Unraveling the Criminal Torture Conspiracy

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With the release of the Yoo/Bybee memos and the Armed Services Committee report much has been made lately of the involvement of top U.S. Officials in the use of techniques which could be considered Torture.

John Yoo has blasted Obama for release of these memos. Jay Baybee has argued that his conclusions represent a "Good Faith" analysis of the law. But does it?

Is this simply a matter of a difference in policy, a difference in legal opinion and perspective or is it something far worse? Where these memos and conclusions specifically requested and provided to enable the execution of War Crimes and Torture?

18 USC 2340(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

Besides the individual acts which have been well documented as occurring in various detention facilities world-wide the real question is whether or not a Criminal Conspiracy Case could potentially be brought against Bush Administration Officials, and if so, which ones?

To determine this we must look at the chain of evidence we have so far.

The first official action begins with this Jan 9, 2002 Memo (pdf) from John Yoo to William J. Haynes, General Counsel for the DoD which argues that Geneva does not apply to Taliban Fighters in Afghanistan.

You have asked for our Office's views concerning the effect of international treaties and federal laws on the treatment of individuals detained by the U.S. Armed Forces during the conflict in Afghanistan. In particular, you have asked whether the laws of armed conflict apply to the conditions of detention and the procedures for trial of member of al Qeada and the Taliban militia. We conclude that these treates do not protect members of the al Qeada organization, which as a non-State actor cannot be a party to the international agreements governing war. We further conclude that that [sic] these treaties do not apply to the Taliban militia. This memorandum expresses no view as to whether the President should decide, as a matter of policy, tha tht U.S. Armed Forces should adhere to the standards of conduct in those treaties with respect to the treatment of prisoners.

It may be important to note that this memo does not recommend deviating from the standing rules contained in the Army Field Manual (which comports with Geneva). George Bush applied this rationale and denied POW status to the Taliban on Jan 18th. It's interesting to note how this relatively neutral argument that Geneva doesn't apply to AQ & Taliban was amped up to a whole new level by this following memo from Alberto Gonzales on Jan 25th (pdf) which provided his recommendation on whether to reverse the Jan 18th decision and voluntarily abide by Geneva (accepting the assumption that it didn't apply) or not.

Positives (to denying Geneva protections)

Flexibility: In my judgment this new paradigm renders Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of it's provisions requiring that captured enemy be afforded such things as commissary privileges, scrip (i.e., advances of monthly pay), athletic uniforms and scientific instruments.

Substantially reduces the threat of domestic criminal prosecution under the War Crimes Act (18 U.S.C. 2441)

o That statute, enacted in 1996; prohibits the commission of a "war crime" by or against a U.S. person, including U.S. officials. "War Crime" for these purposes is defined to include any grave breach of GPW (Geneva POW Conventions) or any violation of common Article 3 thereof (such as "outrages against personal dignity"). Some of these provisions apply (if the GPW applies) regardless of whether the individual being detained qualifies as a POW. Punishments for violations of Section 2441 Include the death penalty. A determination that the GPW is not applicable to the Taliban would mean that Section 2441 would not apply to actions taken with respect to the Taliban.

o Adhering to your determination that GPW does not apply would guard effectively against misconstruction or misapplication of Section 2441 for several reasons. First, some of the language of the GPW is undefined (it prohibits, for example, "outrages upon personal dignity" and "inhuman treatment") and it is difficult to predict with confidence what actions might be deemed to constitute violations of the relevant provisions of GPW. Second, it is difficult to predict the needs and circumstances that could arise in the course of the war on terrorism. Third, it is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441. Your determination would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense against any future prosecution.

Reading this is like reading a note from a mob lawyer to his client describing how to commit murder and get away with it! First of all, it's clear from this memo that Gonzales isn't making an argument that various techniques are or aren't a potential breach, he's attempting to "maintain flexibility" to use options "outside the box" and NOT GET PROSECUTED FOR IT. This indicates a knowing awareness that he feels that the law, as strictly written may appear to be violated, and that his recommendation to deny Geneva Protections is as much driven by a desire to avoid the death penalty as to pursue the war. Secondly, what is or isn't a "War Crime" and permisable in treating detainees, isn't "difficult to predict" at all - it has long been outlined in the Army Field Manual and the Uniform Code of Military Justice which considers any "Maltreatment" of a detainee to be a Courts Martial Offense.


UCMJ Article 93.

Text.

"Any person subject to this chapter who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court-martial may direct."

Elements.

(1) That a certain person was subject to the orders of the accused; and

(2) That the accused was cruel toward, or oppressed, or maltreated that person.

Explanation.

(1) Nature of victim. "Any person subject to his orders" means not only those persons under the direct or immediate command of the accused but extends to all persons, subject to the code or not, who by reason of some duty are required to obey the lawful orders of the accused, regardless whether the accused is in the direct chain of command over the person.

(2) Nature of act. The cruelty, oppression, or maltreatment, although not necessarily physical, must be measured by an objective standard. Assault, improper punishment, and sexual harassment may constitute this offense. Sexual harassment includes influencing, offering to influence, or threatening the career, pay, or job of another person in exchange for sexual favors, and deliberate or repeated offensive comments or gestures of a sexual nature. The imposition of necessary or proper duties and the exaction of their performance does not constitute this offense even though the duties are arduous or hazardous or both.

The Army Field Manual, which is designed to be consistent with Geneva, contains a LIST of prohibited interrogations techniques, which specifically includes Waterboarding!

5-75. If used in conjunction with intelligence interrogations,
prohibited actions include, but are not limited to—
• Forcing the detainee to be naked, perform sexual acts, or pose in a
sexual manner.
• Placing hoods or sacks over the head of a detainee; using duct tape
over the eyes.
• Applying beatings, electric shock, burns, or other forms of physical
pain.
• “Waterboarding.”
• Using military working dogs.
• Inducing hypothermia or heat injury.
• Conducting mock executions.
• Depriving the detainee of necessary food, water, or medical care.
5-76. While using legitimate interrogation techniques, certain applications of
approaches and techniques may approach the line between permissible
actions and prohibited actions.

Logic dictates that all of these techniques likely "Maltreatment" under the UCMJ, but are they War Crimes? The 4th Geneva Convention defines "Grave Breaches" as the following:

Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or willfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

So even if you ignore the torture and coercive actions prohibited under the AFM and UCMJ, actions such as creating the Secure "Black Sites", and Extraordinary Renditions which were implemented are themselves Grave Breaches of Geneva and War Crimes.

By the way, exactly when did the President gain the power to "Establish Law"? Constitutionally that is a power given exclusively to Congress, while the Judiciary has the power to interpret the law in regards to the Constitution. Certainly there may be grey areas where legal analysis needs to be made by the executive branch which is charged with enforcing the law - but this memo, and those that follow it - seem to deliberately ignore previous case law and previous judicial decisions in favor a predetermined outcome to violate Geneva and knowingly allow the commision of what would otherwise absolutely be considered War Crimes, up to and including torture.

This direction was followed despite the vocal objections of then Secretary of State Colin Powell and his Counsel William Howard Taft IV (pdf)

The President should know that a decision that the Conventions do apply is consistent with the plain language of the Conventions and the unvaried practice of the United States in introducing its forces into conflict over fifty years. It is consistent with the advice of DOS lawyers and, as far as is known, the position of every other party to the Conventions. It is consistent with UN Security Council Resolution 1193 affirming that "All parties to the conflict (in Afghanistan) are bound to comply with their obligations under international humanitarian law and in particular the Geneva Conventions.

Ignoring both Powell, Taft and relevant UN Security Council Resolutions, Bush signed a memo denying Article 3 protections to Al Qeada and the Taliban on Feb 7.

At this point in time the legal theory in effect as a result of Bush's decision is that since the Taliban and Al Qaeda are are not themselves recognized internationally as legitimate governments they are not included within Geneva, and even though America has the option of treating them in a manner that is consistent with Geneva - IT WILL NOT - therefore indicating that War Crimes CAN be committed against them.

The problem with this decision is that Geneva does cover them. First off, because the fact that they haven't signed the Treaty is irrelevant - since we have. Geneva Article II

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations.

Under Article IV, Militia's such as the Taliban are included under coverage.

Section A. 1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

You could also include them under Section A.6.

6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

And even if the Taliban - which even Gonzales in his memo called a "Militia" - were not covered by this Section, all potential combatants are covered in the following section.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

Further the 4th Geneva Conventions also makes this point.

"Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals."

In other words, any non-American on a battle field is protected by the conventions once they become a captive or detainee. There is NO OTHER VALID INTERPRETATION of this document. This makes it crystal clear that the decision as to whether someone is a POW, Non-combatant or Criminal is not something that can be made with a blanket statement, it has to be determined in a case-by-case basis by a legal and competent tribunal. It's not something a President can decide with the stroke of a pen anymore than he can declare that bank-robbery will no longer be illegal with a signing statement, just because someone needs the money for their sick mother.

Why you committed the crime doesn't matter, particularly when under the UN Convention Against Torture, all arguments - such as those provided by Gonzales that these techniques may have provided "useful information" - are irrelevant.

Article 2.2 No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.

The advice given by both Yoo and Gonzales to ignore Geneva and the State Dept. at this point were completely irrevocably invalid, and Gonzales own further argument concerning 2441 shows that this wasn't just a "mistake" - it was a deliberate attempt to avoid likely prosecution for an impending premeditated crime.

In March of 2002, one month later, Abu Zubaydah was captured by U.S. forces in Pakistan. He became the test case for this new policy, but although 2441 had essentially been neutered another U.S. law still presented a problem. 18 U.S. 2340 - Torture

(a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

According to the FBI, Zubaydah cooperated and provided information which helped identify and capture both Khallid Sheik Mohammed and Jose Padilla during the following months, but as the Levin Reports shows, some members of the administration weren't hearing what they wanted to hear. They weren't hearing how Saddam Hussein was responsible for 9-11 and linked to Al Qeada. They decided Zubaydah was being uncooperative, and that Harsher Measures were needed. They looked to use techniques developed by the S.E.R.E. (the Torture Resistance Program developed by U.S. Special Forces after communist governments attempts to illicit false confessions from their citizens and our Troops) Not exactly a brilliant idea unless you want to gain false information.

Hardball w/Turley & Buchannan on Rice and the Legality of Torture

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In May of 2002 Condoleeza Rice advised George Tenet that S.E.R.E developed techniques such as Waterboarding could be used on Zubaydah and other high-value Al Qeada detainees. At this point in time although Geneva was effectively disabled, 18 USC 2340 was still in effect.

In order to address this problem another OLC memo from Jay Baybee was issued which attempted to redefine torture literally out of existence. It claimed 10 techniques (attention grasp, wailing, facial hold, facial slap, cramped confinement, wall standing, stress positions, sleep deprivations, insects place in a confinement box and the waterboard) would not cause severe physical or mental pain.

In this memo Bybee argued:

The goal of the facial slap is not to inflict physical pain that is severe or lasting. Instead, the purpose of the facial slap is to induce shock, surprise, and/or humiliation. Wall standing is used to induce muscle fatigue. The individual stands about four to fie feet from a wall, with his feet spread approximately to shoulder width. His arms are stretched out in front of him, with his fingers resting on the wall. You have informed us that these positions are not design to produce the pain associated with contortions or twisting of the body, Rather somewhat like wailing, they are designed to produce the physical discomfort associated with muscle fatigue.

You have informed us that he (Zubaydah) appears to have a fear of insects. In particular, you would like to tell Zubaydah that you intend to place a stinging insect into the box with him. You would, however, place a harmless insect in the box) Finally, you would like to use a technique called the "waterboard". This causes an increase in carbon dioxide level in the individual's blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produced the perception of "suffocation and incipient panic," i.e., the perception of drowning.

Any pain associated with muscle fatigue is not of the intensity sufficient to amount to "sever physical pain or suffering" under the statute, nor, despite it's discomfort, can it be said to be difficult to endure. As we understand it, when the waterboard is used, the subject's body responds as if the subject were drowning--even though the subject is well aware that he is in fact not drowning. You have informed us that this procedure does not inflict actual physical harm. Thus, although the subject may experience the fear or panic associated with the feeling of drowning, the waterboard does not inflict physical pain.

Parsing through whether the pain is "severe" or not completely misses the point that pain is entirely subjective, and that with repetition and duration such techniques over time can indeed become torturous. "Increased Carbon Dioxide" and experiencing the "sensation of drowning" can spike a subjects blood pressure, induce a stroke or heart-attack. Prolonged stress position scan indeed cause muscle fatigue, but that fatigue can eventually induce renal failure and cause a subject kidneys' to shutdown - leading to death. Zubaydah was ultimately waterboarded 83 Times. Rather than seeking information from a broad array of medical information and opinion, Bybee clearly ignored a great deal of information on the effects of torture from sources such as Amnesty International and also completely ignored to objections of the experienced S.E.R.E. program operation themselves.

"The requirement to obtain information from an uncooperative source as quickly as possible -- in time to prevent, for example, an impending terrorist attack that could result in loss of life -- has been forwarded as a compelling argument for the use of torture," the document said. "In essence, physical and/or psychological duress are viewed as an alternative to the more time-consuming conventional interrogation process. The error inherent in this line of thinking is the assumption that, through torture, the interrogator can extract reliable and accurate information. History and a consideration of human behavior would appear to refute this assumption."

There was no consideration within the National Security Council that the planned techniques stemmed from Chinese communist practices and had been deemed torture when employed against American personnel, the former administration official said. The U.S. military prosecuted its own troops for using waterboarding in the Philippines and tried Japanese officers on war crimes charges for its use against Americans and other allied nationals during World War II.

The reasoning in the JPRA document contrasted sharply with arguments being pressed at the time by current and former military psychologists in the SERE program, including James Mitchell and Bruce Jessen, who later formed a company that became a CIA contractor advising on interrogations. Both men declined to comment on their role in formulating interrogation policy. The JPRA attachment said the key deficiency of physical or psychological duress is the reliability and accuracy of the information gained. "A subject in pain may provide an answer, any answer, or many answers in order to get the pain to stop," it said.

As it turns out most of the information that was received from Zubaydah after his waterboarding has been considered dubious at best by the FBI. The techniques employed against him were repeated against Khallid Sheik Mohammad who was ultimately waterboarded 183 times. In December of 2002 Donald Rumsfeld authorized the use of 15 similar "aggressive techniques" against detainees in GTMO and at Bagram AFB. Eventually these techniques were exported to Abu Ghraib by General Geoffrey Miller on Rumsfeld's order in an effort to "Gitmo-ize" it. Although "Waterboarding" was prohibited, the use of nudity, stress position, humiliation and dogs was included.

Amnesty International on subsequent results in Iraq and Abu Ghraib

The world watched with horror, shock and outrage the graphic pictures of Iraqi prisoners being tortured in Abu Ghraib Prison. Prisoners were severely beaten and repeatedly sexually humiliated by US soldiers. They were forced to eat pork and drink alcohol. They were assaulted, threatened with rape, forced to masturbate in front of female soldiers, and forced to wear women's underwear. They were kept naked, sometimes for several days. They were also forced to walk like dogs on their hands and knees and bark like dogs. The US military investigation in Iraq headed by Major General Antonio Taguba found "systemic" and "illegal abuse of detainees" in Abu Ghraib Prison between August 2003 and February 2004, and concluded that soldiers had "committed egregious acts and grave breaches of international law at Abu Ghraib…". Amnesty International condemned the latest reports of torture and ill-treatment of prisoners in Abu Ghraib as war crimes. The organization called on the US Government to fully investigate them in order to ensure that there is no impunity for anyone found responsible, regardless of position or rank.

The final nail in the coffin for Bybee's defenses is the condition that Zubaydah is in now after all of this "not severe, not painful" treatment.

Partly as a result of injuries he suffered while he was fighting the communists in Afghanistan, partly as a result of how those injuries were exacerbated by the CIA and partly as a result of his extended isolation, Abu Zubaydah's mental grasp is slipping away.

Today, he suffers blinding headaches and has permanent brain damage. He has an excruciating sensitivity to sounds, hearing what others do not. The slightest noise drives him nearly insane. In the last two years alone, he has experienced about 200 seizures.

But physical pain is a passing thing. The enduring torment is the taunting reminder that darkness encroaches. Already, he cannot picture his mother's face or recall his father's name. Gradually, his past, like his future, eludes him.

Let me reiterate that Zubaydah was only 31 years old when he was captured by U.S. Forces - he's not even 40 yet. It seems obvious that this was a crimnial act, particularly when the tapes of Zubaydah's inerrogations were illegally destroyed in violationi of a court order. Similar reports are that Jose Padilla - who is an American Citizen - has been rendered essentially catatonic with severe PTSD and memory loss by his treatment in U.S. custody.

The link from Yoo, to Gonzales, Bush, Bybee, Rice, Tenet, Rumsfeld and Gen Miller to Abu Ghraib is an unbroken chain. Potentially what could be called a chain conspiracy.

Conspiracy is the term for a broad category of crimes involving multiple actors coming together to engage in criminal activity. Specific federal anti-conspiracy statutes are found throughout federal law. The two key elements in proving a conspiracy are an agreement and an act in furtherance of the conspiracy by one of the actors:

* A key element in prosecuting a defendant for conspiracy is proving the agreement. The agreement that forms the basis for conspiracy need not be written, oral, or even explicit, but is often inferred from the facts of the specific case. If the parties meet and reach an understanding to work for a common purpose, there is an agreement.
* Most criminal conspiracy statutes also require that at least one of the parties has committed an overt act in furtherance of the conspiracy.

A chain conspiracy involves several parties as links in one long criminal chain. Defendants in chain conspiracies are responsible for the actions of all participants in the chain, even if they never met some of the other participants in the chain.

As I noted at the beginning of this discussion, Conspiracy under 2340 (Torture) is punishable to the same degree as the underlying crime. In this case estimates are currently that approx 35 detainees have died as the result of Homicide, most likely while being interrogated - that would mean, excluding the death penalty, up to 20 years in prison for each and all members of the conspiracy.

Oh, and by the way, ignorance of the law is No Excuse.

Vyan