The US Senate Report on the use of torture by the CIA in interrogating alleged terrorist suspects underscores the problem of identifying the responsibility of both the Executive and Congress over the state’s apparatus for gathering intelligence necessary in its war against terrorism. It’s not only the brutal methods employed by the CIA that are highly disturbing but also the Report’s absence of finding or acknowledgment of culpability beyond the pay grade of the CIA operatives conducting those investigations.
Senate Intelligence Committee chair Senator Dianne Feinstein (D-CA)
talks to reporters after coming out of the Senate in Washington on
December 9, 2014. Reuters Photo
In addition to the finding that the CIA’s interrogation techniques were more brutal and employed more extensively than the agency portrayed, the Torture Report also brings out two other significant points: one, that the interrogation program was mismanaged and lacked adequate oversight, and two, that members of Congress and the White House were misled by the CIA about the effectiveness and extent of its brutal interrogation techniques.
The question to ask therefore is: Who are the authors or leading officials who presided over the CIA’s regime of torture? Whether it was its intention, the Senate Report did not address who ultimately must bear the political responsibility for torture.
Like the Nazi criminals during the Nuremberg Trials, US top leaders—Presidents George W. Bush and Barack Obama, and Senate Intelligence Committee chair, Diane Feinstein— have pleaded “we didn’t know,” “we were misled,” and “the CIA didn’t tell us.”
If a similar Nuremberg Trial were convened today to prosecute those responsible for the CIA’s reign of torture, no judge would believe what these leaders say. There is no international court of law that would even be slightly persuaded by these pleas of ignorance of the CIA’s decade-long practice of torture. After all, former US Vice President Richard Cheney, one of President Bush’s unabashed architects of American aggression in Iraq and Afghanistan, even lauded the CIA practice of torture on television and boasted he would implement the same policies again.
After 9/11, torture has been the method of choice as revealed by top military officials during the Abu Ghraib investigation. During the administration of President Bush, Jr., CIA leaders submitted detailed reports on intelligence, including the sources and the methods of obtaining the information routinely—with videos and ‘live feeds’ for the politicians to view. Nothing was “held back” then and now, as current CIA head John Brennan testifies. Everyone who attended high-level national security meetings knew how intelligence was obtained, and if they failed to ask it was because torture was accepted as the normal operating procedure.
Pleading ignorance is not a valid and winning argument. Former Vice President Cheney is more reckless in admitting his preference for the use of torture in ferreting out information from captured prisoners of war. During Cheney’s appearance on NBC’s Meet the Press, he was asked if the Geneva Convention applies to this type of situation.
Cheney replied: “Sure there is. But remember, the terrorists were not covered by the Geneva Convention. They were unlawful combatants. And under those circumstances, they were not entitled to the normal kinds of courtesies and treatment you would accord to those.”
But the Geneva Conventions, a group of four international treaties covering different aspects of how civilians, prisoners of war and soldiers are to be treated once they are rendered incapable of fighting, guarantee a certain level of protection for former combatants, including prisoners of war and civilians. They set out in detail the requirements for food, clothing, shelter, safety from combat, access to medical care, and other matters.
These fighters qualify for these protections if they adhered to some basic rules of law such as wearing uniforms, carrying arms openly, answering to a chain of command, and not committing war crimes. Many of those who were detained in Guantanamo Bay and other sites were from non-state terrorist groups and did not adhere to these rules. These are the unlawful combatants whom Cheney refers to and were not guaranteed the same protections afforded prisoners of war.
Is Cheney right?
There is in fact a distinction in the level of protection afforded under the Geneva Conventions, for those who receive extensive protections and those who do not. While detainees who do not have POW status don’t get the top level protection, they get more basic protections from the Geneva Conventions which would have shielded them against some of the brutal and harsh treatments mentioned in the Senate report.
Article 3, which is common and identical in all of the four Geneva Conventions, prohibits “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” as well as “outrages upon personal dignity, in particular humiliating and degrading treatment.”
Besides, the United States Supreme Court in its ruling in Hamsdan vs. Rumsfeld, a watershed case on detainee rights, has already ended the debate on Article 3 of the Geneva Conventions. The Supreme Court made it completely clear, that whatever their status is, detainees are entitled to some minimal protections under the Geneva Conventions. Such ruling is binding law in the United States, no matter what Cheney says.
Common Article 3 of the Geneva Conventions as one source of basic protection for detainees is also bolstered by other international agreements as well. Article 75 of the Additional Protocol I of the Geneva Conventions includes minimal protections for all people, whatever their status, who are caught in a conflict. Two other international agreements to which the United States is a party, the 1984 Torture Convention and the 1966 International Covenant on Civil and Political Rights, also prohibit torture and cruel, inhuman, or degrading treatment or punishment.
In a more critical assessment of the Senate Torture Report, i.e., beyond the sheer brutality of the enhanced interrogation techniques employed by the CIA, James Petras, Bartle Professor (Emeritus) of Sociology at Binghamton University, New York, wrote: “The Senate Report is an exercise in institutional power—a means for the Senate to regain political turf, to rein in CIA encroachment. The Report goes no further than to chastise “inappropriate” techniques: it does not proceed from crimes of state to prosecute officials responsible for crimes against international and domestic laws.”
“We know, and they know, and as every legal authority in the world would know, that without the punishment of political leaders, torture will continue to be an integral part of US imperial policy: Impunity leads to recidivism.”
The grim reality is that the Senate Torture Report will not result in a radical shift in CIA interrogations because to the United States, the war on terrorism can never be left to erring on the side of caution to maintain a level of respect for law and human rights. Torture will always be necessary, even though it is not the official policy, in gathering information that could prevent loss of or harm to human life. Those who rely on torture will always find a ticking time bomb to justify its use.
Such justification for the use of torture was in the heart of Israel’s Supreme Court ruling in 1999, holding that interrogators can employ torture to extract information if it prevents a bombing, and has now earned currency among the CIA and White House lawyers.
As the tempest in the teapot continues to boil over the Senate Torture Report, don’t expect resignations, let alone prosecutions and trials. Worldwide indignation may be heard but the US government will never be held to answer for its use of torture.
The CIA operates under the notion that international law and Geneva Conventions have to be modified, or at the very least, be interpreted generously to allow enhanced interrogation techniques even if by their nature they constitute acts of torture.
Torture should not be universally condemned and its practitioners be prosecuted: this is a core belief that the CIA relies upon for as long as it provides useful information in preventing terrorists accomplish their objectives. Such is what is expected of an imperial power like the United States, and nothing less.
To paraphrase James Petras, the only way for torture to disappear is when politicians are put on trial for their crimes against humanity. “Only when the empire is transformed back to a republic: where impunity ends, justice begins.”