Torture

  • May 15, 2018
    Guest Post

    Sahar Aziz, professor of law and director of the Center for Security, Race, and Rights, Rutgers Law School

    Since taking office, President Trump has prioritized one trait above all else in his cabinet appointees—blind loyalty. He wants people who will obey his orders without question, or they are fired. Picks such as Betsy DeVos for Secretary of Education, Ben Carson for Secretary of Housing and Urban Development, and Jeff Sessions as U.S. Attorney General also demonstrate his preference for candidates willing to undo Obama programs. Given that Obama touted ending America’s illegal torture program, Trump would not hesitate to reinstate it. 

    Thus, Trump’s nomination of Gina Haspel for Director of the Central Intelligence Agency (CIA) is a natural choice. Her extensive professional record, while impressive, evinces she lacks the fortitude to say no to superiors who order her to violate fundamental American values and domestic and international legal norms, like torture. So long as what she is asked to do is deemed legal by the president’s lawyers – however specious their legal reasoning – she will oblige. Some may find this approach appropriate for a political appointee. After all, cabinet members are selected because they agree to implement their boss’s political agenda.>

  • May 11, 2018

    by Deborah Pearlstein, Professor of Law Benjamin N. Cardozo School of Law

    At Wednesday’s hearing before the Senate Intelligence Committee considering her nomination to be CIA Director, Gina Haspel talked a lot about “leadership lessons” – lessons not only reflecting the knowledge and experience she plainly has, but presumably the deeper insights and judgment one gains after trying and failing, as we all inevitably do, to do the right thing at the critical time. The great disappointment of Haspel’s testimony was in how evident it became that she seems to have learned the wrong ones.

    Even before the Wednesday hearing, Haspel’s nomination was opposed by scores of retired military leaders, and an equal number of America’s ambassadors and diplomats; there are likewise many individuals in our intelligence community who cite the same reasons as Haspel’s opponents for thinking America should never go down the torture road again. Our torture program violated the law, endangered our troops, empowered terrorist recruiters, imperiled essential counterterrorism cooperation with our most stalwart allies, did lasting physical and psychological harm both to the prisoners we tortured and the men and women we demanded torture them, and compromised our most basic values as a country. As John McCain put it back it 2005: “"It's not about who they are. It's about who we are." These lessons were hard won indeed.

  • October 9, 2015
    Guest Post

    by Chris Edelson, assistant professor of government, American University School of Public Affairs. Edelson is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press. His second book, Power Without Constraint: The Post 9/11 Presidency and National Security, will be published next year by the University of Wisconsin Press.

    Sen. John McCain said of waterboarding that “it is not a complicated procedure. It is torture.” Experts, including those who have experienced waterboarding, agree. Waterboarding is sometimes incorrectly described as “simulated” drowning. In fact, “[t]here is no way to simulate the lungs filling with fluid, and the victim does not need to be convinced physiologically. The [person being waterboarded is] in the process of drowning.” Those who have experienced waterboarding describe it as “controlled death.” The United States has prosecuted both Americans and members of foreign militaries for waterboarding prisoners.

    The Bush administration relied on implausible statutory definitions and dangerous theories of unrestrained executive power to conclude that it could authorize waterboarding. Since waterboarding is torture, it is a crime, and waterboarding (since it is torture) cannot be justified by emergency. Apart from the fact that it is illegal, there is no evidence that waterboarding produces reliable intelligence. Some who are waterboarded simply tell their interrogators anything they think will get the waterboarding to stop. A Senate report concluded that Khalid Sheikh Muhammed provided fabricated information after being subjected to waterboarding and other interrogation methods.

    To his credit, President Obama has rejected waterboarding, correctly identifying it as torture. He issued an executive order in 2009 that would rule out interrogation methods not authorized by and listed in the Army Field Manual (the manual specifically prohibits waterboarding). However, his administration has not prosecuted anyone for authorizing or carrying out waterboarding.

  • January 6, 2015
    Guest Post

    by Peter Jan Honigsberg, professor of law at the University of San Francisco and founder and director of the Witness to Guantanamo project.  

    January 11 is the 13th anniversary of the opening of the detention center at Guantanamo Bay, Cuba. Nearly six years have passed since President Obama announced on his second day in office that he would shutter the detention center within one year. 127 detainees still remain at Guantanamo, 59 have been cleared for release, many for years.  Over these 13 years, Guantanamo has been a black stain on America, a stain that Obama himself has acknowledged. Because of Guantanamo, people around the world have come to question the United States’ position as world leader in human rights and the rule of law.

    Several times during his administration, Obama has said that he wanted to close Guantanamo.  Although he has blamed the Republicans for placing restrictions on his ability to release the men, he has repeatedly signed legislation passed by Congress restricting release of the detainees. He cannot blame the Republicans. He has two more years to be true to his word and close the detention center. However, perhaps something is changing.  Since Election Day, he has released 22 people.  It took him three and one-half years (from May 2011 to November 2014) for him to release another 22 detainees. 

    However, it is easier said than done. Congress has continually prohibited detainees from being brought to the U.S. Until Obama can place the men who will be prosecuted, as well as those who are considered “forever” detainees, in prisons outside Guantanamo he cannot close the prison. If he does not close the prison, it is possible that the next president will be equally stymied, and that Guantanamo will only close when the last detainee has died.

  • December 12, 2014
    Guest Post

    by Chris Edelson is an assistant professor of government in American University's School of Public Affairs. He is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press.

    In his piece, “Torture Is Who We Are,” Peter Beinart rightly exposes the Pollyanish mindset that would describe the United States as “intrinsically moral” with torture that has occurred since 9/11 “represent[ing] an aberration.” Beinart is of course right to point out that post-9/11 waterboarding is hardly the first time in U.S. history that Americans have been guilty of torture -- he cites slavery, waterboarding of Filipino prisoners during the Spanish-American War and electric shocks delivered to the genitals of prisoners during the Vietnam War as some grotesque examples. There are others. Civilian law enforcement authorities used waterboarding and sleep deprivation on domestic criminal suspects decades before 9/11. A U.S. soldier waterboarded a Vietnamese prisoner in 1968

    So Beinart is right in one sense -- torture is not something new in American history. It cannot be seen as an aberration from a previously morally upright, torture-free history. But there is one important difference that he misses, that makes his analysis more pessimistic than it need be.  Torture by Americans is not new. The idea that Americans can torture with impunity, however, is new. In each of the examples I listed, there were consequences for the torturers. A Texas sheriff and his deputies who waterboarded a criminal suspect were themselves convicted and sentenced to prison. The U.S. soldier who waterboarded a Vietnamese prisoner was court-martialed. When law enforcement authorities subjected a suspect to questioning for 36 hours without sleep, the Supreme Court threw out a conviction based on the coerced confession that had been extracted.  The same is true for one of Beinart’s examples.  A U.S. military officer who waterboarded Filipino prisoners was court-martialed, suspended from command for one month and fined $50.  Moreover, before 9/11, even when torture was not punished, no one proudly defended it or attempted to justify it -- instead, it was swept under the rug, as often happened during the Vietnam War. There is one essential exception to emphasize: slavery.  Slaveowners openly tortured slaves with impunity.  This is of course a central fact of American history, not truly an “exception”, except in the limited sense that it varies from the other examples I have given where torture before 9/11 was either punished or else covered up.  What has changed since 9/11 as compared with most of the examples noted is that there are now people willing, even proud, to defiantly defend torture

    Beinart is correct that “America has tortured throughout its history.” Before 9/11, however, there were usually consequences for torture: torturers faced prosecution and punishment in the criminal justice system. This is part of what it means to be true to the rule of law: when the law is violated, offenders are punished. No country can guarantee that all of its law enforcement officials, soldiers, or government officials, will refrain from torture. But countries that uphold the rule of law can guarantee that torturers will be prosecuted.