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How to Read the Senate Report on CIA Torture

HNN  December 21, 2014

Introduction:

The recent Senate Intelligence Committee’s report on CIA torture is arguably the single most important U.S. government document released to date in this still-young 21st century. Yet even with all its richly revealing detail about the CIA’s recourse to torture since 9/11, the report’s impact on the ongoing U.S. debate over impunity is muted by some serious failings. Above all, the committee’s cursory treatment of Washington’s long, contradictory history with torture renders this report, in certain critical areas, superficial.

No matter what its limitations might be, this Senate report is still an historic document that will be debated for months and analyzed for years. At its most visceral level, these 534 pages of dense, disconcerting detail takes us into a Dante-like hell of waterboard vomit, rectal feeding, midnight-dark cells, endless overhead chaining, and crippling cold. With its mix of capricious cruelty and systemic abuse, the CIA’s Salt Pit prison in Afghanistan can now join that long list of iconic cesspits for human suffering—Devils’ Island, Chateau d’If, Con Son Island, Robben Island, and many, many more. But perhaps most importantly, these details have purged that awkward euphemism “enhanced interrogation techniques” from our polite public lexicon. Now everyone, senator and citizen alike, can just say “torture.”

In its most important contribution, the Senate report sifts through some six million classified documents to rebut the CIA’s claim that torture produced important intelligence. All the agency’s assertions that torture somehow stopped terrorist plots or led us to Osama Bin Laden were false, and sometimes knowingly so. Instead of such spurious claims, CIA director John Brennan has now been forced to admit that any link between torture and actionable intelligence is “unknowable.”

Of equal import, the Senate staffers parsed those millions of CIA documents to shatter the agency’s myth of derring-do infallibility and expose the bumbling mismanagement of its two main missions in the War on Terror: incarceration and intelligence. Every profession has its B-team, every bureaucracy has its bumblers. Instead of sending James Bond, Langley dispatched Mr. Bean and Maxwell Smart—in the persons of psychologists James Mitchell and Bruce Jessen. In perhaps its single most damning detail, the Senate report revealed that the CIA paid these two Air Force retirees $81 million to create sophisticated “enhanced interrogation techniques” after they had spent their careers doing little more than administering the SERE torture-resistance curriculum—a mundane job tailor-made for the mediocrities of modern psychology (more on this in a moment).

Case of Abu Zubaydah:

For all its many strengths, the Senate report is not without some serious limitations. Mired in detail and muffled by opaque pseudonyms, the committee’s analysis of this rich detail is often cursory or convoluted, obscuring its import for even the most discerning reader. This limitation is most apparent in the report’s close case study of Abu Zubaydah, the high-value detainee whose torture at a Thai black site in 2002 proved seminal, convincing the CIA that its enhanced techniques worked and giving these psychologists control over the agency’s program for the next six years. But, says the Senate report, earlier non-coercive interrogation produced more numerous intelligence reports.

This finding is good as far as it goes, but let’s see what more extensive analysis might extract from this critical section of the Senate’s report. Among the countless thousands of interrogations during the War on Terror, Abu Zubaydah’s has been cited repeatedly by conservatives to defend the CIA’s methods.In memoirs published on the tenth anniversary of 9/11, Dick Cheney claimed the CIA’s methods turned this hardened terrorist into a “fount of information” and thus saved “thousands of lives.” But just two week later, Ali Soufan, a former FBI counter-terror agent fluent in Arabic, published his own book claiming he gained “important actionable intelligence” by using empathetic methods to interrogate Abu Zubaydah.

If we juxtapose the many CIA-censored pages of Ali Soufan’s memoir with his earlier, unexpurgated congressional testimony, this interrogation becomes an extraordinary four-stage scientific experiment testing the effectiveness of CIA coercion versus the FBI’s empathy.

Stage One. As soon as Abu Zubaydah was captured in 2002, Ali Soufan flew to Bangkok where he built rapport in Arabic to gain the first intelligence about “the role of KSM [Khalid Sheikh Mohammed] as the mastermind of the 9/11 attacks.” Angered by the FBI’s success, CIA director George Tenet pounded the table and dispatched psychologist James Mitchell, who stripped Zubaydah naked and subjected him to “low-level sleep deprivation.”

Stage Two. After the CIA’s harsh methods got “no information,” the FBI men resumed their empathic questioning of Abu Zubaydah to learn “the details of Jose Padilla, the so-called ‘dirty bomber.'” Then the CIA team took over and moved up the coercive continuum to loud noise, temperature manipulation, and forty-eight hours of sleep deprivation.

Stage Three. But this tough CIA approach again failed, so, for a third time, the FBI men were brought back, using empathetic techniques that produced more details of the Padilla bomb plot.

Stage Four. When the CIA ratcheted up the abuse to confinement that was clearly torture, the FBI ordered Ali Soufan home. With the CIA in sole control, Abu Zubaydah was subjected to weeks of sleep deprivation, sensory disorientation , nudity, and waterboarding but gave no further information. Yet in a stunning bit of illogic, Mitchell claimed this negative result was, in fact, positive since these enhanced techniques showed that the subject had no more secrets to hide. Amazingly, the CIA bought this bit of flim-flam.

Examined closely, the results of this ad hoc experiment were blindingly clear: FBI empathy was effective, while CIA coercion proved consistently counterproductive. But this fundamental yet fragile truth has been obscured by CIA claims of good intelligence from the torture of Abu Zubaydah and by censorship of 181 pages in Ali Soufan’s memoir that reduced his account to a maze of blackened lines that no regular reader can understand.

Unanswered Question:

More broadly, the Senate committee’s report also fails to ask or answer a critical question: If the intelligence yield from torture was so consistently low, why was the CIA so determined to persist in these brutal but unproductive practices for so long? Among the many possibilities the Senate failed to explore is a default bureaucratic response by a security agency flailing about in fear when confronted with an unknown threat. “When feelings of insecurity develop within those holding power,” reported a CIA analysis of the Cold War Kremlin applicable to the post-9/11 White House, “they become increasingly suspicious and put great pressures upon the secret police to obtain arrests and confessions. At such times police officials are inclined to condone anything which produces a speedy ‘confession,’ and brutality may become widespread.”

Moreover, the Senate’s rigorously pseudonymous format strips its report of an element critical to any historical narrative, the actor, thereby rendering much of its text incomprehensible. Understanding the power of narrative, the CIA has given us the Oscar-winning feature film Zero Dark 30 about an heroic female operative whose single-minded pursuit of the facts, through the most brutal of tortures, led the Navy SEALs to Osama Bin Laden. While the CIA has destroyed videotapes of these interrogations and censored Ali Soufan’s critical account, scriptwriter Mark Boal was given liberal access to classified sources.

Instead of a photogenic leading lady, the Senate report offers only opaque snippets about an anonymous female analyst who played a pivotal role in one of the CIA’s biggest blunders—snatching an innocent German national, Khaled el-Masri, and subjecting him to four months of abuse in the Salt Pit prison. That same operative later defended torture by telling the CIA’s own Inspector General that the waterboarding of Khalid Sheikh Mohammed had extracted the name of terrorist Majid Khan—when, in fact, Khan was already in CIA custody. Hinting at something badly wrong inside the agency, the author of these derelictions was rewarded with a high post in the CIA’s Counter-Terrorism Center.

By quickly filling in the blanks, journalists have shown us the real story about this operative that the Senate suppressed and Hollywood glorified. This CIA “Torture Queen,” reports Jane Mayer in the December 18 issue of the New Yorker, “dropped the ball when the C.I.A. was given information that might very well have prevented the 9/11 attacks; …gleefully participated in torture sessions afterward; …misinterpreted intelligence in such a way that it sent the C.I.A. on an absurd chase for Al Qaeda sleeper cells in Montana. And then she falsely told congressional overseers that the torture worked.”

After all that, this agent, whom Glenn Greenwald has identified as Alfreda Bikowsky, has now been promoted to a top CIA post and rewarded with a high salary that, says an activist website, recently allowed her to buy a luxury home in Reston, Virginia for $875,000. In short, adding the name and narrative reveals a consistent pattern of CIA incompetence, the corrupting influence of intelligence gleaned from torture, and the agency’s perpetrators as self-aggrandizing incompetents.

Cold War History:

The Senate report’s signal failing is its cursory treatment of the sixty-year history of secrecy that inscribed tolerance for psychological torture into the country’s intelligence community, political culture, and federal laws.

Viewed historically, the current controversy is the product of a deeply contradictory U.S. policy toward torture since the start of the Cold War. Publicly, Washington advocated a strong standard for human rights–manifest in the UN Universal Declaration of Human Rights of 1948 and the Geneva Conventions of 1949. Simultaneously and secretly, however, the CIA was developing ingenious new torture techniques in contravention of these same international conventions.

From 1950 to 1962, the CIA led a secret allied research effort to crack the code of human consciousness, a veritable Manhattan project of the mind. While its exotic experiments with LSD led nowhere, CIA-funded behavioral research produced two key findings—sensory deprivation and self-inflicted pain—that became central to its new doctrine of psychological torture.

After four years of mind control research for use against the enemy, President Eisenhower ordered, in 1955, that all American soldiers at risk of capture be trained to resist torture. During the Korean War, about thirty captured US airmen were tortured to make false statements, some on Radio Beijing, that America had used biological weapons in North Korea. Consequently, the Air Force flipped these methods from offense to defense to give its pilots so-called SERE training—an acronym for Survival, Evasion, Resistance, Escape.

After a decade of mind-control research, in 1963 the CIA codified its findings in a secret handbook, cited in the current Senate report, called the “KUBARK Counterintelligence Interrogation” manual with a new method of psychological torture that was, for the next thirty years, disseminated worldwide and within the U.S. intelligence community.

But as the Cold War wound down, Washington abandoned its torture techniques. After a death in custody, the CIA purged these coercive techniques from its interrogation canon and even concluded they were counterproductive. After decades of training Latin American militaries in torture, the Defense Department, under Secretary Dick Cheney, recalled all copies of extant manuals that detailed these illegal methods.

Twelve years later when the Bush administration opted for torture after 9/11, the sole institutional memory for these psychological methods lay in the military’s SERE training. Under contract with the CIA, the two psychologists, Mitchell and Jessen, reverse-engineered this defensive doctrine to produce the agency’s signature “enhanced interrogation techniques.”

Instead of outsourcing torture to allies as Washington had done during the Cold War, Bush’s policies required that CIA agents dirty their own hands with the tortures detailed in the Senate report—both the harsh physical methods (wall slamming, facial grab, stomach slap, rectal feeding), and psychological techniques dating back to the KUBARK manual (sleep deprivation, sensory disorientation, shackling for enforced standing).

Legal Protection for Torture:

Not only is the use of psychological torture embedded in the nation’s security agencies, it has been sanctioned by U.S. laws designed to prohibit this abuse. The reason for this contradiction is, once again, found in a troubled history ignored by the Senate report.

When the Cold War came to a close, Washington finally ratified the UN Convention Against Torture that banned the infliction of both psychological and physical pain. On the surface, the United States had apparently resolved the long-standing contradiction between its anti-torture principles and its torture practices.

But when President Clinton sent this UN Convention to Congress for ratification in 1994, he included language drafted six years earlier by the Reagan administration with four detailed diplomatic “reservations” focused on just one word in the treaty’s twenty-six printed pages: “mental.”

Instead of the UN Convention’s broad ban on “severe pain or suffering,” these U.S. reservations redefined psychological torture as “prolonged mental harm.” Since “prolonged” was vague (how long is prolonged?) and “harm” was ambiguous (what constitutes harm?), these reservations created enormous loopholes—just like the one Bush lawyers later opened by allowing harm up to “organ failure.”

This language and its loopholes have been repeated, verbatim down to the semicolons, in every U.S. law enacted to comply with the UN Convention—first in Section 2340 of the Federal Code; next in the War Crimes Act of 1996; and most recently in the Military Commissions Act of 2006.

Impunity in America:

As America now concludes a decade-long debate over impunity, the Senate report serves as a powerful corrective to years of CIA disinformation. Since CBS Television released those photos from Abu Ghraib prison back in 2004, the United States has been moving, almost imperceptibly, through a five-step process of impunity over torture quite similar to those experienced earlier by nations such as England, France, or the Philippines.

Step OneBad Apples. For a year after the Abu Ghraib exposé, Defense Secretary Donald Rumsfeld blamed some bad apples by claiming the abuse was “perpetrated “by a small number of U.S. military.”

Step Two National Security. In the months following Obama’s inauguration, Republicans took us deep into the second stage by invoking national security, with Dick Cheney saying repeatedly the CIA’s methods “prevented the violent deaths of thousands, perhaps hundreds of thousands, of people.”

Step ThreeUnity. In April 2009, President Obama brought us to the third stage of impunity when he visited CIA headquarters and appealed for national unity, saying : “We’ve made some mistakes,” but it’s time to “acknowledge them and then move forward.”

Step FourExoneration.After the assassination of Osama bin Laden in May 2011, neo-conservatives formed an a cappella media chorus to claim, without any factual basis, that torture led us to Bin Laden. Within weeks, Attorney General Eric Holder ended the investigation of alleged CIA abuse without a criminal indictment, exonerating both the interrogators and their superiors.

Step FiveVindication.Since the tenth anniversary of 9/11 in September 2011, we have entered the fifth, final, and most fraught step toward impunity: vindication before the bar of History. Until now, the CIA’s defenders were winning this political battle—interrogation videos destroyed, books censored, indictments quashed, lawsuits dismissed, imagined intelligence coups celebrated, medals awarded, bonuses paid, and promotions secured.

But with the release of this Senate report and the media’s pursuit of the facts behind its obfuscations, the full story of abuse, fabrication, and dissimulation inside the CIA is finally starting to emerge. Instead of steely guardians willing to break laws, trample treaties, and dedicate their lives in defense of America, this report reveals these perpetrators as mendacious careerists willing to twist any truth to win a promotion or secure a lucrative contract.

Conclusion:

Despite its rich fund of hard-won detail, the Senate report has, at best, produced a neutral outcome, a draw in this political contest over impunity. Over the past forty years, there have been a half-dozen similar scandals over torture that have followed a familiar cycle—revelation, momentary sensation, vigorous rebuttal, and then oblivion. Unless we inscribe the lessons from this Senate report deeply into the country’s collective memory, then some future crisis might prompt another recourse to torture that will do even more damage to this country’s moral leadership.

Alfred McCoy is professor of History at the University of Wisconsin-Madison and the author of two recent books on this subject—”Torture and Impunity: The U.S. Doctrine of Coercive Interrogation” (Madison, 2012); and “A Question of Torture: CIA Interrogation from the Cold War to the War on Terror” (New York, 2006

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The CIA’s Phony Defense

HNN   December 12, 2014

When does an intelligence agency become worthless?Good question. A fair answer: when it stops speaking truth to power—or anyone else. I am sad to say the Central Intelligence Agency (CIA) has crossed that line. One can understand their motives—protect friends and colleagues, a misplaced sense of mission, the influence of former Great Captains of espionage—but the present leadership of the CIA have permitted themselves to be swayed, abandoning the bedrock values the agency has always stood for (or said it did). Only two conclusions are possible: that the agency never had bedrock values, or that the present spy chieftains have been corrupted.

Director John O. Brennan told the assembled senators at his confirmation hearing that he understood what had been done in the CIA black prisons program was torture, that it was offensive to him—and he had even spoken out against it—that he stood for accountability, and would work to release the investigative report the Senate Select Committee on Intelligence had compiled on its inquiry into CIA torture. His nomination approved, Brennan took the oath of office as CIA director in March 2013. The Senate intelligence committee report had already been completed and only awaited CIA declassification approval.

As director John Brennan promptly took the opposite tack. He supervised preparation of a CIA rebuttal report and held back on declassification pending resolution of “issues” with the Senate investigators.

Completed in June 2013 the CIA rebuttal is an odd document, replete with statements that concede the validity of this or that criticism, then either rejecting the Senate’s evidence (which consists of the CIA’s own documents) or construing the error as inadvertent, well-meaning, or simply moot. From then to now, a period of a year and a half, Director Brennan sat on the Senate report, permitted subordinates to initiate a phony criminal complaint to the Justice Department against the Senate investigators, publicly took their side in publicizing the phony charges, and permitted former CIA officials and employees to make use of agency work product for a website designed to discredit the Senate report. He then prevailed upon the Obama White House to lobby the Senate committee to secure even broader discretion to delete material from the investigative report. The secrecy game has become a corrupt process. In my view we would not have the report out at all save that intelligence committee members had made clear they were ready to put out the full, unredacted text unless the CIA made public its declassified version.

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(Incidentally, one point is worth making about CIA’s actual declassification work: the figure “5 percent” was repeatedly used by agency persons, and commentators informed by the CIA, in connection with the amount of text that has been at issue in the secrecy fight. It is now clear from the released report that that claim was not true. More than that, it is also apparent the Senate committee had engaged in self-censorship, in substituting the word “redacted” for many titles, numbers, and passages in the original. The CIA then waded through the text, wildly deleting more names, dates and swathes of text. Some pages, especially in the sections that discuss particular CIA claims that torture had broken up particular terrorist plots, are mostly blank. The pattern makes it clear a primary CIA interest was to disguise the dates when numerous events occurred, in spite of the fact that any number of these episodes are matters of public record. The Senate committee’s self-censorship plus the CIA’s deletions total much more than the figure quoted. This raises the question why an investigative group should bother self-censoring if an executive agency is then going to massage the text. In my book The Family Jewels there is considerable detail on how the CIA massages its image by means of manipulating journalists and regulating what former employees can write about it as well.)

The conclusion is inevitable that this process was not about making available the Senate report, it has been about suppressing it. Now that the report has emerged the trick is to discredit it. Director Brennan has lent himself to that task as well. Brennan went to the extent of holding a press conference in the lobby of CIA’s main headquarters building. This is one of only a handful of press conferences ever given by a CIA director. At this event Mr. Brennan went so far as to laugh at a question asking what he might say in the interest of transparency, replying “I think there’s more than enough transparency that has happened over the last couple days. I think it’s over the top.” Thus Mr. Brennan characterized CIA’s fierce fight to quash this investigation as the opposite, an act of “transparency.”

Immediately afterwards the CIA director falsely construed an intelligence concept to argue there is no way to dispute what the CIA says its torture program had accomplished. He repeated that phrase in responding to another question later. Brennan had made the same point already in his opening remarks, saying “The cause and effect relationship between the use of [torture] and useful information subsequently provided by the detainee is, in my view, unknowable.” The repetition reveals this to be a major point in the CIA’s defense, so it is important to understand that this constitutes a false use of the concept of “knowable.” In intelligence practice, knowability refers to the proposition an analyst may have to predict things that areinherently not capable of being known. For example, during the high Cold War years, analysts were predicting the size of Russian nuclear arsenals five to ten years into the future where Soviet leaders’ decisions on manufacturing those weapons systems were still years away. That is “unknowable.”

There is nothing of this in the situation with respect to torture. Not only did the CIA program not meet the threshold for unknowable in principle, the concrete evidence in the form of CIA reporting cables shows, in case after case, detainees already beginning to provide information.

Thus the notion that torture had been necessary to unlock the stream of disclosure collapses in the face of evidence prisoners were already talking. More than that, Mr. Brennan also told his audience at this press conference that he believes effective, non-coercive methods of interrogation are available and “do not have a counterproductive impact on our national security and our international standing.”

So, in his next breath the CIA spy chief openly admits that the torture damaged the United States and that alternatives were available, yet he has just employed a falsified construction of an intelligence concept to argue, in the face of evidence, that no one can gainsay the decision to rely upon torture. “One of the most frustrating aspects of the [Senate] study,” Mr. Brennan said just moments later, “is that it conveys a broader view of the CIA and its officers as untrustworthy.” Really? What is the public supposed to think when the intelligence agency engages in shabby tactics to avoid the revelation of criminal behavior and then collaborates in attempts to discredit the critics, all the while misleading its overseers? Alluding to discussion of the torture report Director Brennan talked about “misrepresentations” circulating in public. Just who is it who is misrepresenting? At an earlier point in its checkered history another CIA director, William E. Colby, feared that the agency might be swept away if it did not make a sufficient effort to meet investigators halfway. We may have reached that very point today.

John Prados is a senior fellow of the National Security Archive in Washington, DC, and director of its CIA Documentation Project. He is the author of “William E. Colby: The Secret Wars of a Controversial CIA Spymaster.” For more on all these subjects visit www.http://johnprados.com.

 

 

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Why the Founding Fathers thought banning Torture Foundational to the US Constitution

By Juan Cole

Informed Comment  December 9, 2014

I have argued on many occasions that the language of patriotism and appeal to the Founding Fathers and the constitution must not be allowed to be appropriated by the political right wing in contemporary America, since for the most part right wing principles (privileging religion, exaltation of ‘whiteness’ over universal humanity, and preference for property rights over human rights) are diametrically opposed to the Enlightenment and Deist values of most of the framers of the Unites States.

We will likely hear these false appeals to an imaginary history a great deal with the release of the Senate report on CIA torture. It seems to me self-evident that most of the members of the Constitutional Convention would have voted to release the report and also would have been completely appalled at its contents.

The Bill of Rights of the US Constitution is full of prohibitions on torture, as part of a general 18th century Enlightenment turn against the practice. The French Encyclopedia and its authors had agitated in this direction.

Two types of torture were common during the lifetimes of the Founding Fathers. In France, the judiciary typically had arrestees tortured to make them confess their crime. This way of proceeding rather tilted the scales in the direction of conviction, but against justice. Pre-trial torture was abolished in France in 1780. But torture was still used after the conviction of the accused to make him identify his accomplices.

Thomas Jefferson excitedly wrote back to John Jay from Paris in 1788:

“On the 8th, a bed of justice was held at Versailles, wherein were enregistered the six ordinances which had been passed in Council, on the 1st of May, and which I now send you. . . . By these ordinances, 1, the criminal law is reformed . . . by substitution of an oath, instead of torture on the question préalable , which is used after condemnation, to make the prisoner discover his accomplices; (the torture abolished in 1780, was on the question préparatoire, previous to judgment, in order to make the prisoner accuse himself;) by allowing counsel to the prisoner for this defence; obligating the judges to specify in their judgments the offence for which he is condemned; and respiting execution a month, except in the case of sedition. This reformation is unquestionably good and within the ordinary legislative powers of the crown. That it should remain to be made at this day, proves that the monarch is the last person in his kingdom, who yields to the progress of philanthropy and civilization.”

Jefferson did not approve of torture of either sort.

The torture deployed by the US government in the Bush-Cheney era resembles that used in what the French called the “question préalable.” They were being asked to reveal accomplices and any further plots possibly being planned by those accomplices. The French crown would have argued before 1788 that for reasons of public security it was desirable to make the convicted criminal reveal his associates in crime, just as Bush-Cheney argued that the al-Qaeda murderers must be tortured into giving up confederates. But Jefferson was unpersuaded by such an argument. In fact, he felt that the king had gone on making it long past the time when rational persons were persuaded by it.

Bush-Cheney, in fact, look much more like pre-Enlightentment absolute monarchs in their theory of government. Louis XIV may not have said “I am the state,” but his prerogatives were vast, including arbitrary imprisonment and torture. Bush-Cheney, our very own sun kings, connived at creating a class of human beings to whom they could do as they pleased.

When the 5th amendment says of the accused person “nor shall be compelled in any criminal case to be a witness against himself” the word “compelled” is referring to the previous practice of judicial torture of the accused. Accused persons who “take the fifth” are thus exercising a right not to be tortured by the government into confessing to something they may or may not have done.

Likewise, the 8th Amendment, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” is intended to forbid post-sentencing torture.

The 8th Amendment was pushed for by Patrick Henry and George Mason precisely because they were afraid that the English move away from torture might be reversed by a Federal government that ruled in the manner of continental governments.

Patrick Henry wrote,

“What has distinguished our ancestors?–That they would not admit of tortures, or cruel and barbarous punishment. But Congress may introduce the practice of the civil law, in preference to that of the common law. They may introduce the practice of France, Spain, and Germany.”

It was objected in the debate over the Bill of Rights that it could be ignored. George Mason thought that was a stupid reason not to enact it:

“Mr. Nicholas: . . . But the gentleman says that, by this Constitution, they have power to make laws to define crimes and prescribe punishments; and that, consequently, we are not free from torture. . . . If we had no security against torture but our declaration of rights, we might be tortured to-morrow; for it has been repeatedly infringed and disregarded.

Mr. George Mason replied that the worthy gentleman was mistaken in his assertion that the bill of rights did not prohibit torture; for that one clause expressly provided that no man can give evidence against himself; and that the worthy gentleman must know that, in those countries where torture is used, evidence was extorted from the criminal himself. Another clause of the bill of rights provided that no cruel and unusual punishments shall be inflicted; therefore, torture was included in the prohibition.”

It was the insistence of Founding Fathers such as George Mason and Patrick Henry that resulted in the Bill of Rights being passed to constrain the otherwise absolute power of the Federal government. And one of their primary concerns was to abolish torture.

The 5th and the 8th amendments thus together forbid torture on the “question préparatoire” pre-trial confession under duress) and the question préalable (post-conviction torture).

That the Founding Fathers were against torture is not in question.

Fascists (that is what they are) who support torture will cavil. Is waterboarding torture? Is threatening to sodomize a man with a broomstick torture? Is menacing a prisoner with a pistol torture?

Patrick Henry’s discourse makes all this clear. He was concerned about the government doing anything to detract from the dignity of the English commoner, who had defied the Norman yoke and gained the right not to be coerced through pain into relinquishing liberties.

Fascists will argue that the Constitution does not apply to captured foreign prisoners of war, or that the prisoners were not even P.O.W.s, having been captured out of uniform.

But focusing on the category of the prisoner is contrary to the spirit of the founding fathers. Their question was, ‘what are the prerogatives of the state?’ And their answer was that the state does not have the prerogative to torture. It may not torture anyone, even a convicted murderer.

The framers of the Geneva Convention (to which the US is signatory) were, moreover, determined that all prisoners fall under some provision of international law. René Värk argues:

“the commentary to Article 45 (3) asserts that ‘a person of enemy nationality who is not entitled to prisoner-of-war status is, in principle, a civilian protected by the Fourth Convention, so that there are no gaps in protection’.*32 But, at the same time, it also observes that things are not always so straightforward in armed conflicts; for example, adversaries can have the same nationality, which renders the application of the Fourth Convention impossible, and there can arise numerous difficulties regarding the application of that convention. Thus, as the Fourth Convention is a safety net to persons who do not qualify for protection under the other three Geneva Conventions, Article 45 (3) serves yet again as a safety net for those who do not benefit from more favourable treatment in accordance with the Fourth Convention.”

Those who wish to create a category of persons who may be treated by the government with impunity are behaving as fascists like Franco did in the 1930s, who also typically created classes of persons to whom legal guarantees did not apply.

But if our discussion focuses on the Founding Fathers, it isn’t even necessary to look so closely at the Geneva Conventions.

Thomas Jefferson wrote in the Declaration of Independence, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

The phrase “all men” means all persons of any nationality.

We know what the Founding Fathers believed. They believed in universal rights. And they believed in basic principles of human dignity. Above all, they did not think the government had the prerogative of behaving as it pleased. It doesn’t have the prerogative to torture

We know what the Founding Fathers believed. They believed in universal rights. And they believed in basic principles of human dignity. Above all, they did not think the government had the prerogative of behaving as it pleased. It doesn’t have the prerogative to torture.

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