Beautiful Horizons: Torture and Habeas Corpus

Katherine and Hilzoy have been carrying the ball and doing it quite well I might add at Obsidian Wings on Lindsey Graham's efforts to do away with habeas corpus for terror suspects. Just click here and read down to November 9. For those of you who presume the guilt of the suspects, I suggest you read this (hat tip to Kevin Drum):

As the Senate prepared to vote Thursday to abolish the writ of habeas corpus, Sens. Lindsey Graham and Jon Kyl were railing about lawyers like me. Filing lawsuits on behalf of the terrorists at Guantanamo Bay. Terrorists! Kyl must have said the word 30 times.

As I listened, I wished the senators could meet my client Adel.

Adel is innocent. I don't mean he claims to be. I mean the military says so. It held a secret tribunal and ruled that he is not al Qaeda, not Taliban, not a terrorist. The whole thing was a mistake: The Pentagon paid $5,000 to a bounty hunter, and it got taken.

The military people reached this conclusion, and they wrote it down on a memo, and then they classified the memo and Adel went from the hearing room back to his prison cell. He is a prisoner today, eight months later. And these facts would still be a secret but for one thing: habeas corpus.

Only habeas corpus got Adel a chance to tell a federal judge what had happened. Only habeas corpus revealed that it wasn't just Adel who was innocent -- it was Abu Bakker and Ahmet and Ayoub and Zakerjain and Sadiq -- all Guantanamo "terrorists" whom the military has found innocent.

Habeas corpus is older than even our Constitution. It is the right to compel the executive to justify itself when it imprisons people. But the Senate voted to abolish it for Adel, in favor of the same "combatant status review tribunal" that has already exonerated him. That secret tribunal didn't have much impact on his life, but Graham says it is good enough.

Soon Franz Kafka will taken out of the fiction section.

As for the subject of torture, the New York Times has an interesting op-ed about the possible origins of the interrogation techniques:

Fearful of future terrorist attacks and frustrated by the slow progress of intelligence-gathering from prisoners at Guantánamo Bay, Pentagon officials turned to the closest thing on their organizational charts to a school for torture. That was a classified program at Fort Bragg, N.C., known as SERE, for Survival, Evasion, Resistance, Escape. Based on studies of North Korean and Vietnamese efforts to break American prisoners, SERE was intended to train American soldiers to resist the abuse they might face in enemy custody.

The Pentagon appears to have flipped SERE's teachings on their head, mining the program not for resistance techniques but for interrogation methods. At a June 2004 briefing, the chief of the United States Southern Command, Gen. James T. Hill, said a team from Guantánamo went "up to our SERE school and developed a list of techniques" for "high-profile, high-value" detainees. General Hill had sent this list - which included prolonged isolation and sleep deprivation, stress positions, physical assault and the exploitation of detainees' phobias - to Secretary of Defense Donald Rumsfeld, who approved most of the tactics in December 2002.

Some within the Pentagon warned that these tactics constituted torture, but a top adviser to Secretary Rumsfeld justified them by pointing to their use in SERE training, a senior Pentagon official told us last month.

So the interrogation model is the Red Army? God, wake me when this is over . . .

Even the conservative The Economist is commenting on how bad this is:

If the pragmatic gains in terms of information yielded are dubious, the loss to America in terms of public opinion are clear and horrifically large. Abu Ghraib was a gift to the insurgency in Iraq; Guantánamo Bay and its dubious military commissions, now being examined by the Supreme Court, have acted as recruiting sergeants for al-Qaeda around the world. In the cold war, America championed the Helsinki human-rights accords. This time, the world's most magnificent democracy is struggling against vile terrorists who thought nothing of slaughtering thousands of innocent civilians—and yet the administration has somehow contrived to turn America's own human-rights record into a subject of legitimate debate.

Can we let this please be the last word on the ineffectiveness of torture as an interrogation technique (hat tip to a commenter at this post by Tim Dunlop)?

Finally, Roxanne points me to this op-ed in the San Francisco Chronicle about the possibility that the Pinochet precedent may make those who wrote the policy that led to torture at Abu Ghraib and elsewhere, might want to limit their travel to domestic travel:

[John] Yoo, a UC Berkeley law professor, is the author of legal advice that rode roughshod over the torture convention, and contributed to at least one opinion that ignored the well-established international definition of torture.

These opinions are plainly inconsistent with the requirements of international law. They may have opened a door into the forbidden world of torture, and were perhaps offered as part of a policy on the part of the U.S. administration to allow more aggressive interrogation techniques in the "war on terror."

Yoo was well aware of the torture convention. However, when I raised the Pinochet precedent in our debate, he seemed slightly taken aback.

It seems he may not have turned his mind to the possibility that a legal adviser associated with a policy that permits torture contrary to international legal obligations could be subject to international investigation.

Here's the relevant language:

The potential problem for Yoo, vice presidential chief of staff David Addington and others who may have been associated with torture, is to be found in Article 4 of the convention. This section criminalizes not only the act of torture itself but also other acts, including "an act by any person which constitutes complicity or participation in torture."

Henry Kissinger has limited his travel based on the mere possibility of being questioned. One wonders what Yoo and Addington may have to do.