Inconvenient News,
       by smintheus

Monday, March 08, 2010

  Torturing Americans

Until about six years ago in the US we shared a broad consensus that torture was reprehensible, unjustifiable, illegal, and un-American. Then the public learned that the Bush administration allowed, then that it ordered the cruel treatment and torture of prisoners overseas. Hundreds of years of consensus suddenly began to unravel as Bush’s supporters sought to excuse these horrors. Led by Dick Cheney, who holds that the application of water torture against suspected terrorists is “a no-brainer”, Republicans boldly advocated for increased use of prisoner abuse. Reputable pollsters now regularly ask the US public whether they support torture, something which is prohibited under federal law as well as international treaties.

Central to the new enthusiasm for torture and cruelty – aside from a culture that celebrates sadism and an utter disregard for the rule of law – is the quaint notion that such abuse will be meted out only to foreigners. Torture’s cheerleaders imagine, or would have others imagine, that an impenetrable bulwark of some sort protects Americans from suffering similar abuse at the hands of our own government. That’s historically naivete on a grand scale.

But it’s also wrong as a matter of law. We’ve known or should have realized that long ago. Furthermore, it’s wrong too as a matter of fact. It turns out that two US citizens who voluntarily acted as whistleblowers to the FBI were, for that reason, imprisoned by the government, held incommunicado and without charge, and subjected to the now standard forms of prisoner abuse.

(i) First, let’s talk about the legal standing of the cruel mistreatment of prisoners, thanks to the practices of the Bush administration. The US public does not seem to realize that the infamous “enhanced interrogation techniques” may be applied against Americans because the federal government has determined that they are neither torture nor cruel, inhuman, or degrading treatment (a determination never over-ruled in law). Can an American arrested for conspiracy to defraud, say, be subjected to hypothermia and “stress positions”? I’d venture that he may.

The “torture memo” authors created a golden shield for any government official who inflicted those EITs on prisoners by arguing that the techniques do not qualify as torture under US statute, nor do they meet the constitutional standard of cruel or unusual punishment. The latter ought to be particularly worrying for Americans.

The question arose because when Congress ratified the UN Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment (CAT), it attached several reservations and understandings to the ratification. One of these concerned Article 16, which requires signatory states to prevent (without exception) the cruel, inhuman, or degrading treatment of prisoners held under their jurisdiction. The Congressional reservation declared that the prohibitions outlined in Article 16 were already covered by the US Constitution’s guarantees against cruel and unusual punishment (the 5th, 8th, and 14th Amendments), and therefore the US would treat Article 16 as a reassertion of those constitutional guarantees.

Even though the Bush administration and its “torture memo” authors argued that the Constitution does not apply to non-American prisoners held abroad (a position the Supreme Court rejected), it did have to admit that the CAT does apply to them. Therefore it could not inflict mistreatment that violated Article 16, that is to say, that violated the Constitutional ban on cruel and unusual punishment. The “enhanced interrogation techniques”, so argued the Bush administration, did not rise to the level of cruel and unusual punishment.

That is a long way of saying what few in the US dare to acknowledge: That if the government could apply those forms of abuse to non-American prisoners, then it can use the same legal rationale for abusing American prisoners in similar fashion. Any prisoners…for the Constitutional protections don’t have exceptions based on time or place or circumstances. If it wasn’t cruel to subject prisoners at Gitmo to prolonged sleep deprivation and waterboarding, then in principle it would not be cruel to do the same to a common criminal suspect.

(ii) As a matter of fact, Americans citizens have already been subjected to these cruel techniques. Through a federal lawsuit directed against Donald Rumsfeld that is now set to proceed, we learn more (via) about two FBI whistleblowers working in Iraq who were imprisoned in 2006 and mistreated by US forces, though the US military was fully aware of who the two men were. The details of their allegations are laid out in this March 5 ruling by US District Judge Wayne Andersen (PDF). The Judge rejected Rumsfeld’s attempt to have the lawsuit dismissed, holding that his qualified immunity from being sued for his actions as Defense Secretary did not indemnify him against a legitimate complaint such as this one.

Allegedly the two men, Donald Vance and Nathan Ertel, began working with the FBI to expose corruption by the contractor they were working for in Iraq, Shield Group Security. When SGS all but held Vance and Ertel hostage outside the Green Zone, two US officials they were working with in Iraq arranged for the US military to rescue them. Back in the US Embassy, they then gave further evidence of SGS corruption to an FBI agent and two Air Force intelligence officers.

A few hours later, however, the US military arrested Vance and Ertel, took them to two successive military camps, and began subjecting them to various forms of abuse approved by the Bush administration: strip searching, prolonged solitary confinement, violence (being slammed into a wall), threats of violence, threats of indefinite detention, false allegations, psychological manipulation, extreme temperatures, sleep deprivation, extremes of sound and light, yelling, denial of food, water, and medical care. In other words, they were subjected to many of the standard “enhanced interrogation techniques”.

Vance and Ertel were refused permission to see an attorney, and were told that they were being held as “security internees”. They were given a kangaroo court hearing at which they were denied attorneys, denied the right to know the evidence against them, denied the right to confront witnesses against them, and their requests to have witnesses and evidence introduced on their behalf was denied as well. Nor could they testify for each other.

Ertel was held for a further three weeks, Vance for nearly three months, after these hearings. Neither were ever charged with any crimes.

They are suing Rumsfeld because he specifically and repeatedly (in 2002 and 2003) authorized the interrogation techniques that were applied to them while in US military custody. They also charge Rumsfeld with denying their due process rights.

Judge Andersen found that the plaintiffs made a sufficiently compelling case that Rumsfeld is accountable for these alleged abuses that the case should go forward. With particular regard to their allegations of physical and psychological abuse while in custody, his ruling, he declared, …

…represents a recognition that federal officials may not strip citizens of well-settled constitutional protections against mistreatment…


Andersen may be right that the issue of mistreatment of prisoners has been, well, settled in law. Whether it is also settled in public opinion any longer, however, is more a matter of debate.

Perhaps if this suit against Rumsfeld does go to trial, American citizens will finally begin to comprehend that if torture and cruelty is suitable for anybody, then it is suitable for everybody.

crossposted at unbossed.com

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