Although reactions by the administration and its supporters remain ambiguous, former US president Jimmy Carter is among those who publicly stated it is torture in an interview on October 10 2007, "The United States tortures prisoners in violation of international law. Only a handful of CIA interrogators have had training in the use of enhanced interrogation techniques after U.S. President George W. Bush first authorized them in mid-March 2002.
Experts Marty Lederman, H. Candace Gorman, Arthur Bright, Scott Horton and Nat Hentoff have reported that blogger, political commentator and former editor of The New Republic Andrew Sullivan claimed that "enhanced interrogation" bears remarkable resemblance to the techniques the Gestapo called "Verschärfte Vernehmung," for which some of them faced prosecution in Norway after World War II and were "found guilty of war crimes and sentenced to death." Besides the similarity of the practices, the German term "verschärfte Vernehmung" itself may be translated as "enhanced interrogation". These techniques included the simplest rations, a hard bed, a dark cell, deprivation of sleep, exhaustion exercises, and blows with a stick.
A 1948 Norwegian court case described the use of hypothermia identical to the reports from Guantanamo Bay. Sullivan and Gorman contend that the defence used by the Nazis for applying the techniques "is almost verbatim that of the Bush administration." Most notably the concept of unlawful enemy combatant is invoked avant la lettre to justify its implementation on "insurgent prisoners out of uniform", and notes the identical logic propagated by John Yoo today. The so called "ticking time bomb scenario", as rationale for allowing torture, had its precursor in the Gestapo's "Third degree" measures. According to The Christian Science Monitor:
But while the Nazis' interrogative methods were found to be torture, The New York Times writes that the Allies' methods at the time were far more effective and far less abusive than those the United States uses now.
According to Human Rights First:
Internal FBI memos and press reports have pointed to SERE training as the basis for some of the harshest techniques authorised for use on detainees by the Pentagon in 2002 and 2003.And Salon stated:
A March 22 2005, sworn statement by the former chief of the Interrogation Control Element at Guantánamo said instructors from SERE also taught their methods to interrogators of the prisoners in Cuba.While Jane Mayer reported for The New Yorker:
According to the sere affiliate and two other sources familiar with the program, after September 11th several psychologists versed in sere techniques began advising interrogators at Guantánamo Bay and elsewhere. Some of these psychologists essentially “tried to reverse-engineer” the sere program, as the affiliate put it. “They took good knowledge and used it in a bad way,” another of the sources said. Interrogators and bsct members at Guantánamo adopted coercive techniques similar to those employed in the sere program.and continues to report:
many of the interrogation methods used in sere training seem to have been applied at Guantánamo.
In addition, Stephen Soldz, Steven Reisner and Brad Olson also wrote an article describing how these techniques mimic what was taught in the SERE-program: "the military's Survival, Evasion, Resistance, and Escape program that trains US Special Operations Forces, aviators and others at high risk of capture on the battlefield to evade capture and to resist 'breaking' under torture, particularly through giving false confessions or collaborating with their captors." Soldz et al., Salon, and Mayer cite the following examples:
Following the attacks of September 11, 2001, several memoranda were written, by John Yoo, analysing the legal position and possibilities in the treatment of prisoners. The memos, known today as the "torture memos," advocate enhanced interrogation techniques, while pointing out that refuting the Geneva Conventions would reduce the possibility of prosecution under the US War Crimes Act of 1996 for actions taken in the War on Terror. In addition, a new definition of torture was issued. Most actions that fall under the international definition do not fall within this new definition advocated by the U.S. Several top military lawyers, including Alberto J. Mora, reported that policies allowing methods equivalent to torture were officially handed down from the highest levels of the administration, and led an effort within the Department of Defence to put a stop to those policies and instead mandate non-coercive interrogation standards.
ABC News reported on April 9, 2008 that "the most senior Bush administration officials discussed and approved specific details of how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency." The article states that those involved included:
Vice President Cheney, former National Security Advisor Condoleezza Rice, Defense Secretary Donald Rumsfeld and Secretary of State Colin Powell, as well as CIA Director George Tenet and Attorney General John Ashcroft.
At the heart of policies in the War on Terror is the notion that during a time of war the President, in his duty as Commander-in-Chief, with his inherent powers, cannot be bound by law -i.e. Foreign Intelligence Surveillance Act, UN Convention Against Torture, Geneva Conventions- or Congress. Since the primary task of the President, during a time of war, is protecting US citizens, anything hindering him in that capacity -US and international law or even Congress- can be considered unconstitutional. John Yoo contends that the Congressional check on Presidential war making power comes from its power of the purse, and that the President, and not the Congress or courts, has sole authority to interpret international treaties such as the Geneva Convention "because treaty interpretation is a key feature of the conduct of foreign affairs". These views on executive power, known as the unitary executive theory, are controversial since it appears to suggest that the President's war powers place him above any law.
Compared to what is known about Yoo's legal advice Scott Horton, historian Heinrich August Winkler, Sandy Levinson, David Abraham and Christopher Kutz see similarities with the writings of Carl Schmitt. According to legal experts Scott Horton, David Abraham, Ahmad Chehab the concept of the "unitary executive," which lies at the heart of contoversies -i.e. NSA warrantless surveillance controversy, Signing statement (United States), unlawful enemy combatant- seems to be based upon his state of exception.
US Supreme Court Justice Antonin Scalia said on BBC Radio 4 that since these methods are not intended to punish they do not violate the Eighth Amendment to the United States Constitution, barring "cruel and unusual punishment," and as such may not be unconstitutional.
The administration adopted the Detainee Treatment Act of 2005 to address the multitude of incidents of detainee abuse. However, in his signing statement, Bush made clear that he reserved the right to waive this bill if he thought that was needed.
Over the years numerous incidents have been made public and a UN report denounced the abuse of prisoners as tantamount to torture.
Several legal analysts — such as Elizabeth Holtzman, Marjorie Cohn, and Human Rights First — have advocated that writing the so-called "torture memos," not preventing or stopping the abuse could result in legal challenges involving war crimes under the command responsibility. This view was confirmed when the US Supreme Court ruled in Hamdan v. Rumsfeld that, contrary to what the Bush administration advocated, the Third Geneva Convention (regarding the treatment of prisoners) applies to all detainees in the war on terrorism and as such the Military Tribunals used to try suspects were violating the law. The Court reaffirmed that those involved in mistreatment of detainees violate US and international law.
On May 19 2006, the UN Committee against Torture issued a report stating the U.S. should stop, what it concludes, is "ill-treatment" of detainees, since such treatment, according to the report, violates international law. It also calls for cessation of the US-termed "enhanced interrogation" techniques, as the UN sees these methods as a form of torture. The UN report also admonishes against secret prisons, the use of which, is considered to amount to torture as well and should be discontinued.
Red Cross investigators concluded last year in a secret report that the Central Intelligence Agency’s interrogation methods for high-level Qaeda prisoners constituted torture and could make the Bush administration officials who approved them guilty of war crimes .....and that the techniques applied to Abu Zubaydah
were “categorically” torture,....
As a legal matter, it is not up to us to examine the C.I.A.’s failure to disclose the existence of these tapes. That is for others. What we do know is that government officials decided not to inform a lawfully constituted body, created by Congress and the president, to investigate one the greatest tragedies to confront this country. We call that obstruction.
Responding to the so-called "torture memoranda" Scott Horton pointed out
the possibility that the authors of these memoranda counseled the use of lethal and unlawful techniques, and therefore face criminal culpability themselves. That, after all, is the teaching of United States v. Altstötter, the Nuremberg case brought against German Justice Department lawyers whose memoranda crafted the basis for implementation of the infamous “Night and Fog Decree.”Jordan Paust concurred by responding to Mukasey's refusal to investigate and/or prosecute anyone that relied on these legal opinions
it is legally and morally impossible for any member of the executive branch to be acting lawfully or within the scope of his or her authority while following OLC opinions that are manifestly inconsistent with or violative of the law. General Mukasey, just following orders is no defense!
Human Rights Watch (HRW) observed that numerous countries engage in activities that are similar to the ones allegedly used by the C.I.A.:
The organisation also reported that:
The U.S. State Department has condemned as torture or other inhuman treatment many of the techniques that have allegedly been used by the CIA in Iraq, Afghanistan, and at secret detention sites in other countries.
Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.It also states that:
No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.
An order from a superior officer or a public authority may not be invoked as a justification of torture.
This argument - that a person cannot know whether his conduct falls within the definition of torture unless it is expressly proscribed by Section 2340 - is precisely the one we've heard from Michael Mukasey with regard to waterboarding.
The measure would effectively ban the use of simulated drowning, temperature extremes and other harsh tactics that the CIA used on al-Qaeda prisoners after the Sept. 11, 2001, attacks.President Bush has said in a BBC interview he would veto the such bill after previously signing an executive order that
allows "enhanced interrogation techniques" and may exempt the CIA from Common Article 3 of the Geneva Conventions.
"... information indicates that the Bush administration may have systematically implemented, from the top down, detainee interrogation policies that constitute torture or otherwise violate the law."The letter continues to state:
"Because these apparent 'enhanced interrogation techniques' were used under cover of Justice Department legal opinions, the need for an outside special prosecutor is obvious."
According to the Washington Post the request was denied because Attorney General Michael B. Mukasey felt that:
officials acted in "good faith" when they sought legal opinions, and that the lawyers who provided them used their best judgment.The article also reported that:
He warned that criminalizing the process could cause policymakers to second-guess themselves and "harm our national security well into the future."
The report concludes that each of the ten tactics is likely to violate U.S. laws, including the War Crimes Act, the U.S. Torture Act, and the Detainee Treatment Act of 2005.
According to HRF, PFH and Stephen Soldz et al. medical and psychological literature shows that torture may have "profound long-term negative effects upon individuals, including psychosis, depression, suicidal ideation and/or post-traumatic stress disorder." They also cite the Office of the Inspector General report which concluded that
SERE-type interrogation techniques constitute "physical or mental torture and coercion under the Geneva conventions."
Also, according to the New York Times:
Experts advising the Bush administration on new interrogation rules warn that harsh techniques used since 2001 terrorist attacks are outmoded, amateurish and unreliable.
The Washington Post described the report by the Intelligence Science Board:
There is almost no scientific evidence to back up the U.S. intelligence community's use of controversial interrogation techniques in the fight against terrorism, and experts believe some painful and coercive approaches could hinder the ability to get good information, according to a new report from an intelligence advisory group.
In an interview with AP on February 14, 2008 Paul Rester, chief military interrogator at Guantanamo Bay and director of the Joint Intelligence Group, said most of the information gathered from detainees came from non-coercive questioning and "rapport building," not harsh interrogation methods.