Inconvenient News,
       by smintheus

Monday, November 05, 2007

  You too may be waterboarded

So says John Bellinger, Senior Associate Counsel to the President and Legal Adviser to the NSC, and a close aide to Condoleezza Rice. When asked whether foreign governments could be permitted to waterboard American citizens, Bellinger declared that he couldn’t rule it out.

The logic of permitting George Bush to do whatever he wishes to suspected terrorists, regardless of the law, also means that you have lost your legal rights too. It requires that you’re no longer a citizen, but instead a subject. The American government can’t be counted on to defend your human rights because you don’t have them any longer.

Terrifying, sure, but Bellinger’s position is nothing if not rigorously logical.

The logic follows from Bellinger’s first principle, that George Bush can do no wrong. We can deduce that Bellinger takes that view from his long, ugly record of justifying and promoting Bush’s every wish. For example in 2003 he was instrumental in bending the British Attorney General, Lord Goldsmith, to Bush’s desire for war against Iraq.

On February 11, 2003, as war approached, and with Mr Blair close to panic over the legal fiasco, Goldsmith flew to the White House to meet US National Security Council legal chief, John Bellinger.

His message was clear: the US had no legal worries because Congress had already given Mr Bush the power to rule the war legal. In addition it believed there was no need for a second UN resolution.

Mr Bellinger later boasted: "We had a problem with your Attorney General who was telling us it was legally doubtful under international law. We straightened him out."


So, a State Department lawyer who cares little for international law, is Mr. Bellinger.

Mr Bellinger said the US did practice rendition, by which some terror suspects were sent to a third country to be questioned. But he added that even transferring a prisoner to a country which had been criticised over its human rights record was not a violation of international law.

"We as a state department have got problems with the human rights records of some countries... but this does not mean per se that you may not transfer a person to those countries," he told BBC Radio 4's Today programme.

Mr Bellinger insisted that if there were such questions, the US would seek reassurances that a prisoner would not be subjected to torture. But he said some practises had been wildly exaggerated.

"Some of the allegations more broadly about all sorts of things are ludicrous, [like one] about hundreds of flights from European cities taking people to be tortured," he said.

He repeated that Washington did not condone or practise torture but would not comment on whether some prisoners had been subjected to interrogation techniques such as waterboarding - when a suspect is made to feel that they are drowning - to extract information. The lawyer said he could not comment on speculation about so-called enhanced interrogation techniques or the existence of secret prisons.


The reason Bellinger would not discuss waterboarding with the BBC is quite obviously that the BBC believes, rightly as it turns out, that waterboarding is torture.

It’s not permissible, you see, to acknowledge that the President has authorized illegal acts. Thus even when the Army banned waterboarding in its new manual, Bellinger insisted that it was not an admission that the banned practice had ever been actually practiced.

It’s worth recalling that Bellinger has threatened European leaders that they should shut up about the CIA’s spiderweb of secret prisons.

A senior U.S. administration official on Wednesday warned that ongoing inquiries into secret CIA activities in the European Union may undermine intelligence cooperation between the United States and European nations…

John Bellinger, legal adviser to Secretary of State Condoleezza Rice, called the European Parliament report ''unbalanced, inaccurate and unfair'' and called on the EU governments to challenge the suggestion that Europeans need to be concerned about secret CIA flights.

''I can understand concerns about specific incidents but we should not somehow suggest that all intelligence activity is something illegal or suspicious,'' he said.

Germany, Italy and several other EU countries have been carrying out their own inquiries into secret CIA activities in Europe, probes Bellinger said ''have not been helpful with respect to necessary cooperation between the United States and Europe.''

''I do think these continuing investigations can harm intelligence cooperation, that's simply a fact of life,'' Bellinger told reporters after meeting legal advisers to EU governments in Brussels…

“We have seen many statements from European governments saying Guantanamo must be closed immediately. It's not clear how Guantanamo would be immediately closed. Europe has been prepared to criticize ... but has not been prepared to offer a constructive suggestion,'' Bellinger said.


In other words, according to Bellinger, any of Bush’s policies that come in for criticism have to become everybody’s policies…if not our allies, then at least Congress must take responsibility for his lawlessness. That’s because George W. Bush cannot be in the wrong.

In particular, Bush cannot be wrong in authorizing waterboarding. If Bush does it, then it must be legal.

Therefore since it’s permissible for Americans to waterboard foreigners, then there is no obvious basis on which to object to the waterboarding of Americans by foreign governments.

Here is Bellinger’s admission that Americans too must be subject to waterboarding, in a debate with Philippe Sands as published today by Guardian America. Before this exchange Bellinger has been playing cute, saying that he would not discuss any specific interrogation techniques and denouncing reporters for exaggerating the tendency of the US to extradite and torture people.

Philippe Sands: Are there any circumstances in which you could imagine the use of water boarding to be consistent with international law?

John Bellinger: Again, we've decided that we just don't want to get engaged in hypotheticals and applying the law to the facts of these particular cases.

Philippe Sands: Let me put it in yet another way. Could you imagine any circumstances in which the use of water boarding on an American national by a foreign intelligence service could be justified?

John Bellinger: One would have to apply the facts to the law, the law to the facts, to determine whether any technique, whatever it happened to be, would cause severe physical pain or suffering.

Philippe Sands: So you're willing to exclude any American going to the international criminal court under any circumstances, but you're not able to exclude the possibility of water boarding being used on a United States national by foreign intelligence service? I mean, that just strikes me as very curious.

John Bellinger: Well, I'm not willing to include it or exclude it, I mean, these are issues that our justice department as a matter of interpreting both the domestic law on torture and international law, has concluded that just don't want to get involved in abstract discussions of applying the law to any set of facts.

I can certainly tell you as a State Department official that it makes it very difficult to explain to the world and to provide the important assurance of what we're doing or not doing if we can't talk about intelligence activities or we can't even talk about hypotheticals.

But the decision has been made at least so far and maybe Judge Mukasey, if he's confirmed as attorney general, will make a different decision, that he would talk more about techniques. But at least, so far, the conclusion that we should not talk about specific techniques even in terms of hypotheticals.


Bellinger tries to pull a veil across his brutal admission by quibbling in the margins: He would have to know the circumstances of the waterboarding before judging whether it was acceptable; US policy has changed during Bush’s presidency and maybe it will change again to outlaw waterboarding; and gosh darn it, it’s hard to discuss waterboarding without being permitted to discuss it.

But the simple fact is that one of the government’s top lawyers is willing to permit American citizens to be waterboarded.

Of course, if foreign governments may waterboard American citizens abroad then there’s little to stop the US government from the doing the same here at home. It isn’t any longer considered torture, we’re told, and how can it be “unusual” if the entire world may practice waterboarding against any of us?

As for “cruel”, the Bush administration is never cruel.

In the case of the Convention Against Torture, our Constitution already prohibited cruel and unusual punishment, which we interpret as encompassing torture. The United States directly enforces our obligations under Article 15 of the CAT by prohibiting the use of statements obtained through torture in legal proceedings, including military commission proceedings. Congress also adopted a statute imposing criminal sanctions on persons who commit torture, consistent with our obligations under the Convention. I should add that contrary to what you might hear from some critics, no one in the United States government has sought to disregard or avoid these obligations.


Nobody, indeed. Therefore you may be waterboarded.

crossposted from unbossed.com

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