In the Penal Colony | The Nation


In the Penal Colony

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The August 1 memo reads like a Federalist Society lesson plan. Lesson 1: US sovereignty is paramount and US law is the only relevant reference. In defining torture, the authors ignored human rights literature and international jurisprudence on torture, opting instead to comb the US record, where the only reference to "severe pain" could be found in laws governing emergency medical care. Hence the assertion that "physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." For mental pain or suffering, the authors fixated on the term "prolonged" in the phrase "prolonged mental harm." Finding no reference to this phrase in US case law, they drew upon dictionaries and medical reference books to conclude that, to rise to the level of punishable torture, the "harm must cause some lasting, though not necessarily permanent, damage.... The development of a mental disorder such as posttraumatic stress disorder, which can last months or even years, or even chronic depression, which also can last for a considerable period of time if untreated, might satisfy the prolonged harm requirement."

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Lisa Hajjar
Lisa Hajjar, a professor of sociology at the University of California, Santa Barbara, is the Edward Said Chair of...

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The OLC lawyers also surveyed the record of judicial decisions in Torture Victims Protection Act (TVPA) cases, finding that federal courts had provided a civil remedy for victims who sued their foreign torturers for severe beatings, mock executions, burning with cigarettes, electric shocks, rape or sexual assault or injury to sex organs, and forcing a prisoner to watch the torture of others. But they added that these TVPA cases were not definitive for their own purposes because there are no US cases "that analyze the lowest boundary of what constitutes torture."

Since the "lowest boundary" would be, in their estimation, the line between "torture" and "not torture," between "crime" and "not crime," they turned for inspiration to two US allies: Britain and Israel. More specifically, they reproduced Israel's potted reasoning from the late 1980s that "moderate physical pressure" does not constitute "torture," which itself draws on the 1977 Ireland v. United Kingdom case before the European Court of Human Rights. However, the OLC lawyers did not acknowledge (because the Israelis hadn't, either) that Britain renounced the use of the "five techniques" on the grounds that they constitute cruel, inhumane and degrading treatment, and therefore are illegal.

Lesson 2: Adopt a formalistic approach to law and exalt original intent. The OLC lawyers interpreted Congressional intent in passing the federal torture statute to exclude cruel, inhumane and degrading treatment of foreign enemies as prosecutable offenses, making it, therefore, "legal." The memo then lays out two additional lines of reasoning on how the prohibition of torture could be skirted and prosecution avoided.

Lesson 3: The President's commander-in-chief powers vest him with unbridled discretion to wage war. The authors interpreted executive power to include the "right" to authorize torture. "Even if an interrogation method arguably were to violate Section 2340A, the statute would be unconstitutional if it impermissibly encroached on the President's constitutional power to conduct a military campaign." But just in case the "constitutional infringement" argument did not fly, they suggested a line of defense that Americans charged with torture could marshal if prosecuted. For this, they turned again to the Israeli model--circa 1987--to argue that national security necessitates, and therefore legitimizes, physical and psychological coercion in the interrogation of unlawful combatants. The memo's final statement reads: "Even if an interrogation method might violate Section 2340A, necessity or self-defense could provide justifications that would eliminate any criminal liability." Thus they not only ignored the 1999 Israeli High Court ruling repudiating this reasoning but tried to realize the right-wing fantasy of negating post-World War II international law limiting and regulating what states can do to people in wartime.

The Pentagon civilians apparently found the August 1 memo so persuasive that they adopted it for the development of interrogation guidelines for "counter-resistance techniques." In December 2002, responding to interrogators' frustrations about not getting good intelligence out of prisoners, Rumsfeld charged a working group with responsibility to clarify and categorize interrogation tactics for the GWOT. Some of the military lawyers assigned to this group protested that coercing prisoners would not only pose a threat to military culture but, if it became public, would diminish support for the war. Pentagon general counsel William Haynes (who has subsequently been renominated for a federal judgeship; his nomination last year was blocked by a filibuster) insisted that the working group accept the reasoning of the August 1 memo. Consequently, the April 2003 report of the working group, which is reprinted in The Torture Papers, includes sections of the memo verbatim, along with what amounts to a rebuttal of its reasoning as contrary to the Uniform Code of Military Justice, making the report itself legally "schizophrenic."

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