If there is a downside to the recently released executive summary of the U.S. Senate Torture Report [PDF], it can be found in the extraordinary lengths to which it goes to demonstrate a long-established fact: Torture is ineffective as a means for extracting actionable intelligence.
Emboldened by that focus, U.C. Berkeley Law Prof. John Yoo authored a response to the Senate Torture Report by way of a recent, Los Angeles Times op-ed. In 2002, while serving as the Deputy Assistant U.S. Attorney General, Yoo authored a memo that green-lighted CIA torture following the 9/11 attacks. The memo, according to UC-Irvine’s renowned constitutional law professor Erwin Chemerinsky, should now serve as the basis for the prosecution of Yoo for war crimes. Shielded by the Obama/Holder Dept. of Justice’s refusal to prosecute, Yoo shamelessly argued in his Los Angeles Times editorial that the newly released Senate Torture Report had shifted [emphasis added] “the debate beyond legality to effectiveness.”
The issue of torture’s “effectiveness” is not and never has been an appropriate subject for “debate.” Robert Colville, the U.N. High Commissioner for Human Rights makes that clear in referencing the U.N. Convention against Torture, an international human rights treaty to which the U.S. is a signatory. “Torture is prohibited absolutely, in all circumstances, at any time,” he explains in regard to the treaty signed by President Ronald Reagan. “It cannot be practiced in war, in peace, during emergencies, during internal instability, any circumstances whatsoever.”
Those legal proscriptions apply not only to those who carry out torture but also, under the principle of “command responsibility,” to high level officials who facilitate or fail to prevent torture by their subordinates.
As I revealed in my five-part series on the History of CIA Torture: Unraveling the Web of Deceit back in 2009, for me, torture is exceedingly personal. In late 1942 my father, James R. Canning, was waterboarded at Shanghai’s Bridge House, an infamous torture chamber — something that entailed a frightening, traumatic and “exquisitely painful,” six-hour ordeal. He eventually signed a “false confession” stating that he was a British agent, even though he knew it wasn’t true and even though he believed at that moment he was signing his own death warrant.
This Partial Trial Transcript [PDF] includes my father’s testimony at the 1948 Hong Kong War Crimes Trials. It exposes the hypocrisy in the Obama/Holder DoJ’s failure to apply the same (“command responsibility”) legal standard to Yoo, former Vice President Dick Cheney — who now proudly declares “I’d do it again in a minute!” — and other high-level, Bush administration officials.
In 1948, that “command responsibility” standard was used to convict Lt. General Eiichi Kinoshida, who received a life sentence even though there was no evidence he personally participated in torture.
If we are indeed, as proclaimed by Sen. Diane Feinstein (D-CA) in her Forward to the Senate Torture Report, a “nation of laws,” President Obama will heed the calls now being made by the ACLU, Human Rights Watch and even by The New York Times to appoint a special prosecutor who would investigate the crimes the CIA allegedly committed at the behest of Cheney et al — crimes that appear as heinous and more so than those that were inflicted upon my father and his fellow civilian inmates during World War II…
Worse than Bridge House?
No doubt many readers will find the partial trial transcript of the 1948 war crimes trial disturbing. The conditions it depicts at Shanghai’s Bridge House include the crowding of as many as 19 prisoners in a filthy, insect and vermin infested 19′ x 11′ cell with inadequately fed and, especially during cold winter months, inadequately clothed, civilian prisoners, left with nothing more than a single bucket in the same cell to relieve themselves.
As described in the partial transcript, prisoners at Bridge House were subjected to a variety of tortures, including electric shock treatments, prolonged beatings, stringing prisoners up by their thumbs and waterboarding in order to “make their bodies confess.” The transcript reveals that at least two Bridge House detainees died while in custody of the Japanese military, including a Chinese man who was deliberately deprived of food and water.
Despite a number of horrific descriptions of similar techniques carried out by the CIA against many prisoners (many of whom turned out to be completely innocent of any crime whatsoever), the Senate’s 499-page executive summary might appear relatively sterile to the uninformed. However, it must be kept in mind that the Senate’s more than 6,700-page full report remains classified. The CIA destroyed videotapes that could potentially show that CIA waterboarding was as brutal as my father’s 6-hour ordeal in which he repeatedly lost consciousness, only to awaken to observe one of the Japanese soldiers rolling back-and-forth on his stomach in order to extract water that had been forced up his mouth and nostrils and into his lungs.
Importantly, where the war crimes trial after WWII exposes the brutality of torture from the point of view of the tortured, the Senate Report, a compilation of more than 6 million pages of internal CIA documentation, reveals only the point of view of the torturers themselves.
The methods applied by the Japanese Kempetai at Bridge House were crude in comparison to the CIA’s application of the science of torture, which, as discussed in Part II of our five-part series on the History of CIA torture, quoting Prof. Alfred McCoy, was the product of a “Manhattan Project of the mind” conducted by the CIA between 1950-1962 at a cost of more than $1 billion/year.
While the Bridge House prisoners suffered tremendously, at least they had one-another in that horrific 19’x11′ cell. By contrast, the Senate Torture Report reveals a systematic application of the CIA’s 1963 KUBARK torture manual. CIA detainee/victims, in the years following on 9/11, were forced to suffer prolonged isolation and prolonged sleep and sensory deprivation coupled with the Soviet KGB technique of self-inflicted pain brought on by being forced to remain in inhumane stress positions for extended periods.
The Senate Torture Report documents:
In one instance, the victim was “chained to a wall in the standing position for 17 days.” Other victims were stripped naked, doused with or submerged in freezing water, shackled and deprived of light. And, unlike the Bridge House prisoners, the victims of CIA torture were subjected to what amounts to rape by a foreign object in the form of “rectal hydration” tubes.
Accountability
Comparative analysis suggests that the most disturbing gap between then (post-WWII) and now (post-9/11) can be found within the concept of accountability.
As explained by Prof. Suzannah Linton, a British law professor who compiled the Hong Kong War Crimes Trial Collection, the question of legal accountability for war crimes committed during World War II was first addressed by President Franklin D. Roosevelt in an Oct. 7, 1942 declaration. The United Nations War Crimes Commission began collecting lists of criminals in 1943 and a “Sub-Commission” to investigate Japanese war crimes was created in May 1944.
While due process was afforded when the victorious World War II allies conducted the Nuremberg and Hong Kong War Crimes Trials, the legal basis for doing so was perhaps more tenuous in 1948 than it is now. Japan, for example, was not a party to the U.N. War Crimes Commission when that U.N. Commission began collecting lists of criminals in 1943. By contrast, the United States is a party to the 1984 United Nations Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment.
Under that treaty, and the 1949 Geneva Convention, the U.S. has a legal obligation to either investigate, and when warranted, prosecute those suspected of torture or to extradite every person reasonably accused of having legal responsibility for torture to other nations who, in lieu of our doing so, are willing to carry out the prosecution required by signatories of the treaty.
While Feinstein praises Obama for ordering an immediate end to CIA torture, as we explained in “Fixing the Facts and Legal Opinions Around the Torture Policy”, the President’s use of sophistries in which, out of political expediency, he equated law enforcement with “retribution”, amounted to a violation of his solemn oath to see that the laws of the United States are faithfully executed. That oath applies to our treaty obligations under the “Supremecy Clause” of the U.S. Constitution (Article 6) declaring that all such treaties to which the U.S. are signatories “shall be the supreme law of the land”.
If the President belatedly heeds calls for a special prosecutor and the standard applied at the 1948 Hong Kong War Crimes Trials where my father testified, is applied now, Bush, Cheney, Yoo and others would be brought before the bar of justice.
Though belated, the appointment of a special prosecutor would represent a significant step towards restoring the concept of “Equal Justice Under Law” that appears above the entrance to the U.S. Supreme Court.
• U.S. Senate Torture Report (executive summary, released 12/9/2014) [PDF]
• Shanghai Kempetai Bridge House Trial (partial transcript, James R. Canning, 12/23/1948) [PDF]
“It is forbidden to kill therefore all murderers are punished unless they kill in large numbers and to the sound of trumpets.” -Voltaire
The same seems to be applicable to torture (Petroleum Civilization: The Final Chapter – Confusing Life with Death).
Keep up the good work Ernie.
To the paid media, this is called, “old news”.
And NOW: back to missing airliners.
Brad does not repeat the falsehood that “the Japanese were executed for waterboarding” which the imbecile Thom Hartmann repeats.
Those executed at the Tokyo military tribunals had committed grotesque War Crimes with many murdered – hundreds up to hundreds of thousands in Nanking China 1937. Some also tortured American POWS. One deliberately starved them. One POW camp commander incinerated POWs as the liberators neared. He probably didn’t live to be tried.
Two men died under his “care” so the Japanese officer in Shanghai therefore faced the death penalty. Note that the codefendant actually inflicting cruelty such as electroshocks only got 12 years.
Dick Cheney was absolutely correct to point that out about executions based on Nanking, not waterboarding, on Meet the Press.
Dreadful torture ongoing right now, to little notice even after the shocking report a year ago. The monstrous Bashar Assad of Syria, killing 20 men today, like every day.
With severe starvation accompanying the torture, those NAZI Death Camps scenes – now in color photos thanks to a hero defector/photographer from a Security Center in Damascus.
Syria ‘Industrial’ Killing: Report Details Deaths Of 11,000 In Assad Jails
Canning does not repeat the falsehood that “the Japanese were executed for waterboarding” which the imbecile Thom Hartmann repeats.
Those executed at the Tokyo military tribunals had committed grotesque War Crimes with many murdered – hundreds up to hundreds of thousands in Nanking China 1937. Some also tortured American POWS. One deliberately starved them. One POW camp commander incinerated POWs as the liberators neared. He probably didn’t live to be tried.
Two men died under his “care” so the Japanese officer in Shanghai therefore faced the death penalty. Note that the codefendant actually inflicting cruelty such as electroshocks only got 12 years.
Dick Cheney was absolutely correct to point that out about executions based on Nanking, not waterboarding, on Meet the Press.
Dreadful torture ongoing right now, to little notice even after the shocking report a year ago. The monstrous Bashar Assad of Syria, killing 20 men today, like every day.
With severe starvation accompanying the torture, those NAZI Death Camps scenes – now in color photos thanks to a hero defector/photographer from a Security Center in Damascus.
Syria ‘Industrial’ Killing: Report Details Deaths Of 11,000 In Assad Jails
Irwin Mainway @3 wrote:
1. Brad did not write this article. I did!
2. This article relates to only one of numerous war crimes trials. There were multiple war crimes tribunals conducted inside and outside Japan. Approximately “5,000 Japanese [were found to be] guilty of war crimes, of whom more than 900 were executed.”
3. Whether or not Dick Cheney is correct in asserting that none were sentenced to death for waterboarding is of no moment. Waterboarding was and is torture — a crime.
If the same standards that were applied to Lt. General Kinoshida were applied to Cheney, Cheney would now be serving a life sentence!
Whether or not Assad is also guilty of crimes against humanity in no way, shape or form, absolves Bush, Cheney, Yoo et al. of their criminal liability for the war crimes they authorized the CIA to carry out. Or do you really think that two wrongs = one right?
Irwin Mainway @4,
You wrote:
So read more Canning.
Also read the law that applies rather than merely scanning news reports:
(The Penalty For Torture Can Be Death). Under U.S. anti-torture statutes the degree of punishment depends on the degree of torture done.
In terms of the death penalty, the type of torture does not matter, it is the result that matters.
If a person is tortured to death, then the death penalty can be given to persons who were responsible for the torture, no matter if it was waterboarding, electric shocks, etc., that caused the death.
You also said:
Dick Cheney has never been absolutely correct on any points about torture.
His mind is so very tortured that it killed his first heart.
Even Ronald Reagan would have imprisoned Cheney for torture (President Reagan Puts Cheney In Jail).
I was bummed about my typo – ‘Brad’ vs. ‘Canning’ (fixed 13 min. later). Note please that is the sole difference – otherwise #4 a duplicate post.
Until I read the latest entry, which I am glad to see completely agrees with my point that the honorable officers in the military tribunals did not just hand out death sentences out of spite.
Those executed had to have taken lives.
You missed my joke about “imbecilic” Thom Hartmann.
The way to avoid having Dick Cheney speak and correct a misstatement is to not misspeak.
.. Well I never said Cheney etc should just be let be. The CIA was ultimately following his orders, somehow lost in the CIA bashing.
.. Fine by me!
However the outrage over the rest – peaceful rests in isolation, shackled to a wall, shackled in a kneeling position, naked etc – some of that was documented 9.5 years ago in the PUBLISHED BOOK “Inside the Wire” (Saar/Novak) about a GITMO Interpreter (who couldn’t believe he volunteered for the post)- in the early days.
Torture is an outrageous Crime Against Humanity, unless of course that then requires military action against the leader championed by the Left, Bashar Assad.
“76,000 killed in Syria in 2014” reported today. Of course Assad ignored, only ISIS discussed on TV.
Sources:
Case No.WO235/1116
Assad’s Crimes Ignored, $0.5M cost too high
Inside the Wire: An Interview With Erik Saar
Paul Begala wrong
The above was supposed to read:
The way to avoid having Dick Cheney speak and correct a misstatement is to not misspeak.
I sure would like to know if Americans were involved in trying and executing Japanese primarily for waterboarding, not murders including drowning or killing via forced water swallowing. Drinking too much water is lethal.
.. Well I never said Cheney etc should just be let be. The CIA was ultimately following his orders, somehow lost in the CIA bashing.
Irwin Mainway @8:
With all due respect, your shameful pettifog retorts are scarcely deserving of a response.
If you had bothered to read my father’s testimony you would see that involuntary drowning is the very essence of waterboarding.
My father was not only forced to “swallow” water. Prone and shackled to a bench, two soldiers sat on his stomach and chest. Two more held his head in place, as another poured water that ran up his nostrils, as well as into his mouth, down his throat and into his lungs.
The word “drown” does not necessarily mean death. It includes “to suffocate by submersion especially in water.”
My father was repeatedly “drowned” and then “revived” so that he could be drowned again and again!
Your question about whether Americans were involved in this particular prosecution is as inane as it is irrelevant.
The 1948 Hong Kong trials were part of the “Military Tribunal for the Far East,” whose members included “Australia, Canada, China, France, Great Britain, Netherlands, New Zealand, Russia and the United States.”
The principle argument made in this article is that Cheney et al should be tried for war crimes under the principle of command responsibility. Had you bothered to follow the link I provided in the article about that topic, you would have learned that “command responsibility” is also known as the “Yamashida standard,” first established by the Hague Conventions of 1899 and applied by the United States Supreme Court in 1945 with respect to the prosecution of Japanese General Tomoyuki Yamashida.
The article did not raise the issue of the death penalty. It relates solely to “accountability.” Accountability does not involve an issue of Left or Right but of Right and Wrong! Only someone blinded by the Right would actually equate adherence to the rule of law as reflecting on whether one is politically Left or Right!
That leads me to another absurd remark you gratuitously added @7 wherein you state:
I seriously doubt that you can provide so much as a link to anyone whom you deem to be part of the “Left” that, according to you, believes that it is okay for Bashar Assad or any other individual to engage in torture?
Moreover, there is a vast difference between those seeking accountability via international tribunals and those who seek to exploit allegations against a foreign leader as an excuse to launch an illegal war of aggression, which itself is a war crime. Whatever Saddam Hussein’s alleged “crimes,” they did not warrant the unprovoked 2003 invasion of Iraq. Similar allegations have been leveled against Israeli leaders. I assume that you are not advocating that the U.S. invade Israel in response to what may be war crimes committed by the Israeli government.
Sad you can’t see the difference between the rule of law where those accused of war crimes are afforded due process in a court of law and war.
You certainly didn’t reach your unsupported conclusion that the Left condones torture by Assad based upon anything contained in this article. To the contrary, I quoted Robert Colville, the U.N. High Commissioner for Human Rights: “Torture is prohibited absolutely, in all circumstances, at any time.”
Finally, I must also take exception to your ridiculous suggestion that calling for accountability under international laws that make torture a crime amounts to “CIA bashing.”
I don’t consider sleep deprivation or even water-boarding “torture”.
Besides, if you read the ORIGINAL report, not prepared by Democrats only who lost their seat in congress, you would see they did get info out of prisoners.
I felt a lot safer before Obama was letting hoards of known American KILLERS out of GITMO. Who’s side are you on?
Why don’t you just go join ISIS???
Susan @10,
You said:
That is because you are not aware of legal reality, or perhaps are probably related to John Yoo and just don’t care.
Ronny Raygun put Texas sheriffs in prison for waterboarding because it violated torture statutes (President Reagan Puts Cheney In Jail).
The deputies plead “I was following orders” but the courts said that is not a defense.
Thankfully, at this late date, it is rather rare to see a comment from someone, like Susan’s @10, who still believes in the myths about those who have been held at GITMO without a shred of evidence being, as Dubya once put it, “the worst of the worst.”
Susan seems totally unaware of the fact that the majority who the Bush administration placed in indefinite detention were innocent of any wrongdoing.
My answer to Susan’s query as to whose side I am on is the same answer that John Adams provided in explaining why he defended several British officers in court shortly before the American Revolution.
Oh, and Susan, the fact that you, a lay individual, don’t believe waterboarding is torture is of no moment whatsoever. The courts charged with interpreting international treaties, both at the post-World War II war crimes trials and now, have determined otherwise.
See, Cheney Offers Tortured View of History In Defending Waterboarding by Law Prof. Jonathan Turley.
I brought this up to no response:
Death Sentences were issued after the War with Japan ended with so many barbaric murders and defendants.
It is hard to believe that they were issued by Tribunals run by American, with other countries allowed to participate, even to those innocent of murder or gross neglect leading to deaths.
The shocking abuses you just described inflicted on captured Americans and others I do not hear about in the reports on the UNCLASSIFIED Senate Select Committee on Intelligence’s ‘Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program under Dick Cheney’, excepting KSM’s torture.
Discussion on Assad’s Death Camps behind closed doors by the Liberal Left, including Torturing Palestinian refugees in Syria, some to Death – it is not out there. Forbidden topic, possibly leading to agreeing with the legendary Senator McCain on firm military action against Assad.
It is entirely possible that some Liberals care about the horrific abuses by Assad. I don’t hear about it. Some sites carry Reuters news reports on it, true. ‘Democracy Now’ won’t touch it, 42 months of death and counting.
No, it will do so, if the evil CIA can be slammed, such as the renditioning of Maher Arar to sick perverted torture in Syria. He at least had his case argued on C-SPAN before a Federal Appeals Court, suing John Ashcroft.
Except for the sadism directed at KSM, who didn’t even perish, the rest of the reported CIA methods listed is a Summer Holiday compared to a year in a Syrian detention center.
Grisly accounts from inside Syria’s ’27 torture centres’
Arar vs. Ashcroft
Rather amusing to see Irwin Mainway @13 continuing with his rants about Assad’s alleged war crimes at the very moment that Israel illegally withheld Palestinian tax revenues because the Palestinians dared to join the international criminal court at the Hague that could investigate war crimes charges against Israel (as well as any alleged war crimes committed by Palestinians).
Set against Mainway’s fact-free effort to minimize the brutality of CIA Torture is a stark and disturbing reality that had been revealed long before the newly released Senate report. See, e.g., “Salt Pit,” covering inter alia the torture/death of Gul Rahman and the brutal mistreatment of Khaled El-Masri, an innocent German citizen.
The fact that war hawk Senator John “bomb, bomb, bomb Iran” McCain favors “firm military action against Assad” has nothing to do with the issues presented in this piece — “legal accountability” for war crimes. (Mother Jones provided a map of the 13 nations against which McCain has at some point advocated U.S. military intervention. It entails more than one-half of the land mass of Europe, Asia and Africa.)
Shame on you, Irwin Mainway, for attempting to sully an article that addresses “legal accountability” with pro-war propaganda.
Personally, I have a helluva time trying to follow whatever it is Irwin Mainway’s getting at in his comments here. Seems like one non sequitur after the next to me. Like he’s having his own conversation about something only tangentially related to either the original post or to other comments made attempting to engage him in dialogue.
Susan (or should I say “Susan”) @ 10:
Your comment was so silly, and you haven’t returned to respond to any of the comments left in response, that I think it’s more likely you’re simply a hit-and-run troll — perhaps paid to make such ridiculous comments — than an actual commenter. Why would someone offers such grossly absurd, long ago debunked statements if they weren’t paid to do so?
In any event, while others here have responded to much of your ridiculous comment, I’ll add just one point, in response to this part:
Really? Where can I read that “ORIGINAL report”? If you have seen such a report, that would be quite newsworthy. But I’ll wait (fruitlessly) for you to post the URL to this imaginary report here. Thanks in advance!
For the record, the actual report in question (as opposed to your imaginary “ORIGINAL report”) was based on some 6 million pages of actual CIA documents. It was created by the U.S. Senate Intelligence Committee after a 14 to 1 vote to do so. There were 7 Dems, 7 Repubs and 1 independent on the committee. Of the Dems on the Committee, who you incorrectly cite as having “lost their seat in congress”, only one, Mark Udall of Colorado, actually lost his seat.
But thanks for the pretend input!
Irwin Mainway —
It’s strange that you continue to try and make excuses for torturers. But, that said, who are these members of “the Left” who have “championed” Bashar Assad, as you bizarrely argued @ 7; what is your super-secret source of what goes on “behind closed doors by the Liberal Left”; and why would you want to join “the legendary Senator McCain” in arming affiliates of al-Qaeda in order to exacerbate the war in Syria? That last seems rather ill-advised, no? Even for someone willing to make excuses for torturers and war criminals like Dick Cheney.
Bush, Cheney, and EVERY senior member of their administration – including Yoo, and Condi Rice – deserve to hang by the neck until dead for their war crimes, crimes against humanity, lying to wage aggressive war, gross violations of the Constitution and the Bill of Rights – including assassinating American citizens without due process, election fraud for stealing BOTH the 2000 and 2004 Presidential elections (which made all the other crimes possible). Yes, I’m still steamed 14 years later at what their criminal activities did to this country. We still need the leftist insurrection that we will probably never get.
Obama, Holder and a few other Democrats are also guilty of not prosecuting Bush Administration torture, guilty of their own torture, as well as starting wars OF terror in Syria, Ukraine and other countries.
That is why no one in the US will ever get prosecuted for war crimes… in the US.