate floor, that the committee undertake an investigation of the CIA’s detention and interrogation activities.

(Yeah–right about now I’m wondering if I should make an exception to my use of the Jello Jay moniker in this post.)

So back to the May 30 memo, which was supposed to be directly responsive to directions from Congress given ten months before. 

To manage the argument that torture complies with the Fifth, Eighth, and Fourteenth Amendments, Bradbury first tried to get out of the problem by arguing that since all the torture happened outside of US jurisdiction, it didn’t violate Article 16.

Based on CIA assurances, we understand that the interrogations do not take place in any … areas over which the United States exercises at least de facto authority as the government. … We therefore conclude that Article 16 is inapplicable to the CIA’s interrogation practices and that those practices thus cannot violate Article 16. 

Elsewhere, he admits that Article 10 of CAT requires all personnel–regardless of where they are–be trained not to torture, but then says that, since Article 16 incorporates Article 10 with regards to cruel and inhuman treatment only after having made jurisdictional limitations, then the prohibition on cruel and inhuman treatment, unlike torture, is understood to be restricted just to US territory. And in a footnote, Bradbury admits that Article 16 might extend to territory where we are an occupying power, but claims we’re not (or rather weren’t) an occupying power in any place in 2005 (the Iraqis will no doubt be glad to hear that news as will everyone then being tortured at Bagram Airforce Base). 

Bradbury then states, 

Further, the United States undertook its obligations under Article 16 subject to a Senate reservation, which, as relevant here, explicitly limits those obligations to "the cruel, unusual and inhumane treatment … prohibited by the Fifth Amendment … to the Constitution of the United States."

See all those ellipses? In a footnote, Bradbury admits that the Senate reservation mentioned the Eighth and Fourteenth Amendments as well, but promises that he’ll explain why the Eighth and Fourteenth are not applicable later. Ultimately (on page 26) he dismisses the Fourteenth Amendment because it applies only to states, not the federal government. And he dismisses the Eighth Amendment by saying,

Because the high value detainees on whom the CIA might use enhanced interrogation techniques have not been convicted of any crime, the substantive requirements of the Eighth Amendment would not be relevant here, even if we assume that Article 16 has application to the CIA’s interrogation program. 

And that’s how–10 months after Congress reminded the CIA about the Constitution–Bradbury finally whittled that Constitution down to "shocks the conscience."

I’ve discussed elsewhere how Bradbury distinguishes our torture from other countries’ torture and distinguishes between SERE and torture by appealing to efficacy and necessity. But this where I should yield back to Jello Jay to explain:

Under the “shocks the conscience” standard, OLC concluded that Supreme Court precedent requires consideration as to whether the conduct is “arbitrary in the constitutional sense” and whether it is objectively “egregious” or “outrageous” in light of traditional executive behavior and contemporary practices.

To assess whether the CIA’s interrogation program was “arbitrary in the constitutional sense,” OLC asked whether the CIA’s conduct of its interrogation program was proportionate to the governmental interests involved. Applying that test, OLC concluded that the CIA’s interrogation program was not “arbitrary in the constitutional sense” because of the CIA’s proposed use of measures that it deemed to be “safeguards” and because the techniques were to be used only as necessary to obtain information that the CIA reasonably viewed as vital to protecting the United States and its interests from further terrorist attacks.

OLC also concluded that the techniques in the CIA program were not objectively “egregious” or “outrageous” in light of traditional executive behavior and contemporary practice. In reaching that conclusion, OLC reviewed U.S. judicial precedent, public military doctrine, the use of stressful techniques in SERE training, public State Department reports on the practices of other countries, and public domestic criminal practices. OLC concluded that these sources demonstrated that, in some circumstances (such as domestic criminal investigations) there was a strong tradition against the use of coercive interrogation practices, while in others (such as with SERE training) stressful interrogation techniques were deemed constitutionally permissible. OLC therefore determined that use of such techniques was not categorically inconsistent with traditional executive behavior, and concluded that under the facts and circumstances concerning the program, the use of the techniques did not constitute government behavior so egregious or outrageous as to shock the conscience in violation of the Fifth Amendment.

I don’t know what the proper term is when aristocrats like Rockefellers attempt snark, disdain, or disgust, but I do believe this is an example of the form. 

So that’s one thing Jello Jay is trying to expose with his narrative: in addition to neglecting to inform Congress when the CIA got into the torture business, the Bush Administration basically responded to Congressional reminders about our Constitution by–first–ignoring their request for 10 months, and then, after that wait, stacking ridiculous argument on top of ridiculous argument to argue that the US can engage in whatever cruelty it wants so long as it’s not in US jurisdiction (narrowly defined) and so long as it can be claimed to be effective and necessary.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

75 replies
  1. alabama says:

    This is very interesting indeed. In concrete detail that adds up (even though some of us can’t really follow it, not knowing enough of the context), it shows that Congress, like the Judiciary, has its own ways of building defenses against encroaching Presidents–as does the Executive Branch itself (Comey, for example).

    Impossible to see at the time, but ongoing and effective. Like sapping. Bad news for the bushmen.

  2. klynn says:

    So that’s one thing Jello Jay is trying to expose with his narrative: in addition to neglecting to inform Congress when the CIA got into the torture business, the Bush Administration basically responded to Congressional reminders about our Constitution by–first–ignoring their request for 10 months, and then, after that wait, stacking ridiculous argument on top of ridiculous argument to argue that the US can engage in whatever cruelty it wants so long as it’s not in US jurisdiction (narrowly defined) and so long as it can be claimed to be effective and necessary.

    (my emphasis)

    That will catch the attention of a certain judge in Spain.

    • Mauimom says:

      That will catch the attention of a certain judge in Spain.

      Boy, I hope that judge is watching his back.

      I’d hate to hear of his death in an “auto accident” or other suspicious circumstances, while the CIA stands in the corner looking at the ceiling and whistling.

  3. AZ Matt says:

    OLC concluded that these sources demonstrated that, in some circumstances (such as domestic criminal investigations) there was a strong tradition against the use of coercive interrogation practices, while in others (such as with SERE training) stressful interrogation techniques were deemed constitutionally permissible.

    I think there is a problem here. SERE is not coercive interrogation practices. They are comparing survival training to criminal investigations. They are/were stoopid.

  4. ghostof911 says:

    So as not to lose focus, the purpose of the torture was not to gain information, but to obtain forced confessions. This basic fact makes all the legal posturing irrelevant. The forced confessions were needed to justfiy the unjustifiable (the pre-emptive strike on Iraq).

    • Styve says:

      Bravo on the focus front! Funny how the right is ignoring that element when making claims re the “efficacy of torture”.

    • perris says:

      let’s take that a step further, torture was intended not only to obtain false information, it was also intended to create more unrest and more insurgency

      everyone was informed that would be the result, everyone knew that would be the result

      • SouthernDragon says:

        it was also intended to create more unrest and more insurgency

        everyone was informed that would be the result, everyone knew that would be the result

        OK, I’d like to see some primary source material that would lead you, or anyone else, to that conclusion.

        • rapt says:

          “…primary source material …”

          You couldn’t be referring to a source like a memo from OLC, or other such official documentation could you Dragon?

          I am with perris 100% on this; one of the primary purposes of torture, war, other violence perpetrated by those PTB, the ones like Rummy who have the power to make it happen, is satisfaction of an urgent internal need. Not only do they get off on it; they need it to survive and keep power.

          Now since we have pretty well established that there was and is no NEED for mistreatment of prisoners; that is, nothing of value to anyone was gained by it, why do you ask for a source before you will accept a statement like perris’? He has simply dragged away the cobwebs of constant indoctrination to see more clearly what we are up against here. It ain’t just a pack of overaged frat boys screwing around.

          Yes I know, it is OK to approve of using pain to extract info from an enemy since around half of Americans do approve(see recent Pew study). Perhaps in our righteousness we feel safe from that treatment and comfortable enough to wish it on others, whom we do not know, but simply because they are designated bad arabs, terrsts, whateva by big daddy Cheney and his gang of psychopaths.

          My source is simply a long period of weeding through all the info that everyone has access to, building a sensible model from it, and concluding that classical education of the type we are all submersed in from birth is riddled with falsehood. So which sources can I trust? Those that pass the smell test. Only lately has the lying become so desperate and open that any fool can see right through it. God pity those who can’t.

    • human says:

      Not to mention framing the unindicted detainees as 9/11 co-conspirators to absolutely deflect any possibility of genuine investigation and rational discourse. This was a prime necessity in order to be able to “sweep up all… related and not.”

      BTW, this abhorent debate (2 years plus for me) continues to grate on my very being as it has been framed as a legal issue. As Ghandi replied when asked that as his values were all Christian values, why didn’t he ever become a Christian. His reply, “I’ve never met a Christian.” Not that only Christians are sickened by this overwhelming lack of morals and this of course having itself been framed for western-centric media consumption.

  5. timbo says:

    This all begs the question why “impeachment is off the table” was the mantra for the Dems when they got back into power in 2006, doesn’t it? You have evidence here of a conspiracy to ignore the Constitution…and, apparently, a Congress not willing to stand for the Constitution? So, what I’d like to see are the Democratic Party’s internal memos and discussions regarding impeachment based on the obvious treason in these memos and prior and subsequent statements and actions by Bush regime officials. “It’s not politically viable” is a great mantra but means little to those who were tortured and killed, held for years without trial, removed from their homes, mistreated and dumped on the street by Bush’s say-so.

    • Leen says:

      yeah and I want to take my hundreds of hours put in for Sherrod Brown, Zack Space etc. We put them in there to witness a push for accountability

  6. whitewidow says:

    Maybe Jiggler Jay, now?

    This is an outstanding post, ew.

    They applied spin in crafting these memos, pure and simple. They created political arguments disguised as legal reasoning. Create enough doubt, muddy the argument, he said/she said. And that is exactly what we are getting now, thanks to our pathetic press.

    There is no way they can argue “good faith” here. They ignored the entire body of evidence, precedent, history, dissenters, etc. while simultaneously carefully crafting carve-outs of the law and constitution and addressing the arguments they supposedly were unaware of.

    My 8th grader can see through the weak argument that “we haven’t convicted them so we don’t have to follow laws that apply to prisoners.”

    A wave of the hand, disappear Article 16, and the 5th, 8th & 14th! Poof!

    Now we have Anne Coulter calling the torture “wussy techniques”. Maybe her strategy is to push decent people into wanting to torture…her.
    The only way that people as vicious and disgusting as Coulter will ever be shut up is to prosecute people for the torture. These spinners, and the pundits who help them, need to be shamed and shunned from civilized society. In a sense, their over the top embracing of torture is what is going to force prosecutions. They are daring us to prosecute. If they aren’t held accountable, they are telling us that they believe in torture and they will do it again.

    To think I didn’t think I could possibly despise Republicans and The Villagers more than I did on election day! Their behavior during the election seems like a nostalgic memory, now.

    • oldoilfieldhand says:

      I think that
      “They applied spin in crafting these memos, pure and simple. They created political arguments disguised as legal reasoning. Create enough doubt, muddy the argument, he said/she said”
      is an overreaching explanation.
      The Bush Administration knew the democrats would only marginally object to their abuse of power because the Democrats were and are being actively blackmailed. They were and are listening to and reading everything.
      Uh Oh! Someone’s at the door. Gotta’ go!

  7. dmvdc says:

    I’m not sure how the 14th Amendment is relevant to the discussion at all.

    That said, you also have to take into account that the Senate gave its advice and consent with a declaration that Articles 1-16 of the CAT were not self-executing.

    • phred says:

      I’m not sure how the 14th Amendment is relevant to the discussion at all.

      Due process is central to all of this. The notion that a person is innocent until proven guilty and therefore entitled to all due process of the law is really what lies at the heart of this mind-boggling depraved legal “reasoning”. They chuck due process right out the window and say that these detainees have no legal rights at all. They cannot contest their detention. They cannot have a judge (much less a jury) in a court of law using proper rules of evidence determine guilt or innocence. And as scribe describes so eloquently in his comment @24 the detainees are not entitled to be free from cruel, inhuman, or unusual treatment, not to mention brutal torture.

      As I noted above the OLC seemed to think that without convictions, they could torture at will. And since they had no intention of letting the detainees ever get before a judge, they would never have to stop torturing them. It almost makes a person wonder if the whole Military Commissions system was an intentional ruse… a stall tactic to put off the day any of these people might actually be convicted of anything and then magically earn a right to better treatment.

      Just when I think I can’t be more appalled by the conduct of the DoJ, they manage to sink even lower.

  8. Synoia says:

    “know what the proper term is when aristocrats like Rockefellers attempt snark, disdain, or disgust”

    I do: it’s sneer.

    • bobschacht says:

      No; sneer is what Dick Cheney does. For a Rockefeller, sneering would be rather gauche.

      Good aristocratic snark is such that most people would miss the fact that they were being snarked. There is dry wit involved that can be quite subtle. The art was developed, of course, among English aristocrats. I was thinking perhaps of “riposte,” but that is a fencing term that is too quick. Rockefeller’s snark is a somewhat leisurely dismantling, with subtle wit.

      Bob in HI

  9. bobschacht says:

    Another extraordinary analysis, EW! Thanks!

    The only way to prevent this kind of thing in the future is to begin prosecuting now.

    Bob in HI

  10. eagleye says:

    In the discussion of the various crimes of torture committed by the Bushniks, we don’t hear much about the business of sending detainees abroad to be tortured. We’re hearing a lot more about the waterboarding performed by our own operatives. If these thugs are ever brought to trial, I wonder if the outsourcing of torture will be a stand-alone charge?

  11. ghostof911 says:

    Olbermann asked Dean whether Obama was violating the Geneva Conventions prohibiting torture himself by refusing to prosecute those responsible.

    “He is indeed in violation if the United States does not undertake investigation of this, or ultimately prosecution, if that’s necessary,” Dean asserted. “It’s not only the Geneva Convention, the Convention Against Torture also requires this. There are no exceptions with torture. There are no real things like “torture light.” The world community I think is going to hold the United States responsible, and if we don’t proceed, somebody is going to proceed.”

    We are waiting for your response, Mr. Obama. You are either with the criminal enterprise, or you are against it. There is no middle ground.

  12. ghostof911 says:

    If Obama does give Holder the green light to prosecute, is there any way Americans can be certain that the Secret Service will not be taking orders from the CIA as they did on that fateful day in November, 1963?

  13. scribe says:

    There’s even more here than you’ve dug up, EW.

    In no particular order:

    1. As to the Eighth Amendment, you’ll recall Scalia giving an interview to the BBC last year, IIRC. In it, he distinguished away the 8th Amendment bar on cruel and unusual punishment by saying that, as to people who had not been convicted of a crime, it didn’t apply because they weren’t being “punished” for anything because they hadn’t been convicted of anything. Huge outcry for which he was hugely unapologetic.

    2. As to the Eighth Amendment, it’s not so easy to distinguish it away. There is a whole section of the body of law which has developed which interprets the “conditions of confinement” against a “cruel and unusual” standard. In other words, it’s not just the treatment, but also the conditions under which a prisoner is held. And, the “conditions of confinement” aspect of Eighth Amendment jurisprudence applies to all persons in captivity – it makes no material substantive distinction between those who are convicted and those who have not yet been. The extent of the substantive distinction it makes between the unconvicted and the convicted is that, in some Circuits, the captors have to exercise additional care to make sure that the unconvicted do not come to harm, seeing as how they aren’t guilty of anything (yet). The greater extent of the distiction is in how, procedurally, one gets to state the claim: for pre-conviction detainees, the Eighth Amendment does not apply, so the claims have to come in through the Due Process Clause (of the 14th Amendment, at least for state prisoners, and the 5th Amendment for federal prisoners).

    So, to be a little more clear, the logic is like this:

    1. the 8th amendment prohibits certain cruel and unusial punishments, among which are conditions of confinement that make the incarceration “cruel and unusual”.

    2. What constitutes “Cruel and unusual” as to violate conditions of confinement are the same for pre-conviction and post-conviction detainees, though pre-conviction detainees are, in some circumstances, entitled to greater protections than the convicted.

    3. A convicted person gets to state their claims for cruel and unusual punishment directly as a violation of the 8th Amendment. A non-convicted person has to proceed through stating it as a violation of the 14th (and 5th) Amendment due process clause.

    There is a huge body of law developed around “conditions of confinement”. I know – when I was defending civil rights cases brought by prisoners against their jailers, I had to read and use a good bit of it. But for those interested and having access to a law library, you can wade in by going to West’s Digest and starting at “Sentencing and Punishment” key number 1521-1554. There are also numerous cross-refernecnes to other key numbers and topics in the multiple volumes of case citations. It’s kind of like pulling at that loose thread on the sweater.

    But, to cut to the chase, the standard for determining whether prison conditions violate the 8th Amendmant is to be measured “with respect to contemporary standards of decency” measured “against evolving standards of decency that mark progress of a maturing society.” The treatment may not involve “wanton or unneccesary infliction of pain”, nor may it be grossly disproportionate to the severity of the crime.

    Conditions of confinement covers everything that goes on in a jail:

    violence against the prisoner – it’s actionable if the prisoner was subjected to violence intentionally or as a result of deliberate indifference (of the jailer).

    housing – the test is whether the resulting conditions alone or in combination deprived inmates of the minimum civilized measure of life’s necessities. Factors which are relevant are not just the number of inmates in a cell, but also how much time they must spend there during each day, opportunities for recreation outside the cells, general state of ther epair and facilities, noise level, smoke and odor, inadequate space, bugs and vermin. It’s more than just having a roof over your head.

    sanitation – no exposure to unhelathful conditions which can include excessive heat or cold. You ought to read some of the older cases out of the 5th Circuit – unrepaired open leaks in sewers and waste pipes showering inmates in raw sewage. Being made to work on the prison farms in manure, then being allowed one shower a week. Or some of the newer cases from the 7th Circuit – inmates given one blanket at a prison in the Wisconsin part of the U.P. where it was so cold there was ice on the cell walls.

    medical treatment – acting with deliberate indifference (or intentionally) as to deny a prisoner medical treatment for serious medican needs is a violation. This would include administering an inappropriate drug for no valid (medical) reason even where the prisoner only suffered anxiety from knowing the drug had been administered. It would also (and more generally) include the unnecessary and wanton infliction of pain. There is no difference between (non)treatment of physical and psychological ills – the same test applies as to both.

    food – dietary manipulation is not acceptable.

    And, of course, manipulating the situation for unconvicted persons so as to facilitate confessions or interrogations would also be out of bounds.

    I’ll probably think of more – writing this much has led me to lose the other points I wanted to cover.

    But, suffice it to say, Jello Jay and SJC and SIC were quite right to be seriously pissed about the level of bullshit the OLC slung their way – Gitmo was not close to an appropriate condition and OLC didn’t gloss over it – they plowed it under.

    • klynn says:

      Gitmo was not close to an appropriate condition and OLC didn’t gloss over it – they plowed it under.

      scribe,

      Wonderful summary. I ditto Bob in HI – diary worthy.

    • TheraP says:

      Add:

      Deprivation of Sleep.

      Forced Nudity.

      Sexual humiliation. Degrading statements about oneself, one’s family, one’s religion.

      Hooding.

      Those are some that we know were done which violate common decency.

      What an excellent commentary! Wow! And once you put these “conditions” together, you are so far outside the “norm” – it’s horrendous!

    • emptywheel says:

      Thanks. That’s really helpful.

      And of course, one of these three memos (I would have to look for it) has a footnote that says, “you haven’t asked us to address the overall condition” including things like music blaring, so we won’t,” which also might fall under conditions of confinement.

      The due process is really important at this stage because of the requirement that you be sure someone 1) has more information and 2) will only give it up if you torture him in all these memos. Asking James Mitchell whether he thinks Abu Zubayahda is ripe for torture probably doesn’t qualify.

      • scribe says:

        Um, there was no reason for them to not address it. It was total bullshit, them saying:

        “you haven’t asked us to address the overall condition” including things like music blaring, so we won’t,” which also might fall under conditions of confinement.

        One of the cases in the copy of the Digest I’m using states:

        Test which court of appeals had to apply in reveiwing district court’s determination that sentenced inmates would be sujected to cruel and unusual punishment … was whether resulting conditions alone or in combination deprived inmates of the minimal civilized measure of life’s necessities.” (my boldface)

        So, there’s two basic prongs:

        (1) the offending condition can be one condition alone, or a combination of conditions
        and
        (2) it results in a deprivation of the minimal civilized measure of life’s necessities.

        The culpable state of mind on the part of the jailer is that this be intentional or through deliberate indifference.

        So, when they say “we didn’t address the overall condition because you didn’t ask us”, I would argue that in and of itself indicates a level of guilty knowledge on the lawyers’ part – it seems obvious they knew that the overall condition would rise to the level of a violation. The block quotation I gave you above comes from a case decided in 1983; it remains the standard today. No “new” principles of law involved here. The lawyers’ failure surely also vitiates any claim the lawyers might raise in their own defense of “good faith” or “we did our professional best” because they surely could not have missed what I’ve just quoted, had they bothered to read anything other than their instructions on what the objective of writing this memo was, i.e., to justify torture.

        If a lawyer walked into federal District Court defending a jailer with briefs as badly reasoned as the crap the OLC put out, at a bare minimum that lawyer would lose a huge portion of his credibility with the local federal judiciary. More likely, he’d stand a good chance of losing his case.

        • klynn says:

          I would combined your two comments 24 & 44 together for a diary. You state the case to move forward now, just on the evidence we have.

      • WilliamOckham says:

        Btw, George W. Bush should know all about this because one of the biggest political issues in Texas (before, during, and after his governorship, the case lasted in one form or other from 1972 to 2003) was the Ruiz v. Estelle case that found that the Texas Department of Corrections was guilty of cruel and unusual punishment. Here’s Judge Justice (the most appropriately named Judge ever):

        It is impossible for a written opinion to convey the pernicious conditions and the pain and degradation which ordinary inmates suffer within TDC prison walls-the gruesome experiences of youthful first offenders forcibly raped; the cruel and justifiable fears of inmates, wondering when they will be called upon to defend the next violent assault; the sheer misery, the discomfort, the wholesale loss of privacy for prisoners housed with one, two, or three others in a forty-five foot cell or suffocatingly packed together in a crowded dormitory; the physical suffering and wretched psychological stress which must be endured by those sick or injured who cannot obtain adequate medical care; the sense of abject helplessness felt by inmates arbitrarily sent to solitary confinement or administrative segregation without proper opportunity to defend themselves or to argue their causes; the bitter frustration of inmates prevented from petitioning the courts and other government authorities for relief from perceived injustices.

        [My emphasis of the overlap with the conditions of detainees in the so-called War on Terror]

        • SouthernDragon says:

          (the most appropriately named Judge ever)

          My personal favourite is Judge Learned Hand.

          • Mary says:

            I’m stuck on the karma of the DOJ guy working on the GITMO habeas cases (and arguing that defense counsel didn’t need to know the witness against their clients was a crazy guy who would say anything) being named “Warden”

        • TheraP says:

          Should it be renamed The War OF Terror?

          It is heartening to me to see that so many US cases have already dealt with the “conditions” under which these people were held.

          I too noted the footnote EW references, the not addressing the “environment” and other “conditions” under which they were held. Because to me, as a psychologist, those conditions were already torture – long before you got to stress positions, slamming against walls, and waterboarding.

          To engage in this is part and parcel of the “compartmentalization” that occurred over and over during bushco. It occurred within programs and between them. And it is a hallmark of wrongdoing. Clinton compartmentalized, I believe, when it came to the Monica incident. But this is so much more egregious! It asked of all the Principals and the designers and producers of torture that they engage in the compartmentalization that must be the hallmark of bush’s personality and cheney’s as well. I don’t know about the rest of them. But how could you stand it otherwise?

        • bmaz says:

          Excellent point WO. The sister to Ruiz v. Estelle, which takes the discussion from prisons to jails (and pre-trial detainees) has been ongoing in various Federal courts, both District and 9th Circuit, for Arizona for over 30 years. The case was originally captioned Hart v. Hill, and is now captioned Graves (Hart) v. Arpaio. There are many bases for the relief that has constantly been sought, and granted, in Hart, but the discussion underlying it has application to the questions discussed here and certainly militates against the BS that Scalia was bandying about in relation to there being no application to pre-trial detainees.

          Judge Neal Wake wrote in a recent opinion in the ongoing matter:

          “Eighth Amendment provides inmates with a right to safe conditions of confinement, including an adequate level of personal security.”

          Here is the decision.

          If anybody wants to see an interesting discussion of these issues at play as to specific incarcerations details in an American court, check it out. There also is reference to due process in the mix as to conclusions of law. Between Estelle and the Hart (Graves) Litigation, the thought that there was no precedent for discussion of these areas of law is absolutely absurd. And don’t be fooled by the fact that the ruling i linked to came from 2008, the litigation has been going on with similar rulings, including in the 9th Circuit, for over 30 years now, that is simply the most recent one that was easiest and cheapest to link.

    • Mary says:

      And IIRC, al-Marri’s lawyer was skirmishing with Kelly about some of those very issues prior to al-Marri being sent to the brig.

      That’s a great, detailed post and with EW’s follow up @ 35 also highlights all the reasons that NO ONE could ever claim good faith reliance on being within the four corners of the opinions, because as bad as they were, the opinions still just left out and ignored everything that, even using really bad arguments, they couldn’t deal with. The actual rendition to blacksite torture, threats against family members, continued conditions of confinement, etc. etc. None of that fit even under a “we do it in SERE training” flight of fancy.

      35 – and putting in as assumed facts that someone has more info makes it then very easy to set up a situation, as they did, where you are “justified/authorized” to go on to the next worse thing, and the next worse, and the next worse … because the detainee isn’t giving you what you need.

      And of course, once you’ve been down that road and tortured someone, you have that much more pressure to keep torturing, to “show” that they really DID have something.

      A bit nonsequitor, but one thing that struck me when I re-read last year’s NYT piece on Martinez is the way they segregated the man, Martinez, authorizing the swap over to torture from the torture he was creating at each stage that he indicated he wasn’t getting what he wanted.

      We know from the memos that they supposedly set up the system was that as long as someone was being “cooperative” they weren’t supposedly moved on to the next torture station. Martinez as the interrogator is there, making the call over and over on to send someone to abuse, but he never has to actually participate in it himself.

      The interrogator, Deuce Martinez, a soft-spoken analyst who spoke no Arabic, had turned down a C.I.A. offer to be trained in waterboarding. He chose to leave the infliction of pain and panic to others, the gung-ho paramilitary types whom the more cerebral interrogators called “knuckledraggers.”

      The man who decided over and over when the torturers would get to go to town on not just KSM, but Zubaydah, binalshibh, and Nashiri (all of whom he supposedly interrogated) can so divorce himself from his role in the process that he can call his torturers “knuckledraggers”

      Mr. Martinez came in after the rough stuff, the ultimate good cop with the classic skills: an unimposing presence, inexhaustible patience and a willingness to listen to the gripes and musings of a pitiless killer in rambling, imperfect English. He achieved a rapport with Mr. Mohammed that astonished his fellow C.I.A. officers.

      Creepy, that insulating from the results of your decisions. Say this guy isn’t cooperating – then go have a coke. You won’t have to watch or participate in what happens next, just come back later and question. Then ok sending them into torture again. Come back, question, then ok sending them into torture again… The NYT report says sometimes the interrogation would be a day or so after the torture. [And for all that they rag on ABC about Kirakou, the NYT repeats his story of 35 seconds in their piece from last June, even though later on in their piece they bury the information that their sources were telling them that KSM was waterboarded over 100 time in two weeks – iow glossing over that their own sources directly contradicted the story line of one head dunk for a few seconds and its over.

      The Times reported last year that the intensity of his treatment — various harsh techniques, including waterboarding, used about 100 times over a period of two weeks — prompted worries that officers might have crossed the boundary into illegal torture.

      • antibanana says:

        How did Martinez, who had a narcotics background at the CIA, get selected to perform interrogations of one of the most notorious of all al Qaeda terrorists? The NYT article you linked to doesn’t do a very good job of explaining that. But the narcotics angle is probably not to be ignored.

        Also, why has there been so little press attention given to Ramzi bin al-Shibh (who I learned about only by reading this blog)? One would think that the man who was the intermediary between the hijackers and al Qaeda leaders would get more press coverage. Something that strikes me about all of the interrogations is how little they tell us about the men who committed the acts on 9/11. Why is that?

    • klynn says:

      The fact that the staff responded to the paper as opposed to stating, “No comment,” until Bybee responded in writing to Leahy’s letter first, is beyond unprofessional. Especially, considering Bybee is a Federal judge. Well, that just adds to the list of how far he went away from the law.

      He was not snookered EW.

  14. zhiv says:

    You’re the best, ew. Just as I was thinking, “you know, “Jello Jay” seems like he’s doing a pretty good job here…” you write “(Yeah–right about now I’m wondering if I should make an exception to my use of the Jello Jay moniker in this post.)” I had just enough time to wonder if you were going to use “Jello Jay” in your torture book. Moniker has a much nicer rugby girl feel instead of sobriquet, and combined with “what’s aristocrat for snark?” plus yesterday’s Condiscension (was the Stanford stumble picked up on Olberman or Maddow, btw?), it’s a feast.

  15. Mauimom says:

    Is that a Martian in the sonogram?

    Doesn’t look like any sonogram I’ve ever seen.

  16. fatster says:

    I think he be skeeeeert!

    BTW, I left a brief message for you a the end of the “Condi’s ‘Positions . . . ‘” thread. I hope you saw it.

  17. emptywheel says:

    zhiv

    The moniker came during the FISA fight–it’s always good to remember that none of these people are monoliths. Pelosi was good on wiretapping but not as good on torture. Harman has been very good fighting torture, but terrible on wiretapping. And Jello Jay has been okay behind the scenes on both, but absolute abysmal when it comes to casting a vote (Jello Jay voted for the MCA, for example, even after putting up this stink).

    And, FWIW, the ”Jello” part of the moniker actually came from a Hill staffer who has long been involved in intelligence. I would assume that staffer knows better than I.

    • SouthernDragon says:

      Jello fits into any mold you pour it into. If it melts you can put it into a different mold.

  18. RevBev says:

    One of the particularly offending threads in all of this is the stupid fig leaf that is being held out,then shredded, in order to maintain the oft claimed fiction that the US does not torture. Get Over it….we do and we have. But all this so called legal talent is working overtime to claim that these cruel, unusual, and bizarre activities that someone apparently really gets off on are not to be called torture. No wonder none of these people (Gonzo,etc) can testify; they don’t have a clue what words and language mean.

    The old saw: I was born at night, but NOT last night.

  19. earlofhuntingdon says:

    As you repeatedly say, this house of cards tumbles upon close inspection and collapses into one argument: mecessity, which is expressly disallowed as a defense under the CAT. The bootstrap that the “necessity” argument only applies only to whether the subject behavior “shocks the conscious”, and not as an independent defense snaps, at the first tug.

  20. phred says:

    In addition, his testimony stated that under Supreme Court precedent, the Eighth Amendment protection against Cruel and Unusual Punishment has no application to the treatment of detainees where there has been no formal adjudication of guilt

    Seriously?!? The Associate DAG claims you can be as cruel and as unusual as you want as long as the poor SOB hasn’t been convicted yet??? No wonder they didn’t want anyone to have their day in court, then all that fun would have to stop.

    And then here it is again in the May 30 Bradbury memo:

    Because the high value detainees on whom the CIA might use enhanced interrogation techniques have not been convicted of any crime, the substantive requirements of the Eighth Amendment would not be relevant here, even if we assume that Article 16 has application to the CIA’s interrogation program.

    As if they were actually trying to obtain convictions!!!

    You know what “shocks my conscience”? The deliberate intentional shocking dishonesty on display in the work of the DoJ. How could any sane lawyer think they could get away with this? Did not one person in on the conspiracy contemplate the consequences if anyone decided to call bullshit? Did they really think they were completely unbound by the law forever and ever? This is just stunning.

    • scribe says:

      You object to this:

      In addition, his testimony stated that under Supreme Court precedent, the Eighth Amendment protection against Cruel and Unusual Punishment has no application to the treatment of detainees where there has been no formal adjudication of guilt

      That is a correct statement of the law. But it is also an inadequate statement of it and, consequently, intellectually dishonest (or worse).

      As I explained at some, very short length at 24 upthread, the rights protected by the Eighth Amendment prohibition against cruel and unusual punishment can only come into existence (and be protectable) when the person aggrieved by his treatment in custody is in custody because of a sentence entered after a conviction. Until the person is sentenced, in the strictly lawyerly sense he is not being “punished” by being in custody. And, if he is not being punished, then he cannot be suffering a “cruel and unusual punishment”.

      As I also explained above, if the person in custody is there prior to being convicted and sentenced, then his remedy has to be obtained by suing for violations of his due process rights protected by the Due Process Clauses of the 14th and 5th Amendments. The 14th Amendment Due Process clause comes into play when the person is in custody and the custodial agency is a state agency; the 14th Amendment, through “incorporation”, incorporates the protections of the 5th Amendment as against the states.

      Remember, “incorporation” doctrine is how the protections of the Bill of Rights came to have effect against state governments – federal courts decided that a particular right guaranteed against the federal government under the 1st, 4th, 5th, 6th, or 8th Amendments was incorporated by means of the 14th amendment against state governments. Under a strict reading of the Constitution, particularly the pre-1865 Constitution, the Bill of Rights had applied only against depredations against civil rights when those depredations were done by the federal government and people wronged by a state government had to look to the state’s constitution and remedies for redress.

      Since the custody we are talking about here is custody implemented by the federal government, then a violation of the Due Process clause of the 5th Amendment is what the person in custody has to allege in order to get anywhere.

      As to persons in custody, the Due Process clauses and violations of them are informed by the state of the law developed regarding violations of the Eighth Amendment. As a practical matter, judges would find it incomprehensible and illogical for there to be one set of rules prohibiting vile treatment of people convicted, and another set of rules allowing that same vile treatment of people not yet convicted but in custody for whatever reason. The former category of persons would be guilty of something and the latter innocent, but failing to find something would violate the Due Process clause when done to an unconvicted person, while the same conduct would violate the Cruel and Unusual Punishment clause when done to a convicted person is properly seen as nonsensical. Indeed, this distinction allows the judiciary to impose better conditions for the unconvicted, though they rarely do.

      So, the net result is that there is little if any substantive difference in what treatment violates a captive’s constitutional rights, but a large difference in which rights are being violated, depending upon the status of the captive.

      Since the captives we are talking about were never convicted of anything, they would have to proceed through the Due Process clauses.

      • phred says:

        Thank you for your excellent comments. As you know IANAL, but that does not mean that us lay citizens don’t have a fundamental understanding of what the law is supposed to provide for us. Lawyers make their living by finding wiggle room in imprecise language (if you will forgive me for saying so). As a result, those of us who live our lives outside of courtrooms tend to be mystified (or outraged as the case may be) when what appears to us to be the clear intent of a law is weaseled around because of the manner in which it is written.

        The person who wrote that convicted prisoners could not be mistreated could not possibly have meant that those held in custody prior to conviction were fair game for all manner of mistreatment. And yet that is fundamentally what Bradbury is arguing. It is intellectually dishonest and offensive to the sensibilities of an ordinary citizen. That is my objection, not that Bradbury can’t read or properly quote an excerpt, but that he willfully misrepresents intent. It is loathsome in every regard.

  21. lurkinlil says:

    Has anyone sent the Spanish judge a link to this website? It would make his work go a whole lot faster, because you all have done a lot of the work already.

  22. tjbs says:

    On more fucking POINT.

    How long do WE suggest that a torturee who is dying from his treatment,in his thirst for justice, wait for us to determine how many torturers and the beaten can fit on the head of a pin?

    • fatster says:

      Isn’t that the truth? Many times when I read a new article EW’s posted, I think “well, this one just takes the cake!” But then there’s another and another and another. At the rate she’s going, we’ll have a layer cake to the moon and back before too long. She is simply amazing.

  23. Dalybean says:

    Philip Zelikow says that his dissenting memorandum pointed out that the Eighth Amendment is incorporated in the Fifth Amendment.

    http://shadow.foreignpolicy.co….._dissenter

    The dismissal of the Fourteenth Amendment and then the Eighth by Bradbury when it is explicitly included in Article 16 is shocking.

  24. prostratedragon says:

    I don’t know what the proper term is when aristocrats like Rockefellers attempt snark, disdain, or disgust, […]

    Standard operating procedure.

    but I do believe this is an example of the form.

    Quite. But then, who among us would not discover our hidden high horse on reading, in isolation especially, passages such as this,

    Based on CIA assurances, we understand that the interrogations do not take place in any … areas over which the United States exercises at least de facto authority as the government. … We therefore conclude that Article 16 is inapplicable to the CIA’s interrogation practices and that those practices thus cannot violate Article 16.

    In which it is revealed that to Bradbury, by merely stepping out of the bounds of territory under U.S. control, the obligations created by the Conventions Against Torture, are made to stand in a similar relation to the U.S. government and its organs, e.g. the CIA, as, I don’t know, maybe the rules of time stand to God. Things happen with the participation of USG agents, at the behest of USG and indeed, because USG has arranged for them to happen at such time and place. Yet, because the place where they happen is outside “areas over which the United States exercises at least de facto authority as the government,” the U.S. government and its OGA guys are no longer bound to maintain the parameters of the CAT over the proceedings.

    Unfortunately the warm cozy feeling those thoughts give me cannot be conserved for use when winter comes.

    • Rayne says:

      Once the U.S. steps out of its area of control, it is then governed by international law or local law. The U.S. violated the UN-CAT to which it is a signatory, as soon as it transferred a detainee to any state where the detainee could be illegally detained and/or tortured (Article 3), while making no effort to protect the detainee from such treatment (Article 2).

      This stuff must reveal my residence at the other end of the social strata from the aristocracy, because I can’t muster even the slightest subtlety in snark about such wanton violation of international law.

      Nor can I muster any sarcasm about the idiocy of pretending that kidnapping and false imprisonment along with torture and detention for unspecified periods of time are somehow not part of the subject dialog with DOJ-OLC.

      If these indefinitely held detainees not charged with a crime are not prisoners of war, what the hell are they? Does it really matter whether they are held in the U.S. or overseas that they are kidnapped, falsely imprisoned and tortured? How hard would it have been for the jiggly-spined aristocrat to use those terms in his inquiry?

  25. alinaustex says:

    Would there be any credence to my hope / wishful thought that Rockefeller et al might actually grow a pair and team up with Senator Whitehouse and actually hold credible hearings on these war criminals ?

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