Is Torture Now Legal?

The House and Senate have passed legislation on Interrogation that has been lauded as a compromise, but the American Civil Liberties Union says it’s a sham.

Whatever your views on the subject, I think the media coverage of this debate has been too focused on the politics — McCain versus Bush! Warner and Lindsey Graham are so sassy! — than on the substance of the bill.

So I caught up with Caroline Frederickson, Washington DC legislative director of the ACLU, to see what her organization’s objections are.

JAKE: So you don’t think much of how the media has covered this.

FREDERICKSON: What has really escaped attention, unfortunately. is how really enormous this is in terms of its impact on the American system of justice and how out of step it is with our history. It discards seven centuries of Habeus Corpus of provisions for people held on American soil.

JAKE: Could you explain for our readers what that is and why you think it’s important?

FREDERICKSON: Habeus Corpus is something that is enshrined in our Constitution, it comes to us from English Common Law in the Magna Carta. Basically this is one of the most key elements of our whole system of justice which allows people to challenge the terms of their confinement. In this case we’ve got people held by Americans in Guantamino  who have no recourse at all. Let’s remember that nobody’s really been tried and that the administration still holds this discretion whether or not to try anybody. These people are just going to be held indefinitely and have no way to challenge  the basis for their being held.

JAKE: That’s still the case, even with this new bill?

FREDERICKSON: That is still the case. I believe there are 400 or so Habeus petitions that have already been filed by people at Guantamino that are now wiped out by this legislation. People who are saying that "I am here for the wrong reasons." In fact, we have evidence of that, there was one person whom Sen. Dianne Feinstein (D-CA)identified in her speech most recently who was sold to American forces by a bounty hunter in Afghanistan for $5,000 who had no relationship to the Taliban, Al Qaeda, anything. He was simply a victim of somebody trying to make some money and has been at Guantamino for several years, without Habeus people like that are just gonna sit there and molder.

JAKE: So what does this bill change?

FREDERICKSON:  Fundamentally it changes how we look at coercion in the process of getting evidence. I think it is well accepted in American court system that if you coerce a confession out of somebody, that is not good evidence and it cant be introduced in a trial to convict somebody.

Now we have the case where any evidence that was obtained prior to last Fall’s passage of the Detainee Treatment Act — which basically tried to outlaw torture by our government — anything that was obtained before that point is admissible. Not only is it admissible, but the people who got that evidence are also now immunized from any criminal prosecution.

So there is something saying if got it before that law was passed, it doesn’t matter how we got it — whether we used water boarding or so called stress positions, or any other technique to break down somebody’s defenses through some kind of infliction of pain — that evidence is admissible to be used to convict somebody inclduing to provide a basis for an execution. This is just not the America I thought I was learning about when I studied the Constitution in law school and had civics classes in high school. Its really not what I think any of us believe American values stand for.

JAKE: Okay, I understand your concerns about what has taken place in the past. But forgetting for a second the evidence and techniques to obtain that evidence that has been grandfathered in as legal by this law, what is now permissible going forward?

FREDERICKSON: Going forward — and here I think is what people who believe in separation of powers and the rule of law system we think our government was founded on should really pay attention — this new legislation would give the president the authority to determine what actually is the greatest reach of our provincial obligations, so he decides what is going to be punishable under the War Crimes Act.  Here we have a president who already thinks that torture is a fine way to deal with people that we don’t even know are terrorist, that we just happen to picked somewhere else in the world and confined at Guantamino. And he’s now he’s the one that gets to define what constitutes the greatest breach. I don’t think that gives us any comfort that his version is necessarily what was envisioned when we signed up for the Geneva Convention.

TAPPER: The President has said that the U.S. does not and has not used torture.

FREDERICKSON:  Right, and the President has said that at the same time we have used water boarding and stress positions and inducing extreme exhaustion in people by keeping them awake for weeks and days. This government has kidnapped people, even this Canadian citizen who was kidnapped at JFK and flown to the Middle East where he was tortured for several months before they realized they got the wrong guy. This is the President that said ‘We haven’t engaged in any kind of that activity.’ I don’t think he’s got a whole lot of credibility?

TAPPER: There are allegations of torture by U.S. government forces, but how do you know they’re true?

FREDERICKSON:  Well we’ve seen all sorts of photographs the ACLU and other organizations have done extensive research through FOIA (Freedom of Information Act) requests. And we have gotten photographs from Abu Ghraib that show the types of things that our government has been engaged in. And we’ve seen all sorts of documents that have shown, laid out what kinds techniques they’ve been using.

TAPPER: The Bush Administration seems to have claimed that what happened at Abu Ghraib was not an example of policy permitting torture, but rather a few bad apples.

FREDERICKSON:  There are certainly some people who claim that, but I think there are enough other people of real substance like Alberto Mora (LINK TO A NEW YORKER STORY ON MORA HERE) who was the General Counsel to the Navy, and others within the Defense Department, who have pointed out how far this has gone and who have pointed out how what we are engaged in is a real violation of our treaty obligations of the world.

JAKE: Can you explain what "water-boarding" is?

FREDERICKSON:  Water boarding, it is kind of a bad name. Someone recently emailed around a picture of a Khmer water board — we learned a lot of these techniques from our Cold War opponents. It’s basically a simulated drowning. So, it’s holding somebody underwater, you basically lie them on the board so that their head is facing down and they’re strapped down and their face is to the board and water is poured all over it so they cant really breathe and they feel like they’re drowning. And that goes on for an extended period of time until they really think they’re about to die and its done repeatedly. So that’s one technique.

The "stress position" is a technique the Soviets used and the Vietnamese used. You’re hung from bar — its actually a Medieval torture too, it you’ve ever been in a torture chamber in Europe in the old castles you see somebody chained up to the wall and left there to hang for hours or days. Ultimately, it’s so extraordinarily painful that people usually pass out from the extreme pain of it. These are things there is documentation on, they obviously used the dogs, we’ve all seen those pictures.

JAKE: I’m glad you raised the dogs, because that’s the threat of dogs attacking and not actual dog attacks, right? Is it counter-productive to oppose all forms of coercive interrogation, including those that don’t involve bodily harm? Is it fair to lump water-boarding in with sleep deprivation?

FREDERICKSON: We’reobviously not the experts in interrogation. But I think the people Americans should look to are military leaders who stood up against these kind of techniques. Not only do they think they are completely antagonistic to our basic values they actually say they are ineffective. They have said that these types of techniques that inflict a great deal of pain lead to very in untrustworthy evidence because at a certain point people are going to say anything to get you to stop.

And they found that even in simulations they did with Americans who were being trained to resist torture, that they really began to say anything at a certainlevel, because people don’t really like to feel pain. Stress positions, sort of like water boarding, it may not sound like not such like a big deal but if you were to really think about what that could be, if you’re hung from a jungle gym and you cant touch the ground and you’re left there for like 8 hours, I think all of us would admit that’s torture.

What we have said is that at the least we have to abide by those rules which our own military have said are the appropriate ones. We defer to them but what we do think its very critical that we have a system in place that ensures us that torture and abuse don’t take place.

JAKE: And your argument is that this new law doesn’t ensure that at all, it merely leaves it up to the discretion of the President as to what is allowable and what isn’t.

FREDERICKSON: Exactly. And a very key point is that there is no ability to exercise any oversight on that. It’s really, completely in the President’s hands.

– jt