The CFR Debates Torture, Part II




A

s early as December 2002,
before the U.S. invaded Iraq, the Council on Foreign Relations (CFR)
as an organization began to discuss the issue of torture and war
crimes, with an initial focus on Afghanistan. During that month,
the Council and the American Society of International Law conducted
a forum. One paper presented at this forum was by CFR member Holly
J. Burkhalter who pointed out that the Bush administration was violating
the laws of war and torturing people. 


In January 2003 Burkhalter’s op-ed piece on the topic appeared
in the

Washington Post

: “Recent reports that U.S. intelligence
operatives and military police are torturing captured al Qaeda and
Taliban suspects are but the latest evidence of the United States’
disgraceful handling of detainees in its war on terrorism. For the
past year we have known that U.S. Special Forces in Afghanistan
turned over surrendered combatants to their local allies, who reportedly
murdered hundreds of them in captivity. Thousands of others who
lay down their weapons were crammed into freezing, filthy, dilapidated
cells at Shebergan prison. 


“The United States detains al Qaeda and Taliban captives indefinitely
without charge or trial, some imprisoned in secret locations in
foreign countries where security services that are known to use
torture conduct interrogations on our behalf. These immoral and
illegal practices are extremely costly to U.S. interests and ought
to be stopped immediately.” 


By early 2005 the issues of the law of war and torture had become
so contentious worldwide and within the U.S. ruling class that what
had been a more informal, ad hoc discussion turned into a formal,
on-the-record debate on April 14, 2005 at CFR headquarters. between
council member Kenneth Roth and former  member John C. Yoo,
a main author of U.S. government legal memos redefining torture.
Roth is executive director of Human Rights Watch (HRW), a private
organization founded in the late 1970s to pressure the Soviet Union
on human rights—that is, mainly as an instrument for Cold War
propaganda. With the extension of HRW activities to other parts
of the world, together with the fall of the USSR, the organization
has sometimes become critical of U.S. foreign policy and has been
especially critical of the policies of the Bush administration.
(The CFR has substantial connections with HRW.)  


Roth began his presentation with the observation: “It seems…sad
that we have to be debating today whether our government should
be using tools like torture and inhumane treatment in combating
terrorism, but that’s the reality.” Roth, who is a lawyer,
went on to discuss the relevant law, especially focusing on international
treaties that have been ratified and are part of the supreme law
of our nation, concluding that it is illegal to torture, defined
as inflicting “serious physical or mental injury.”  


Roth added that there are never any exceptions to these legal rules.
Roth then pointed out that “overly clever” lawyers in
the Bush administration have tried to circumvent every legal barrier
and military tradition that has stood in the way of complete presidential
power to order torture by redefining the word and stating that the
Geneva Conventions do not apply to some people, and kidnapping,
rendition, and cruel, inhuman, and degrading treatment can be applied
on them at will. “Senior authorities” approved of these
illegal techniques and actions “despite decades of clear law
prohibiting them.” After detainees died under torture, which
began to happen as early as December 2002, when Army medical examiners
first found that homicides had occurred, those responsible were
not prosecuted and no independent investigation was conducted. Roth
concluded that the result is the ongoing epidemic of torture and
abuse we have today, with the moral authority of the U.S. destroyed,
respect for law undermined, and the country less safe because of
widespread hatred against Americans and a desire for revenge. 







John Yoo, now professor of law at the University of California,
answered Roth by reiterating his view that the Geneva Conventions
do not apply to al Qaeda and other terrorists, arguing that the
Bush administration was confronted with a military conflict and
had to make choices about what policies to pursue. He added that
these Conventions do apply in Iraq, so a different set of interrogation
rules should apply there. Yoo then spoke on the key questions of
torture and intelligence: “I don’t think the Administration
ordered torture…. But I think what the Administration wanted to
know is, what is torture, for purposes of figuring out what you’re
not allowed to do. Because once the Geneva Conventions do not apply,
there is a policy space for more coercive methods…intelligence
gained from captured terrorists is probably the best, if not the
only way, to stop future terrorist attacks on the United States.
And I think the Administration needs to balance that against some
of the costs that would arise from or through coercive interrogations…” 


Roth answered by pointing out that Yoo had mixed up prisoner-of-war
status with the Geneva Conventions when they are two entirely different
things, again asserting that the Geneva Convention rules apply to
all conflicts, meaning that torture and cruel, inhumane, and degrading
treatment are never allowed. Roth also pointed out that Yoo failed
to talk about international human rights law, which applies even
if the Geneva Conventions are ignored. These include such laws as
the Convention Against Torture and the International Covenant on
Civil and Political Rights that provide absolute, unexceptional
prohibitions of torture and are codified by treaty in the U.S. Constitution.
Roth concluded by asserting that torture does not really work and
that this entire episode has “been a disaster for American
standing in the world and, frankly, it’s been a disaster for
our efforts to convince the world that they should be embracing
a human rights approach to the problems of the world rather than
the antithesis: the approach of terrorism.” 


Yoo argued that CIA director and CFR member Porter Goss testified
before Congress that, in Yoo’s words: “coercive interrogation
does work and has led to valuable intelligence. So that’s how
the question came up. Is there space under the law to pursue something
more coercive than simply asking people questions in a room?”
Yoo also defended himself by stating that when he worked on this
problem in 2002, he understood that it would apply only to a “small
group” of “terrorist leaders.” 


Roth answered that on the issue of ultimate responsibility: “let’s
look at…the 28 people who died in U.S. custody interrogation…look
at the systematic abuse that has come out of Guantanamo, out of
the jail at the Bagram air base in Afghanistan, out of various detention
centers in Iraq, and what you find is that an atmosphere and environment
was created at the top. It was created by…this crazy theory that
the president has commander-in-chief authority to order torture.
It was created by the actual orders from Rumsfeld that flout basic
provisions…when he orders that stress positioning can be used,
that sleep deprivation can be used, that people can be stripped
naked and be subjected to dogs, when he doesn’t pursue the
homicides in custody that take place…that creates an environment
when it is entirely predictable that this kind of abuse will occur…abuse
is epidemic…happening in every single major detention facility…where…suspects
are being held…. How can you conclude anything but that the senior
policy-makers had created an environment in which this kind of abuse
has flourished?” 








As
often happens following CFR attention to an issue, members in the
government draft laws or policies based on the council’s work.
Such was the case following this debate, when two CFR senators,
John McCain and Chuck Hagel, sponsored a measure that would prohibit
any branch of the U.S. government from using “cruel, inhumane
or degrading treatment” on any detainee, anywhere in the world.
After the U.S. Senate passed the law by a vote of 90-9, the Bush
White House threatened a veto. Vice President Cheney and CIA Director
Goss then met with McCain to demand an exemption for the CIA and
for secret counter terrorism conducted abroad on non-citizens. 


This attempt to allow the CIA to continue to torture was met with
anger and scorn by some elements of the U.S. ruling class. On October
26, 2005 the

Washington Post

, a newspaper with several key
connections to the CFR (two directors, one vice president, at least
one top correspondent), wrote an editorial “Vice President
for Torture,” arguing that, “Cheney is aggressively pursuing
an initiative that may be unprecedented for an elected official
of the executive branch: He is proposing that Congress legally authorize
human rights abuses by Americans. ‘Cruel, inhuman and degrading’
treatment of prisoners is banned by an international treaty negotiated
by the Reagan administration and ratified by the United States.
The State Department annually issues a report criticizing other
governments for violating it. Now Mr. Cheney is asking Congress
to approve legal language that would allow the CIA to commit such
abuses against foreign prisoners it is holding abroad. In other
words, this vice president has become an open advocate of torture. 


“His position is not just some abstract defense of presidential
power. The CIA is holding an unknown number of prisoners in secret
detention centers abroad. In violation of the Geneva Conventions,
it has refused to register those detainees with the International
Red Cross or to allow visits by its inspectors. Its prisoners have
‘disappeared,’ like the victims of some dictatorships.
The Justice Department and the White House are known to have approved
harsh interrogation techniques for some of these people, including
‘waterboarding,’ or simulated drowning…. CIA personnel
have been implicated in the deaths during interrogation of at least
four Afghan and Iraqi detainees. Official investigations have indicated
that some aberrant practices by Army personnel in Iraq originated
with the CIA. Yet no CIA personnel have been held accountable for
this record, and there has never been a public report on the agency’s
performance. 


“It’s not surprising that Mr. Cheney would be at the forefront
of an attempt to ratify and legalize this shameful record. The vice
president has been a prime mover behind the Bush administration’s
decision to violate the Geneva Conventions and the U.N. Convention
Against Torture and to break with decades of past practice by the
U.S. military. These decisions at the top have led to hundreds of
documented cases of abuse, torture and homicide in Iraq and Afghanistan….
As for Mr. Cheney: He will be remembered as the vice president who
campaigned for torture.” 


At the same time, the

Wall Street Journal

, also closely connected
to the CFR (its chair/CEO and two other directors, along with its
publisher and managing editor are all members), argued with Cheney
and Goss for torture. It favors what it calls “aggressive interrogations,”
questioning if waterboarding is “torture.” In a November
12, 2005 editorial, the

Journal

stated that: “No one
has yet come up with any evidence that anyone in the U.S. military
or government has officially sanctioned anything close to ‘torture.’
The ‘stress positions’ that have been allowed (such as
wearing a hood, exposure to heat and cold, and the rarely authorized
‘waterboarding,’ which induces a feeling of suffocation)
are all psychological techniques designed to break a detainee.” 



T

he increasingly acrimonious
debate on torture continued on December 1, 2005 when Attorney General
Alberto R. Gonzales spoke to the CFR at its New York headquarters,
with CFR board chair Peter G. Peterson chairing the meeting. In
his opening question to Gonzales, Peterson recounted a recent conference
he attended in London where his British hosts sharply rebuked the
U.S. for its torture in Iraq. Gonzales also came under intense questioning
from the audience about the Administration’s policy on torture.
The following is a sampling of the questions and responses.








QUESTIONER: Alan Blinken, former United States ambassador to Belgium.
You said the president has said clearly, “We do not torture.”
One, was the vice president in the room when he said that [laughter]
which I’m being serious about. Two, would you state, as part
of the Administration, unequivocally tonight that the CIA and its
surrogates, in whatever form they are, do not torture any place
in the world?

GONZALES: The president speaks for the Administration. We all work
for the president of the United States, including the vice president
of the United States and including every member of the CIA.

 


QUESTIONER: Mr. Gonzales, the number of cases involving torture
by U.S. agents, military and otherwise, are growing every day, and
it’s not just Mr. Peterson’s British friends who are concerned
about it. Growing numbers of Americans are shocked and ashamed by
it. Many Americans, myself included, view that infamous memo you
wrote for the president when you were his counsel as opening the
doors to these abuses; that memo where you dismissed the Geneva
Conventions as quaint…. My question is, do you have any regret
about authoring that memo and what you said? And do you have any
intention of correcting any impression that that memo left in my
mind, in the minds of a lot of Americans, that you were seeking
to justify the use of torture, which indisputably has occurred in
dozens, hundreds of cases in detention facilities maintained by
U.S. forces all over the world?

 


GONZALES: I disagree with the premise of your question…. Now,
am I saying that abuses have not occurred? No, I’m not saying
that. Unfortunately, abuses have occurred. And the president made
it very clear, when abuses occur, we investigate them, and we hold
people accountable. 


QUESTIONER: I’m Carroll Bogert from Human Rights Watch. Could
we hear, please, whether you consider water boarding to be torture,
whether water boarding is a technique that is tolerated, that has
been used by U.S. forces? And could we hear why Vice President Cheney
has been on Capitol Hill asking for a loophole in the McCain legislation,
if there is the unanimity in the Bush administration that you suggest?


GONZALES:
Not surprisingly, I’m not going to get into a discussion about
specific methods of questioning people who have information.

QUESTIONER: Isn’t that what we’re talking about, though?

GONZALES: But you’re asking me—your question was related
to, about the legality, are we using it and legalities. I’m
not going to talk about specific methods that are used by the United
States government. What I can say is that everyone in the United
States government understands what our legal obligations are. Everyone
understands that the president expects that those legal obligations
are met. And so that’s my answer to your question. And the
second part was relating to the vice president. I’m sorry.
Can you remind me again?

QUESTIONER: Well, he’s been on Capitol Hill talking with senators
about the need for certain loopholes in the legislation that McCain
has suggested. Can you explain why he’s doing that, if there
is the agreement in the Bush administration that you have indicated?

GONZALES: I can’t keep track of what the vice—where the
vice president is these days, and—but let me just say, the
notion that somehow the vice president is not supportive 100 percent
behind what the president has said, is just false. The vice president
and every member of this Administration understands what the president’s
standards are, and that is, that we’re not going to engage
in torture, period. End of story. 


A key part of this dialogue is the fact that Gonzales would not
answer the question about whether water- boarding is considered
“torture” by the Bush administration. The Bush administration,
many members of which have repeatedly denied that torture is going
on, is clearly still parsing the word “torture,” defining
it to only include deliberately caused organ failure or death. This
allows these torturers to continue to engage in illegal and barbaric
activities, including waterboarding. 



Crimes of War, Ruling Class Divisions 



T

he events of the last three
years were watched carefully all over the world. As evidence mounted
that U.S. actions were indeed comparable to fascism, opposition
grew worldwide. 


First, Iraq was invaded and conquered despite being no threat to
the U.S. This was in violation of Article 51 of the UN Charter and
was even called “illegal” by the cautious UN Secretary
General, Kofi Annan. The Nuremberg Tribunal concluded that no nation
is immune from scrutiny for the illegal act of planning and launching
an aggressive war. Second, existing international and domestic humanitarian
law, such as the Geneva Conventions, were declared “obsolete”
by U.S. government lawyers, including current Attorney General Gonzales.
They might have been a bit more cautious had they been aware that
Field Marshal Wilhelm Kietel, commander of the German armies in
World War II, had used almost the exact same wording to declare
that the humanitarian law of the time was irrelevant, resulting
in actions which earned Kietel the death penalty. (He was executed
in 1946.) Kietel said that the humanitarian laws of war of that
time were “a product of a notion…of a bygone era” and
were “obsolete.”








During the 1930s the Japanese insisted on labeling their invasion
of China as an “incident” and not a war so they could
also escape existing Hague and Geneva Conventions. Among the techniques
the Japanese fascists used on its detainees were various forms of
water torture/waterboarding. Following World War II the International
Military Tribunal for the Far East concluded that both the officers
who ordered water torture/waterboarding of detainees and those who
carried it out were guilty of war crimes. Some were executed. 


In this regard the recent Congressional testimony of CIA Director
Goss, as reported by the

New York Times

, is worth noting.
In response to a question from Senator McCain, Goss stated that
waterboarding fell into “an area of what I will call professional
interrogation techniques,” which he defended as a key tool
in efforts against terrorism. Waterboarding has been mentioned in
numerous newspaper and television reports as a commonly used, “approved”
CIA torture technique. CIA Inspector General John Helgerson confirmed
this in a recent leaked report that at least in 2002 and 2003, waterboarding
was an approved technique often used by the CIA. 


Finally, the U.S. military’s actions in Fallujah reminds one,
on a smaller scale, of the Japanese attack of Nanking, China and
the Nazi destruction of Lidice, Czechoslovakia, both infamous examples
of the fascist tendency to punish an entire population for refusing
to submit to foreign domination. Fallujah was a city resisting the
U.S. occupation, where U.S. military contractors had been ambushed,
killed, and their bodies hung from a bridge. This marked the entire
population of the town for punishment and large sections of the
city were leveled with extensive “collateral damage”—civilian
deaths and injuries amounting to U.S. war crimes.  


The current wave of torture and other war crimes is not new in U.S.
history. The U.S. war on Vietnam, the sponsorship of death squads,
massacres, and torture in Latin America, to cite but two recent
examples, have been extensively documented in books, declassified
documents, CIA training manuals, congressional investigations, court
records, and truth commissions. The failure to bring any high level
decision makers to account for these war crimes is one source of
the problems we now have. 


Today, worldwide consciousness, the legal framework and organization
for human rights is much stronger than in the past, putting the
Bush administration, with its open advocacy of preventative war,
torture and abuse, on the defensive. Recent kidnappings, transfer,
and torture of suspects in Europe by the CIA have led to ongoing
investigations by the Council of Europe and prosecutors, parliaments,
and government agencies in Britain, Germany, Spain, Italy, Poland,
Austria, and Denmark. The intense criticism from Europeans has been
a major factor in attempts by some in the CFR—Senators McCain
and Hagel and others—to sponsor another law to bar torture
as counterproductive in a war of ideas. 


As McCain put it: “To prevail in this war we need more than
victories on the battlefield. This is a war of ideas…. Prisoner
abuse exacts a terrible toll on us in this war of ideas…they threaten
our moral standing…” The relevancy of McCain’s ban,
which has passed Congress and been signed by President Bush, is
questionable, since the problem is not a lack of laws on the books,
it is rather the lack of a government which respects and will uphold
the rule of law. As the

Washington Post

pointed out in a
December 2004 editorial: “The record…suggests that the administration
will neither hold any senior official accountable nor change the
policies that have produced this shameful record. Congress, too,
has abdicated its responsibility…. For now the appalling truth
is that there has been no remedy for the documented torture and
killing of foreign prisoners by this American government.” 








The
current sharp divisions within the Council on Foreign Relations
and wider U.S. ruling class about how to respond to the current
situation while successfully maintaining U.S. imperialism’s
worldwide domination, opens some possibilities for mobilizing support
for a real repudiation of the Bush administration’s neo-fascism.
The U.S. ruling class is constantly lecturing other segments of
society about the importance of the “rule of law.” In
the final analysis, they are, of course, frequently talking about
the protection of their own private property interests. But the
law also applies to the serious crimes discussed above, which cannot
be ignored.  


To cite but one example of relevant existing law, a 1996 federal
statute, 18 USC Section 2441, a law without a statute of limitations,
makes it a crime for any U.S. national, military or civilian, to
violate the Geneva Convention by engaging in murder, torture, or
inhumane treatment. Those who order, sanction, or carry out such
crimes all come under this law. Penalties include life imprisonment
and execution if anyone dies under torture. Instead of passing new
laws as public relations stunts, McCain and others should advocate
for the full enforcement of this existing one.  



C

an we expect ruling class
institutions to use their power to uphold the rule of law? Will
key sectors of the powerful private sector demand that a fully independent,
high level special prosecutor be appointed to conduct a full investigation
of any and all domestic and international crimes related to the
U.S. “war on terror” and the wars on Afghanistan and Iraq?
If even some of the reports that have appeared in the daily newspapers
over the past four years are accurate, then there should be plenty
of evidence on which to bring an indictment of all those involved,
as high up the power structure as responsibility goes, and have
a trial. Only through such a complete and fair process will this
issue of war crimes and the resulting shame on our nation have a
chance to go away. Otherwise, it is clear that the rule of law is
a sham and criminal behavior together with impunity is acceptable
for those powerful enough to escape scrutiny.  


At every historical moment we stand at the gate of potential new
worlds, facing alternative human futures. Our actions can influence
that future, but we have to struggle against existing material and
ideological constraints. Understanding these constraints must begin
with the insight that we live in a completely corrupt system bent
on privatizing, commodifying, and despoiling the entire planet.
Meaningful political participation in this system is blocked by
a two-party controlled, winner-take-all electoral system dominated
by the corporate ruling class and groups like the CFR that reduce
our “democracy” to a useless vote between nearly identical
candidates. The first step in constructing a meaningful alternative
is to withdraw our support for an illegitimate system, to refuse
and resist. We cannot depend upon the more liberal sectors of the
ruling class to even promote transparency and the rule of law, let
alone a humane future. In James Baldwin’s prophetic words:
“It is a terrible, inexorable law that one cannot deny the
humanity of another without diminishing one’s own.” The
wider public in the U.S. must demand an immediate end to all war
crimes, an end to illegality and impunity and an accounting for
the lawlessness committed in our name and with our tax money. Only
this will protect us. 


In the short term, a non-violent national insurrection, a campaign
of mass civil disobedience, including tax resistance, strikes, and
boycotts is now needed. Resistance can build the solidarity, direct
democracy, and cultural transformation needed to open the door to
a new world of equality, ecology, and social justice. In the longer
term, we need a people’s think tank/membership organization
that can plan and organize both for the survival of our planet and
a peaceful and cooperative future worthy of human beings. 


To uphold the rule of law, foreign governments should investigate
top U.S. officials and, if those investigations support prosecution,
these governments should arrest any of these officials who enter
their territory and begin legal proceedings against them. These
and other actions by governments and people who believe in law,
peace, and justice are imperative. Everyone can have a role in bringing
to account the criminals who have tortured and murdered so many
in wars of aggression justified by lies. At the same time such a
struggle can promote a positive vision of equality, solidarity,
and social justice in favor of an economic and social system centered
on direct popular power, the democratization of our economy and
society, with the goal of enhancing all forms of life.


 





Laurence
H. Shoup has taught U.S. history at several universities and written
three books, including:

Imperial Brain Trust: the Council on Foreign
Relations and U.S. Foreign Policy,

reprinted by iUniverse (2004).