We Have Ways ... the Bush Administration Continues to Disavow Torture-And to Officialize Its Practice

Article excerpt

ON OCT. 4 , the New York Times blew another ten-foot hole in the Bush administration's torture cover-up. The Times revealed that the Justice Department produced a secret legal opinion in early 2005 permitting CIA interrogators to use "combined effects" on detainees, including head slapping, waterboarding, frigid temperatures, manacling for many hours in stress positions, and blasting with loud music to assure sleep deprivation. The Times labeled the memo as an "expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency."

Within hours of the paper hitting the streets, President Bush issued the same moth-eaten denial he has used many times since Abu Ghraib: "This government does not torture people. You know, we stick to U.S. law and our international obligations." But it is the "law" as contorted by administration lawyers who rubberstamp whatever methods Bush or Cheney demand. The same lawyers who tell Bush he has "inherent authority" to wiretap Americans' phone calls also tell him he has authority to redefine torture, regardless of the English-language precedents dating back to Chaucer.

The Times detailed how, after 9/11, the CIA constructed an interrogation program by "consulting Egyptian and Saudi intelligence officials and copying Soviet interrogation methods long used in training American servicemen to withstand capture." For decades, the United States government condemned Soviet, Egyptian, and Saudi torture. But interrogation systems designed to compel victims to sign false confessions now provide the model for protecting America in the new millennium.

In late 2005, Congress passed the McCain Detainee Treatment Act, which prohibited the U.S. government from using "cruel, inhumane, or degrading" interrogation methods. The Times revealed that the Justice Department responded to the new law with another secret memo declaring that all the techniques listed above were not "cruel, inhumane or degrading." The secret torture memos, written by Steven Bradbury, the head of the Justice Department Office of Legal Counsel, relied on "a Supreme Court finding that only conduct that 'shocks the conscience'" would go too far.

While Bush may believe he has sole discretion to define torture, CIA interrogators increasingly fear facing grand juries. The Times noted, "From the secret sites in Afghanistan, Thailand and Eastern Europe where C.I.A. teams held al-Qaeda terrorists, questions for the lawyers at C.I.A. headquarters arrived daily. Nervous interrogators wanted to know: Are we breaking the laws against torture?"

According to Joanne Mariner, a lawyer with Human Rights Watch, the purpose of the secret Justice Department memos was to "to immunize US officials from prosecution for abusive conduct. They were meant to facilitate abuses, not to prevent them." The fact that the Justice Department officially blessed torturous methods makes it far more difficult to prosecute CIA and other interrogators for breaking the law.

As usual, the administration claimed it was doing Americans a favor by keeping them in the dark. White House Press Secretary Dana Perino declared, "It's appropriate that applications of the laws and techniques are kept secret. And I don't think that providing those to the American public would serve them well." Yale law Professor Jack Balkin summed up the administration's position: "I could tell you why what I'm doing is legal, but then I'd have to shoot you."

As part of the procedure for establishing the "legal" limits of interrogation, last year's Military Commission Act required the president to put in writing his definition of what constitutes "outrages upon personal dignity, in particular humiliating and degrading treatment." The executive order that Bush finally issued on July 20 decreed that everything in CIA detention and interrogation programs was legal--even though the secret CIA prison sites scattered around the globe clearly violate the Geneva Conventions, which are binding under U. …