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30 August 2007 Edition

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International : Using the law to cover abuse

Legal Torture

A landmark report released on 2 August by two leading human rights groups concludes that officials of the United States who authorise or use “enhanced” (a synonym for torture) interrogation techniques risk violating US law and could face criminal prosecution.
Arising from alleged concerns about its legality, the CIA announced the suspension of its own ‘interrogation’ programme, in 2005. Or that, at least, is what they said in public. But then the agency has never been one to publicise its campaigns of armed subversion, torture, murder and bloody coups.
On 20 July 2007, President George Bush – with poll ratings even lower than the criminal, Richard Nixon – issued an executive order interpreting the application of Common Article 3 of the Geneva Convention as a programme of detention and interrogation by the CIA. 
The order does not clarify what techniques the CIA can lawfully engage in.  Press accounts, citing ‘anonymous’ Administration officials, suggest that at least one of the “enhanced” techniques – ‘waterboarding’ – may no longer be in use. Without identifying specifically approved techniques, the President has, in the past, publicly endorsed “alternative interrogation methods” and declared that an order that he signed into law in October 2006, allows the CIA programme to continue.
While the details of the CIA’s “enhanced” interrogation programme remain classified, credible reports have disclosed several of the techniques that were authorised in March, including waterboarding (mock drowning), exposure to extreme cold (including induced hypothermia), stress positions, extreme sensory deprivation and overload, shaking, striking, prolonged sleep deprivation and isolation, among others.
The unprecedented analysis contained in the 2 August report from Human Rights First and Physicians for Human Rights utilises both medical and legal expertise to scrutinise 10 techniques widely reported to have been authorised for use in the CIA’s secret interrogation programme. The report – Leave No Marks: ‘Enhanced’ Interrogation Techniques and the Risk of Criminality – demonstrates the mental and physical consequences of the use of these techniques, and its title refers to the techniques’ intended design, which is to inflict psychological trauma and pain without leaving physical scars.
The Executive Order does state clearly that any programme of detention and interrogation approved by the Director of the CIA may not include any acts prohibited by the War Crimes Act or the Torture Act.  Yet a close analysis of the War Crimes Act and other US law reveals that these “enhanced” interrogation techniques, may constitute “torture” and/or “cruel or inhuman treatment” and, consequently, authorisation of their use under the Executive Order would place interrogators at serious legal risk of prosecution for war crimes or other violations. US law requires an assessment of the physical and mental impact of an interrogation method to determine its legality. The recent report concludes that each of the 10 tactics is likely to violate US laws, including the War Crimes Act, the US Torture Act, and the Detainee Treatment Act of 2005.

Guantánamo Bay
A recently declassified report by the Pentagon’s Office of the Inspector General (OIG) revealed that these techniques were based in large part on techniques of torture and cruelty used by the US military in its Survival, Evasion, Resistance, and Escape (SERE) programme.  The SERE program was intended to train personnel to resist interrogation if captured. According to the OIG, these techniques were transformed, with the assistance of military psychologists, into “standard operating procedure” (SOP) for interrogations at the Guantánamo Bay detention facility.  This Guantánamo SOP, the OIG reports, also was brought to Afghanistan and Iraq and, according to media reports, provided a basis for techniques used by CIA personnel, also with assistance from psychologists. They were designed to inflict physical and psychological harm for the purpose of breaking down interrogation subjects.  
“These ‘enhanced’ interrogation techniques can cause severe and often irreversible harm to their victims,” said Dr. Scott Allen, who co-authored the report, and is an Advisor for Physicians for Human Rights and Co-Director of the Centre for Prisoner Health and Human Rights at Brown University. “The report’s full and independent review of the medical literature and case studies concludes that these methods are likely to cause significant physical and mental harm to detainees, and they should be immediately and explicitly prohibited by the Bush Administration and by Congress,” he added.
The recent amendments to the War Crimes Act establish as war crimes “grave breaches” of Common Article 3 of the Geneva Conventions, including “torture” and “cruel or inhuman treatment.” Torture is characterised as “an act specifically intended to inflict severe physical or mental pain or suffering.” The separate war crime of “cruel or inhuman treatment,” is defined as “an act intended to inflict severe or serious physical or mental pain or suffering”.


Calculated cruelty
Medical literature clearly establishes that tactics such as the CIA’s reported “enhanced” interrogation techniques cause the types of physical and mental anguish that are criminalised under the WCA and other laws.
Defenders of the use of severely coercive treatment in interrogations have argued that “enhanced” interrogation techniques are “aggressive” and “tough,” but not particularly harmful. But the report reviews an extensive body of medical and psychological literature and applies the experience of experts who have treated victims of torture and abuse to show that although “enhanced” interrogation techniques may not result in visible scars, they often cause severe and long-lasting physical and mental harm. The use of such methods can and does frequently result in post-traumatic stress disorders, depressive disorders and psychosis. The use of physical and emotional abuse in combination “compounds their devastating psychological impact,” the report finds.
“Administration lawyers may try to convince interrogators that the secret interrogation techniques authorised by the President are lawful because they cause no ‘permanant damage.’ But interrogators shouldn’t buy it,” said Elisa Massimino, Washington Director of Human Rights First. “Stress positions, prolonged isolation, sensory bombardment, mock-drowning and other such abuses can cause serious physical and mental pain. They need not inflict permanent damage in order to violate the law and potentially result in very serious criminal sanctions.”
Massimino added: “Authorising such abuses as consistent with the Geneva Conventions has profound – and dangerous – consequences for our own military, now and in future wars. The administration’s argument that doctors will oversee the program to ensure that interrogators don’t go too far gives new meaning to the term ‘calculated cruelty’”.
The report urges the US government to “refrain from repeating the mistake of allowing the euphemistic descriptions of interrogation techniques to blur the line between permissible and impermissible treatment”.
But if you’re awaiting its acceptance and implementation, it would not be advisable to hold your breath.

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