The only news is that this is news to the mainstream media.

International Committe of the Red Cross – “Black Letter Abuse: The US Legal Response to Torture Since 9/11” – 30 Sep 07:

The use of torture by the US armed forces and the CIA was not limited to ‘‘a few bad apples’’ at Abu Ghraib but encompassed a broader range of practices, including rendition to third countries and secret ‘‘black sites’’, that the US administration deemed permissible under US and international law. This article explores the various legal avenues pursued by the administration to justify and maintain its coercive interrogation programme, and the response by Congress and the courts. Much of the public debate concerned defining and redefining torture and cruel, inhuman and degrading treatment. While US laws defining torture have moved closer to international standards, they have also effectively shut out those seeking redress for mistreatment from bringing their cases before the courts and protect those responsible from prosecution.

The ICRC posted their full 30-page report at that same time [.pdf], so the only surprise should be that this comes as a surprise. Contrary to the Newspeak, The Washington Post did not “break” this story on a “long-concealed 2007 document” yesterday. I read the damn thing a year and a half ago. The only things ‘concealed’ from the general report were detailed interviews with detainees, but this isn’t the first time the ICRC has identified CIA treatment of detainees in “black sites” as “torture”.

I just re-read the full report. Part I is titled “Introduction: Revelations of Torture”. Part IV is titled, “Blocking Redress for Torture”, but this is news now?

Did everyone miss these excerpts in 2007?:

US military and Central Intelligence Agency (CIA) personnel committed torture and other forms of coercive interrogation at the detention centres at Bagram air base in Afghanistan, various detention facilities and forward operating bases in Iraq,and at Guantanamo Bay in Cuba. Prisoners were subjected to long-term sleep deprivation, extremes of heat and cold, painful stress positions, beatings, forced nakedness and other degrading treatment, indefinite solitary confinement, and other abusive interrogation methods….

And those were just the methods used at the known detention centres. Only the barest information has emerged about torture by the CIA in secret prisons – so-called ‘‘black sites’’ – outside the United States. (2)

This was the first public articulation of a policy in which those held by the United States in the ‘‘global war on terror’’ would not formally be entitled to legal protections – but only protected as a matter of policy. And the directive purposely excluded mention of the CIA. The administration was opening the door to redefining the reach of US and international law to permit abusive practices. (11)

The very nature of these US renditions is such that their number is not — and probably cannot be — known. Several cases of alleged rendition to torture have been widely reported, most notably those of Maher Arar, a Syrian-Canadian national who was picked up by US authorities while in transit in 2002 and sent to Syria, where he was brutally treated for nearly a year, and Khaled el-Masri, a German citizen of Lebanese descent, who alleged being picked up in Macedonia in 2003 and sent to a CIA detention facility in Afghanistan, where he was mistreated. (15)

In an apparent refutation of the Bybee memo, the Justice Department in December 2004 declared torture to be ‘‘abhorrent’’. Yet, as the New York Times reported in October 2007, incoming Attorney General Alberto Gonzales in February 2005 approved a secret Justice Department legal opinion on ‘‘combined effects’’ providing the CIA with ‘‘explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including headslapping, simulated drowning and frigid temperatures’’. (17)

In a second highly publicized case, Khaled el-Masri, a German citizen of Lebanese descent, claimed that he was seized in Macedonia in December 2003 and eventually transferred to a CIA-run detention facility in Afghanistan where he was beaten and held incommunicado for several months. (23)

This latter definition of ‘‘cruel and inhuman treatment’’ effectively accepts the administration’s contention that ‘‘enhanced interrogation techniques’’ used by the CIA against suspected Al Qaeda members, such as exposure to heat and cold, stress positions, and even waterboarding, were never prohibited. That is, they were not cruel and inhuman because they did not cause ‘‘prolonged suffering’’….

It was not until 20 July 2007 that President Bush issued an executive order construing the meaning of Common Article 3 with respect to the CIA’s detention and interrogation programme. While reiterating the ban on torture and cruel and inhuman treatment as provided under US law, the executive order essentially permits the CIA to restart its interrogation of persons held in secret, incommunicado detention. Specific directives on permissible interrogation methods remain classified. Thus the determination of whether certain techniques such as waterboarding are allowed cannot be determined from the executive order, and so long as there is no independent oversight of persons held at so-called ‘‘black sites’’, there can be no real way to judge how the CIA is defining torture and mistreatment. (27)

Since 9/11, the use of torture and other coercive interrogation methods by the US government has played out at two levels. The first is the actual terrible practice — the stress positions, the exposure to freezing temperatures, the sleep deprivation, the mock drowning.

This three-way ping-pong match between the branches of the US government shows no signs of ending. Remedies for those abused in Guantanamo or Afghanistan or rendered to torture abroad seem no closer. As long as the debate about torture continues in the federal courtrooms and halls of Congress and from the president’s desk, one cannot be confident that the practice of torture by the US government does not continue as well. Torture should not be debated. (30)

From the ICRC’s report just a couple of weeks ago – 24 Feb 09:

Persons detained on suspicion of having committed a crime, within or outside the context of an armed conflict, can be prosecuted. In particular, those suspected of having committed war crimes or other serious violations of international humanitarian law should be held accountable for their actions. All persons put on trial must be afforded essential judicial guarantees necessary to a fair trial, including the presumption of innocence, the right to be tried by an impartial and independent tribunal, the right to qualified legal counsel and the exclusion of any evidence obtained through torture or any other form of ill-treatment….

The ICRC has repeatedly expressed its concern about persons secretly detained and has requested access to them. It welcomes the decision by the US government to notify it of all detainees held by the United States in any armed conflict and to provide it with timely access to them. The ICRC firmly believes that no matter how legitimate the grounds for detaining someone, there exists no right to conceal the person’s whereabouts. The ICRC believes that any type of secret detention is contrary to a range of different international law provisions.

The only news is that Mark Danner is writing about it in the 9 Apr edition of the New York Review of Books.

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