But Soft! What Light on Yonder Window Breaks?

A mirage that looks like an agreement on torture. It looks like the United States is not going to abuse anyone anymore. But as you approach the vision gets wavy and flickers.

So agreement was reached on the Hill regarding interrogations. Both sides agreed to follow the Geneva Conventions and to give immunity to any acts interrogators might have committed.

Are they really thinking of the upshot of that immunity? No one will feel constrained now in describing what they did or what they saw. The political upshot of new information about detainee abuse would not bode well for the Administration. Remember, there's two years for this stuff to get out to the public.

But then thinking ahead never seemed to be this Administration's strength. Posing is.

Econo-Girl lives on the edge today by blogging before her morning coffee.



It is pure gall that this Administration, after blurring the line on legal interrogation techniques, now claims that standards and guidance are too vague. They are the reason the standard is vague.

But we should not be surprised. After all, this is the machine that came up with "reformer with results" and attacked John McCain's patriotism.

Look at the Torture Memos as a good example. The answer to the rabid Torture Memo I outcry was Torture Memo II. Regular readers will note how little assistance that gives.

So in a manner typical of this Administration, they tell a bold-faced lie and expect most people don't know the difference. Come now. Not all of us were C students.

The Benedictine Prophesy

If the Pope's remarks are so offensive to Muslims, why are they living out that description of them?

Econo-Girl's humble opinion is that most Muslims are simply unused to freedom of speech. Remember, words don't kill. Firebombs do.


The Tribunals

Let's diverge from our review of the Torture Memos.

The current argument for upending the Geneva Conventions is that the language is "too vague." Let's walk through the process and show how that is not true.

First, the Senate ratifies the Convention Against Torture treaty. That means the U.S. Government agrees to abide by its terms. Then, Congress passes a law that implements the Convention Against Torture, in this case 18 U.S.C. 2340-2340A.

Yes, the language of the Geneva Conventions, and all international legal agreements, are vague on their face. They have to be, considering the number of judicial systems and cultures it must be applicable to. The details have been worked out as to what each provision means in application, however. Or at least as much as can be ahead of time.

So when looking at the Convention Against Torture, look at the law the United States passed to implement it. That is where the details are, and in the cases where U.S. courts have interpreted that law.

In short:
  1. Treaty
  2. Law
  3. Court interpretation of the Law


The Torture Memos

Econo-Girl is repeating the same blog title to gather search engine steam on this topic.

The federal statute making torture criminal is found in 18 U.S.C. sections 2340-2340A. The statute cites the definition of torture: "means an act committed by a person acting under color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control."

The 2004 Torture Memo restricted its analysis to "(1) the meaning of severe; (2) the meaning of "severe physical pain or suffering"; (3) the meaning of "severe mental pain or suffering"; and (4) the meaning of "specifically intended." " See page 5 of the Department of Justice, Office of the Assistant Attorney General, Memorandum for James B. Comey, Deputy Attorney General, Re: Legal Standards Applicable Under 18 U.S.C. sections 2340-2340A, dated December 30, 2004. This memo is commonly known as one of the Torture memos, and will be referred to here as Torture Memo II.

The last post discussed and gave examples from the Torture Memo II of what was not severe.
Footnote 13 of Torture Memo II cites dictionary definitions of torture to bolster the view that to be considered torture, severity of pain or suffering must be present. Readers can look at dictionaries themselves. However, Econo-girl considers it significant that examples of what would constitute torture are given within the context of references to dictionary definitions.

Specifically, burning, crushing and wounding are the actions mentioned in Torture Memo II footnote 13 as examples of what would constitute torture.

This is important because almost nowhere else in the document is specific guidance given as to what torture actually is. Much describes what it is not.

So one thing we know is that burning, crushing and wounding are referred to as concrete examples of torture in Torture Memo II. The authors are careful to note that "[w]e emphatically are not saying that only such historical techniques - or similar ones - can constitute "torture" under sections 2340-2340A." So torture is recognized as being broader in scope that burning, crushing and wounding. But in terms of drawing a line, that is the only one I have seen so far.

Stay tuned.

p.s. I removed the Sitemeter thing because it bugged my Mom.


The Torture Memos

Let's take a minute to review some very important legal documents in the debate on the Bush Administration's torture policy.

There is the August 1, 2002 memo that sets the standard for "torture" as "inflict[ing] pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." The memo goes on to say that the application of "mind-altering substances" to be torture "they must produce an extreme effect" that "rise to the level of 'disrupting profoundly the sense or personality.' " Honestly, is that how your mother raised you, to call organ failure the standard of torture? What about pulling our fingernails? That would not be torture under this definition.

After the public release of this legal analysis, the President withdrew it and ordered another memo to be written. The memo of December 30, 2004 reversed some of the conclusions of the August 1, 2002 memo, which was a good thing. What it did not do was outline exactly what was legal to do within the context of an interrogation.

So what good is that?

The 2004 memo lists many cases describing fact patterns that have not been been ruled as constituting torture in U.S. courts. BUT - just when you think you have an answer the following footnote is inserted:

December 1, 2004 memo from the Office of the Assistant Attorney General, footnote 6

" ... In addition, this memorandum does not address the many other sources of law that may apply, depending on the circumstances, to the detention or interrogation of detainees (for example, the Geneva Conventions; the Uniform Code of Military Justice, 10 U.S.C. 801 et seq.; the Military Extraterritorial Jurisdiction Act, 18 U.S.C. 3261-3267; and the War Crimes Act, 18 U.S.C. 2441, among others)." (emphasis added)

The memo only applies to one section of law, the federal criminal prohibition against torture, in other words.

So not only doesn't the 2004 memo set a firm line between legal and illegal activities, it ignores military law and other federal laws. But people need to know what those rules are. They need to know what is allowed, and what will get them thrown in prison after the next election.

For the sake of edification, let's outline a few of fact patterns that have not been deemed torture under the one federal law the 2004 memo addresses.

The meaning of "severe."

"In Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A)(1978) the court concluding that the combined use of wall-standing, hooding, subjection to noise, deprivation of sleep, and deprivation of food and drink constituted inhuman or degrading treatment but not torture under the European Convention." See footnote 14 of the 2004 memo.

Again, there is not discussion of what does constitute torture, just what it isn't. That is not to say that such actions are permissible and legal in the U.S., it just means that under this section of law, these lawyers are giving those acts as an example of what is not torture. Helpful, eh?

In the Senate Foreign Relations Committee report advising the ratification of the Convention Against Torture (CAT), "... The term "torture, in United States and international usage, is usually reserved for extreme, deliberate and unusually cruel practices, for example, sustained systematic beating, application of electric currents to sensitive parts of the body, and tying up or hanging in positions that cause extreme pain." See page 6 of 2004 memo.

That's all for today. I will continue offering concrete examples to people of what the legal definition of torture is, or may be.

And, my dumplings, the silence of a certain readership has not gone unnoticed. It is enough to say I am with you in spirit until full democracy returns. Please feel free to copy what I have written and to pass it around. And I'm sure some friends can pass along your comments under another name.


The Catch

Look at this from Yahoo.com:

"A senior administration official said that fewer than 100 people have been detained under the CIA program, rejecting allegations that perhaps thousands have been held in secret prisons. With the transfer of the 14 detainees to Guantanamo, the CIA is no longer holding any suspects, the administration official said. He added, however, that the administration wants the program to continue."

So the Administration wants to continue a program where the CIA uses harsh interrogation techniques, but they say that no one is in the program? So why do they want to continue it, then?

Waterboarding is Torture, and Torture is Wrong

The U.S. President has just announced that the Geneva Conventions will apply to detainees and that all the prisoners held by the CIA will be transferred to the Department of Defense. He also said that waterboarding will not be used during interrogations.

I just really want to believe him.

There are a few problems with believing our President, however. It's that he fought the anti-torture amendment passed by Congress and threatened to veto it. It's that once he did sign the law, he said he wouldn't apply it. This Administration is the one where the words don't meet the actions too frequently for comfort or credibility.

Oh yeah, and why was I fired? I mean the day before the Department of Defense and the CIA announced to the world that they were going to apply the Geneva Conventions to all prisoners. After that new policy was announced I wrote my blog post criticizing torture.

"What were you thinking?" the upper management types kept asking me. "But you said it was your policy," I replied. And I believed it then. I really want to believe it now. "The Seventh Floor is really upset with what you wrote," they said. And why was that? Were they sincere in what they said, or not? Judging by their behavior, I would say not. Are they this time? Too early to tell. But I know this: this battle is not over. Even if the abuse has stopped, the bill still needs to be paid.

Tell the President this by getting a shirt that tells him so at http://www.cafepress.com/econogirl