JURIST Guest Columnist Jordan Paust of the University of Houston Law Center says that repeated protestations from President Bush, Secretary of State Condoleezza Rice and other US administration officials that "we do not torture" miss the point that the US has by any meaningful standard engaged in illegal cruel, inhuman and degrading treatment of prisoners and needs to change course urgently…

Whether or not they technically constitute “torture” or “violence to life and person” within the meaning of the 1949 Geneva Conventions, it is quite clear that what we saw in photos from Abu Ghraib were patently illegal forms of treatment of human beings detained during war. For example, stripping persons naked, hooding them for interrogation purposes and using dogs to intimidate and even terrorize are among tactics and treatment of detainees of any status that are clearly proscribed. Common Article 3 of the Geneva Conventions prohibits not merely torture, but also any cruel, inhuman, degrading, and humiliating treatment of a detainee “in all circumstances.” Such conduct during any armed conflict is a war crime regardless of purpose or feigned excuses on the basis of reciprocity, reprisals, or alleged necessity. There are no exceptions and there is no immunity. The same absolute prohibitions exist under human rights treaties that the United States has ratified and customary human rights law in time of war or relative peace.

Recently, US Attorney General Gonzales claimed that what we saw in the photos was not approved, but we can’t believe Alberto Gonzales. Secretary of Defense Donald Rumsfeld authorized the stripping of persons naked, use of dogs, and hooding as interrogation tactics in an action memo on December 2, 2002 and in another memo on April 16, 2003, adding that if additional interrogation techniques for a particular detainee were required he might approve them upon written request. There is no indication that his 2003 illegal authorization has been withdrawn. We can’t trust Donald Rumsfeld. Moreover, Brigadier General Janis Karpinski stated in August of this year that after Major General Miller was sent to Iraq to GITMOize interrogation tactics a Rumsfeld memo was posted on a pole outside at Abu Ghraib and that it authorized the use of dogs for interrogation.

Other malevolent memos abetting a common plan to deny rights under the laws of war and nonderogable human rights law made their appearance in the Department of Justice, the Office of the White House Counsel (by Gonzales), the Department of Defense, and some report, the Central Intelligence Agency. “Water boarding” to produce a terrifying fear of drowning, CIA Director Goss opines, is not “torture” but merely an approved “professional interrogation technique.” We can’t trust Porter Goss. For more than two years, “torture” was redefined in the Bybee DOJ memo to require pain involving death, permanent organ failure, or loss of a significant body function. The falsehood fooled no one when it finally came to light.

Among the illegal orders and authorizations of President Bush that have not been withdrawn is a February 7, 2002 memorandum authorizing the denial of legal rights and protections under the Geneva Conventions. The presidential memo has ordered humane treatment of detainees merely “in a manner consistent with the principles of Geneva” as opposed to the well-known requirements of Geneva law and then only “to the extent appropriate and consistent with military necessity,” despite the fact it is not “appropriate” to deny absolute rights and protections required by Geneva law and alleged military necessity does not justify the denial of required treatment. Necessarily, the 2002 memo authorized and ordered the denial of rights and treatment required by the Geneva Conventions and, therefore, necessarily authorized and ordered violations of the Conventions, and violations of the Conventions are war crimes. After all of the revelations concerning illegal interrogation and treatment of detainees, we know of no corrective order by the President.

Instead, we hear the President, Vice President, Attorney General, and most recently Secretary of State Condoleezza Rice on her recent trip to Europe canting “We do not torture,” as if that is all that is proscribed — even when pressed by savvy reporters who dare to ask, “But what about cruel, inhuman, degrading, or humiliating treatment?” Secretary Rice also tried to get Europeans to focus merely on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), with attempted U.S. reservations and understandings that are clearly inconsistent with the object and purpose of the treaty and, thus, void ab initio as a matter of law. In any event, European countries are bound to refuse to be complicit in violations of the laws of war and various human rights treaties, including the European Convention. While outside the reach of Cheney, Addington, Rumsfeld, and Gonzales and while pressed by Europeans, Secretary Rice announced that, “as a matter of U.S. policy,” cruel and inhuman treatment under the CAT will no longer be allowed and that despite prior interpretive games the Executive branch interprets the law like the European countries. But does Condi speak for the President? Will she openly affirm that the same forms of illegal treatment are proscribed under Geneva law, several human rights treaties, and customary international law?

Mr. President, we and much of the rest of humanity simply do not believe you or the Vice President, especially when both of you have openly resisted the McCain amendment that was approved by a 90 to 9 vote of the United States Senate to merely reaffirm the absolute ban on torture and cruel, inhuman, and degrading treatment of any detainee in U.S. custody or control and you tolerate stripping human beings naked and hooding them, use of dogs, “cold cells,” and water boarding, among other illegal tactics. By the way, your pardon power expressly applies only with respect to offenses against the United States as such and not to international crimes.

More generally, war crimes policies and authorizations are not merely a threat to constitutional government and our democracy. They also degrade our military, place our soldiers and CIA personnel in harms way, thwart our mission, and deflate our authority abroad. They can embolden an enemy, serve as a terrorist recruitment tool, and fulfill other terrorist ambitions.

Jordan Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston and a former Captain, U.S. Army JAGC and member of the faculty at the Judge Advocate General’s School (1969-1973). He is also Co-Chair of the American Society of International Law International Criminal Interest Group.
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