Sunday, April 27, 2008



BY Terry Bankert 4/27/08
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IMAGINE IF WE LEARNED OUR TROOPS WERE BEING WATERBOARDED! Legal experts critical of the administration, noted the paper, indicated that the Justice Department seemed to be arguing that the task of preventing a terror attack could justify interrogation methods that would otherwise be illegal.[A] "What they are saying is that if my intent is to defend the United States rather than to humiliate you, than I have not committed an offense," Scott Silliman, a professor of national security from Duke University, was quoted by The Times as saying. [A] The humiliating and degrading treatment of prisoners is prohibited by Common Article 3 of the Geneva Conventions. [N]...the Bush administration lawyers are citing the sometimes vague language of the Geneva Conventions to support the idea that interrogators should not be bound by ironclad rules. [N] The United States has faced heavy criticism from rights groups and some allies for its use of a simulated form of drowning known as "waterboarding" during interrogations and for holding hundreds of suspected militants in a prison camp at a U.S. naval base at Guantanamo Bay, Cuba.[R]

WHAT IS WATERBORDING Waterboarding is a form of torture that consists of immobilizing a person on their back with the head inclined downward (the Trendelenburg position), and pouring water over the face and into the breathing passages.[1] Through forced suffocation and inhalation of water, the subject experiences the process of drowning and is made to believe that death is imminent.[2] In contrast to merely submerging the head face-forward, waterboarding almost immediately elicits the gag reflex.[3] Although waterboarding does not always cause lasting physical damage, it carries the risks of extreme pain, damage to the lungs, brain damage caused by oxygen deprivation, injuries (including broken bones) due to struggling against restraints, and even death.[4] The psychological effects on victims of waterboarding can last for years after the procedure.[5] Waterboarding was used for interrogation at least as early as the Spanish Inquisition to obtain information,[6] coerce confessions, punish, and intimidate. It is considered to be torture by a wide range of authorities, including legal experts,[4][7] politicians, war veterans,[8][9] intelligence officials,[10] military judges,[11] and human rights organizations.[12][13] Despite its long use as a technique, the first use of the actual term "waterboarding" occurred in the May 13, 2004, New York Times. In 2007 waterboarding led to a political scandal in the United States when the press reported that the CIA had waterboarded extrajudicial prisoners and that the Justice Department had authorized this procedure.[14][15] The CIA has admitted waterboarding Al-Qaida suspects Khalid Sheikh Mohammed, Abu Zubaydah and Abd al-Rahim al-Nashiri.[16] [W]

U.S. ALLOWED TO COMMIT “OUTRAGES”? AFTER ALL THE SPANISH DID! The Geneva Conventions' ban on "outrages against personal dignity" does not automatically apply to terrorism suspects in the custody of U.S. intelligence agencies, the Justice Department has suggested to Congress in recent letters that lay out the Bush administration's interpretation of the international treaty. [w] A March 5 letter from the Justice Dept. to Congress makes clear the Bush administration has not defined which interrogation methods might violate the Geneva Convention's bans on "outrages upon personal dignity," the Times said.[RI] The letters were provided by the staff of Sen. Ron Wyden, an Oregon Democrat and member of the Senate Intelligence Committee. The panel received classified briefings on the matter and Wyden requested further information, which yielded the letters, the Times said.[RI]

TOURTURE BY ANY OTHER NAME Lawyers for the department, offering insight into the legal basis for the CIA's controversial interrogation program, reasserted in the letters the Bush administration's long-held view that it has considerable leeway in deciding how the conventions' rules apply to the harsh questioning of combatants in the war on terrorism. [w] The Justice Department has told Congress that American intelligence operatives attempting to thwart terrorist attacks can legally use interrogation methods that might otherwise be prohibited under international law. [n] WHAT IS ....IS! While the United States is legally bound by the conventions' Common Article 3 and its requirement to treat detainees humanely, the definition of humane treatment can vary, depending on the detainee's identity and the importance of the information he possesses, a Justice Department official wrote last September and this March to a Democrat on the Senate intelligence committee. [w] In one letter written Sept. 27, 2007, Mr. Benczkowski argued that “to rise to the level of an outrage” and thus be prohibited under the Geneva Conventions, conduct “must be so deplorable that the reasonable observer would recognize it as something that should be universally condemned.” [N]

CIA IGNORING BUSH The legal interpretation, outlined in recent letters, sheds new light on the still-secret rules for interrogations by the Central Intelligence Agency. It shows that the administration is arguing that the boundaries for interrogations should be subject to some latitude, even under an executive order issued last summer that President Bush said meant that the C.I.A. would comply with international strictures against harsh treatment of detainees. [N]

AMERICANS WANT TO LEAD IN HUMAN RIGHTS, NOT EXPLAIN THEM AWAY "Some prohibitions . . . such as the prohibition on 'outrages against personal dignity,' do invite the consideration of the circumstances surrounding the action," Brian A. Benczkowski, the principal deputy assistant attorney general, asserted in one of the letters. [w] Benczkowski's letters were provided to The Washington Post by Sen. Ron Wyden (D-Ore.), who asked the Justice Department to explain the legal foundation for President Bush's executive order last year authorizing the CIA's continued interrogation of terrorism suspects. The existence of the letters was first reported last night by the New York Times. [w] A spokeswoman for Wyden said the administration's suggestion that the Geneva Conventions could be selectively applied was "stunning." [w]

PRESIDENT BUSH’S LOGIC WOULD JUSTIFY KILLING THE FIRST BORN OF..... “The fact that an act is undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse, would be relevant to a reasonable observer in measuring the outrageousness of the act,” said Brian A. Benczkowski, a deputy assistant attorney general, in the letter, which had not previously been made public.[N]

WHAT GOES AROUND COMES AROUND "The Geneva Convention in most cases is the only shield that Americans have when they are captured overseas," the spokeswoman, Jennifer Hoelzer, said in a phone interview. "And for the president to say that it is acceptable to interpret Geneva on a sliding scale means that he thinks that it is acceptable for other countries to do the same. Senator Wyden -- and I believe any other reasonable individual -- finds that argument appalling." [w]

DO THE ENDS JUSTIFY THE MEANS What they are saying is that if my intent is to defend the United States rather than to humiliate you, than I have not committed an offense,” said Scott L. Silliman, who teaches national security law at Duke University.[N] The Justice letters allow that certain acts by interrogators -- sexual mutilation, for example -- would be unlawful under any circumstance. But when judging whether a specific interrogation practice would violate the conventions' ban on degrading treatment, the government can weigh "the identity and information possessed by a detainee," Benczkowski wrote. [w] Some legal experts critical of the Justice Department interpretation said the department seemed to be arguing that the prospect of thwarting a terror attack could be used to justify interrogation methods that would otherwise be illegal. [N] A senior Justice Department official, speaking to the Times on condition of anonymity, said of the classified information: "I certainly don't want to suggest that if there's a good purpose you can head off and humiliate someone."[R] But he said "the fact that you are doing something for a legitimate security purpose would be relevant."[R]

WHEN IS PULLING OUT FINGERNAILS...ALLOWED? He suggested that a suspect with information about a future attack could be subjected to harsher treatment, noting that a violation would occur only if the interrogator's conduct "shocks the conscience" because it is out of proportion to "the government interest involved." [w]

JUST SAY YOU DID NOT MEAN TO...AND ITS OKAY! Moreover, to fit the definition of an "outrage upon personal dignity," an action must be deliberate, involving an "intent to humiliate and degrade," Benczkowski wrote. [w]

THIS PRONOUNCEMENT SHOULD BE TESTED IN FEDERAL COURT! The CIA declined to comment on the memo. However, agency spokesman Mark Mansfield said the CIA's detainee program "has been and continues to be in full compliance with the laws of our country." [w]

AND SO DOES THE PRICE OF GAS "The program has disrupted terrorist plots and has saved lives," Mansfield said. [w]

BUSH SAYS ANYTHING GOES TO PROTECT THIS COUNTRY The administration of President George W. Bush has told Congress that US intelligence agents trying to prevent terrorist attacks can use interrogation methods that in other circumstances might be prohibited under international law, The New York Times reported on its website Saturday.[A] Mr. Wyden said he was concerned that, under the new rules, the Bush administration had put Geneva Convention restrictions on a “sliding scale.”[N] If the United States used subjective standards in applying its interrogation rules, he said, then potential enemies might adopt different standards of treatment for American detainees based on an officer’s rank or other factors. [N] “The cumulative effect in my interpretation is to put American troops at risk,” Mr. Wyden said. [N]


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[w] The Washington Post
[N] The New York Times
[W] Wikipedia


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