What Fresh Hell Is This?

June 15, 2015

John Oliver On Torture

From June 14:

It's worth a watch, if only for Dame Helen Mirren's characterization of one of the enhanced uses of hummus.

This is what Oliver is talking about - the Senate Torture Report.
He also mentions this Executive Order.

Here's something I think he gets wrong. At 4:03 Oliver says:
And if you're thinking, "Why are we talking about this now?  Didn't we pass a law banning all those enhanced interrogation techniques?"  Well it turns out, no we didn't.  We checked and the only restrictions put in place were by an Executive Order signed by President Obama in 2009 requiring interrogations to follow the Army Field Manual.  That's it.  And Executive Orders can be instantly overturned as soon as a President leaves office.
That last part is true - that Executive Orders can be instantly overturned by the next President (as we'll see in a second).  The question here is: is it true that the restrictions found in that Executive Order the only restrictions against torture on the books?

I'm not a lawyer by any means but I think the answer has to be no.  Let's take a look at the order itself.

Signed on January 22, 2009 it reads, in part:
By the authority vested in me by the Constitution and the laws of the United States of America, in order to improve the effectiveness of human intelligence gathering, to promote the safe, lawful, and humane treatment of individuals in United States custody and of United States personnel who are detained in armed conflicts, to ensure compliance with the treaty obligations of the United States, including the Geneva Conventions, and to take care that the laws of the United States are faithfully executed, I hereby order as follows:

Section 1. Revocation. Executive Order 13440 of July 20, 2007, is revoked.
See that? One Executive Order revoked another.

But look at the text.  The order states "...to ensure compliance with the treaty obligations of the United States, including the Geneva Conventions...".

We've already written about our treaty obligations and the fact that torture is already against the law.

In this setting and this is according to the treaty signed by Ronald Reagan in 1988, "torture" is defined as:
...any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
And what was in Executive Order 13440, the one that Obama revoked?  It states, in part, that George W Bush:
...determined for the United States that members of al Qaeda, the Taliban, and associated forces are unlawful enemy combatants who are not entitled to the protections that the Third Geneva Convention provides to prisoners of war.
By defining al Qaeda, the Taliban etc as being "unlawful enemy combatants" Bush's executive order removed any protection they may have had as prisoners of war.  But he went further:
Pursuant to the authority of the President under the Constitution and the laws of the United States, including the Military Commissions Act of 2006, this order interprets the meaning and application of the text of Common Article 3 with respect to certain detentions and interrogations, and shall be treated as authoritative for all purposes as a matter of United States law, including satisfaction of the international obligations of the United States.
And then the delicate dance begins. Bush then states outright something Oliver said wasn't there:
I hereby determine that a program of detention and interrogation approved by the Director of the Central Intelligence Agency fully complies with the obligations of the United States under Common Article 3, provided that:
(i) the conditions of confinement and interrogation practices of the program do not include:
(A)   torture, as defined in section 2340 of title 18, United States Code;
(B)   any of the acts prohibited by section 2441(d) of title 18, United States Code, including murder, torture, cruel or inhuman treatment, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, taking of hostages, or performing of biological experiments;
(C)   other acts of violence serious enough to be considered comparable to murder, torture, mutilation, and cruel or inhuman treatment, as defined in section 2441(d) of title 18, United States Code;
See?  Torture is already illegal by way of section 2340 of title 18.  But then we get to Bush's the illegal loophole:
(2)  the interrogation practices are determined by the Director of the Central Intelligence Agency, based upon professional advice, to be safe for use with each detainee with whom they are used; and
So if the Director of the CIA determines that the "interrogation practices" are safe, then they're not torture - see that??

The way Bush got away with Torture was to define waterboarding et al as not-Torture.  Even though he didn't have the authority to do so - he only claimed to have that authority.  Hey, remember all the trouble Obama got from conservatives because they were claiming he was dictating new law by way of Executive Order?  Remember hearing a peep out of any of them concerning Bush's redefining waterboarding as not-torture?

Executive Orders aside, torture is still illegal and Bush's gambol over the Constitution is still a war crime.

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