Oh, that gulag! Bush admits to CIA black sites

Bush finally admitted that the CIA has a network of secret foreign prisons where inmates are tortured.

Jennifer Van Bergen explains the legal implications of Bush's revelations.

[Hat tip to commenter Count Zero.]

Comments

[mudkitty]

Wasn't "Oh That Gulag" an ABC sit-com from a while back?

[DAS]

The legal implications?

Well, GWB will now be able to hide behind the very legal rights he insists the common criminals he glorifies and exalts by calling "terrorists" don't have. In particular, now his legal team can argue that pretty much any further investigations into Bush & CO criminal activities involve the fruit of the poison tree of Bush's un-mirandized confession.

[aeroman]

DAS:

Nope. Not how Miranda works.

[Sanpete]

The way you wrote it you seem to be claiming that Bush admitted torture at these places, which is the opposite of what he said.

I've been surprised by the angle some of the media has taken on this story. The leads have often been that Bush admits secret prisons abroad, but that's hardly the most important point. Everyone already knew about that, and the continued refusal to confirm their existence was a mere formality. The admission may be significant in forcing Congress to face the issue, but they've known about it for a long time. The Post and NYT lead with what is at least real news, that some of the secret prisoners will be tried, and that the 14 are being moved to Guantanamo.

The big story here seems to me to be the gambit to pressure Congress into rubber stamping the military commissions, with secret evidence and other violations of judicial standards. I doubt it will work, but it's an interesting and significant political move. Now the claim will be that those who try to pass appropriate standards for the commissions instead of the free pass Bush wants are delaying justice for the worst of the worst, and prolonging the suffering of the 9/11 families. Similar arguments might be used just to lynch them.

[Lindsay Beyerstein]

As I read the article that I linked to above, Bush did admit that the CIA detention centers use torture:

Bush's statement during an impassioned East Room speech represented the first time he has confirmed the existence of the CIA program under which Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, and others have been secretly held and subjected to irregular interrogation methods. [...] Bush said the CIA had used an "alternative set of procedures" to question the men because they were trained to resist interrogations, and that these procedures -- which he did not detail -- had borne fruit. [WaPo] (emphasis mine)

"Irregular interrogation techniques" is a euphemism for torture. If the president says the CIA is using irregular techniques, he's admitting that the CIA does things that I would call torture.

[Sanpete]

Lindsay, I'm sure you recognize the difference between saying that Bush admitted things you regard as torture and saying that he admitted torture. The former is accurate, but the latter is distinctly misleading, especially in light of his explicit denials that there was any (authorized) torture.

Scott Lemieux at Lawyers, Guns and Money has pointed out an interesting discussion at Marty Lederman's blog of points relating to torture and humane treatment in the President's proposed legislation that have so far not received much attention. The discussion is at:

http://balkin.blogspot.com/2006/09/heres-administrations-cruel-treatment.html

I need to figure out to do links properly.

[ianqui]

What Sampete says in the first comment is really all that's relevant: Now the claim will be that those who try to pass appropriate standards for the commissions instead of the free pass Bush wants are delaying justice for the worst of the worst, and prolonging the suffering of the 9/11 families.

You see? It doesn't matter if the prisoners were tortured. Bush is essentially crowing that torture worked, and well, golly gee, isn't that the most important thing? A further question might be whether Americans care that 1000s of innocent people have been tortured to get the guilty ones, but it's like the death penalty issue. The American people seem quite content for a few innocents to die if it means that the bad guys are getting fried.

[aeroman]

Sampete, that's not "Marty Lederman's blog," it's Balkinization, a blog hosted by Jack Balkin featuring many contributors. Thus concludes this installment of minor correction theater.

[Lindsay Beyerstein]

Suppose the president said, "I admit that I physically forced my wife to have penetrative sexual intercourse last night."

It would be accurate to say that the president admitted rape.

I don't care if the president's idiosyncratic definition of rape excludes spousal rape. Ordinary English speakers know the term "rape" applies to all instances of forced intercourse, including a husband forcing himself on his wife.

Likewise, we all know what "torture" means. For example, waterboarding is a form of torture. If the mafia were caught waterboarding snitches, the papers would report that the mobsters tortured their victims. Nobody would say "I'm not sure if that's really torture, maybe that's just abuse."

[Fitz]

"CA3 prohibits taking hostages, and it prohibits outrages upon personal dignity, including humiliating and degrading treatment. It also prohibits the passing of sentences and carrying out of executions without a previous judgment by a regularly constituted court affording all judicial guarantees.

Additionally, transfer of any person who is not a prisoner of war out of occupied territory is a grave breach of the Geneva Conventions, as well as a war crime. Deportation is also a crime against humanity under the Nuremberg Charter.

Enforced disappearances are also barred by international law, as are arbitrary detentions. According to Article 7 of the Declaration on the Protection of All Persons from Enforced Disappearances, adopted by the U.N. General Assembly in 1992, "no circumstances whatsoever" may justify enforced disappearances.

A U.N. Working Group on Arbitrary Detention declared that U.S. detentions without status determinations constitute arbitrary detentions in violation of the Third Geneva Convention. The Parliamentary Assembly of the European Council resolved in 2003 that the detentions in Guantanamo, Afghanistan, and elsewhere were unlawful."

It seems to me that the problem with the analysis made by Jennifer Van Bergen; is that if excepted : will apply to the suspects and detainees in the war on terror.

You may want to be careful what you wish for.

[Dabodius]

My blood ran cold when I heard Bush try to justify the resort to "alternative procedures" -- apparently they were the fault of the man they were used on, since they decided he had been trained to resist interrogation -- that were "tough" but "legal." Waterboarding is rather too drastic to be merely "tough," and it's illegal, because, by any definition, it's torture. So when Bush went on to say that we don't torture, won't torture, he meant, by my executive-mandated stipulation of what torture is. You can imagine Winston Smith and his torturer O'Brien from Nineteen Eighty-Four:

O'B: Is this electroshock I'm giving you torture, Winston?
WS: Yes.
[SHOCK]
O'B: But what if the Party says it's not torture?

Yet again, our president insults the morals, intelligence, and humanity of the American people and humanity at large -- to say nothing of our mother tongue and the rule of law.

[Fitz]

On the opposite spectrum from "pull their finger nails out & go to work on them with a blow torch and a pair of pliers" seems to be the "regularly constituted court affording all judicial guarantees." of Jennifer Van Bergen.

The question to me seems where we draw the line. Something beyond how Sipowitz deals with suspects on NYPD Blue seems appropriate.

I can easily imagine a situation were the terrorist equivilant of John Ghottie becomes the Teflon Terrorist!

After all...we all remeber the trial of Slobodan Milosevic.

[Sven]

I'm sure you recognize the difference between saying that Bush admitted things you regard as torture and saying that he admitted torture

The techniques approved by the Bush administration are not designed to be less brutal than other forms of torture. They're designed to eliminate physical evidence that the subject was tortured.

[Sanpete]

Likewise, we all know what "torture" means.

I'm surprised to see you defending what seems pretty plainly misleading to me, but maybe this shows part of the reason. It isn't true that everyone, or even all reasonable people, agree about whether waterboarding is torture. It also isn't true that the President admitted that waterboarding was carried out or authorized. If whether waterboarding is torture weren't in fact a controversial issue, and if the President had admitted it was done, you might have a stronger case. But even then, to make it sound as though the President said the opposite of what he explicitly claimed would be needlessly confusing.

Thanks for the correction, aeroman.

[Joe]

"trained to resist interrogations"

Does that mean they were trained in their 'right to remain silent'?

Or do they just know not to drink a lot of coffee cause it makes you have to pee?

[cfrost]

What does Bush care for Common Article 3? We don’t need no stinkin’ badges! Or to quote Jack Nicholson: “I am the fucking shore patrol!” He’ll come up with some international law equivalent of a signing statement to trash the whole thing. Doubtless right now, he’s got some undersecretary for bad faith and disingenuous legal maneuvers meeting with a team from the CIA’s working group for innovative inquisition to address any hurdles the civil rights whiners may try to impose.

[Dan]

If the Bush administration's refusal to confirm the existence of secret prisons abroad was a mere formality, then so was Bush's euphemistic use of the term "irregular interrogation techniques" in referring to the use of torture at those prisons, IMO.

[Lindsay Beyerstein]

How could waterboarding not be torture? Was aspect of it is insufficiently torturous?

Here's how the CIA does it: The victim is bound to a board that is tipped back so that his head is slightly lower than his feet. His mouth is covered with cloth or cellophane and water is poured onto this semi-permeable gag. Waterboarding combines all the terror of plain old smothering plus the added agony of letting just enough water into the respiratory system to burn like hell.

Acid leaves marks, but water, if applied to the inside of the person hurts like acid but leaves no trace. Not surprisingly, few people can withstand waterboarding for more than a few seconds at a time.

Everyone agrees that the dunking stool was a form of torture. Waterboarding is just a modern-day variant of the dunking stool.

[Sanpete]

Dan, I see your point, but the administration never denied the existence of secret prisons, while it explicitly denies torture.

I may as well add that it seems clear to me that waterboarding is torture, or as I believe John McCain called it, "exquisite torture," both by our ordinary standards and by those intended in the relevant conventions. But I'm aware of the "organ failure" view, and that some folks who seem reasonable defend it. (Who is really reasonable is something reasonable people can disagree about.) On the substantive points I doubt there's much disagreement here (in this thread).

Sven, I don't think the practices reportedly carried out are designed so much to avoid physical signs of torture as to fit the standard of lack of physical injury. The two happen to coincide in practice.

[Sanpete]

Lindsay, as you can see from my previous post, I do think it's torture. But I don't get to decide what everyone else thinks. It's well known that the point is a controversial one.

[DAS]

Nope. Not how Miranda works. - aeroman

Of course not. But it still won't stop their attorneys from making that argument. Nor will it stop their PR flaks from doing their best to destroy the reputation of any judge or equivalent figure who wouldn't buy such an argument.

[Fitz]

I saw a report about water boarding (last nights Night Line) were they talked about how water boarding “simulates drowning”.

Well… it doesn’t “simulate drowning” the suspect.. it does drown the suspect. (it just happens to drown him in such a way that makes it easier for the interrogator to stop the drowning)

[aeroman]

Of course not. But it still won't stop their attorneys from making that argument. Nor will it stop their PR flaks from doing their best to destroy the reputation of any judge or equivalent figure who wouldn't buy such an argument.

Yes, it will stop their attorneys from making that argument.

[Dabodius]

'When I use a word,' Humpty Dumpty said, in a rather scornful tone,' it means just what I choose it to mean, neither more nor less.'
'The question is,' said Alice, 'whether you can make words mean so many different things.'
'The question is,' said Humpty Dumpty, 'which is to be master - that's all.'
--Through The Looking-Glass

Sanpete said:
"It isn't true that everyone, or even all reasonable people, agree about whether waterboarding is torture."

They do if they're being waterboarded.

[Sven]

as to fit the standard of lack of physical injury.

Sure, sure, that's the ticket. They're holding back out of an abundance of humanitarianism.

Aleksandr Solzhenitsyn begs to differ.