Michael Posner on the ABA’s Strong Stand Against Torture and Official Cruelty

Here’s HRF President Michael Posner writing on the resolution recently passed by the ABA asking Congress to overturn the Bush Administration’s July 20th executive order that leaves the door open to torture and official cruelty by the CIA. The ABA’s strong anti-torture position is the latest evidence of the groundswell of support across the country for a change in policy and an end to torture and other cruel, inhuman and degrading treatment. The following piece was originally published in the Daily Journal.

By Michael Posner
August 16, 2007

On August 13, the American Bar Association passed a resolution urging Congress to enact legislation superseding a recent executive order that interpreted a provision of the Geneva Conventions that requires the humane treatment of detainees. That order gives the CIA latitude to use “enhanced interrogation techniques” — a euphemism for acts of official cruelty.

The United States has a proud history of requiring humane treatment of enemy prisoners, a tradition that dates back to the founding of our country. At the battle of Trenton in 1776, Gen. George Washington directed his troops to treat captured British soldiers “with humanity.” Following World War II, the United States led the international effort to adopt the Geneva Conventions, including their important humane treatment provisions.

Given this proud history, how did our government come to authorize official cruelty and why do representatives of the administration continue to defend it? The answer, at least in part, goes back to the origins of what the administration calls the “global war on terror.” Days after the Sept. 11 attacks, the Bush administration had staked out positions that the president, as commander in chief, needs virtually unbridled power to carry out a war that has no limits on time or place, against a broadly defined set of enemies.

While wartime presidents rightfully have been granted wide latitude to make military decisions in the past, the administration’s “global war on terror” goes well beyond that. Yes, the military response to root out the Taliban and al-Qaida in Afghanistan in 2001 was a war. But the arrest and criminal prosecution of al-Qaida shoe bomber Richard Reed in the United States was not. Unfortunately, the administration has sought to blur this distinction from the outset and has tried to frame the global war against terrorism in the broadest manner possible.

This resistance to legal constraints has been most profound in detention and interrogation policies. In early 2002, as the first detainees were transferred from Afghanistan to the detainment camp at Guantanamo Bay, the administration concluded that it would not afford the Geneva Convention’s prisoner of war protections to the Taliban or al-Qaida. While asserting that detainees would be treated “humanely,” the administration indexed that treatment to what was considered “appropriate and consistent with military necessity” — standards that have never been explained or defined.

In 2002, the administration signed off on abusive interrogation techniques for use at Guantanamo and at “black sites” — secret CIA detention facilities holding senior al-Qaida suspects. Extreme tactics were permitted on the proviso that they would not cause pain equivalent in intensity to “organ failure, impairment of bodily function, or even death.”

Abusive interrogations became front-page news in the spring of 2004, with the release of photographs from the Abu Ghraib prison in Iraq, but the abuses have been more widespread and dramatic than just that incident. Since 2002, more than 100 people have died in U.S. custody in Afghanistan, Iraq and elsewhere. Based on the Pentagon’s own definitions, at least 34 of these cases are criminal homicides. None of those homicides took place at Guantanamo and only one occured at Abu Ghraib. Human Rights First has documented eight cases in which those held in U.S. custody were literally tortured to death.

Fortunately, both Congress and the courts have acted in accordance with their Constitutional mandates. In 2005, Congress passed the Detainee Treatment Act, which explicitly prohibited cruel, inhumane or degrading treatment of detainees in U.S. custody. In 2006, the Supreme Court ruled that Common Article 3, which contains the humane treatment provisions of the Geneva Conventions, applies to the conflict with al-Qaida. Following that decision, the U.S. military took a number of positive steps to implement the court’s requirements, most notably adopting a new Army Field Manual on Intelligence Interrogations.

The intent of the new Army Field Manual was to create a single, bright-line standard for the treatment of detainees in U.S. custody. At stake, the Army has made clear, is not just the physical safety of prisoners detained by the United States, but of American service members as well. Almost 50 retired military leaders wrote President Bush last September, urging fidelity to Common Article 3, stating: “If degradation, humiliation, physical and mental brutalization of prisoners is decriminalized or considered permissible … we will forfeit all credible objections should such barbaric practices be inflicted upon American prisoners.”

Sadly, the administration continues to resist this standard. The July executive order contains a number of provisions that provide the CIA with greater latitude to stray from the Common Article 3 humane treatment standard. The order ignores Sen. John McCain’s reminder during the debate on the Military Commissions Act that while creating regulations for interrogations, the “President is bound by the Conventions themselves.”

The ABA’s advocacy of legislation that supersedes the executive order is a clarion call for the restoration of legal guidelines and moral clarity. Guaranteeing the minimum protections of humane treatment for all detainees would be a significant step forward. The U.S. government must uphold a single standard by which all U.S. personnel, including members of the CIA and private contractors, are allowed to interrogate and treat enemy detainees.

As Congress takes these issues up in the fall, the ABA’s strong, principled leadership is a welcome reaffirmation of the legal community’s commitment to the rule of law.

Congress would do well to listen.

Michael Posner is the president of Human Rights First in New York City.


Published on August 17, 2007


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