Bush's Cheney's Signing Statement on the Geneva Convention

by emptywheel

It's really tough sorting out the new Executive Order on torture. But after a whole day of pondering the details, I think I'm finally getting it. It's yet another Bush signing statement, this time to record his own personal interpretation of the Geneva Convention. After all--that's where this new EO came from: after SCOTUS, in Hamdan, told Bush that all detainees were covered by the Geneva Convention, after Congress, with the Military Commissions Act, told Bush he could shred concepts like habeas corpus but only if he had documentation for doing so, he was forced to write this new EO.

Charlie Savage provides a good overview:

Bush's executive order laid out broad guidelines for how the CIA must treat detainees in its secret overseas prisons, where the administration has held some suspects without giving them access to the Red Cross. The document prohibits a range of abuses, including "intentionally causing serious bodily injury" and "forcing the individual to perform sexual acts," as well as mistreating the Koran.

The order also said the CIA director must personally approve the use of extraordinary interrogation practices against any specific detainee. Detainees must also receive "adequate food and water, shelter from the elements, necessary clothing, protection from extremes of heat and cold, and essential medical care," it said.

But most of the president's executive order is written in generalities, leaving unanswered whether the CIA will be free to subject prisoners to a range of specific techniques it has reportedly used in the past, including long-term sleep disruption, prolonged shackling in painful stress positions, or "waterboarding," a technique that produces the sensation of drowning.

That is, some of the most obvious abuses--using sex and religion--are now forbidden. But the key information, what remains permitted, is in a separate, classified list that we don't get to see. And three other key details: the Executive Order explicitly denies any legal responsibilities associated with the EO, so even if some overzealous torturer ignores it, he's not going to jail. The Red Cross remains unable to monitor prisoners in this newfangled "enhanced interrogation" program. And Congress still doesn't have a copy of the DOJ opinion on the program. For that matter, Karen DeYoung reports that the Administration hasn't responded to Congress' other questions, either.

They said the administration has not responded to the questions they asked during a recent briefing on the new order and the detainee program.

Mind you, this is the DOJ review that Congress mandated as part of the Military Commissions Act. But I guess that's classified too.

All of which leaves the fascinating glimpses of how--in the ten months it has taken Bush to write this EO (stunning by itself--if this stuff was so legal before, why did it take 10 months to sort out what would remain legal?)--the interested parties have lobbied to endorse their own particular view of torture. There's the State Department, that tried to err on the side of respectability within the international community. According to Mark Mazzetti this includes adopting the international definition of "humiliating and degrading."

The order uses a definition of “humiliating and degrading treatment” that conforms to standards set by international case law, a victory for State Department officials.

[snip]

Earlier this year, State Department officials rejected a draft of the executive order because they believed that the language was too permissive and could open the Bush administration to challenges from American allies that the White House was legalizing methods that approach torture.

And DOD, which tried to err on the side of practices that might be used on our own service men and women. And then there's intelligence, which claims to have studied this almost scientifically (from DeYoung):

The intelligence official said the agency itself had studied the effectiveness of past techniques and retained or jettisoned them on a "sliding scale." The criteria, he said, were what was "appropriate, effective, lawful and sustainable."

But it wouldn't be an abuse of power if Cheney's minions weren't involved, and they were apparently pushing to embrace torture (from Mazzetti) .

Some Bush administration officials, including members of Vice President Dick Cheney’s staff, pushed for a more expansive interpretation of Geneva Convention language and for interrogation methods that the C.I.A. had not even requested.

Of course they did! Force CIA to continue waterboarding (though, FWIW, Mazzetti has several unnamed officials claiming that waterboarding is off the list), that's Dick Cheney's way. Now couple Mazzetti's comment with this one from DeYoung, and you'll see why I consider this Cheney's signing statement:

While Hayden did not get "everything [he] might have wanted" in the guidelines, the official said, they contained everything the CIA needed and "more than was asked for."

It seems to me Cheney won at least some of those bureaucratic battles, even if State won the fight on degrading treatment.

And all the while, the CIA seems to be somewhat schizophrenic about the usefulness of torture. There's this comment in the Mazzetti article, suggesting half of the recent terrorism NIE comes from detainees.

According to one senior intelligence official, nearly half of the source material used in the recent National Intelligence Estimate on the terrorism threat to the United States came from C.I.A. interrogations of detainees.

Only ... this entire NIE was written at a time when Bush had supposedly halted CIA torture to bring it into line with SCOTUS and congressional demands. So either those interrogations did not use torture--and we can get an entire NIE without the use of it--or it's really outdated, almost back to the last terrorism NIE, released last April.

I'm guessing its the former--that no torture was used to produce the recent NIE. Which kind of accords with something else Mazzetti reports.

C.I.A. officials said that [Abd al-Hadi al-Iraqi] produced valuable intelligence, despite the fact that C.I.A. interrogators at the time were only authorized to use the techniques approved for Pentagon interrogators.

That is, even as the CIA is boasting that they're getting more than they asked for, they're effectively admitting that they didn't need the torture in the first place, they've been doing fine without it.

Good thing Cheney's there to force them to use torture they don't need, huh?

Comments

[Albert Fall]

Why does George Bush hate America?

[John Lopresti]

The Organization of American States (OAS) is in a process to review the Gitmo existence of detainees. And a Republican on SSCI has asked whether the EU commission investigating overflights and prisoner secret sites there began its investigation based on a spy's having leaked the story to the folks in Europe; likely the response to the linked letter would involve a congressional committee. Clearly, prisoner treatment is problematic in Latin America and Europe views of US. Diplomats are always the most exposed in the repercussions of policies that transgress Geneva Conventions.

[earlofhuntingdon]

Among the objectives of this EO, it seems, is sticking it to the CIA, which has the job of determining which tactics are acceptable. I hope they don't rely too much on the EO's statement that it creates no liability. It's not the only governing law.

More generally, what blackness lies at the heart of Dick Cheney's soul that he is obsessed with torturing others? What demons so threaten him that he must redirect them onto those he hates and fears? A competent Congress would need nothing further to justify impeachment of both Black Dick and Lil' George than the purported legalization of torture. And these guys want to send those who would legalize marijuana to jail for twenty years. Guess they have their priorities straight, man.

[bmaz]

This executive order is a complete circle jerk. Read closely, and in light of the way that you know Cheney and the Administration will, it neither clarifies anything nor accomplishes anything. In addition to the "secret list of tortures", I see nothing that indicates that Bush is repudiating the unfettered power he has previously claimed by signing statement to ignore the MCA and do whatever he wants at his discretion. Also, and I am curious if anyone else had the same reaction, I was struck by the somewhat awkward and repeated use of the limiting phrase "a program" followed by "the program" Which program exactly? Are there other programs? How many programs are there? This "a program" ruse was clearly used to game congress and the people on the wiretapping issue; where it turns out there are multiple programs and the Administration is constantly shining your apple by telling you how superb everything is with "the program", but they are talking about a different program than you are. How hard is to just to just fucking say "the US is going to stand on the high ground and adhere to the full standards of conduct under both American and International law; as the US has always done and is expected to do". This new EO is just another to cute by a half method of clouding the consideration so that they can continue doing whatever the hell they want.

[cboldt]

A bit of a long-winded post on the negotiation of what was sold as "no torture" language in the Senate ...

Interrogation Techniques : S.3861 vs. S.3901

Long story short, the WH pwnded McCain and the rest of the Senate.

The bottom line is at 18 USC 2340(2) and 18 USC 113 -- and there is no way that waterboarding is "torture" to the statutory definition.

[bmaz]

cboldt - The disgusting upshot of that horsemanure you remind us of is that most all of the MSM still refer to McCain, Spectre and Graham as the the principled renegades that stood up for what is right. The perfidy continues it's relentless march on and on and on....

[...]

why would bush change now? the fact is he hasn't, in spite of how the media would like to package him at present... it is just more smoke and mirrors. thanks ew for pointing out more of the bs coming from this admin.

[Jodi]

emptywheel,

most of the men in the field think that harsher methods do work with stubborn or well trained resisters. That is why they want to do it, and will continue to do it.

An example or two of where a shower, clean clothes, a nice cot and a hot cup of tea and sandwiches did the same thing isn't going to convice them otherwise.

I just wish the insurgents wouldn't cut off our men's heads and burn them alive. Maybe then we would have a starting point for better treatment of insurgent prisoners.

[fleinn]

So, basically, the us congress generally favours torture in certain contexts, rather than confronting the Whitehouse..

You know what - this isn't even funny anymore. I mean, really. How is it possible that I do not see every single congressperson humiliated in person by their respective constituencies over this?

[bmaz]

Jodi - Are all the experts in the field women then? Because experts dating back decades have consistently found and opined that torture does not reliably produce useful information. It is not that it never works, rather that the frequency of it working is so pitifully low as to render it effectively not only useless, but counterproductive.

[Katie Jensen]

Peace works. Einstein knew it could and would. It's only simple minded, black and white thinking authoritarian types that don't understand the idea that you "reap what you sow."

That statement is a fact. What you put out, you create. We are powerless as long as we think our power lies in the subjugation of "bad guys". Once we accept that the power of the United states exist through our inherent effectiveness, our power is that people want what we have, will emulate the best of what we have created.

Our weakeness is that we have reinforced power and control as a means to get what we have. We have confused the message. Democracy is what brought us wealth and prosperity. Not capitalism. The american dream is what gave us that boost above the rest. As long as we hang on to the tired ideas of the past, we will continue to reinforce, role model and build violence as a way to solve problems. It works in the short run but has long term consequences. One of which is the likes of Bush/co. People in power who will never suffer from it's use on them will see it as a fast solution to a problem that might make them uncomfortable if they were to use a real solution.

We have our part in it. The most powerful thing we could do is accept this truth, and role model solutions. Then the world will follow. But it won't happen immediately. It won't be about "controlling the bad guys" so they stop using power and control. It would be a long term solution. Like a savings account is a long term solution. You feel poor today, when you put that money away, the crunch is still on, it hurts a little, but it's what works in the long run. Same is true for violence. It's hurt a little not to use it. There are short term consequences. There is an uncomfortableness to refusing it's use.

But in the long run, it is the solution.

Be the change you wish to make in the world.

[JEP]

"and there is no way that waterboarding is "torture" to the statutory definition."

What an unmitigated, self-justifying, hypocrite.

Being held underwater until you almost drown, long enough so you believe you will drown, isn't torture?

Try it, tough-guy, we will wait patiently for a truly qualified opinion when you are done spewing out all that water in your lungs.

If you survive.

[JEP]

If we had fed them when they were children, then we wouldn't be compelled to torture them when they grow up...

Katie is absolutely right, PEACE WORKS. It makes friends for us, not enemies. But it does nothing for the war profiteers, they HATE Peace, as a world goal.

But because it is not the more financially profitable option in the short term, guns and bombs and mines bring in the cash much more quickly.

And that is the underlying premise of our entire government, as long as these no-bid, book-cooking, gun-running war profiteers have their man in the VP's office, with his hand buried way up inBush's sock-puppet.

[Semanticleo]

"most of the men in the field think that harsher methods do work with stubborn or well trained resisters."

Do you have the transcripts of the interviews? How is it you have that information?

BTW, until you answer, I will be asking you these questions each time you post your 'salient' comments, Jodi.

[radiofreewill]

Torture doesn't elicit the truth.

Torture elicits confessions.

Think about it, Jodi.

[Ishmael]

Earl of Huntingdon - Godwin Law alert, historical analogies to follow! Cheney and BushCo doesn't want the power to torture as a way of obtaining intelligence, or even as a way of getting more "reliable" information from someone who was waterboarded, buried alive, or otherwise slowly driven insane by techniques that do not amount to "intentionally inflicting serious bodily injury". Cheney and Bushco want the power to torture, both abroad, and, eventually, in the United States, for the same reason that Saddam or the Gestapo or the KGB or any other secret police state wanted to torture - as a way of terrorizing the population into compliance, for fear that they may end up in Abu Ghraib, or the Lubyanka, or even a concentration camp. When do the tactics that are so important in the War on Terror become "part of the law-enforcement toolkit" in the War on Drugs, or the War on Crime? Bushco depends on the creation of fear and its effective exploitation through the media and government institutions like the Department of Homeland Security - and by the way, the word "homeland" as a synonynm for the United States emerged very quickly after 9-11, I have always been struck at how quickly the government and the media were to adopt the "heimat" concept that Goebbels used to masterly effect in the Third Reich - but it would not be the first time that Bushco has adopted techniques with a fascist provenance..... torture and secret prisons, for example.

[Ishmael]

OT, but still, something that has been bothering me all week - Bush's deranged detachment complimenting the Iraq War veteran who lost both his legs in combat. "That's great, we're going to get this guy some new legs!" Uhh, no, Mr. President, he is not going to get new legs. He is going to get mechanical prostheses that will slide over the stumps that used to be legs, assuming of course, that the VA will spring for the best quality prostheses, and not some kind of Ahab-like pegleg. Bush seems to have the same type of pathological lack of empathy that his mother the Bargoyle demonstrated during Katrina - after all, "it's not like we have a health care crisis in this country, you just go to an emergency room!" David Brooks is on Press the Meat right now talking about how engaged and confident Bush is about the war and his administration - somehow, I doubt that Timmeh will flash these "gotcha" moments for Brooks to explain how they show Bush's intelligence, resolve and compassionate conservatism.

[cboldt]

-- Being held underwater until you almost drown, long enough so you believe you will drown, isn't torture? --

Read what I wrote, with more care. You might even bother to read the link I provided.

I'm pointing out that people are using smoke and mirrors to assert a point, and I'm doing so with some citations and particularity -- and you decide to call me out as "try it toughguy."

Asshole.

[oldtree]

I wonder why the congress and military think this is OK?

[Semanticleo]

"and you decide to call me out as "try it toughguy."

Asshole."

Losing the rational, objective clarity?

Why you gettin' all jiggy here?

Try that at JOM and see what happens

[Katie Jensen]

The "asshole" comment kinda reinforces the "tough guy" comment. Two wrongs don't make a right. And power and control is power and control, is power and control. Whether it is used by dems or republicans. It's a way of interacting by use of punishment instead of validity.

[bmaz]

Clearly, at least to me, cboldt was not advocating that waterboarding is not torture; he was exhibiting how the Cheney/Bush Administration disingenuously and semantically claims it is not torture. Oh, and by the way, 'waterboarding" does not involve actually "being held under water"; rather it is simulated drowning (very unpleasant and terrifying nevertheless) by pouring water over the face of the suspect while inclined on a body board, often over a cellophane cover of the mouth and nose.

[JEP]

OOHHH, the term "tough-guy"is SOOOOO provocative!! Downright hateful,huh?

"Losing the rational, objective clarity?"

DUH!

""and there is no way that waterboarding is "torture" to the statutory definition."

You call that rational and objective?

Sounds like an attempt to justify an unjustifiable act of torture.

So when you post something so ludicrous as that statement, you just expect us al to consider it rational?

Just another neocon wannabe whose balloon is about to pop.

[cboldt]

-- Sounds like an attempt to justify an unjustifiable act of torture --

Yeah, it does. And you didn't use an appropriate amount of care before accusing me of making the justifcation.

--Try that at JOM and see what happens --

I have. I've called a number of posters there "assholes." And I still think they are.

[cboldt]

-- he was exhibiting how the Cheney/Bush Administration disingenuously and semantically claims it is not torture. --

You are correct. My original post even had some clues, like "sold as 'not torture'" and "the WH pwnded McCain and the rest of the Senate"

A curious reader would check the cited statutes (I didn't write the damn things, I just observed them) and reach the same conclusion I did. Waterboarding doesn't cross the line expressed in those statutes.

And instead of returning fire -- I'll just ignore the assholes here, just like I ignore the assholes elsewhere.