The whole story erupted like a volcano with the release on April 16, 2009 of the four top secret memos on the torture. They were prepared by the Office of the Legal Counsel (OLC) of the Justice Department in the year 2002. Prepared by John C. Yoo, Steven G. Bradbury and Jay S. Bybee, these memos virtually gave a green signal to the CIA operatives to inflict torture of the prisoners by giving a highly perverse interpretation of the law. The memos defended the use of waterboarding (a cruel form of simulated drowning), as well as sleep deprivation, isolation and physical violence.
The picture which comes out of the torture used by the interrogators of the Bush Administration is utterly disgusting and shameful. The methods used to extract confession from the prisoners were unconstitutional, grossly uncivilized, inhumane, and in violation of The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which the United States is a signatory. According to Manfred Nowak who is the special United Nations rapporteur on torture, the USA is bound under the above Convention to prosecute those who engage in torture. According to him the decision of President Obama not to prosecute CIA agents who used torture tactics is a violation of international law.
Leon Panetta, the director of CIA, was not in favor of releasing the memos, at least without heavily redacting them. The CIA director reasonably felt that such release would hamper the work of CIA interrogators in future, as they would be under tremendous pressure to confine themselves to the red lines. He also felt that it would have an undesirable effect on their relationship with the foreign intelligence agencies.
According to the declassified information, waterboarding was used on alleged 9/11 mastermind Khalid Sheik Muhammed 183 times in March 2003. Suspected al-Qaida logistics Chief Abu Zubaydah was subjected to the treatment 83 times in August 2002.
It is naïve to believe that the degrading acts of cruelty performed by the intelligence gathering operatives have enhanced the security of the great American nation even by an iota. On the contrary it has dragged country’s name in mud, and encouraged terrorists of all sorts to outperform Americans in devising more and more diabolical ways to inflict tortures on their prisoners, some of whom might well be Americans.
The insects used by the CIA operatives to extract information by instilling fear amongst prisoners is a throwback to the Paleolithic times when large swarms of stinging insects were released in the caves to smoke the enemy out of their shelters. The use of waterboarding, physical violence, sleep deprivation and other forms of torture remind us of Gulags of the Soviet era. They were also used by the communist regime in China against their enemies in the fifties. The notorious Pol Pot in Cambodia did not have any compunction in using such methods.
Where is the moral pre-eminence of America when such repulsive practices was allowed and encouraged by the Bush administration in the name of making the nation more secure? The then director of intelligence, the then defense secretary and the then attorney general are in the dock of public scrutiny and they should be given an opportunity to say as to what extent they were involved in organizing the most nauseating drama in the history of this nation.
The domestic law of the USA is very clear on this issue. Torture is defined in the section 2340 of United States Code Title 18. The punishment for committing torture is provided for in the section 2340A. Both these sections can be seen below.
Section 2340.
Definitions
As used in this chapter—
(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or 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; and
(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.
Section 2340A. Torture
(a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
(b) Jurisdiction— There is jurisdiction over the activity prohibited in subsection (a) if—
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.
The legal opinion tendered by a counsel cannot supplant or upstage the substantive law. If a competent court decides that torture as defined under section 2340 was actually committed, the penal provisions of section 2340A will immediately become enforceable. The accused will include not only those intelligence agents who actually performed the torture but also all those who abetted in the crime by giving direction or justification, howsoever senior they might be in the hierarchy of the administration.
President Obama is now being buffeted from all sides. The liberal Democrats as well the civil right groups are encouraging him to prosecute the involved CIA investigators as well the lawyers in the Justice Department who gave an opinion, prima facie in contravention of the domestic and international law. They feel that the President has a sworn duty to preserve, protect and defend the constitution and execute the laws of the United States. On the other hand, the conservative Republicans are shocked at the talk of applying human values to the ranking terrorists. They believe that the organs of Bush administration had been functioning legitimately and properly in defending the nation with all the ingenious methods at their disposal. The whole thing has become a public clash of values and perspectives.
As things stand presently, the President Obama has decided not to prosecute those who directly or indirectly were responsible for inflicting torture. He has also forbidden the intelligence agencies the use of torture as an investigating tool. It is difficult to predict how things will shape in future. But one thing is certain. President might be regretting now the day he decided to declassify the top secret memos. It is easy to open a can of worms, but difficult to persuade the worms to go back in the can.
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