Lies the government told you by Andrew Napolitano (best e reader for epub TXT) 📗

application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (c) the threat of imminent death; or (d) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.

In addition, the War Crimes Act of 1996 makes it a crime for any United States national to order or engage in the murder, torture or inhuman treatment of a detainee.23 In addition to those who engage in this conduct, any official who authorizes or condones such abuse violates the Act as well. If a detainee dies, the Act imposes the death penalty on those who caused it.

Furthermore, the United States is required by law to operate under the Geneva Conventions, agreed to in 1948 and 1949, which set the standards in international law for treatment of prisoners. A crucial provision within these standards is “Common Article 3,” which appears in each of the four conventions. Common Article 3 demands that “[p]ersons taking active part in the hostilities . . . shall in all circumstances be treated humanely. . . .”24 (emphases added). The Article goes on to state that “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” shall be prohibited “at any time and in any place whatsoever”25 (emphases added). It also specifically prohibits “outrages upon personal dignity,” including “humiliating and degrading treatment.”26

The United States military also takes interrogation tactics very seriously. The main goals of military interrogation are effectiveness and compliance with the law.27 The U.S. Army Field Manual 34-52 (FM 34-52) was once the rulebook for military interrogators, and applied to all foreigners, with no exception.28 A key principle of FM 34-52 was that interrogators will only get results if they create a rapport with the detainees.29 Based on this principle, FM 34-52 specified the following four propositions: (1) any interrogation must have a specific purpose; (2) it must be based on rapport; (3) every detainee has a breaking point, although it is not typically known until it has been reached; and (4) susceptibility to interrogation diminishes with the passage of time.30

FM 34-52 prohibited “physical or mental torture, threats, insults, or exposure to inhuman treatment as a means of or aid to interrogation,” regardless of the enemy.31 The manual provided a broad description of “torture,” defining it as “the infliction of intense pain to body or mind to extract a confession or information, or for sadistic pleasure.”32 Physical torture, according to FM 34-52, includes “any form of beating”; forcing a detainee to stand, sit, or kneel in an abnormal position for an extended period of time; and sleep deprivation.33 According to the manual, abnormal sleep deprivation is an example of mental torture.34

Unfortunately, but not surprisingly, the Bush administration intentionally disregarded these provisions, sidestepped well-established law, and essentially created a new legal framework under which it was permissible to humiliate and torture people. As stated above, the administration started by trying to keep the federal judicial system out of Guantanamo Bay; one former Bush administration lawyer called it “the legal equivalent of outer space.”35 As early as January 9th 2002, just four months after September 11th, John Yoo, the go-to lawyer in the Justice Department’s Office of Legal Counsel (OLC), on whose ratiocinations the Bush White House relied when it wished to evade or avoid the Constitution and federal law, coauthored a forty-two-page memo concluding that no laws of war, including the Geneva Conventions, applied to the conflict in Afghanistan.36

Upon seeing the Yoo memo, one State Department lawyer stated, “We were horrified.”37 The chief legal advisor for the Department of State, Bush appointee William Howard Taft IV, sent a memo to Yoo in response, calling his assessment “seriously flawed.”38

The Bush administration, as you may have noticed throughout its stint at the White House, did not respond well to criticism, or simply opposing points of view. White House Counsel (and later Attorney General) Alberto Gonzales, in late January 2002, wrote a memo to President Bush, noting Secretary of State Colin Powell’s opposition to the Yoo memo.39 Gonzales then made his case for torture, stating that “[t]he nature of the new war places a high premium on other factors, such as the ability to quickly obtain [sic] information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians.”40 According to Gonzales, “this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions”41 (emphases added).

Furthermore, Attorney General Gonzales believed that stepping outside of the Geneva Conventions would preserve President Bush’s “flexibility” during the war.42 That is, it would protect administration personnel from prosecution under the 1996 War Crimes Act, which defines a war crime as “any grave breach” of the Geneva Conventions.43 Gonzales’s argument is quite disturbing. He advocated breaking the law by suggesting that the law should not apply. And he was President Bush’s lawyer, and he became the nation’s chief law enforcement officer.

On February 7th 2002, the Bush administration claimed to have conceded to Powell’s skepticism by stating that the United States would apply the Geneva Conventions to the Afghan war.44 However, Taliban and al-Qaeda detainees would still not be protected by the Geneva Conventions.45 This essentially opened the door for harsh treatment and permitted President Bush to use any method he liked to achieve any goal he wished.

Later, on August 1st 2002, President Bush got more help from Justice Department attorneys, Jay Bybee and again John Yoo. Bybee, like Yoo, was a senior official at the OLC. On August 1st, the OLC issued two memos, which Georgetown Law Professor David Cole later called the “original sin.”46 The memos were written in response to Gonzales’s request for an opinion on whether the United States’ interrogation policies were banned by federal law. Gonzales knew the answer that Bush wanted, but he needed a second opinion.

In the initial August 1st memo,