In the next section of the Yoo memo, he addresses the question of why domestic law should not apply to US army staff or others who are conducting interrogations abroad when the Uniform Code of Military Justice appears to suggest it does.
The special maritime and territorial jurisdiction laws of the Uniform Code of Military Justice allow for the prosecution of crimes committed on US bases by army officers under domestic criminal law, as long as the sentence for the crime exceeds one year.
However, if it is less than a year, the matter is handled by the army. Actions which would constitute a conventional crime of simple assault or assault by striking, beating or wounding carry a sentence of six months, and therefore domestic law is not applicable. With more serious assaults – assault resulting in serious bodily injury, assault with a dangerous weapon (which could include a broom or similar), assault with intent to murder, assault with intent to maim or torture – or the crime of maiming, “Because the statute requires specific intent, i.e., the intent to maim, disfigure or torture, the absence of such intent is a complete defense to a charge of maiming.” In short, as long as the interrogator does not use a weapon and can prove that all injuries beyond simple assault were unintentional consequences of the interrogation, the provisions for prosecution under domestic law do not apply. Of course, the kicker is assault with intent to torture (see below).
Moreover, “a federal, non-military officer [i.e. CIA agent] who is conducting interrogations in a foreign location, one that is not on a permanent U.S. military base or diplomatic establishment, would not be subject to the federal criminal laws applicable in the special maritime and territorial jurisdiction.” By contrast, members of the armed forces are subject to the UCMJ restrictions wherever they were conducting the interrogation, whether in a US or non-US base.
This is why the CIA is so central to the violation of conventional norms of war, as indeed it has been since its inception. I always thought ‘black sites’ were set up in order to remove dangerous individuals from the public eye for reasons of public relations. This memo seems to suggest that the legal constraints on the CIA in a black site are effectively non-existent, unlike in a US military base, and implies therefore the reason for putting KSM or similar in a black site was precisely in order to give the CIA operative greater latitude to torture. This reveals quite how much high-level legal thought went into this effort to torture detainees. It also raises the possibility that CIA agents went beyond even the torture activities we know of in black sites.
The lessons from this section of the memo seem clear: use the CIA, only conduct actions that classify as simple assault on US bases, or can be explained as accidents that came about as an unintended result of a simple assault, and do what you like on black sites.
This reveals once again the central importance of two further positions held by the Bush administration: the claim that these extreme interrogation methods are not torture, and the claim that the Geneva Convention does not apply to unlawful combatants. I addressed the second in my previous post. As to the first, Yoo argues that torture only applies to “an extreme form of cruel and inhuman treatment” which causes “severe pain and suffering” and is “intended to cause severe pain and suffering.” This means that “cruel, inhuman or degrading treatment or punishment” is not torture.
In short, the CIA is in the right because it limits itself only to cruel, inhuman and degrading treatment. As Yoo puts it, “the United States is within its international law obligations even if it uses interrogation methods that might constitute cruel, inhuman, or degrading treatment or punishment, so long as their use is justified by self-defense or necessity.” I doubt any further comment about this statement is either necessary, or can do justice to its moral turpitude.
Think Of the Children
1 hour ago
1 comments:
Perhaps part of the problem is (as you allude) that the CIA is, by its very nature, an organization engaged primarily in illegal activities. Even when merely collecting non-public information about the activities of foreign governments and foreign organizations, its actions normally break the laws of those foreign countries - espionage is illegal in most countries. So, even if the CIA undertook no black ops, captured, detained or interrogated no foreign enemies of the United States, and undertook no counter-espionage activities against foreign enemies, most of its staff would still spend most of their time acting illegally -- with respect to some jurisdiction or other. Although it may be possible to define explicitly what activities are or are not permitted by CIA personnel, drawing a line to prohibit the CIA from engaging in kidnapping (aka extra-ordinary renditions), torture and special operations while still permitting them to undertake espionage, information collection, and counter-espionage activities is certainly not necessarily morally or organizationally straightforward.
- Peter
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