A Washington Post 3-pager offers rich details on how 9/11 mastermind Khalid Sheikh Muhammad became an intelligence asset--after he was deprived of sleep & forced to wear diapers & shackles for 7-1/2 days, and waterboarded 183 times. Stephen Hayes at The Weekly Standard assesses the latest CIA revelations in a crisp article, and Thomnas Joscelyn adds more interrogation fruits detail. In a WSJ op-ed ex-CIA office Reuel Marc Gerecht explains in a must-read why the CIA will not push the interrogation envelope unless a bigger 9/11 happens. The folly of legalist excess--protecting detainees from nasty treatment short of torture--is perfectly illustrated.
Here once again is the pertinent section of the Code of Federal Regulations governing Implementation of the Convention Against Torture (8 CFR sec. 1208.18), that are the actual rules enacted pursuant to America's criminal torture statute, 18 U.S.C. 2340 (U.S.C. = United States Code). The first 6 sections convey the heart of the issue: (1) torture is the intentional infliction of severe pain & suffering for such purposes as extracting confessions; (2) torture does not include lesser forms of cruel, inhuman or degrading treat; (3) torture does not include pain inflicted incidental to lawful sanctions, including the death penalty; (4) torture entails threatened or actual prolonged physical or mental harm; (5) torture covers acts "specifically intended to inflict severe physical or mental pain & suffering"--the result must be actually intended; (6) torture can only be conducted upon someone in the offender's physical custody or control--battlefield combat doesn't apply.
The key here is that torture entails specific intent.to inflict severe long-term pain & suffering. Under a general intent rule, if X throws a baseball at mortal enemy Y, intending to harm Y, but instead hits best friend Z, whom X did not intend to harm, X is liable for the tort (civil wrong) or battery (an intentional unconsented contact). Applying general intent, to intend an act is to intend its reasonably foreseeable consequences; one foreseeable outcome of throwing a ball at one target is to miss and hit another. But under a specific intent rule X would NOT be liable to Z, because X intended to hit & harm Y.
On to Guantanamo: In waterboarding KSM, CIA interrogators did NOT intend to inflict lasting harm upon KSM. They intended to inflict extreme temporary discomfort in waterboarding him; parading him around in diapers and shackles is surely degrading, sleep deprivation is perhaps cruel, and both are perhaps inhumane--our Western culture makes it hard for us to find any unpleasant treatment inhumane.
The above rules are America's 1995 enactment of the United Nations Convention Against Torture (UNCAT, signed Feb. 4, 1985). NRO's Andy McCarthy's article, Eric Holder's Hidden Agenda, which I posted recently on LFTC, I re-post today because it bears directly on what Team Obama wants to do:
I believe the explanation lies in the Obama administration’s fondness for transnationalism, a doctrine of post-sovereign globalism in which America is seen as owing its principal allegiance to the international legal order rather than to our own Constitution and national interests.
Recall that the president chose to install former Yale Law School dean Harold Koh as his State Department’s legal adviser. Koh is the country’s leading proponent of transnationalism. He is now a major player in the administration’s deliberations over international law and cooperation. Naturally, membership in the International Criminal Court, which the United States has resisted joining, is high on Koh’s agenda. The ICC claims worldwide jurisdiction, even over nations that do not ratify its enabling treaty, notwithstanding that sovereign consent to jurisdiction is a bedrock principle of international law.
As a result, there have always been serious concerns that the ICC could investigate and try to indict American political, military, and intelligence officials for actions taken in defense of our country. Here it’s crucial to bear in mind that the United States (or at least the pre-Obama United States) has not seen eye-to-eye with Europe on significant national-security matters. European nations, for example, have accepted the 1977 Protocol I to the Geneva Conventions, while the United States has rejected it. Protocol I extends protections to terrorists and imposes an exacting legal regime on combat operations, relying on such concepts as “proportional” use of force and rigorous distinction between military and civilian targets. That is, Protocol I potentially converts traditional combat operations into war crimes. Similarly, though the U.S. accepted the torture provisions of the U.N. Convention Against Torture (UNCAT), our nation rejected the UNCAT’s placing of “cruel, inhuman, and degrading treatment” on a par with torture. By contrast, Europe generally accepts the UNCAT in toto.
#pageAs long as we haven’t ratified a couple of bad human-rights treaties, why should we care that Europe considers them binding? Because of the monstrosity known as “customary international law,” of which Koh is a major proponent. This theory holds that once new legal principles gain broad acceptance among nations and international organizations, they somehow transmogrify into binding law, even for nations that haven’t agreed to them. That is, the judgment of the “international community” (meaning, the judgment of left-wing academics and human-rights activists who hold sway at the U.N. and the European Union) supersedes the standards our citizens have adopted democratically. It is standard fare among transnational progressives to claim that Protocol I is now binding on the United States and that what they define as cruel, inhuman, and degrading treatment is “tantamount to torture.”
And the transnational Left has still another treat in store: its notion of “universal jurisdiction.” This theory holds that individual nations have the power to prosecute actions that occur in other countries, even when they have no impact on the prosecuting nation. The idea is that some offenses — such as torture and war crimes — so offend the purported consensus of humanity (i.e., so offend left-wing sensibilities) that they may be prosecuted by any country that cares to take the initiative. In fact, many countries (the United States included) open their justice systems to civil suits against government officials — again, even if the country where the suit is filed has nothing to do with the alleged offenses.
Consider now the Constitution of the United States. Specifically, consider Article VI, Clause 2, the Supremacy Clause:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
When America ratifies a treaty, it often does so conditionally--with specified reservations. This is not minor technical stuff: President Woodrow Wilson's refusal to accept any compromise on the League of Nations Treaty resulted in the Senate rejecting ratification, in 1919. Thus, in ratifying UNCAT, the US narrowed its application. We define torture more narrowly than does UNCAT. Some acts that constitute torture under UNCAT do not constitute torture under American law. The Supremacy Clause says that American law prevails--our Founders & Framers did not break away from one foreign despotism to accept in its stead another. What Holder and Harold Koh seek--Obama too--is just such a despotism: Using "customary international law" made outside the US to override the Supremacy Clause.
Bottom Line. Khalid Sheikh Muhammad was not tortured, under the specific, narrow rules of American law. By fair inference, after being subjected to enhanced Interrogation Techniques, KSM provided useful information that saved countless innocent lives. If Team Obama gets its way, we will learn less from future senior terror detainees, save fewer lives, and find ourselves subjected to rule by foreign law imposed upon us without our Constitutional consent via Senate ratification.