Sunday, December 11, 2005

Living in the Gray; Practicing Denial

By Melissa Boyle Mahle

In the world of intelligence, officers are used to operating in the gray. It is an area that offers the most flexibility and the least transparency. While it is appropriate for intelligence operations and method to be secret and opaque to the public, the principles guiding intelligence should be clear and transparent in a democracy. This past week, the White House entered the gray zone in explaining the US policy on torture, adherence to international conventions and respecting foreign sovereignty. Secretary Rice’s statements in Europe and the State Department’s press conference on December 7, 2005 have made the policy anything but clear and transparent.

The Bush Administration is saying that as a matter of policy, the US government does not practice or condone torture, whether in the US or overseas. According to the December 7 State Department press conference, this is not a change of policy, but existing policy. Deputy Spokesman Adam Ereli did back flips trying to evade answering the question “since when has this been the policy”. When asked about the interrogation rules only applying to interrogation in the US and if Rice’s statements were meant to expand the policy abroad, Ereli declined to give a timeline for the policy development, but said clearly that US policy is and was to not condone torture. Ereli kept on confusing the press corps by making statements to the effect that the US was on unfamiliar ground, engaged in a conflict with a new kind of enemy that acts outside the norms, seeming to suggest the US had to act outside the norms.

As Americans, we should be able to accept at face value a statement of policy from the Secretary of State and the President. The problem is that at the same time that these policy statements are being made, they share headlines with the case of Khalid el-Masri, a German citizen of Lebanese descent who was allegedly forcibly abducted by the CIA, held in a secret prison incommunicado, subjected to torture, before being released in middle-of-no-where, Albania, with a threat to never talk about what happened to him. El-Masri has filed a lawsuit in the US against former CIA-director George Tenet, the private airline company (Premier Executive Transport Services) that transported him in the alleged rendition operation, and unnamed CIA employees who seized, transported, detained and interrogated him.

Why should we worry about a gap between what our government says and does? Historically, when US practices strayed from stated policy, particularly when intelligence capabilities were involved, the stink had a way of growing, discrediting the administration in charge and the intelligence community. Iran-Contra comes to mind first. The US had a stated policy of not paying ransom to free hostages. In practice, the Reagan Administration permitted illegal arms sales to Iran to bribe the Iranians to free the hostages in Lebanon and with the ill-gotten gains, funded an illegal war in Nicaragua. The CIA was excoriated for its role and the backlash led to the dismantling of CIA capabilities throughout the 1990s, leaving the CIA ill-equipped to wage a real war on terrorism prior to 9/11. If the Bush Administration intends to keep the policy ambiguous so that after the fact if pushed into a corner Administration officials can say the intelligence community was to blame for excesses, we can expect the CIA to be further dismantled, perhaps to the point of closing up shop. I do not believe that is in the interests of US national security.

I recently attended a talk given by a retired Israeli intelligence official who recently headed up one of Israel’s main intelligence agencies. He spoke about the Israeli experience in dealing with terrorism in aggressive ways. He believed Israeli citizens have maintained confidence in the way in which Israeli security services counter terrorism by maintaining full transparency on counterterrorism policy, but secrecy on actual methods. Israeli courts have reviewed Shin Bet interrogation tactics and have ruled which tactics are not permissible and which are in extreme situations, such as ticking bomb scenarios in which the Chief of Shin Bet is authorized to approve the use of torture. The chain of command is explicit and transparent. The same is true for targeted killings. The Israeli Prime Minister must approve each targeted killing personally. These policies are public and enjoy the majority support of Israeli citizens.

Personally, I disagree with use of torture in any circumstances, but I see the benefit of transparency to the public on the policy. The majority of Israelis support the counterterrorism program, as exemplified by the repeated election of Israeli politicians who endorse an aggressive intelligence and military approach and who run on a security platform.

To the Bush Administration, I would suggest that a similar approach should be taken. If the Administration believes that certain counterterrorism methods are necessary in the global war on terror, then they should make their case to the American people. When the Bush Administration says it does not torture, but what it really means is that it does use methods that constitute “cruel, inhuman and degrading methods”, Administration officials should say that in order to clarify the lines. If the Administration believes kidnapping terrorist suspects and holding them incommunicado is necessary, then make the case. Denying methods being used and saying the US is in compliance with international obligations without offering proof is not consistent with American values or democracy.

As a footnote, let’s compare statements and law:

Torture and Cruel, Inhuman and Degrading Treatment (CID):

“We believe in the rule of law. And what I assured my European colleagues in my answer to Foreign Secretary Straw is that the United States intends and will fully live up to obligations under our international commitments as well as obligations under US law. We don’t condone torture.” (Rice, Interview with Anne Will of German TV One (ARD), 6 December 2005.)

“Well, I define torture probably the way most people would: in the eyes of the beholder. What we do does not come close because torture, in terms of inflicting pain or something like that, physical pain or causing a disability, those kinds of things that probably would be a common definition for most Americans, sort of, you know it when you see it, we don’t do that because it doesn’t get what you want.” (CIA Director, Porter Goss, Interviewed by Charles Gibson on ABC’s Good Morning America, 29 November 2005)

“After a drive of approximately one hour, the car came to a halt, and Mr. El-Masri could hear the sound of airplanes. He was removed from the vehicle, still handcuffed and blindfolded, and was led to a building. Inside, he was told that he would be medically examined. Instead, he was beaten severely from all sides with fists and what felt like a thick stick. His clothes were sliced from his body with scissors or a knife, leaving him in his underwear. He was told to remove his underwear and he refused. He was beaten again, and his underwear was forcibly removed. He heard the sound of pictures being taken. He was thrown to the floor. His hands were pulled back and a boot was placed on his back. He then felt a firm object being forced into his anus.” (Khaled El-Masri vs George J. Tenet, et. al., Complaint filed 6 December 2005 in the District Court for the Eastern District of Virginia)

“On his second night in the Salt Pit, Mr. El-Masri was woken by masked men and once again brought to the interrogation room. Again, six or eight masked, black-clad men were in the room. Mr. El-Masri was interrogated by a masked man who spoke Arabic with a South Lebanese accent. The man asked him if he knew why he had been detained; Mr. El-Masri said he did not. The man then stated that Mr. El-Masri was in a country with no laws, and that no one knew where he was, and asked whether Mr. El-Masri understood what that meant.” (Khaled El-Masri vs George J. Tenet, et. al., Complaint filed 6 December 2005 in the District Court for the Eastern District of Virginia)

“Mr. El-Masri was and remains deeply traumatized by his treatment during the couse of his seizure and detention. He was repeatedly beaten and threatened; had an object forced into his anus; was denied access to counsel, consular officials, or his family; was roughly interrogated on numerous occasions; and was secretly detained in squalid conditions for nearly half a year without charge or explanation.” (Khaled El-Masri vs George J. Tenet, et. al., Complaint filed 6 December 2005 in the District Court for the Eastern District of Virginia)

The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which the US has signed and ratified, absolutely forbids torture under all circumstances:

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

The CAT defines torture as:

"any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

In order to meet the CAT Article 4 requirement for criminalizing all acts of torture, the US enacted sections 2340 and 2340A of the US Criminal Code which prohibited torture occurring outside the US—torture inside the US was presumed to be prohibited under federal and state laws of general application prohibiting acts such as assault, battery, and murder. Torture is defined as “an act committed by a person acting under the color of the 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 control.”

A second category of proscribed conduct is cruel, inhuman and degrading (CID) practices. The CAT does not define CID, but it is referred to as on a continuum with torture. Article 16 of the CAT requires ratifying states to prevent “other actors of cruel, inhuman or degrading treatment or punishment which do not amount to torture”. When the US ratified the CAT, it did so with the reservation that the US considers itself bound by Article 16 insofar as CID treatment is understood to mean “the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth and Fourteenth Amendments.

Torture and CID is also prohibited by Article 7 of the International Covenant on Civil and Political Rights (ICCPR) (ratified by the US in 1992)

The US could probably make the legal argument that el-Masri’s treatment did not constitute torture, but it would be more difficult to make a compelling argument that it did not constitute CID as prohibited by US law or international law.

Incommunicado Detention and Enforced Disappearance

“[W]e do hold and have made clear that we hold some al-Qaida detainees as unlawful combatants under the law of war. We do so because they have to be taken off the battlefield. We do so because they are valuable for the gathering of intelligence. But we also do so within U.S. law and within our international obligations. (Rice, Interview with Julie Etchingham of Sky News, 6 December 2005.)

“On December 31, 2003, Khaled El-Masri, a German citizen of Lebanese descent, was forcibly abducted while on holiday in Macedonia, detained incommunicado, handed over to United States agents, then beaten, drugged, and transported to a secret prison in Afghanistan, where he was subjected to inhumane conditions and coercive interrogation and was detained without charge or public disclosure for several months. Five months after his abduction, Mr. El-Masri was deposited at night, without explanation, on a hill in Albania.” (Khaled El-Masri vs George J. Tenet, et. al., Complaint filed 6 December 2005 in the District Court for the Eastern District of Virginia)

“Defendants subjected plaintiff [El-Masri] to prolonged arbitrary detention by detaining plaintiff without a warrant, probable cause, articulable (sic) suspicion, or notice of charges, and by failing to accord plaintiff due process or any legal, consular, or familial protection and support. Defendants’ prolonged arbitrary detention of plaintiff violates customary international law. The prohibition against prolonged arbitrary detention is a “specific, universal, and obligatory” norm of customary international law cognizible (sic) under the Alien Tort Statute.” (Khaled El-Masri vs George J. Tenet, et. al., Complaint filed 6 December 2005 in the District Court for the Eastern District of Virginia)

The International Covenant on Civil and Political Rights (ICCPR), which the US ratified in 1992, obligates the US to certain procedures for detainees:

To guarantee the effective protection of detained persons, provisions should be made for detainees to be held in places officially recognized as places of detention and for their names and places of detention, as well as for the names of persons responsible for their detention, to be kept in registers readily available and accessible to those concerned, including relatives and friends. To the same effect, the time and place of all interrogations should be recorded, together with the names of all those present and this information should also be available for purposes of judicial or administrative proceedings.

Additionally, transfer into secret detentions contravenes laws against disappearances. Disappearances, or forced disappearances as they are officially called, are considered one of the most serious violations of the fundamental rights of human beings and a grave and abominable offense against the inherent dignity of the human being, according to the United Nations.

The Declaration on the Protection of all Persons from Enforced Disappearances, adopted by the UN General Assembly in 1992—a convention that is not legally binding—states that enforced disappearances occur when

"persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, …followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law…"

The US, when assessing the human rights behavior of other countries in the annual State Department Country Reviews, includes a section on incommunicado detention as an abuse of human rights. Furthermore, the US has systematically condemned the practice of enforced disappearances, notably in Latin America during the period of the so-called “Dirty Wars” and even up to today in condemning the Libyan government for holding incommunicado those political activists calling for an end to Qadhafi’s regime. As 9/11 the US has adopted a practice that these standards do not pertain to the US in its actions against illegal combatants.


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