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Obama and the Convention Against Torture

waterboardvn

US and ARVN soldiers waterboard a North Vietnamese prisoner during Operation Wheeler in 1967.

On November 12—thirteen years after the onset of George W. Bush’s dirty underground war against “unlawful combatants”—the Obama administration finally told the United Nations Committee Against Torture that the United States believed, in the words of Assistant Secretary of State Tom Malinowski, “that torture, cruel, inhuman and degrading treatment and punishment are forbidden in all places, at all times, with no exceptions.” Finally! Not so fast.

Torture is as old as human civilization. Assyrians skinned victims alive. Torture was a routine feature of Greek and Roman interrogations. Execution by torture took the form of crucifixion for the Romans, stoning for the Jews, and desert sun death for the Egyptians. Chinese emperors preferred lingchi—the slow slicing—of their prisoners (the infamous “death by a thousand cuts”). The Aztecs favored blood sacrifices that included consumption of the hearts of their victims.

Torture was not the sole preserve of heathens and idolators. The Dominicans, endlessly inventive in the torture of “heretics” and “witches” in Spain, made sexual humiliation of victims their trademark. John Calvin had a fellow early Protestant tortured and beheaded. Guy Fawkes spent time on the rack following his capture during the Gunpowder Plot.

As with slavery and the mass execution of hostages, torture slowly, fitfully came to be seen as barbaric and ineffective, although it took over two millennia for official if hypocritical and imperfect bans to appear. The British outlawed “cruel and unusual” punishment in the Bill of Rights of 1689; the prohibition protected Britons only as American, Boer, Irish, Indian, and Iraqi patriots knew well. The Americans included a similar ban in the Eighth Amendment to their Constitution—which applied only to citizens, not slaves or Natives. And lynching did not of course end following the Reconstruction Amendments. Napoleon forbade the use of torture by his armies in 1798, history forgotten by French troops in Algeria a century and a half later. Pius VII waited until 1816 to overturn the papal bull of 1252 permitting torture during the Inquisition. The Chinese outlawed lingchi in 1905 (which did not stop Nationalists and Communists from torturing one another before and during the Civil War).

The horrors of the twentieth century’s two world wars led to the Universal Declaration of Human Rights (1948) and to the Geneva Conventions of 1949, which effectively (in the legal sense of the word) banned torture of civilians or military personnel. That these icons of international law weren’t effective in reality became abundantly clear during the counter-insurgencies waged by the United States and European imperial powers resistant to decolonization of the Third World from the late forties through the mid-seventies. They were joined by the secret police of the Soviet bloc controlling Eastern European dependencies. They were joined too by the secret police and armed forces of dozens of Arab monarchies, and Latin American, African and Asian (military) dictatorships. Torture during the Cold War knew no ideological or territorial boundaries.

The United States and the Soviet Union masterfully outsourced and offshored torture during their decades long rivalry. Vast empires run by remote brutes require burden sharing with local brutes. The Soviets trained East Germans, Hungarians, Czechs, Bulgarians, Romanians, and Poles in the dark arts. As Chomsky and Herman detailed in The Washington Connection and Third World Fascism (1979), Americans trained military and police in twenty-six countries that according to Amnesty International practiced torture. These included Iran, Saudi Arabia, Indonesia, Turkey and Brazil.

The Pentagon cast further light on the postwar American way of torture with the release of seven “intelligence training” manuals in 1996. Written and perfected by the CIA during spasms of concentrated violence like Operation Phoenix in South Vietnam, the manuals were widely distributed by the US Agency for International Development (USAID), and put into practice by Special Forces Mobile Training Teams. US Special Forces are today present (mostly on training missions) in more than one hundred countries, including Iraq and Afghanistan. The US Army’s School of the Americas crafted a custom manual for Central and Latin American trainees.

By the eighties, amidst the bloody interventions of the Reagan administration and the brutal Soviet occupation of Afghanistan, the world was ready to make another effort at outlawing torture. The United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment was adopted in 1984, entered into force in 1987, signed by Ronald Reagan in 1988, and ratified by Congress during Bill Clinton’s first term in 1994. The US—with the largest prison population in the world—failed to ratify the Optional Protocol to the Convention (adopted in 2002; entered into force in 2006) that provides for regular, unannounced visits to prisons and detention centers, and for private interviews with detainees.

Barak Obama first criticized the Bush record on torture following revelations that emerged from the Senate confirmation hearings of Alberto Gonzalez as Attorney General in 2005. Gonzalez claimed that the provisions of the Convention Against Torture did not govern official US behavior against “aliens” overseas. Obama was a strong rhetorical supporter of the legislation reaffirming official US condemnation of torture that passed the following year (to which George Bush added a signing statement permitting the CIA to continue should the Commander in Chief deem it necessary).

On his second day in office, Obama issued Executive Order 13491—“Ensuring Lawful Interrogations”—to revoke Bush’s Executive Order 13440 of 2007 (designed to further ‘legalize’ CIA detention and “interrogation” of al Qaeda and Taliban “unlawful enemy combatants” after the fact; Bush’s lawyers first invented the category of “unlawful enemy combatant” in 2002). The long international nightmare of official US endorsement of torture—brought to life in the shameful corridors of Guantanamo, Abu Ghraib, Bagram, and the CIA’s “black sites”—appeared over. Not even close.

The Convention on Torture, other international treaties, and domestic law require the president to investigate allegations of torture, and to prosecute those responsible. Obama has, contrary to the law, shown zero interest in pursuing Bush, Cheney, Rumsfeld, Rice or the other enablers and defenders of criminal behavior in the country’s name; “we need to look forward as opposed to looking backwards.” There’s been no full-scale public inquiry into or publication of the various torture memos written by John Woo, or other records of official lawlessness. Neither have we witnessed a reckoning by the Obama Justice Department with the illegal and outrageous practice of extraordinary rendition.

The White House (with the CIA looking over its shoulder) holds up publication of a five hundred page executive summary of the Senate’s 6300 page report on the CIA’s “enhanced interrogation” program. Chances are that what finally squirts out will be so blacked out as to further shield the evildoers.

Indefinite detentions in Guantanamo likely violate the Convention; the failure to offer redress to detainees certainly does. US military commissions violate at least two articles of the Convention. US refusal to grant independent monitors access to Guantanamo violates at least two articles of the Convention. Transfer of prisoners to countries known to practice torture (common during the Bush years) clearly violates the Convention. Hyper-aggressive domestic counter-terror investigations (especially the widespread use of sting operations by the FBI) appear to violate “human rights safeguards in law and practice.”

“Special housing units,” supermax cells, and other forms of solitary confinement of domestic prisoners, including children, clearly constitute torture, cruel, inhuman or degrading treatment or punishment. On any given day, more than 80,000 people are held in isolation in US federal and state prisons. Capital punishment appears to most civilized peoples as torture, cruel, inhuman or degrading treatment or punishment. Continued US failure to put in place adequate safeguards against sexual assault in state and federal prisons violates the Convention.

Local police departments’ failure to pursue allegations of sexual assault (the most underreported crime in the country) violates victims’ right to be free from mistreatment. The epidemic of police killings, brutality, racial profiling, and asset seizures is among the most egregious violations of the Convention during the Obama years. The policy of deporting immigrants (including especially unaccompanied children) without proper screening to assess their prospects for torture or mistreatment violates the Convention, and deserves a special place in the annals of perfidy.

When George Bush declared “we don’t torture,” the world knew it was a lie. What about when Nobel Peace Prize winner Barak Obama says it?

Steve Breyman is a former William C. Foster Visiting Scholar Fellow in the US State Department. Reach him at breyms@rpi.edu

 

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Steve Breyman was a William C. Foster Visiting Scholar Fellow in the Clinton State Department, and serves as an advisor to Jill Stein, candidate for the Green Party presidential nomination. Reach him at breyms@rpi.edu

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