25 May Amnesty’s Torture List
As Peggy notes, Amnesty International’s annual report is almost certainly getting more press than usual because of its aggressive condemnation of U.S. policy toward detainees in Guantanamo Bay. In fact, it’s a bit more than aggressive, as this statement by Amnesty U.S.A.’s director suggests, Amnesty is putting out a list of “torture architects” and is asking foreign jurisdictions to arrest U.S. officials on this list. (UPDATE: The WSJ and the Washington Post weigh in with tough editorials jumping on Amnesty as well).
Amnesty International’s list of those who may be considered high-level torture architects includes Donald Rumsfeld, who approved a December 2002 memorandum that permitted such unlawful interrogation techniques as stress positions, prolonged isolation, stripping, and the use of dogs at Guantanamo Bay; William Haynes, the Defense Department General Counsel who wrote that memo, and Douglas Feith, Under Secretary of Defense for Policy, who is cited in the memo as concurring with its recommendations.
Our list includes Major General Geoffrey Miller, Commander of the Joint Task Force Guantanamo, whose subordinates used some of the approved torture techniques and who was sent to Iraq where he recommended that prison guards “soften up” detainees for interrogations; former CIA Director George Tenet, whose agency kept so-called “ghost detainees” off registration logs and hidden during visits by the Red Cross and whose operatives reportedly used such techniques as water-boarding, feigning suffocation, stress positions, and incommunicado detention.
And it includes Attorney General Alberto Gonzales, who called the Geneva Conventions “quaint” and “obsolete” in a January 2002 memo and who requested the memos that fueled the atrocities at Abu Ghraib; Lieutenant General Ricardo Sanchez, former Commander of US Forces in Iraq, and Sanchez’ deputy, Major General Walter Wojdakowsi, who failed to ensure proper staff oversight of detention and interrogation operations at Abu Ghraib, according to the military’s Fay-Jones report, and Captain Carolyn Wood, who oversaw interrogation operations at Bagram Air Base and who permitted the use of dogs, stress positions and sensory deprivation.
And that’s not all. Attorneys are not going to get off the hook:
Furthermore, Amnesty International calls upon state bar authorities to investigate the Administration lawyers alleged to be involved in the torture scandal for failing to meet professional responsibility standards. The attorneys who wrote various legal opinions that may have provided cover for subsequent crimes and who should be investigated include Bybee and David Addington, General Counsel to Vice President Cheney; Robert Delahunty, former Special Counsel in the Office of Homeland Security, and three attorneys in the Office of Legal Counsel—John Yoo, former Deputy Assistant Attorney General, Patrick Philbin, Deputy Assistant Attorney General, and Jack Goldsmith, former Assistant Attorney General. We also call on the Justice Department’s Office of Professional Responsibility to make public the findings of its investigation into the Bybee memo.
Now I realize that folks can disagree about the legal opinions reached by government attorneys and the policies that members of the executive branch pursued in detaining and interrogating suspects in the war on terror. But Amnesty is veering dangerously close to Noam Chomsky/Ramsey Clark-land here. They are not quite there yet, but give them another year, and the once-proud Amnesty International will be simply dismissed as another hotbed of fervent leftish-anti-Americanism which is no more credible on these matters than the U.S. government itself.
I hate to say it about an organizatoin I once admired, but A.I. crossed firmly and completely over into Choamsky territory some time back.
One my friends is a former bigwig at AIUSA, and even he was surprised and disappointed at the AI post 9-11 approach to the world. This latest madness just confirms and highlights how sclerotic NGOs can become and how unaccountable to their membership these groups are when hijaaked by a bad of thought pirates — both longterm arguments against giving NGOs a place at world-body tables. AI is killing itself.
another thing to keep in mind is that AI just blew any credibility it had with Republicans in the U.S. It might not care about that, since its audience is Democrats and foreigners, but in terms of influence and effectiveness among the current majority party, it’s gone.
There’s an excellent, and in my opinion completely correct, analysis of just how wrong and politically-based AI’s recent report and positions are up on National Review Online today at http://www.nationalreview.com/comment/rivkin_casey200505270804.asp
Dear all,
Some of the remarks by Mr Schulz may indeed be overblown, but the fact remains that none of the higher-ups has yet been charged for the apparently systematic abuses from Afghanistan and Abu Ghraib to Guantánamo. This is the worst possible condition for the spread of democracy and the rule of law to the rest of the world. It is time that the leadership faces its resonsibility, including the lawyers who gave them the advice they wanted to hear (cf. Vagts and Bilder in the American Journal of International Law). Don’t shoot the messenger. Amnesty does not ask for more than what existing law, domestic and international, requires.
Best, Andreas
Agreed. Only those on the far left would make such accusations. Obviously, Amnesty is only following the lead of that notoriously anti-American organization the American Bar Association, whose House of Delegates roundly condemned the torture memos, especially the opinions of government lawyers that sought to justify or excuse torture. Other pinkos hewing to this line are the numerous military lawyers who complained that their normal oversight was being circumvented by Pentagon civilians. There is also the group of 130 prominent lawyers — again all screaming lefties — who signed an open statement of condemnation; here’s a brief quote from a news story about it: “”The lawyers who prepared and approved these memoranda have failed to meet their professional obligations,” according to the statement, which was signed by, among others, former FBI director William Sessions, retired Chief Judge of the U.S. Third Circuit Court of Appeals John J. Gibbons, former U.S. Attorney General Nicholas Katzenbach, and former Circuit Judge of the U.S. Court of Appeals for the District of Columbia, Abner Mikva, among others.” Finally, any collection of such lefty extremists must include the US prosecutors at Nuremburg, who, in United States v. Altstoetter, successfully charged Nazi lawyers who advised that… Read more »
Andreas and Greg, There are reasonable and unreasonable criticisms (at least in my view) of the U.S. government’s policy toward detainees. What is reasonable? We think the legal analysis was incorrect as a matter of domestic and international law. Maybe even that the policy, as implemented, was immoral or incompetent. What is unreasonable, in my view? That U.S. officials should be arrested in foreign jurisdictions for alleged violations of international treaties and customary law. That attorneys who advised U.S. officials should be disbarred or sanctioned for their legal advice. Why is this unreasonable? Because there is simply not enough consensus on the legal issues (not to mention the utter lack of evidence of the attorneys’ complicity) to label them the modern equivalent of the Nazis’ lawyers. What I object to is the idea that you not only disagree with someone’s interpretation of international law, but that you condemn those you disagree with as criminals. This is simply wrong, in my opinion, but it is also pointless because it makes our discussion of legal analysis a self-righteous shouting match. I simply don’t think calling U.S. government lawyers “Nazis” is simply advancing the conversation one iota, although it may make you feel… Read more »
AI isn’t calling for anything more or less than the enforcement of the law. 18 USC 2441 makes it a federal offense to commit any grave breach of the Geneva Convenetions or any violation of Hague IV (1907) Annex art. 23.
George Bush and Dick Cheney are war criminals. Their guilt is for a jury decide, but the evidence is way beyond probable cause. Indeed, it’s sufficient to prove guilt to a logical certainty.
As for the current majority party, messers. Rivkin and Casey, and deranged hypocrites who smear “liberals” and “pinkos” etc…
Crime syndicates, lynch mobs, and riots are not improved by size. The Republican Party has degenerated into an absolute disgrace.
Charles Gittings
Julian — I agree with you that there are legitimate and illegitimate criticisms of Administration legal arguments. But apart from a few extreme administration partisans you will find virtually no mainstream lawyers willing to back the arguments in the OLC memos. Doesn’t the fact that the Justice Department itself repudiated the Bybee memo tell you something about its place off in left (or actually right) field? And think for a moment about the following arguments: — Because Afghanistan is a “failed state” its treaty relations with the US have lapsed; — A statute on health care economics provides the most sound basis for defining a crucial aspect of torture — Any Executive Branch action taken pursuant to the President’s Commander and Chief power automatically insulates relevant Executive Branchy officials on constitutional grounds. I could go on, but I suspect that if a first year law student made those arguments to me in a draft paper I would return it covered in red ink with instructions to do the research properly next time. The point is this: such laughable arguments would implicate ethical considerations if made in the normal course of commerical representation. But when they counsel violation of core humanitarian… Read more »
Dear Julien,
Sorry for the late posting, but I would like to clarify a few points:
– I did not – and would not – compare anything the US does now with the Nazis or the Soviet Union, for that matter. I think the AI sideremarks were unfortunate, but they are not in the report, and should not.
– I agree that legal advice is not bound to repeat mainstream views. But I indeed think that good legal advice should at least clarify where it deviates from the mainstream. To put it mildly, some of the incriminated memos do not do this properly (others, for instance Goldsmith’s, do) and this in matters dealing with torture and life and death-issues, which is clearly irresponsible, if not worse.
– I agree with AI, HRW, and others that there should be an independent investigation. Not more, not less.
– If and to the extent there is such an investigation, no foreign country will be in a position to arrest anybody, even if it does not agree with the conclusions reached. However, the reports so far are not a serious independent investigation because they do not deal with the question of criminal conduct and command responsibility.
Best, Andreas
Hey Greg, Thanks for the response (and for everyone else who has commented). It is much appreciated. I just want to push back one more time on what is considered a “plausible” legal argument, or say a legal argument that fulfills one’s duties as an attorney. I guess I must be an extreme administration partisan, but I don’t find all of the Bush Administration’s arguments on this subject indefensible. Moreover, your analysis suggests you are indulging in what I object to most: defining the other side as “outside the mainstream” and perhaps “criminals”. Just as an example: As I’ve pointed out before, the same Commander in Chief argument was proffered by none other than Walter Dellinger when he was Clinton’s OLC Chief to suggest congressional limitations on deployments of U.S. troops under UN command would be unconstitutional. The “failed” state argument is not nearly as implausible as you suggest. I don’t have space to go into it, but wouldn’t it have applied to places like, say, Somalia or DR Congo at various times? There are indeed failed states. I don’t see why Afghanistan ca 2001 is so obviously not one of them. The use of a health care statute to… Read more »
Julian — Thanks for taking this discussion at least partly out of the comments section. At the same time, I’m aware that our debate may be testing your readers’ patience. Nonetheless, I want to respond to your last post. Every lawyer must, at some point, confront the distinction between reasonable and unreasonable arguments. Rule 11 requires us to do so in US Federal courts, and I’m sure equivalent rules exist in every other legal system. So the fact that hard questions are involved — questions of line-drawing — is not an argument against drawing the distinction. And it is also not an argument against penalizing lawyers when they get the distinction wrong. Especially when they do so willfully. How do we know the OLC arguments are unacceptably unreasonable? The reasons are multiple and, I’m afraid, you really haven’t confronted them in your post. The first is that the overwhelming majority of experts in the field believe they are. You will certainly reply that this is mere politics, but if lawyers are the guardians of their own ethical boundaries and most lawyers in the field find ethics violated in this case then I’m at a loss to understand where the process… Read more »
I haven’t yet read the AI report and withhold judgment until I have. However, the question of lawyer culpability for the construction of the torture-by-proxy system and the approval of torture techniques is a very grave matter meriting close scrutiny. The text of the second, yet unpublished, torture memorandum approving certain techniques is vital to resolution of this issue. If, as widely suggested, this memorandum approves such practices as waterboarding, the lawyers involved in it have committed serious criminal conduct and deserve disciplinary review and more. At Nuremberg, Justice Jackson ordered the opening of criminal investigations into the role played by German Justice Department lawyers (they weren’t Nazis, by the way, the two convicted were nonpolitical career civil servants, though one was the deputy chief of the Criminal Division) who authored memoranda that legitimized abuse producing some 7,000 deaths in the implementation of the Night and Fog Decree. As the United States charged, after establishing that their interpretations of the Geneva and Hague Conventions were mistaken (though clearly less mistaken than the Yoo analysis), the key question became whether it was reasonably foreseeable that their work would lead to the death or harm of those apprehended? That court, a purely… Read more »
An addendum to my last post: I forgot to say something about the OLC claiim that Afghanistan’s status as a “failed” state meant the Geneva Conventions no longer applied between it and the US. The best response to this was from Will Taft in his January 11, 2002 memo to John Yoo: “The concept of a ‘failed state’ has been developed as a historic and political analytic tool, not as a legal concept. A failed State does not thereby cease to be a State, nor does it cease thereby to be a party to the relevant conventions. Specifically, neither the United States nor any other country has viewed Afghanistan at any point as ceasing to be a State. Neither the United States nor any other State has viewed it as ceasing to be a party to international agreements. The fact that the United States did not recognize the Taliban government as the government of Afghanistan is completely irrelevant.” Keep in mind, this was Taft’s INTERIM reply. OLC received this devastating critique of its legal reasoning and STILL went ahead regardless. Is it really true that OLC thought this was sound legal analysis? Using a theory that isn’t even a legal… Read more »
Yes, AI crossed a few lines with its report. Obviously they should have toned it down a little….but then nobody would have listened, it would have been just another mutter in the wilderness. There are too many credible stories of people whose only crime was to be in the wrong place at the wrong time being detained by US military and then being kicked to death. If these people had no information, why were they kicked to death? Does kicking produce information where there is none? It does unfortunately, produce data that has no information value, but there are too many credible stories that that is sufficient for the US military to take anyone from anywhere and spirit them to anywhere else. In this context, if I see US military in my neighbourhood (Tasmania, a very peaceful place) then I will have to be careful to avoid eye contact and unobstrusively leave the scene as quickly as possible. There is just too much evidence that the US military respects no law but its own, and even here I might be abducted and kicked to death. It is not likely, but neither was many of the individual credible stories reported by… Read more »
Interesting discussion, but I find troubling some of the points in support of AI, which are abstracted from the motivation and substance of AI’s report. First, the comment that while AI went over the line in its report it had to in order to garner attention. That’s the worst justification I’ve yet heard for their actions and is inexcusable. Second, that AI may have legitimate concerns and points to make are one factor, but towering over these is their political motivation behind the report. Granted, motivation is not a defense in criminal matters (but perhaps only mitigation at sentencing), but we’re not taking a courtroom here — we’re talking the arena of public opinion. So, the issue is whether this trumpeting was in either American’s or AI’s or even prisoner’s best interests, versus alternative means of achieving whatever goal AI professes. I’d say their actions through this report have led to completely contrary results than those desired on their part (unless, of course, embarassing the U.S. and fueling AI’s anti-American membership base were the goals). I’d give AI’s allegations more credence if they had focused on state-based human rights violations endemic to the entire middle east, rather than focusing on… Read more »
the comment that the sources for finding the definition of torture should be “(i) the travaux, (ii) opinions of the Torture and Human Rights Committees, (iii) decisions of the ECHR on identical language, and (iv) writings of the most estemmed publicists” is flat wrong. the memo was trying to define torture as a concept under US domestic law. the US had clearly not accepted the definition of torture by non-US parties in the traveux, which would probably include things like solitary confinement, life w/o parole, and so-called “death row phenomenon” (and prisoner’s rights anti-death penalty activitists do cite the Convention on Torture for those propositions). Nor would or should the opinions of the Torture and Human Rights Committees, or decisions of the ECHR have any bearing on US domestic law. To claim that they do is only to explify why many Americans are concerend about their sovereignty. Most importantly, the views of “esteemed publicists” is a ludicrous source of law. the PICJ statute article that lays out the sources of law includes publicists’ writings only as a subsidary source for finding out what the law is, based on the premise that treatises are neutral surveys of doctrine. contemporary academic works,… Read more »
Andreas and Greg: If you think that the Geneva Conventions apply to the detainees in Guantanamo, then please tell me what their response would be when asked their rank and serial number? If they can’t produce a reasonable response that isn’t just making things up out of thin air, then maybe you should reconsider your position. I am not an administration defendant. I do think that serious lapses in judgement happened and that some of these were not wise moves as a matter of public policy. But that is a far cry from saying that esteemed academics like John Yoo and Jack Goldsmith ought to be prosecuted for war crimes. They were writing memos about US law on torture which does not define torture in the same way as international statutes do (which the US does not subscribe to). And if you do think that the legal understanding of torture is so clear as a matter of US law, then please explain to me why law review articles are being published all the time in this area of law. It would seem to me that if it were so clear that Yoo’s arguing to the contrary is a war crime,… Read more »
Julian,
Please stop trying to divert attention from the real issue – the Bush adminstration’s policy of ‘lite torture’ and torture by proxy. Excellent examples are the attempst to break inmates at Guanatanamo Bay by holding them under water and use of a set of aircraft (listed as assets under dummy corporations) by the CIA to kidnap people and send them to those pillars of human rights such as Egypt and Saudia Arabia.
Indeed, Julian, your side of the political aisle largely consists of the morally lobotomized, who wink at torture because George Bush has reassured them the US government never makes a mistake. It is always amuses me how conservatives can bash government when it redistributes income but become reverently silent when government assumes powers unlimited by judicial review or indeed review by any independent party. And ‘thinkers’ like Julian try to justify it using sloppy metaphors of the struggle against as ‘a war’ in order to create a ‘you with us or against mentality’.
Taliban Afghanistan was not treated by the USA as a non-state. The Administration sent an ultimatum to the Afghan government to hand over OSL, a foreign national under its jurisdiction; and justified its invasion with that government’s refusal to do so. These formal steps presuppose that Afghanistan was a state and the Taliban its government. The case was pretty universally accepted as morally and legally legitimate. Contrast Somalia, a genuine anarchy.
I make this point without prejudice to the separate question of the applicability of the Geneva Conventions to non-state and stateless combatants. Some of the Guantanamo and Baghram prisoners have beem alleged to be simply Taliban soldiers.