TORTURE: SECRETLY AUTHORIZING, AND ENCOURAGING THE USE OF TORTURE AGAINST CAPTIVES IN AFGHANISTAN, IRAQ, AND OTHER PLACES, AS A MATTER OF OFFICIAL POLICY
In his conduct while President of the United States, George W. Bush, in violation of his constitutional oath to faithfully execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty under Article II, Section 3 of the Constitution "to take care that the laws be faithfully executed", has both personally and acting through his agents and subordinates, together with the Vice President, violated United States and International Law and the US Constitution by secretly authorizing and encouraging the use of torture against captives in Afghanistan, Iraq in connection with the so-called "war" on terror.
In violation of the Constitution, US law, the Geneva Conventions (to which the US is a signatory), and in violation of basic human rights, torture has been authorized by the President and his administration as official policy. Water-boarding, beatings, faked executions, confinement in extreme cold or extreme heat, prolonged enforcement of painful stress positions, sleep deprivation, sexual humiliation, and the defiling of religious articles have been practiced and exposed as routine at Guantanamo, at Abu Ghraib Prison and other US detention sites in Iraq, and at Bagram Air Base in Afghanistan. The president, besides bearing responsibility for authorizing the use of torture, also as Commander in Chief, bears ultimate responsibility for the failure to halt these practices and to punish those responsible once they were exposed.
The administration has sought to claim the abuse of captives is not torture, by redefining torture. An August 1, 2002 memorandum from the Administration's Office of Legal Counsel Jay S. Bybee addressed to White House Counsel Alberto R. Gonzales concluded that to constitute torture, any pain inflicted must be akin to that accompanying "serious physical injury, such as organ failure, impairment of bodily function, or even death." The memorandum went on to state that even should an act constitute torture under that minimal definition, it might still be permissible if applied to "interrogations undertaken pursuant to the President's Commander-in-Chief powers." The memorandum further asserted that "necessity or self-defense could provide justifications that would eliminate any criminal liability."
This effort to redefine torture by calling certain practices simply "enhanced interrogation techniques" flies in the face of the Third Geneva Convention Relating to the Treatment of Prisoners of War, which states that "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind."
Torture is further prohibited by the Universal Declaration of Human Rights, the paramount international human rights statement adopted unanimously by the United Nations General Assembly, including the United States, in 1948. Torture and other cruel, inhuman or degrading treatment or punishment is also prohibited by international treaties ratified by the United States: the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT).
When the Congress, in the Defense Authorization Act of 2006, overwhelmingly passed a measure banning torture and sent it to the President's desk for signature, the President, who together with his vice president, had fought hard to block passage of the amendment, signed it, but then quietly appended a signing statement in which he pointedly asserted that as Commander-in-Chief, he was not bound to obey its strictures.
The administration's encouragement of and failure to prevent torture of American captives in the wars in Iraq and Afghanistan, and in the battle against terrorism, has undermined the rule of law in the US and in the US military, and has seriously damaged both the effort to combat global terrorism, and more broadly, America's image abroad. In his effort to hide torture by US military forces and the CIA, the president has defied Congress and has lied to the American people, repeatedly claiming that the US "does not torture."
In all of these actions and decisions in violation of US and International law, President George W. Bush has acted in a manner contrary to his trust as President and Commander in Chief, and subversive of constitutional government, to the prejudice of the cause of law and justice and to the manifest injury of the people of the United States. Wherefore, President George W. Bush, by such conduct, is guilty of an impeachable offense warranting removal from office.
Under the doctrine of “command responsibility,” commanders, all the way up the chain of command to the commander-in-chief, are criminally liable if they knew or should have known their subordinates would commit crimes and the commander did nothing to stop or prevent it. The Third Geneva Convention in article 126 (concerning prisoners of war) and the Fourth Geneva Convention in article 143 (concerning detained civilians) require the International Committee of the Red Cross to have access to all detainees and places of detention. Visits may only be prohibited for “reasons of imperative military necessity” and then only as “an exceptional and temporary measure.” In September 2004, two senior Army generals testified before the Senate Armed Services Committee that the CIA kept dozens of prisoners off official rosters at Abu Ghraib and other prisons in Iraq in order to hide them from the International Committee of the Red Cross. Donald Rumsfeld said he ordered a man called “Triple X” be held in secret, based on a request from CIA Director George Tenet. A classified order, issued at the behest of Rumsfeld by the top military commander in Iraq, said, “Notification of the presence and or status of the detainee to the International Committee of the Red Cross, or any international or national aid organization, is prohibited pending further guidance.” The Washington Post reported the CIA had been hiding and interrogating inmates at a secret facility in Eastern Europe, in “black sites” in eight countries under a global network set up after the September 11, 2001 attacks. In December 2005, the United States said it would continue to deny the International Committee of the Red Cross access to “a very small, limited number” of prisoners who are held in secret around the world. Abd al-Hadi al-Iraqi was kept in CIA custody from fall 2006 until spring 2007. The CIA kept his detention a secret from the International Committee of the Red Cross.
U.S Army Field Manual 27-10, Section 501.
Geneva Convention Relative to the Treatment of Prisoners of War art., 126, Aug. 12, 1949.
6 U.S.T. 3316, 3320.
Geneva Convention Relative to the Protection of Civilian Persons in Time of War, art. 143, August 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.
United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature December 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984), entered into force June 26, 1987, 1465 U.N.T.S. 85, 23 I.L.M. 1027, (1984), as modified, 24 I.L.M. 535.
Foreign Affairs Reform and Restructuring Act of 1998, (“FARRA”), Pub. L. No. 105-277, § 2242, 112 Stat. 2681 (Oct. 21, 1998), reprinted in 8 U.S.C. § 1231, Historical and Statutory Notes (1999).
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 52, U.N. Doc. A/6316 Dec. 16, 1966, entered into force 23 March 1976, 999 U.N.T.S. 171; Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004) (HRC General Comment 31).
Torture Is Over (if we want it) , by David Swanson.
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