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The Bush "Torture" Lawyers: No Better Than Terrorists? By: Joseph Klein
FrontPageMagazine.com | Tuesday, May 05, 2009

Manfred Nowak, the United Nations Special Rapporteur on Torture, has padded the United Nations’ already ample record of coddling terrorists and punishing democracies.   

Nowak has insisted the UN Convention Against Torture requires the U.S. to prosecute Bush administration lawyers who drafted legal opinions that justified the use of enhanced interrogation tactics on terrorist suspects.  The memos authorized such techniques as sleep deprivation; keeping detainees naked, in standing positions, in cold cells or in a cramped box filled with harmless insects; prolonged shackling; open-hand slapping and, its best known method, waterboarding.  According to the UN’s “expert” on torture, all of these techniques clearly constituted torture; therefore, the lawyers’ legal justifications made them participants in torture. “[O]n the basis of these memoranda, then orders would be given, and persons would be subjected to these kind of interrogation techniques,” he said, which one should know actually can easily amount to torture.”

Nowak also said that President Obama’s recent decision to exempt CIA personnel who were allegedly complicit in the use of torture is in direct violation of the UN Convention Against Torture.  Yet he presents no evidence of any clear-cut, legally binding definition of torture that would expressly exclude any of the enhanced interrogation techniques, when used in very limited circumstances and in a carefully controlled environment in order to elicit information from top terrorist leaders that could save thousands of lives and for which all less harsh alternatives were tried and failed.  That is because there is no such definition contained either in the UN Convention itself or in U.S. law.  

The Bush-era legal memos placed strict limits on when and how to apply the techniques were specified to avoid any severe long-term physical or psychological harm. They also specified monitoring of the interrogations and high-level signoffs in writing on a case-by-case. Moreover, these techniques were reserved only for the most important and most difficult detainees who were expected to possess valuable, time-sensitive intelligence.

These harsher methods, for example, provided the CIA interrogators with enough actionable intelligence that the government was able to thwart an imminent deadly terrorist attack on Los Angeles.  Khalid Shaikh Mohammed, the 9/11 mastermind, gave up vital information that led to the capture of the terrorist leader plotting to hijack passenger planes and fly them into the tallest building on the West Coast, the Library Tower in Los Angeles. He also provided vital information that led to the disruption of an al-Qaeda cell that was developing anthrax for attacks inside the United States. 

Such information did not freely flow from Khalid’s lips in a friendly interrogation session.  In his initial interrogation by CIA officers, according to former CIA Director George Tenet, Khalid Shaikh Mohammed had defiantly told them, “I’ll talk to you guys after I get to New York and see my lawyer.”  Waterboarding changed his mind, and the information he subsequently supplied saved thousands of lives.  

The False Equivalence of Waterboarding

Nowak was unmoved, insisting “every reasonable person would know that waterboarding, for instance, is torture. Critics of waterboarding seize upon U.S. denunciations of waterboarding foreign governments perpetrated against Americans in past conflicts as proof that our practices constitute torture. The keystone of their case is the conviction of several Japanese after World War II for waterboarding American and Allied prisoners of war. 

Yet examining the differences between American and Japenese waterboarding throws cold water, so to speak, on this comparison.  The few episodes of waterboarding following 9/11 were for very short periods of time and involved cellophane or a cloth placed over the mouth and nose so that no water entered the terrorist's lungs, nose, or mouth.  There was never any possibility, much less an imminent threat, of drowning.   Khalid Shaikh Mohammed may have experienced a simulated sensation of drowning, for no more than a few minutes, which caused him momentary panic. But his life was never at risk.

The charges of which the Japanese were convicted reportedly involved the strapping down of prisoners of war to stretchers with warm water poured directly down their nostrils for 20 minutes or longer until they victims were about ready to pass out.  In other cases, our POWs were reportedly dunked in tanks of water in such a manner that water was forced into their noses and mouths, and consequently into their lungs, for as long as an hour at a time. Some were slid first into a tub of water and kept there until almost drowned.  After being revived, interrogation proceeded and they would be reimmersed. Sometimes, this was accompanied by severe beatings and stompings on the POWs’ stomachs.  

All of this was classic "water torture."  Water was forced into the POWs’ noses, mouths and lungs, causing them severe physical distress from the aspiration of fluid and asphyxia. It was used to punish and elicit forced confessions.  It bears no resemblance to the very carefully controlled waterboarding, involving no forcing of water into the noses, mouths and lungs of detainees, which was used by the CIA in very limited circumstances shortly after 9/11 to obtain vital life-saving intelligence from only three al-Qaeda leaders, including the 9/11 mastermind Khalid Shaikh Mohammed.   

Death Penalty=Terrorism?

Manfred Nowak has little moral semblance when thinking of this issue. Although he considers capital punishment under any circumstances is a violation of international law, he
is blind to the existential threat that the global Islamic terrorists pose to the free world. “I do not consider this so-called ‘war on terror’ as an international armed conflict,” said the UN expert.  How exactly would he define the terrorists’ use of suicide bombers, rockets and beheadings around the world?  Then again, he is only following the same logic as the International Criminal Court’s proposed exclusion of terrorists from prosecution for the new international crime of aggression, on which I have previously reported.   

The Bush administration lawyers were better off being guided by what the United States Senate stated when it approved the UN Convention Against Torture in 1994, rather than listening to United Nations officials with an axe to grind against the United States.   The Senate stated its understanding of torture as an act specifically intended to inflict severe physical or mental pain or suffering, which is the definition of torture in the UN Convention itself (Emphasis added.)  The Senate went on to define mental pain and suffering as “prolonged mental harm” resulting from such causes as “the intentional infliction or threatened infliction of severe physical pain or suffering or the threat of imminent death (Emphasis added). 

Congress adopted this definition in a 1994 law criminalizing torture committed abroad.  If Congress had wished to declare waterboarding or the other specific techniques used by the CIA to be included within the law criminalizing torture, they could have done so for the past seven years but did not. This is telling, considering Nancy Pelosi was briefed upon these techniques in detail.

Like the United Nations’ Special Rapporteur on Torture, she is simply another in the long litany of government officials who seem to revel in their own tortuous reasoning, which invariably ends up protecting terrorists. They deserve to be ignored.

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