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PSYOP 9.pdf | e venues for Nazi and Stalinist torture were within each country’s national
borders. Before the war, the Gestapo, Storm Troopers (SA), and Protection
Squad (SS) used coercive interrogation throughout Germany, with little concern
for intervention by judicial authorities. During World War II, they employed
torture in pol... |
PSYOP 9.pdf | of torture was immaterial because the executive claimed
unfettered authority under “special law” to defend national security, construed by
the Nazis as the racial community, by the Soviets under Stalin as the Revolution.
Within the territory under his control, neither Hitler nor Stalin recognized a zone
of privacy for... |
PSYOP 9.pdf | rench interrogation policy during the Algerian War.
4. Democracy and torture: the French in Algeria
The modern French state has an antipathy toward torture seasoned by two
centuries of Enlightenment culture. The French revolutionaries’ abolition of
torture on October 8, 1789, was the culmination of decades of anti-tort... |
PSYOP 9.pdf | ure became
inconceivable for professional law enforcement in France. From 1929 until the
German invasion of France in 1940, French police did employ a method of tor-
4422 gguuiilldd pprraaccttiittiioonneerr america’s special path: u.s. torture in historical perspective 4433
turous interrogation resembling the American ... |
PSYOP 9.pdf | ortly, French torture was enabled by
Parliament’s declaration of a “state of emergency” in response to the Algerian
revolution of November 1, 1954.37 The emergency law passed on April 1, 1955,
curtailed Algerians’ civil liberties, implementing late evening house searches,
imposing a curfew, and closing theatres and caf... |
PSYOP 9.pdf | the emergency law that forbade such
detention indicates the degree to which they had achieved independence from the
central government in Paris. Roughly a year after its passage, the emergency law
was replaced by a successor law, which invested the government with “special
powers” to combat the revolt. The special pow... |
PSYOP 9.pdf | transfer full police powers to Massu to maintain public
order in Algiers, the capital city. Massu was an advocate of torture, writing about
coercive interrogation in March 1957 that “the sine qua non condition of our ac-
tion in Algeria is that these methods be admitted, in our souls and consciences, as
necessary and ... |
PSYOP 9.pdf | of suspects arrested. In particular, no mention of whatever kind is to be
made to any representative of the Press.”41 Terrorist suspects who refused to talk
fell into the hands of Massu’s Detachment of Operational Protection (D.O.P.)
for questioning. If they furnished the information demanded, they were often
released;... |
PSYOP 9.pdf | staff tested the procedure on themselves and found it
satisfactory. The fact that the gégène left behind no traces of abuse recommended
it, and it became a favorite in the D.O.P.’s torture arsenal. Other techniques
included variations on “water torture”—plunging prisoners’ heads into barrels
of water, pumping their sto... |
PSYOP 9.pdf | and “disappearances” of terrorist suspects by the
French Army. His estimate of deaths associated with army “house arrests” by
French troops is stunning: of the 24,000 house arrests, 3,024 detainees disappeared.
These persons were killed summarily, tortured to death, or murdered after torture
failed to produce a confes... |
PSYOP 9.pdf | etails became public.
From the beginning of the conflict in 1954, the French government gave the army
carte blanche to suppress the Algerian revolution as it saw fit. Insofar as it abdi-
cated control over the military in Algeria, the French government was culpable.*
This notwithstanding, its culpability should be temp... |
PSYOP 9.pdf | the bottom-line: to
crush the revolution, prevent further terrorist attacks, and keep Algeria a French
possession. As evidence of torture emerged, the French government responded by
blaming excesses on lower ranking soldiers in the chain of command, an excuse
______________________________
* Not until 1956 did the Fre... |
PSYOP 9.pdf | denial of Geneva protections to Al Qaeda
and Taliban detainees in February 2002.
4444 gguuiilldd pprraaccttiittiioonneerr america’s special path: u.s. torture in historical perspective 4455
similar to the Bush Administration’s “bad apples” theory. By 1959 the government
moved to rein in the army and stop torture. Pres... |
PSYOP 9.pdf | was a putsch organized in Algeria
by retired army generals to overthrow De Gaulle’s government in 1961.
The second aspect of the Algerian case is related to the first, and has to do
with the geography of torture. Because Algeria was considered French territory,
the torture of detainees was often justified as a tool fo... |
PSYOP 9.pdf | betting a military drift that
led to the systematic torture of suspected terrorists. Like all military organizations,
the French army was essentially totalitarian; left to its own devices, it employed
totalitarian techniques of interrogation that recall the methods of the Gestapo and
the GPU. Whatever its faults, howev... |
PSYOP 9.pdf | ush Administration policies.
III. The singularity of American torture:
Examining the USA’s special path
In the aftermath of graphic photographs released to the public in May 2004
depicting the abuse of detainees at the Abu Ghraib prison in Iraq, members of
the Bush Administration employed two strategies to defuse the u... |
PSYOP 9.pdf | e creation
of special law to deal with “enemy combatants.”48
1. State of emergency and special law
As with the other histories of torture considered thus far, the American in-
terrogation program began with the announcement of a national emergency.
4466 gguuiilldd pprraaccttiittiioonneerr 4477
President Bush proclaimed... |
PSYOP 9.pdf | n the first torture-related war crime of the
Bush administration was perpetrated less than six days after 9/11.49
The “national emergency” framed a second Bush order of November 13, 2001,
which proved to be of surpassing importance in the creation of special law. “Hav-
ing fully considered the magnitude of the potentia... |
PSYOP 9.pdf | try, Bush asserted the necessity
of detaining terrorist suspects and prosecuting them for war crimes in “military
tribunals.” These tribunals would not apply the rules of evidence observed in
federal district courts; rather, any evidence deemed by the “presiding officer” to
“have probative value to a reasonable person”... |
PSYOP 9.pdf |
The Bush order of November 13, 2001, helped set the ground rules for a
special law applicable to certain types of persons—i.e., members of Al Qaeda
and their confederates. Such individuals would not enjoy U.S. Constitutional or
international legal protections, nor could they be tried in a judicial venue other
than mil... |
PSYOP 9.pdf | liban and Al-Qaeda fighters captured in Afghanistan.
These events prepared the stage for a sequence of memoranda in early 2002 that
were crucial to the evolution of American torture. The applicability of the Geneva
Conventions was addressed in a memorandum of January 9, 2002, authored by
two lawyers in the Office of Le... |
PSYOP 9.pdf | ard Myers, Chairman of the Joint Chiefs of Staff, that Al Qaeda and
Taliban detainees were not entitled to prisoner of war status under Geneva. He
urged that U.S. forces treat the detainees “humanely” and “in a manner consist-
ent with the principles” of Geneva, but made such treatment dependent on the
demands of “mili... |
PSYOP 9.pdf | lysis holding that Afghanistan, as a “failed state,” fell outside Geneva’s protec-
tions. Stressing that the war on terror was “a new type of warfare” unforeseen
by the authors of Geneva in 1949, Gonzales declared that “a new approach in
our actions toward captured terrorists” was necessary. In this new kind of war,
“t... |
PSYOP 9.pdf | , the views of Gonzales and Yoo. “The war against terrorism ushers in
a new paradigm,” he wrote. “Our nation recognizes that this new paradigm . . .
requires new thinking in the law of war.” The “new thinking” required under the
“new paradigm” was the suspension of Geneva’s Common Article 3 protections
from application... |
PSYOP 9.pdf | e that “the Taliban detainees
are unlawful combatants and, therefore, do not qualify as prisoners of war under
Article 4 of Geneva.” The term “unlawful combatants”—used interchangeably
with the term “enemy combatants” in Bush administration legal parlance—does
not exist in international law. The authors of the Geneva C... |
PSYOP 9.pdf | ss the validity of
4488 gguuiilldd pprraaccttiittiioonneerr 4499
Quirin today. Rather, it is critical to see that the term “enemy combatant” was
largely invented by the Bush administration to add a patina of legitimacy to its
policy of stripping terrorist suspects of their civil and human rights. The journalist
Jane Ma... |
PSYOP 9.pdf | combatant” construct is central to both prosecution of detainees
in minimalist military tribunals and the American interrogation program under
Bush. Indeed, the assertion of authority to label persons as “enemy combatants”
may be the most breathtaking challenge to the rule of law by the Administration.
The simple iden... |
PSYOP 9.pdf | decisions in protecting the country from terrorist attack. In its brief in
the Hamdi case, the government characterized its use of the enemy combatants
label as a “quintessentially military judgment,” one better entrusted to the armed
forces than to Article III courts.58 These cases furthermore reveal that, from early
... |
PSYOP 9.pdf | e held indefinitely as an enemy combatant in a
military jail without charges or without any means of communication with the
outside world, and that he was in general beyond the reach of the ordinary legal
system. The DOJ argued that habeas review was simply not available to those
whom the President had deemed enemy com... |
PSYOP 9.pdf |
without charge, but torture in furtherance of state security. The convergence of
the enemy combatant classification with special law appears in its starkest form
in the notorious “torture memos” of August 1, 2002.
4488 gguuiilldd pprraaccttiittiioonneerr america’s special path: u.s. torture in historical perspective 4... |
PSYOP 9.pdf | by JPRA was “Survival Evasion
Resistance and Escape” (SERE). According to a JPRA instructor who was quoted
in a Senate Armed Services Committee investigation into detainee treatment,
SERE was “based on illegal exploitation (under the rules listed in the 1949 Geneva
Convention Relative to the Treatment of Prisoners of W... |
PSYOP 9.pdf | JPRA and Haynes’s
office began in the spring of 2002.61
In July 2002 JPRA furnished Haynes’s office with a variety of materials from
SERE training, including lists of techniques. The DoD Deputy General Counsel,
Richard Shiffrin, testified before the Senate Armed Services Committee that the
General Counsel’s Office want... |
PSYOP 9.pdf | he CIA informed top members of the Bush
administration of Zubaydah’s capture, among them Dick Cheney, Condoleeza
Rice, and John Ashcroft. These persons attached their signature to the CIA’s
interrogation plan. The torture of Zubaydah began shortly thereafter and was
conducted in an undisclosed location in Thailand. Mar... |
PSYOP 9.pdf | ration with Zubaydah’s interrogation.
CIA Director George Tenet briefed high-level Bush officials on the techniques
used, which included slapping, pushing, deprivation of sleep, and “simulated
drowning.” The latter method, better known as “waterboarding,” was applied
in July 2002, after Bush officials authorized the CI... |
PSYOP 9.pdf | ush officials in the spring and summer of 2002. The White House and
Bush’s counsel, Alberto Gonzales, wanted a “golden shield”64 from the Justice
Department, certifying that the proposed interrogation techniques were legal
and that CIA interrogators would be immune from prosecution for violations
of international and U... |
PSYOP 9.pdf | osed action. On this occasion, OLC excluded
the State Department from the process of review, a sign that the White House
had a preconceived result in mind that it knew the State lawyers were reluctant
to provide.65 Instead, OLC consulted a reliable stalwart of executive authority,
John Yoo, who had previously authored ... |
PSYOP 9.pdf | which included
waterboarding. Given the prominence of Bybee/Yoo’s first memo, it will be
our focus here.66
Ever since its release in June 2004, the first Bybee memo has generated an
enormous amount of commentary. After a short introduction, Yoo asserted that
the federal anti-torture statute “requires that severe pain a... |
PSYOP 9.pdf | not be illegal under
federal law, so long as interrogators did not specifically intend to cause severe
pain as their primary objective. For Yoo, however, the problem was that a jury
might nonetheless find a specific intent to torture, insofar as juries “are permit-
ted to infer from the factual circumstances that such... |
PSYOP 9.pdf | rdinarily be associated with a sufficiently serious physical condition
or injury such as death, organ failure, or serious impairment of body functions .
. . .”69 Similarly, before the infliction of mental pain fulfilled the requirements
for torture under the federal statute, it had to “result in significant psychologi-... |
PSYOP 9.pdf | t on enforcing §2340A by prosecuting interrogators
for violating the statute. Yoo’s analysis of this potential difficulty illumines the
ideological matrix behind not only the American detainee program under Bush,
but the Administration’s political worldview as a whole. According to Yoo, the
anti-torture statute would b... |
PSYOP 9.pdf | 2340A in a manner that interferes with the President’s direction of such
core war matters as the detention and interrogation of enemy combatants thus
would be unconstitutional.70
In defending the country against terrorism, the Administration could act without
fear of interference from coordinate branches of government... |
PSYOP 9.pdf | he President himself.71
The Yoo/Bybee memos of August 1, 2002, exerted a direct influence on the
evolution of American torture at Guantanamo Bay. As pressure from the White
House to “get tough” with detainee questioning mounted in October 2002,*
Gitmo staff met with the CIA’s Counter-Terrorist Center chief counsel, Jon... |
PSYOP 9.pdf | orr eennhhaanncceedd iinntteerrrrooggaattiioonn iinn OOccttoobbeerr 22000022
was “a direct result of the pressure we felt from Washington to obtain intelligence
and the lack of policy guidance being issued by Washington.” Quoted in SANDS, 61.
5522 gguuiilldd pprraaccttiittiioonneerr 5533
than Fredman, to discuss aggres... |
PSYOP 9.pdf | ing leading to permanent, profound damage
to the senses or personality.” Stepping outside Yoo’s chimerical thought-world
for a moment, Fredman said plainly: “It is basically subject to perception. If the
detainee dies you’re doing it wrong.”72
IV. American torture in historical perspective:
Uniqueness or comparability?... |
PSYOP 9.pdf | to
preparation of a “Standard Operating Procedure” (SOP) at Guantanamo Bay in
December 2002. The “premise” of the SOP, in its own words, was to approve
the use of the SERE program tactics “to break real detainees during interroga-
tion.” The SOP was a how-to manual on slapping, stripping, and placing into
stress posit... |
PSYOP 9.pdf | tment” on thirteen other detainees at secret CIA
locations scattered across the world. For the Red Cross investigators, “the con-
sistency of the detailed allegations provided separately by each of the fourteen
adds particular weight to the information.”74 From these accounts, Mark Danner
has observed, “a clear method ... |
PSYOP 9.pdf | his authorization had little effect on the interrogation program.
Military interrogators in Afghanistan acting under color of the Rumsfeld memo
adopted the Guantanamo techniques in January 2003, including forced nudity
and “exploiting the Arab fear of dogs.” The techniques then spread to Iraq after
the U.S. invasion of... |
PSYOP 9.pdf | battlefield interrogation SOPs included techniques
such as yelling, loud music, and light control, environmental manipulation, sleep
deprivation/adjustment, stress positions, 20-hour interrogations, and controlled
fear (muzzled dogs) [. . .]
By the summer of 2003, Captain Carolyn Wood, the Interrogation Officer in
Char... |
PSYOP 9.pdf | m the Abu Ghraib photos that
exploded into world notoriety in May 2004, high-ranking Bush officials were
intimately involved in crafting these interrogation methods and pressuring intel-
ligence officers in the CIA and military to use them. While they continue to
express regret about Abu Ghraib, former Bush policymaker... |
PSYOP 9.pdf |
This point cuts to the heart of how American torture compares with earlier
forms. From early on in Western history, declaration of a state of emergency has
been the justification for creating an exception to immunity from torture. This
was true for Rome’s “new jurisprudence,” which vacated free men’s exemption
from to... |
PSYOP 9.pdf | lgeria, France applied torture in response to the emergency it confronted in
maintaining a rapidly crumbling empire—and the blows to national self-esteem
signified by that empire’s potential loss. Prodded by Bush’s declaration of a na-
tional emergency after 9/11 and continual invocations of the dangers of another
terr... |
PSYOP 9.pdf | m detainees branded as terrorists. Yet, upon further
study, the American example differs markedly from the French. While Paris
enabled torture by the French army, it did not originate the interrogation program,
pressure subordinates into implementing it, or strenuously defend it after the fact
as necessary to protect v... |
PSYOP 9.pdf | n, in court briefs, internal memoranda, and public speeches,
the Bush Administration claimed an exalted status in the American scheme of
government that, had it succeeded, would have made the White House absolute
and unchallengeable as the country’s defender against terrorism. The analogy
between American and French to... |
PSYOP 9.pdf | gy opposed
to the 18th century doctrine of natural rights. Its visceral distaste for the values
of Enlightenment culture positions Bush torture closer to totalitarianism than to
France during the Algerian war. Bush’s conception of the “global war on terror”
was itself a proto-totalitarian construct. Like all “wars on n... |
PSYOP 9.pdf | . The bearer of dangerous
tendencies, he is subjected to all the indignities and terrors of special law, from
indefinite detention to trials in sham courts to torture. Whether or not he has
committed a crime is not the issue (intelligence officers informed the Red Cross
in 2004 that between 70 and 90 percent of detaine... |
PSYOP 9.pdf | ternational press.79 To accomplish this aim was no small matter: more than a
5544 gguuiilldd pprraaccttiittiioonneerr america’s special path: u.s. torture in historical perspective 5555
century of American adherence to the Laws of War had to be re-shaped. One had
to speak the scripture of human rights in reverse and un... |
PSYOP 9.pdf | erican territory,
and would therefore be outside the reach of federal court jurisdiction.80 In a se-
ries of defeats for Bush officials, the U.S. Supreme Court rebuffed their efforts
to obstruct federal judicial review of Guantanamo detainees’ imprisonment.81
Nonetheless, the fact remains that the Administration was fo... |
PSYOP 9.pdf | om,
wrote that the purpose of psychoanalysis was to let “ego” (reason, self-under-
standing) prevail where “id” (irrationality) had previously reigned.83 The USA
under Bush inverted the order of Freud’s ambition: reason and restraint were
ousted in favor of the dark passions of unchecked power. As this inversion was
re... |
PSYOP 9.pdf | e
very watchword of repression and terror.
________________
NOTES
1. G. W. HEGEL, HEGEL’S PHILOSOPHY OF RIGHT 13 (1962).
2. On the contentious debates among German intellectuals over the meaning of modern Ger-
man history, see C. S. MAIER, THE UNMASTERABLE PAST: HISTORY, HOLOCAUST, AND
GERMAN NATIONAL IDENTITY (1988); ... |
PSYOP 9.pdf | roblem, in AUS POLITIK UND ZEIGESCHICHTE (1987); C.
S. MAIER, supra note 2, at 70.
4. See infra p. 40.
5. See infra pp. 46 ff.
6. See The ICRC Report on the Treatment of Fourteen “High Value” Detainees in CIA Custody,
available at www.nybooks.com.
5566 gguuiilldd pprraaccttiittiioonneerr 5577
7. J. LANGBEIN, TORTURE AN... |
PSYOP 9.pdf | ccaasseess,, wwhhiicchh iinncclluuddeedd aaccccuussaattiioonnss ooff hheerreessyy,, mmaaggiicc,, ccoouunntteerrffeeiittiinngg,, hhoommiicciiddee,, aanndd
treason, were called crimina excepta, or “exceptional crimes.” As in other times and cul-
tures, among them the USA during the “Global War on Terror,” the exceptional... |
PSYOP 9.pdf | ices.
15. TThhee EEnnlliigghhtteennmmeenntt--oorriieenntteedd sscchhooooll ccoonnssiissttss inter alia of Henry C. Lea, W. E. H. Lecky, A.
D. White, and J. Gilissen.
16. OOnn LLaannggbbeeiinn’’ss aaccccoouunntt,, ffoorr eexxaammppllee,, tthhee eemmeerrggeennccee ooff tthhee Verdachtsstrafe (“punishment on
suspicion”) e... |
PSYOP 9.pdf | ted in PETERS, supra note 10, at
101.
18. A. MELLOR, JE DÉNONCE LA TORTURE (1972), cited in PETERS, supra note 10, at 106. Of
Mellor’s three explanations for the resurgence of torture in the 20th century, I only find the
first two—the rise of totalitarian political systems and national security states—persuasive.
The t... |
PSYOP 9.pdf | ting its objective enemies,
would return to a condition approaching equilibrium. This is not the case for totalitarian
regimes, which restlessly manufacture new enemies to replace the old ones as society careens
from one mass mobilization to the next in a ceaseless outwelling of persecution and destruc-
tion.
22. Id.
2... |
PSYOP 9.pdf | nal Socialism can-
not be overstated. The German historian of Nazi law, Ingo Müller, writes that Hitler entitled
the final chapter of Mein Kampf “The Right of Self-Defense,” while the fellow traveling
jurist Carl Schmitt referred to the Enabling Act of 1933 as “the temporary constitution of
the Third Reich.” For Müller... |
PSYOP 9.pdf | DER THE THIRD REICH 45 (2003).
27. Quoted in PETERS, supra note 10, at 129-30.
28. MMAJER, supra note 6, at 47. For Majer, “universal and general inequality” was the “decisive
structural element” of the entire National Socialist system of government. Years ago, as an
exchange student in West Germany, I visited the site... |
PSYOP 9.pdf | race were an ontological
truth, entailing that the law treat individuals differently based on their racial makeup. This
form of totalitarian doublespeak meant that “true meaningful equality” was legal inequality
between racial superiors and inferiors. The only equality before the law existed as between
persons within ... |
PSYOP 9.pdf | use of torture under Stalin, see R.
CONQUEST, THE GREAT TERROR 121-31 (1990).
32. Id.
33. GLOVER, supra note 31, at 240.
34. TThhee GGeerrmmaann sscchhoollaarr ooff NNaazzii ccrriimmiinnaalliittyy,, HHeerrbbeerrtt JJääggeerr,, wwrriitteess tthhaatt pprriissoonneerrss aatt AAuusscchhwwiittzz——
particularly ones suspecte... |
PSYOP 9.pdf |
35. See supra p. 38.
36. A. HORNE, A SAVAGE WAR OF PEACE: ALGERIA 1954-1962 196 (2006); PETERS, supra
note 10, at 132-140. In his research, Mellor attested he found no evidence of French police
torture before 1929. On the American Third Degree, see R. POHLENBERG, FIGHTING FAITHS
68 (1987); Skolnick, American Interroga... |
PSYOP 9.pdf | 2005) 95-96 (2006).
38. Id.
39. Id., 101; HORNE, supra note 36, at 149-50.
40. BBEEIIGGBBEEDDEERR,, supra note 37, at 117.
41. HORNE, supra note 36, at 199.
42. Id.
43. Id., 200. For one torture survivor’s harrowing account of the gégène and water torture, see
H. ALLEG, LA QUESTION (1958) and the episodes recounted in ... |
PSYOP 9.pdf | supra note 21, at
75-76, 189.
47. BEIGBEDER, supra note 37, at 102-03.
48. TThhee dduupplliicciittoouuss rreepprreesseennttaattiioonnss ooff BBuusshh aaddmmiinniissttrraattiioonn ooffffiicciiaallss iinn MMaayy aanndd JJuunnee 22000044
are described in P. SANDS, TORTURE TEAM: RUMSFELD’S MEMO AND THE BETRAYAL OF
AMERICAN... |
PSYOP 9.pdf | www.torturingdemocracy.org/docu-
ments/20011113.pdf.
51. Id. The order defined an “individual subject” to the order as a non-U.S. citizen determined
by Bush to (i) be a current or former member of al Qaeda, (ii) be engaged in harming, or
threatening to harm, U.S. interests, or (iii) have knowingly harboured persons des... |
PSYOP 9.pdf | s name to it. SANDS, supra note 48, at 32.
54. MMeemmoorraanndduumm ffoorr tthhee PPrreessiiddeenntt,, JJaannuuaarryy 2255,, 22000022,, available at http://www.torturingdemoc-
racy.org/documents/20020125.pdf.
55. MMeemmoorraanndduumm ffoorr tthhee VViiccee PPrreessiiddeenntt eett aall..,, FFeebbrruuaarryy 77,, 22000022... |
PSYOP 9.pdf | ary commission in
support of the war effort. See R. Dworkin, The Threat to Patriotism, N.Y. REV. OF BOOKS,
February 28, 2002, at 44, 47.
57. JJ.. MMaayyeerr,, The Hard Cases, THE NEW YORKER, February 23, 2009, at 38.
58. Quoted in K. Scheppele, Law in a Time of Emergency: States of Exception and the Tempta-
tions of 9/... |
PSYOP 9.pdf | war to extract false confessions from U.S. POWs. Senate Armed Services Committee
Inquiry into the Treatment of Detainees in U.S. Custody, December 11, 2008, xiii, available
at http://www.gwu.edu/~nsarchiv/torturingdemocracy/documents/20081211.pdf.
61. Id., xiii-xiv.
62. MM.. DDaannnneerr,, U.S. Torture: Voices from th... |
PSYOP 9.pdf | trraattiioonn ooffffiicciiaallss ttoo ddeennoottee lleeggaall
immunity from prosecution for participating in “enhanced interrogation.” See Danner, supra
note 62, at 73.
65. SANDS, supra note 48, at 73.
66. TThhee sseeccoonndd mmeemmoo ooff AAuugguusstt 11,, 22000022,, aapppprroovveedd aa lliisstt ooff hhiitthheerrttoo ... |
PSYOP 9.pdf | 11,, 33--77,, avail-
able at http://www.torturingdemocracy.org/documents/20020801-1.pdf.
68. Id.
69. Id. See also SANDS, supra note 48, at 72-75; D. Cole, What Bush Wants to Hear, N.Y. REV.
OF BOOKS, November 17, 2005, at 10-11; Senate Armed Services Committee Inquiry, supra
note 60, at xv; Danner, supra note 62, at 73... |
PSYOP 9.pdf | iitttteeee IInnqquuiirryy,, supra note 60, at xvii.
73. Id., xx. See also The ICRC Report, supra note 6, at 11.
74. TThhee IICCRRCC RReeppoorrtt,, supra note 6, at 5.
75. DDaannnneerr,, supra note 62, at 74.
76. SSeennaattee AArrmmeedd SSeerrvviicceess IInnqquuiirryy,, supra note 60, at xxii-xxiv.
77. P. ZIMBARDO, THE ... |
PSYOP 9.pdf | , the Commanding Officer
of Joint Task Force 170 at Guantanamo Bay, Major General Michael Dunlavey, estimated
that one-half of the detainees delivered to Gitmo in the winter of 2002 had been mistakenly
arrested. The same percentage, according to Dunlavey, had no intelligence value. SANDS,
supra note 48, at 43.
79. See,... |
PSYOP 9.pdf | .
82. On the administration’s creation of a “global gulag” dedicated to CIA torture and interroga-
tion, see A. MCCOY, A QUESTION OF TORTURE: CIA INTERROGATION, FROM THE COLD WAR
TO THE WAR ON TERROR 116 (2006).
83. S. FREUD, New Introductory Lectures on Psychoanalysis, in 3 THE MAJOR WORKS OF SIG-
MUND FREUD 488 (1983... |
PSYOP 9.pdf | ad faith,2 by out-of-control,3 rogue operators.4 The critics
called for prosecution5 or, failing that, disbarment,6 or termination from em-
ployment.7 Justice Department lawyers, they further argued, consciously sought
to distort the law to justify the unjustifiable: out-and-out torture and its pitiless
lesser cousin c... |
PSYOP 9.pdf | cted in good faith.
The strength of Cole’s new book is that it, more persuasively than any other
to date, makes the case that the OLC was, at least for a time, a rogue institution,
its lawyers acting not as legal advisors but rather as the facilitators of torture and
cruel, inhuman and degrading treatment. He makes the... |
PSYOP 9.pdf | ppeared to tighten its standards to prohibit
these tactics.”8 Indeed, the torture lawyers deliberately mislead the public in
that they withdrew some of the more controversial early opinions, even while
preserving the bottom line by approving every single one of the CIA’s abusive
interrogation techniques.9 Not only were... |
PSYOP 9.pdf | ah Valley University,
book review: the torture memos: rationalizing the unthinkable 61
used either singly, repeatedly or in combination would “shock the conscience,
thereby violating due process. They opined that the greater the government’s inter-
est in, and need for, information, the less likely the conduct would be... |
PSYOP 9.pdf | gram is carefully limited to further the
Government’s paramount interest in protecting the Nation while avoiding unneces-
sary or serious harm, we conclude that the interrogation program cannot “be said
to shock the contemporary conscience” when considered in light of “traditional
executive behavior” and “contemporary ... |
PSYOP 9.pdf | in.14
Cole tackles the question of whether the OLC’s interpretation of the “shocks
the conscience” test is a fair reading of Supreme Court precedent. He convincingly
demonstrates that the OLC’s reading of the law is plainly erroneous.15
The case law is clear that any intentional infliction of pain for interrogation pur... |
PSYOP 9.pdf | se the questions were so difficult… one would expect a good-faith
analysis to reach a nuanced conclusion, perhaps approving some measures while
definitely prohibiting others. Yet on every question, no matter how much the law
had to be stretched, the OLC lawyers reached the same result – The CIA could
do whatever it had... |
PSYOP 9.pdf | erate infliction
of pain. Moreover, contrary to the views of Justice Thomas, the majority opinion
6622 gguuiilldd pprraaccttiittiioonneerr 6633
on the Court was that “any use of pain to compel a suspect to talk violated due
process.”22 If any use of pain shocks the conscience, then the argument is even
stronger as to t... |
PSYOP 9.pdf | ice President Cheney,23 Senator John McCain,24
and former Attorney General Mukasey25) and proceeds to completely deconstruct
the attempted justification for practices that, under any sensible understanding of
the English language, count as torture.
However, what truly shocks the conscience is the specious argument that... |
PSYOP 9.pdf | s an objective assessment
of what the law permits or precludes, but as a strained effort to rationalize a pre-
determined—and illegal—result. Rather than demand that the CIA conform its
conduct to the law, the lawyers contorted the law to conform it to the CIA’s
desires.26
Cole does not follow this to what might seem t... |
PSYOP 9.pdf | t seem likely, says more about current U.S. politics than
it does of Cole’s analysis.
_______________________
NOTES
1. Jordan J. Paust, The Absolute Prohibition of Torture and Necessary and Appropriate Sanc-
tions, 43 VAL. U. L. REV. 1535, 1546–67 (2009).
2. Posting of Brian Tamanaha, The Collapse of the “Good Faith” E... |
PSYOP 9.pdf | 2007, at 27.
6622 gguuiilldd pprraaccttiittiioonneerr book review: the torture memos: rationalizing the unthinkable 6633
4. Alan W. Clarke, De-Cloaking Torture, Boumediene and the Military Commissions Act, 11
SAN DIEGO INT’L L.J. 59, 82 (2009).
5. Paust, supra note 1, at 1546.
6. Clarke, supra note 4, at 82.
7. The Na... |
PSYOP 9.pdf | r John Yoo, Whose Torture Memos Led to Commission of War
Crimes, at http://buelahman.wordpress.com/2008/04/09/national-lawyers-guild-says-john-
yoo-is-a-war-criminal/ (Apr. 9, 2008, 17:05 EST).
8. DAVID COLE, THE TORTURE MEMOS 4 (2009).
9. Id.
10. Memorandum from Steven G. Bradbury, Principle Deputy Assistant Attorney ... |
PSYOP 9.pdf | d in Memorandum from Steven G. Bradbury, Principle Deputy Assistant Attorney
General to John Rizzo, Senior Deputy General Counsel, Central Intelligence Agency (May
10, 2005) (on file with author) (memorandum concerning the use of certain interrogation
techniques), Cole, supra note 8 at 152
13. Memorandum from Steven G.... |
PSYOP 9.pdf | sical pain or mental pain or suffering.” Id. at 181. The notion that these interrogation
methods do not cause severe pain, even when used repeatedly and in combination, seems so
clearly at odds with the common understanding of the word “pain” that no further attention
will be given that particular strain of the OLC’s o... |
PSYOP 9.pdf | a Torture Culture,”
points out one SERE graduate describes waterboarding as “real drowning that simulates death”
and the sensation one of “burning liquid” worse than “pulling out fingernails” or “cutting off
a finger.” Alan W. Clarke, Creating a Torture Culture, 32 SUFFOLK TRANSNAT’L L. REV.
1, 36 (2009). And, as the D... |
PSYOP 9.pdf | en shot and
who was apparently in intense pain. They did not, however, initiate or cause the pain. The
Supreme Court remanded to the lower courts to determine whether due process had been
violated. Id. at 32-33.
22. Id. at 33.
23. Former Vice-President Dick Cheney is quoted as saying:
You can get into a debate about wh... |
PSYOP 9.pdf | minent cases, ASSOC. PRESS STATE & LO-
CAL WIRE (Dec. 18, 2005).
24. Former Presidential nominee and Senator John McCain, has said that waterboarding, mock
executions and the like would not necessarily “shock the conscience” and could be used in
some circumstances. “In that million-to-one situation, then the president ... |
PSYOP 9.pdf | Lawyers $25.00/year
(cid:79) Incarcerated persons $5.00/year
(cid:79) Libraries and institutions $75.00/year
(Outside the U. S., add $5.00/year to above rates.)
NAME_______________________________________________________________
ADDRESS____________________________________________________________
CITY__________________... |
PSYOP 9.pdf | ay still be in the offing
as well, albeit in an international or foreign court. Justice Jackson made it clear
in his opening argument at Nuremberg: state torture is the whole world’s busi-
ness, and a number of outraged nations, some of whose citizens have been have
been interrogated after the Yoo and Bybee fashion, ar... |
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