Rants, rationales and torture reports

September 4, 2009 

— Former Vice President Dick Cheney reported last weekend that Attorney General Eric Holder's decision to launch a preliminary investigation of several interrogation cases "offends the hell out of me." Cheney said he "knew about the waterboarding." Harsh techniques were carried out "at the direction of the president" and with "legal authority." All this represents (somewhat ironically) the "outrageous politicization" of the Justice Department. It is, at its core "a clearly political move" that will flatly "deter the fight against terror." Ever "forthright," as he described himself, Cheney did not mince words.

Holder announced the inquiry after the American Civil Liberties Union secured the release of a 2004 report by the Office of the Inspector General of the CIA. There, the agency revealed grisly specifics of the "interrogation" effort. Government agents had threatened detainees by cocking a "handgun close to the head," "firing a handgun" in "mock execution," aiming a "power drill" at a "naked" prisoner's genitals, promising to rape "female relatives in front of" them and to abuse their "mothers" and "kill their children." Questioners had "restricted prisoners' carotid arteries" until they "passed out," clothed them in diapers and waterboarded at least one 183 times in a single month. A good deal of the report remained censored. Sen. Dianne Feinstein, who had read it all, called it "horrifying."

The CIA report, in explanation, again touched upon the stunning rationales offered by the Office of Legal Counsel to justify the practices. The U.S. Code makes it criminal to engage in torture -- defined as conduct "intended to inflict severe physical or mental pain or suffering." But, according to the Bush Justice Department, "delivering a series of slaps to the face could hardly be construed by a reasonable person to be a threat" of severe pain. It is "at most a technique that suggests the circumstances of confinement have changed." Slamming a prisoner "against a wall" dozens of times falls short of the standard. That is so "even if the prisoner infers that greater aggressiveness is to follow."

Sleep "deprivation" for 11 days is "not calculated to disrupt profoundly the senses." It is "only designed to reduce the ability to think on one's feet." "Waterboarding" produces "the perception of suffocation and incipient panic," an "automatic sensation of drowning the individual cannot control" and "the threat of imminent death." Still, amazingly, it does "not inflict severe pain or suffering." It is, rather, "simply a controlled, acute episode, lacking the connotation of protracted time" inherent in suffering. The experience of believing that you are actually being killed is apparently not as bad as it sounds.

The report concludes that, despite Bush administration approval, these practices "diverge sharply from previous CIA policy and the rules that govern interrogations by the U.S. military." CIA officers had expressed less concern for future domestic political retaliation than that "one day agents will wind up on some wanted list from the World Court for war crimes."

The inspector general also expressed alarm that, exactly concurrent with the implementation of these torture practices, the U.S. government had publicly condemned Saudi Arabia for the "hooding" and "handcuffing" of prisoners, "stripping them naked" and "making threats against family members." And President George W. Bush had declared, cynically, that "torture anywhere is an affront to human dignity everywhere." Freedom from "torture is an inalienable human right." The United States is "committed to the worldwide elimination of torture, and we are leading the fight by example." Man.

In last weekend's rant, Cheney declared that the Holder decision is "an outrageous political act" -- "there is no other rationale for why they're doing this." But, of course, there are other possibilities.

Like the inspector general of the CIA, Holder may worry that interrogators have gone beyond even the charade constructed by Bush administration "advisers" -- I won't call them lawyers. He might have come to believe it unacceptable to employ, and to hide behind, justifications that defy both the English language and any non-cynical commitment to legal interpretation.

And Holder may believe it demeaning to our national character to declare to the world that we "lead by example" the "fight to eliminate torture" as we drown, beat, choke, slap, slam, threaten with rape and hold guns to the heads of prisoners.

Hypocrisy may be a Cheney value. It's not an American one.

Gene R. Nichol is a professor of law and director of the Center on Poverty, Work and Opportunity at UNC-Chapel Hill.

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