As a result of the ACLU's Freedom of Information Act requests and lawsuits, much information is now available on the torture program under the Bush administration. While the four torture memos drafted by the Justice Department's Office of Legal Counsel are rightly getting much attention, one of the most fascinating and cryptic (because of so many redactions) of these documents is the CIA Inspector General's 2004 Special Review [hereinafter "Special Review"]. In it, Bush himself is quoted as calling for the investigation and prosecution of torture violations.
The Special Review was written on 05/07/2004 and made public by the ACLU on 05/27/2008 through its FIA lawsuits.
Source: http://www.aclu.org/...
The Special Review reads like something written by Kafka or George Orwell. See it in full at: http://www.aclu.org/...
Amidst its blacked out pages, its "Denied in Full" redactions, its purposely missing pages and appendixes, its reports of waterboarding and other acts of torture--stands out a clarion call for the investigation and prosecution worldwide of acts of torture. This was made in eloquent language in 2003 by none other than George W. Bush:
"I call on all governments to join with the United States in prohibiting, investigating and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual
punishment."
Source: Special Review at 94 (emphasis added).
So, far from the shrill demands of a fringe group, Bush himself had in 2003 called for the investigation and prosecution of acts of torture. How can members of his own party and the Obama administration resist Bush's call now? Let's look more closely at the Special Review. To say that the Inspector Generals Special Review is heavily redacted and heavily censored is an understatement. The most prevalent comment in the report is "DENIED IN FULL". One finds this at the Table of Contents, Page IV, and for the body of the Special Review at pages 1-14, 21-22, 24-35, 37-43, 86-89, 95-109, plus Appendix B is "left intentionally blank", Appendix C pages 1-18 is "DENIED IN FULL", Appendix D pages 1-3 "DENIED IN FULL", Appendix E pages 3-4 "DENIED IN FULL", Appendix F pages 1 to 11 "DENIED IN FULL", and of course, most of the little that is available in this report is blacked out.
What little that we learn is that waterboarding is listed as one of the "Enhanced Interrogation Techniques" (at p. 15) that "interrogators administered...the waterboard to Al-Nashiri at p. 36 and that this was videotaped and an "OGC Attorney reviewed the videotapes" (wouldn't it be wonderful to learn which attorney from the Office of General Counsel saw these tapes and did nothing about it?) and "OIG reviewed the videotapes in May 2003". Moreover, we learn that "interrogators used the waterboard on Khalid Shaykh Muhammad (p.44), that there was a "waterboard session of Abu Zubahdah" at p. 84.
Perhaps one of the most shocking aspects of the Special Review is the Orwellian government pronouncements describing these 3 people being waterboarded and at the same time the "doublespeak" of the Special Review citing the US as a leader in human rights (one can almost hear the American flag snapping in the background). Witness this:
"Annual U.S. State Department Country Reports on Human Rights have repeatedly condemned harsh interrogation techniques utilized by foreign governments. For example the 2002 Report, issued in March 2003, stated:
'[The United States] have been given greater opportunity to make good our commitment to uphold standards of human dignity and liberty...In a world marching toward democracy and respect for human rights, the United States is a leader, a partner and a contributor."
Moreover, the Special Review indicates the State Department had castigated other governments for "objectionable practices" such as abuse of prisoners in Saudi Arabia such as sleep deprivation, hooding and stripping prisoners naked--while ommitting to note that these apparently are techniques sanctioned by this review and other OLC reports that the Inspector General refers to.
Perhaps even more shocking is the Special Review quoting George W. Bush's statement in June 2003, in observance of the UN's International Day in Observance of Victims of Torture:
"The United States declares its strong solidarity with torture victims across the world. Torture anywhere is an affront to human dignity everywhere. We are committed to building a world where human rights are respected and protected by the rule of law. Freedom from torture is an inalienable human right. ...yet torture continues to be practiced around the world by rogue regimes whose cruel methods match their determination to crush the human spirit. ....The United States is committed to the worldwide elimination of torture and we are leading this fight by example. I call on all governments to join with the United States in prohibiting, investigating and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment..."
Source: Special Review at 93-94.
But it is apparent that these strong words were but mere windowdressing and were undercut by the Special Review itself which earlier gave the Convention on Torture's definition of torture but attempted to dissociate the US from the treaty:
"The Torture Convention applies to the United States only in accordance with the reservations and understandings made by the United States at the time of ratification."
Souce: Special Review at p. 17.
This despite the Convention's clear language that there are no exceptions whatsoever under the language (see the Convention Against Torture, Article 2, Sect. 2: "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."
Source: http://www2.ohchr.org/... (emphasis added)
NOTE: The Torture Convention should be read in full. It appears clear that the US under Bush violated all of these other sections of the Torture Convention:
Article 10
- Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.
- Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such person.
Article 11
Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.
Article 12
Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.
Article 13
Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.
Article 14
- Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.
- Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law.
...
Article 16
- Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.
- The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion.
Source: http://www2.ohchr.org/...
The Special Review, moreover, notes that the Torture Convention was made part of US Law under 18 U.S.C. 2340-2340A. (See Special Review at 16). The Special Review even quotes the Torture Convention's definition of Torture:
"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 sanction[s]."
Special Report at 16 (emphasis added in Special Report). This added emphasis seems to indicate the way the torturers intended to differentiate their actions from torture under the convention: waterboarding to them, for instance, was not "severe" pain was inflicted).
The Special Review (especially at 19) then goes into a discussion again attempting to differentiate torture its agents were committing from the language of the Torture Convention and US criminal law that codifies the convention. Here the infamous memo by John Yoo and other spurious "reasoning" by OLC (of which Yoo was a member) are invoked. It notes specifically that OLC in an "unclassified 01 August 2002...legal memorandum" set out that "the acts must be of an 'extreme nature' (despite clear language in the Torture Convention to the contrary and despite the Convention's Sect. 16 which binds all signator nations as follows:
Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.
The Special Review also suggest that OLC saw the justification for Gitmo as being "outside" these rules:
The August 2002 OLC opinion did not address whether any other provisions of US aw are relevant to the detention, treatment, and interrogation of detainees outside the United States."
Special Review at 19.
Here becomes apparent the hand of John Yoo who is even identified in the Special Review as a memo writer:
"A second unclassified 1 August 2002 OLC opinion addressed the international law aspects of such interrogations. This opinion concluded that interrogation methods that do not violate 18 USC 2340 (codification of the Torture Convention) would not come within the jurisdiction of the International Criminal Court." [Something obviously feared by the Bush administration].
Source: Special Review at 20.
The first sentence of the above blockquote begins with a footnote (#24) that references the following:
"OLC opinion by John C. Yoo, Deputy Assistant Attorney General, OLC (1 August 2002)."
Source: Special Review at 20.
Despite these attempts to differentiate the activities of the CIA torturers from the obligations of the Torture Convention, the language of the Convention is once again explicit. This is recognized in a interview with Manfred Nowak, the U.N. Special Rapporteur on Torture by Glenn Greenwald:
Of course, every state that ratifies the treaty has an obligation to ensure in its domestic law, that the treaty obligations are actually implemented. How they do it, that is up to the state's process, they just have to do it. Now, in principle, the United States, you have article or section 2430, that is applying. It was only because of the torture memos coming from the Justice Department that the term "torture" has been defined in a new and extremely narrow way. But that is not the correct interpretation.
If you define torture in the way as the United Nations Convention actually is requiring, it's clear that many of those methods including waterboarding etc. fall under the definition of torture and persons can be prosecuted under the US Code. In addition, of course, you have other provisions -- you have the Fifth and Eighth Amendments to the US federal constitution - I mean , the legal possibilities for bringing perpetrators of torture to justice under domestic United States law exists. It's just a question whether they are applied or not.
Source: http://www.salon.com/...
One final note of interest in the Special Review indicates Democratic Party complicity in the events surrounding torture:
"In the Fall of 2002, the Agency [CIA] briefed the leadership of the Congressional Intelligence Oversight Committees on the use of both standard techniques and EIT's [Ehanced Interrogation Techniques)."
Source: Special Review at 23.
An excellent discussion of the complicity of key Democrats in torture, and why the call for prosecution of torturers of all stripes is a NONPARTISAN ISSUE, is made by Glenn Greenwald:
Most people who have spent the last several years (rather than the last several weeks) vehemently objecting to the Bush administration's rampant criminality have been well aware of, and quite vocal about, the pervasive complicity of many key Democrats in this criminality. Just to cite two examples, here is my December, 2007 post entitled "Democratic complicity in Bush's torture regime", and here is another from July, 2008, arguing that Democrats have blocked investigations into Bush crimes because of how it would implicate them; quoting The New Yorker's Jane Mayer as saying that "many of those who might ordinarily be counted on to lead the charge are themselves compromised"; and quoting Jonathan Turley as saying (on Keith Olbermann's program) that "the Democrats have been silently trying to kill any effort to hold anyone accountable because that list could very well include some of their own members."
Source: http://www.salon.com/... (there is a long discussion of this issue there including references to prior writings by Greenwald on the same topic).
CONCLUSION:
The CIA Inspector General's Special Review written in 2004 is informative because, not least of all, it contains George W. Bush's call for the investigation and prosecution of torture. Given what was happening under the direction of Bush, this was obviously just window dressing for heinous acts of torture. But if Bush could call for prosecution, how dare the GOP brand any such investigation partisan or the shrill demands of a tiny minority. Attorney Geneal Holder should follow the law and call for a special prosecutor looking into torture.