The CFR Debates Torture, Part II

John Yoo, now professor of law at the University of California, answered Roth by reiterating his view that the Geneva Conventions do not apply to al Qaeda and other terrorists, arguing that the Bush administration was confronted with a military conflict and had to make choices about what policies to pursue. He added that these Conventions do apply in Iraq, so a different set of interrogation rules should apply there. Yoo then spoke on the key questions of torture and intelligence: “I don’t think the Administration ordered torture.... But I think what the Administration wanted to know is, what is torture, for purposes of figuring out what you’re not allowed to do. Because once the Geneva Conventions do not apply, there is a policy space for more coercive methods...intelligence gained from captured terrorists is probably the best, if not the only way, to stop future terrorist attacks on the United States. And I think the Administration needs to balance that against some of the costs that would arise from or through coercive interrogations...” 

Roth answered by pointing out that Yoo had mixed up prisoner-of-war status with the Geneva Conventions when they are two entirely different things, again asserting that the Geneva Convention rules apply to all conflicts, meaning that torture and cruel, inhumane, and degrading treatment are never allowed. Roth also pointed out that Yoo failed to talk about international human rights law, which applies even if the Geneva Conventions are ignored. These include such laws as the Convention Against Torture and the International Covenant on Civil and Political Rights that provide absolute, unexceptional prohibitions of torture and are codified by treaty in the U.S. Constitution. Roth concluded by asserting that torture does not really work and that this entire episode has “been a disaster for American standing in the world and, frankly, it’s been a disaster for our efforts to convince the world that they should be embracing a human rights approach to the problems of the world rather than the antithesis: the approach of terrorism.” 

Yoo argued that CIA director and CFR member Porter Goss testified before Congress that, in Yoo’s words: “coercive interrogation does work and has led to valuable intelligence. So that’s how the question came up. Is there space under the law to pursue something more coercive than simply asking people questions in a room?” Yoo also defended himself by stating that when he worked on this problem in 2002, he understood that it would apply only to a “small group” of “terrorist leaders.” 

Roth answered that on the issue of ultimate responsibility: “let’s look at...the 28 people who died in U.S. custody interrogation...look at the systematic abuse that has come out of Guantanamo, out of the jail at the Bagram air base in Afghanistan, out of various detention centers in Iraq, and what you find is that an atmosphere and environment was created at the top. It was created by...this crazy theory that the president has commander-in-chief authority to order torture. It was created by the actual orders from Rumsfeld that flout basic provisions...when he orders that stress positioning can be used, that sleep deprivation can be used, that people can be stripped naked and be subjected to dogs, when he doesn’t pursue the homicides in custody that take place...that creates an environment when it is entirely predictable that this kind of abuse will occur...abuse is epidemic...happening in every single major detention facility...where...suspects are being held.... How can you conclude anything but that the senior policy-makers had created an environment in which this kind of abuse has flourished?” 

This attempt to allow the CIA to continue to torture was met with anger and scorn by some elements of the U.S. ruling class. On October 26, 2005 the Washington Post , a newspaper with several key connections to the CFR (two directors, one vice president, at least one top correspondent), wrote an editorial “Vice President for Torture,” arguing that, “Cheney is aggressively pursuing an initiative that may be unprecedented for an elected official of the executive branch: He is proposing that Congress legally authorize human rights abuses by Americans. ‘Cruel, inhuman and degrading’ treatment of prisoners is banned by an international treaty negotiated by the Reagan administration and ratified by the United States. The State Department annually issues a report criticizing other governments for violating it. Now Mr. Cheney is asking Congress to approve legal language that would allow the CIA to commit such abuses against foreign prisoners it is holding abroad. In other words, this vice president has become an open advocate of torture. 

“His position is not just some abstract defense of presidential power. The CIA is holding an unknown number of prisoners in secret detention centers abroad. In violation of the Geneva Conventions, it has refused to register those detainees with the International Red Cross or to allow visits by its inspectors. Its prisoners have ‘disappeared,’ like the victims of some dictatorships. The Justice Department and the White House are known to have approved harsh interrogation techniques for some of these people, including ‘waterboarding,’ or simulated drowning.... CIA personnel have been implicated in the deaths during interrogation of at least four Afghan and Iraqi detainees. Official investigations have indicated that some aberrant practices by Army personnel in Iraq originated with the CIA. Yet no CIA personnel have been held accountable for this record, and there has never been a public report on the agency’s performance. 

“It’s not surprising that Mr. Cheney would be at the forefront of an attempt to ratify and legalize this shameful record. The vice president has been a prime mover behind the Bush administration’s decision to violate the Geneva Conventions and the U.N. Convention Against Torture and to break with decades of past practice by the U.S. military. These decisions at the top have led to hundreds of documented cases of abuse, torture and homicide in Iraq and Afghanistan.... As for Mr. Cheney: He will be remembered as the vice president who campaigned for torture.” 

At the same time, the Wall Street Journal , also closely connected to the CFR (its chair/CEO and two other directors, along with its publisher and managing editor are all members), argued with Cheney and Goss for torture. It favors what it calls “aggressive interrogations,” questioning if waterboarding is “torture.” In a November 12, 2005 editorial, the Journal stated that: “No one has yet come up with any evidence that anyone in the U.S. military or government has officially sanctioned anything close to ‘torture.’ The ‘stress positions’ that have been allowed (such as wearing a hood, exposure to heat and cold, and the rarely authorized ‘waterboarding,’ which induces a feeling of suffocation) are all psychological techniques designed to break a detainee.” 

T he increasingly acrimonious debate on torture continued on December 1, 2005 when Attorney General Alberto R. Gonzales spoke to the CFR at its New York headquarters, with CFR board chair Peter G. Peterson chairing the meeting. In his opening question to Gonzales, Peterson recounted a recent conference he attended in London where his British hosts sharply rebuked the U.S. for its torture in Iraq. Gonzales also came under intense questioning from the audience about the Administration’s policy on torture. The following is a sampling of the questions and responses.

QUESTIONER: Alan Blinken, former United States ambassador to Belgium. You said the president has said clearly, “We do not torture.” One, was the vice president in the room when he said that [laughter] which I’m being serious about. Two, would you state, as part of the Administration, unequivocally tonight that the CIA and its surrogates, in whatever form they are, do not torture any place in the world?

GONZALES: The president speaks for the Administration. We all work for the president of the United States, including the vice president of the United States and including every member of the CIA.  

QUESTIONER: Mr. Gonzales, the number of cases involving torture by U.S. agents, military and otherwise, are growing every day, and it’s not just Mr. Peterson’s British friends who are concerned about it. Growing numbers of Americans are shocked and ashamed by it. Many Americans, myself included, view that infamous memo you wrote for the president when you were his counsel as opening the doors to these abuses; that memo where you dismissed the Geneva Conventions as quaint.... My question is, do you have any regret about authoring that memo and what you said? And do you have any intention of correcting any impression that that memo left in my mind, in the minds of a lot of Americans, that you were seeking to justify the use of torture, which indisputably has occurred in dozens, hundreds of cases in detention facilities maintained by U.S. forces all over the world?  

GONZALES: I disagree with the premise of your question.... Now, am I saying that abuses have not occurred? No, I’m not saying that. Unfortunately, abuses have occurred. And the president made it very clear, when abuses occur, we investigate them, and we hold people accountable. 

QUESTIONER: I’m Carroll Bogert from Human Rights Watch. Could we hear, please, whether you consider water boarding to be torture, whether water boarding is a technique that is tolerated, that has been used by U.S. forces? And could we hear why Vice President Cheney has been on Capitol Hill asking for a loophole in the McCain legislation, if there is the unanimity in the Bush administration that you suggest?

GONZALES: Not surprisingly, I’m not going to get into a discussion about specific methods of questioning people who have information.

QUESTIONER: Isn’t that what we’re talking about, though?

GONZALES: But you’re asking me—your question was related to, about the legality, are we using it and legalities. I’m not going to talk about specific methods that are used by the United States government. What I can say is that everyone in the United States government understands what our legal obligations are. Everyone understands that the president expects that those legal obligations are met. And so that’s my answer to your question. And the second part was relating to the vice president. I’m sorry. Can you remind me again?

QUESTIONER: Well, he’s been on Capitol Hill talking with senators about the need for certain loopholes in the legislation that McCain has suggested. Can you explain why he’s doing that, if there is the agreement in the Bush administration that you have indicated?

GONZALES: I can’t keep track of what the vice—where the vice president is these days, and—but let me just say, the notion that somehow the vice president is not supportive 100 percent behind what the president has said, is just false. The vice president and every member of this Administration understands what the president’s standards are, and that is, that we’re not going to engage in torture, period. End of story. 

A key part of this dialogue is the fact that Gonzales would not answer the question about whether water- boarding is considered “torture” by the Bush administration. The Bush administration, many members of which have repeatedly denied that torture is going on, is clearly still parsing the word “torture,” defining it to only include deliberately caused organ failure or death. This allows these torturers to continue to engage in illegal and barbaric activities, including waterboarding. 

Crimes of War, Ruling Class Divisions 

T he events of the last three years were watched carefully all over the world. As evidence mounted that U.S. actions were indeed comparable to fascism, opposition grew worldwide. 

First, Iraq was invaded and conquered despite being no threat to the U.S. This was in violation of Article 51 of the UN Charter and was even called “illegal” by the cautious UN Secretary General, Kofi Annan. The Nuremberg Tribunal concluded that no nation is immune from scrutiny for the illegal act of planning and launching an aggressive war. Second, existing international and domestic humanitarian law, such as the Geneva Conventions, were declared “obsolete” by U.S. government lawyers, including current Attorney General Gonzales. They might have been a bit more cautious had they been aware that Field Marshal Wilhelm Kietel, commander of the German armies in World War II, had used almost the exact same wording to declare that the humanitarian law of the time was irrelevant, resulting in actions which earned Kietel the death penalty. (He was executed in 1946.) Kietel said that the humanitarian laws of war of that time were “a product of a notion...of a bygone era” and were “obsolete.”

During the 1930s the Japanese insisted on labeling their invasion of China as an “incident” and not a war so they could also escape existing Hague and Geneva Conventions. Among the techniques the Japanese fascists used on its detainees were various forms of water torture/waterboarding. Following World War II the International Military Tribunal for the Far East concluded that both the officers who ordered water torture/waterboarding of detainees and those who carried it out were guilty of war crimes. Some were executed. 

In this regard the recent Congressional testimony of CIA Director Goss, as reported by the New York Times , is worth noting. In response to a question from Senator McCain, Goss stated that waterboarding fell into “an area of what I will call professional interrogation techniques,” which he defended as a key tool in efforts against terrorism. Waterboarding has been mentioned in numerous newspaper and television reports as a commonly used, “approved” CIA torture technique. CIA Inspector General John Helgerson confirmed this in a recent leaked report that at least in 2002 and 2003, waterboarding was an approved technique often used by the CIA. 

Finally, the U.S. military’s actions in Fallujah reminds one, on a smaller scale, of the Japanese attack of Nanking, China and the Nazi destruction of Lidice, Czechoslovakia, both infamous examples of the fascist tendency to punish an entire population for refusing to submit to foreign domination. Fallujah was a city resisting the U.S. occupation, where U.S. military contractors had been ambushed, killed, and their bodies hung from a bridge. This marked the entire population of the town for punishment and large sections of the city were leveled with extensive “collateral damage”—civilian deaths and injuries amounting to U.S. war crimes.  

The current wave of torture and other war crimes is not new in U.S. history. The U.S. war on Vietnam, the sponsorship of death squads, massacres, and torture in Latin America, to cite but two recent examples, have been extensively documented in books, declassified documents, CIA training manuals, congressional investigations, court records, and truth commissions. The failure to bring any high level decision makers to account for these war crimes is one source of the problems we now have. 

Today, worldwide consciousness, the legal framework and organization for human rights is much stronger than in the past, putting the Bush administration, with its open advocacy of preventative war, torture and abuse, on the defensive. Recent kidnappings, transfer, and torture of suspects in Europe by the CIA have led to ongoing investigations by the Council of Europe and prosecutors, parliaments, and government agencies in Britain, Germany, Spain, Italy, Poland, Austria, and Denmark. The intense criticism from Europeans has been a major factor in attempts by some in the CFR—Senators McCain and Hagel and others—to sponsor another law to bar torture as counterproductive in a war of ideas. 

As McCain put it: “To prevail in this war we need more than victories on the battlefield. This is a war of ideas.... Prisoner abuse exacts a terrible toll on us in this war of ideas...they threaten our moral standing...” The relevancy of McCain’s ban, which has passed Congress and been signed by President Bush, is questionable, since the problem is not a lack of laws on the books, it is rather the lack of a government which respects and will uphold the rule of law. As the Washington Post pointed out in a December 2004 editorial: “The record...suggests that the administration will neither hold any senior official accountable nor change the policies that have produced this shameful record. Congress, too, has abdicated its responsibility.... For now the appalling truth is that there has been no remedy for the documented torture and killing of foreign prisoners by this American government.” 

To cite but one example of relevant existing law, a 1996 federal statute, 18 USC Section 2441, a law without a statute of limitations, makes it a crime for any U.S. national, military or civilian, to violate the Geneva Convention by engaging in murder, torture, or inhumane treatment. Those who order, sanction, or carry out such crimes all come under this law. Penalties include life imprisonment and execution if anyone dies under torture. Instead of passing new laws as public relations stunts, McCain and others should advocate for the full enforcement of this existing one.  

C an we expect ruling class institutions to use their power to uphold the rule of law? Will key sectors of the powerful private sector demand that a fully independent, high level special prosecutor be appointed to conduct a full investigation of any and all domestic and international crimes related to the U.S. “war on terror” and the wars on Afghanistan and Iraq? If even some of the reports that have appeared in the daily newspapers over the past four years are accurate, then there should be plenty of evidence on which to bring an indictment of all those involved, as high up the power structure as responsibility goes, and have a trial. Only through such a complete and fair process will this issue of war crimes and the resulting shame on our nation have a chance to go away. Otherwise, it is clear that the rule of law is a sham and criminal behavior together with impunity is acceptable for those powerful enough to escape scrutiny.  

At every historical moment we stand at the gate of potential new worlds, facing alternative human futures. Our actions can influence that future, but we have to struggle against existing material and ideological constraints. Understanding these constraints must begin with the insight that we live in a completely corrupt system bent on privatizing, commodifying, and despoiling the entire planet. Meaningful political participation in this system is blocked by a two-party controlled, winner-take-all electoral system dominated by the corporate ruling class and groups like the CFR that reduce our “democracy” to a useless vote between nearly identical candidates. The first step in constructing a meaningful alternative is to withdraw our support for an illegitimate system, to refuse and resist. We cannot depend upon the more liberal sectors of the ruling class to even promote transparency and the rule of law, let alone a humane future. In James Baldwin’s prophetic words: “It is a terrible, inexorable law that one cannot deny the humanity of another without diminishing one’s own.” The wider public in the U.S. must demand an immediate end to all war crimes, an end to illegality and impunity and an accounting for the lawlessness committed in our name and with our tax money. Only this will protect us. 

In the short term, a non-violent national insurrection, a campaign of mass civil disobedience, including tax resistance, strikes, and boycotts is now needed. Resistance can build the solidarity, direct democracy, and cultural transformation needed to open the door to a new world of equality, ecology, and social justice. In the longer term, we need a people’s think tank/membership organization that can plan and organize both for the survival of our planet and a peaceful and cooperative future worthy of human beings. 

To uphold the rule of law, foreign governments should investigate top U.S. officials and, if those investigations support prosecution, these governments should arrest any of these officials who enter their territory and begin legal proceedings against them. These and other actions by governments and people who believe in law, peace, and justice are imperative. Everyone can have a role in bringing to account the criminals who have tortured and murdered so many in wars of aggression justified by lies. At the same time such a struggle can promote a positive vision of equality, solidarity, and social justice in favor of an economic and social system centered on direct popular power, the democratization of our economy and society, with the goal of enhancing all forms of life.