: : : : : : : : : :

Article VI, Clause 2 of the US Constitution says:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Article VI, Clause 3 says:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

There are those on the right who insist that the US should never be bound by International Treaty, but they would be wrong. When we sign a treaty and ratify it in our Senate, it becomes “the supreme Law of the Land.” To fail to follow it would be to fail to support and defend the Constitution of the United States.

The UN CONVENTION AGAINST TORTURE and Other Cruel, Inhuman or Degrading Treatment or Punishment makes it a crime to torture people or to treat prisoners cruelly or inhumanely. The United States signed this treaty on April 18, 1988. The United States finally got around to ratifying this treaty on October 21, 1994. This means that this treaty was the Law of the Land on January 20, 2001, when the Bush Administration came into office.

On August 6, 2002, former Assistant Attorney General Jay Bybee (now a federal judge), in response to a request from the CIA, signed his name to a memo giving legal cover to the CIA to use a list of interrogation techniques which included waterboarding. The memo clearly states that the opinion is based on the facts as given him by the CIA, and that if those facts should change, the applicability of the memo could change. The memo also gives guidelines for how much of these techniques they could legally use. It appears that even though Bybee told them that a little waterboarding was legal (he was wrong), the CIA exceeded even those guidelines. Another argument used to justify the techniques was that they were used on military personnel undergoing S.E.R.E. Training. The argument goes that if it’s legal to do it to our own people, it should be legal to do with people in our custody. This argument is wrong because it ignores the fact that the techniques chosen for the S.E.R.E. training were chosen specifically because they were illegal! They were legal to use in training because undergoing them was voluntary. The entire point of subjecting people to them was to prepare them for what might happen if they were captured by an enemy that did not follow the law. How anyone could twist this into a logical argument for saying these techniques are legal to use on people in our custody escapes me.

Believe it or not, despite all the dialog about the subject of waterboarding, about how it is, in the words of one conservative radio talk host, “absolutely torture”; about how it was devised for the purpose of getting people to give false confessions; about how it doesn’t work if you want to gain worthwhile intelligence (because the person being waterboarded would say anything they thought you wanted to hear to make it stop, as Mancow admitted); and about how illegal it is, there are still people on the right who think it is justified in certain circumstances. Their primary justification for waterboarding (or using any other form of torture) is the “ticking time bomb scenario” (also called the “Jack Bauer Scenario” after the main character in a fictional TV show called “24”, in which Bauer often tortures people to get information to stop a bomb or terrorist attack from going off. It should be emphasized that this show is a work of fiction. Real life often doesn’t work the way it does on the TV machine.) This justification, however, could not possibly be applied in this situation because there was no ticking time bomb! It was only assumed, without any reliable basis, that another attack was imminent and that, therefore, waterboarding could be justified in order to stop that attack. Yet even with Bybee’s memo as legal cover, they waterboarded Zubaydah 83 times in one month. A month of waterboarding and no attacks from al Qaeda happened. If an attack was really “imminent”, wouldn’t it have happened within that month? Since it never happened, nor did one happen during the month they waterboarded Khalid Sheik Mohammad, how could one argue that an attack was imminent? Since it is not true that we knew an attack was imminent (we only assumed it to be the case), the primary justification for using the waterboard falls apart. The treaty we signed stated quite clearly “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.” Legal precedent makes it clear that waterboarding is torture.

But even if you want to bury your head in the sand or put your fingers in your years and say “la-la-la-la-la-la” when someone tries to say waterboarding is torture, you cannot deny that it is cruel, inhuman, or degrading treatment. Bybee’s memo answered the wrong question. As he indicated, he was responding to whether or not the techniques the CIA wanted to use (the techniques we’ve all come to know as the “Enhanced interrogation techniques”) were a violation “the prohibition of torture found at Section 2340A of title 18 of the United States Code.” This section only addresses the subject of “torture” and does not reference “cruel, inhuman, or degrading treatment.” Bybee should have done his homework and looked into whether or not the CIA’s proposed actions violated Section 2441 of Title 18 of the US Code, which covers War Crimes. It was, IMHO, poor counseling to tell them that because it did not violate one specific statute, that it was legal. The treaty we signed also bans the use of cruel, inhuman or degrading treatment of prisoners (or anyone in custody.) And performing those acts in the commission of a war constitutes War Crimes.

While we don’t know exactly what did happen (thanks to all the people who have been lying on behalf of the Bush Administration), we do know enough to be certain that War Crimes were committed, and that they were committed on authorization coming from the White House. We have to prosecute those involved with this, even if they later claim they only signed documents that others wrote. A signature has legal meaning. It is proof of awareness of the details of the item being signed. They cannot claim ignorance. They were all knowing participants in the commission of War Crimes. They belong in prison.

: : : : : : : : : :