Murky Harold

Grlygrl201@aol.com Grlygrl201@aol.com
Sun, 21 Oct 2001 12:46:45 EDT


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argh. ugh. ouch.

politics

Tortured Justice
There are ugly ways to extract information from suspects. What are the legal=
=20
limits?
By Dahlia Lithwick

Friday, Oct. 19, 2001, at 1:00 p.m. PT

The best strategy in fighting terrorism, some say, is to "disrupt" the group=
s=20
and cells planning future missions. One way of doing that, already practiced=
=20
by the United States, is to farm out torture assignments to countries such a=
s=20
Egypt, Jordan, or Saudi Arabia, where they have no compunctions about=20
extracting information from sources with violence or by threatening their=20
family members.=20

The fact that the United States avails itself of the fruits of foreign=20
torture is legally and morally problematic. But the truth about torture is=20
more troubling still. Although U.S. and international law prohibit the use o=
f=20
torture to obtain information, the United States has tortured suspected spie=
s=20
here at home and coached other nations on the best techniques for doing it=20
too. What is the legality of the U.S. approach? Can it contract out its=20
torturing to foreign nations? Can it torture suspects=E2=80=94even just a li=
ttle=E2=80=94if=20
they have information about imminent attacks or anthrax sources that could=20
save thousands of American lives?=20

As a legal matter, the issue of "torture" is only invoked in U.S. courts=20
after the fact, when: 1) the prosecution introduces evidence resulting from=20
interrogations into evidence (as the now-convicted African embassy bombers=20
did during their trial last year); or 2) the suspect sues later for civil=20
rights violations (as Abner Louima [=20
http://go.msn.com/newsletter3817/70119.asp ]  did in 1997). Thus, the=20
question of whether or not torture is "legal" is one issue. The answer is: I=
t=20
isn't. The more relevant question is whether U.S. courts would admit evidenc=
e=20
procured via torture (it might) or prosecute an American for torture (it=20
might).=20

There's no doubt that torturing terrorists and their associates for=20
information works. In 1995, Philippine intelligence agents tortured Abdul=20
Hakim Murad, whom they arrested after he blew up his apartment making bombs.=
=20
The agents threw a chair at Murad's head, broke his ribs, forced water into=20
his mouth, and put cigarettes out on his genitals, but Murad didn't talk=20
until agents masquerading as the Mossad threatened to take him back to Israe=
l=20
for some real questioning. Murad named names. His confession included detail=
s=20
of a plot to kill Pope John Paul II, as well as plots to crash 11 U.S.=20
airliners into the ocean and to fly an airplane into the CIA headquarters in=
=20
Langley, Va. His co-conspirator Ramzi Yousef was later convicted for the 199=
3=20
World Trade Center bombing. Similarly unappealing methods helped the CIA=20
uncover the millennium bomb plot of 1999, after al-Qaida terrorists were=20
questioned in Egypt and Jordan.=20

The CIA has always known that torture works. According to declassified CIA=20
interrogation manuals [ http://go.msn.com/newsletter3817/70120.asp ] , the=20
CIA has taught others how it's done, in Nicaragua, Guatemala, and other Lati=
n=20
American countries. The manuals refer to using "deprivation of sensory=20
stimuli," "threats and fear," "food and sleep deprivation," and pain to=20
extract information. The most famous case of CIA use of domestic torture was=
=20
that of Yuri Nosenko, a former KGB agent who defected to the United States i=
n=20
1964. Believing he was a Soviet spy, the CIA kept Nosenko in solitary=20
confinement for more than three years in a 10-foot-square concrete cell. He=20
was, for long periods of time, denied food, sunlight, reading materials, and=
=20
human contact. He claims to have been given LSD. When he attempted to build=20
toys out of lint, they were confiscated. The CIA freed Nosenko in 1967,=20
finally concluding he was a bona fide defector after all. This episode and=20
government inquiries into similar situations prompted the dismissal of many=20
executives of the counterintelligence department in the 1970s.=20

A more recent case of CIA-sanctioned torture involved Efrain Bamaca=20
Velasquez, a Guatemalan revolutionary. His widow, Jennifer Harbury, alleges=20
in a lawsuit that the agency financed and indirectly participated in efforts=
=20
to torture information out of him, leading ultimately to his death in the=20
early 1990s. She also alleges that the Guatemalans who tortured her husband=20
were paid by the CIA and that two had been trained in torture and=20
interrogation techniques at the U.S. Army's School of the Americas [=20
http://go.msn.com/newsletter3817/70121.asp ] . Last January, in Harbury v.=20
Deutch [ http://go.msn.com/newsletter3817/70122.asp ] , the D.C. Circuit=20
Court of Appeals found that the torture had not violated Bamaca's Fifth=20
Amendment due process rights. Prior case law holds that noncitizens' rights=20
are violated only in cases of: 1) physical presence in the United States at=20
the time; 2) their mistreatment in a country where the United States=20
exercises de facto political control; or 3) abuse in the course of abduction=
=20
for trial in an American court. The D.C. Circuit relied heavily on a Supreme=
=20
Court case, U.S. v. Verdugo-Urquidez [=20
http://go.msn.com/newsletter3817/70123.asp ]  (1990), holding that evidence=20
found during an illegal Fourth Amendment search of a nonresident alien's=20
property in a foreign country was admissible at trial in the United States.=20

Given this precedent, it's difficult to imagine a Bin Laden associate who's=20
been tortured abroad prevailing in a claim that he was tortured for=20
information, so long as he's not a citizen. It also means we can probably us=
e=20
that information in a U.S. trial. The defendants in the African embassy=20
bombing trials, heard last year in New York City, met with a similar fate.=20
They claimed that during the investigation the FBI threatened to turn them=20
over to the brutal Kenyan authorities if they didn't cooperate with U.S.=20
prosecutors. Confessions were made. The court, finding no evidence that the=20
defendants had actually been mistreated, allowed the evidence to come in.=20

The rights of U.S. citizens are more significant than the rights of=20
noncitizens or nonresident aliens. The Eighth Amendment [=20
http://go.msn.com/newsletter3817/70124.asp ]  proscribes "cruel and unusual"=
=20
punishment outright, and the case law (Rochin v. California [=20
http://go.msn.com/newsletter3817/70125.asp ] ) establishes that it's a Fifth=
=20
Amendment violation to do anything to procure evidence that "shocks the=20
conscience." In U.S. courts, the general rule of evidence bars confessions=20
obtained through "oppression" (defined generally as "torture, inhuman or=20
degrading treatment and the use of or threat of violence"). International la=
w=20
also forbids the use of torture, most notably in the U.N. Convention Against=
=20
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [=20
http://go.msn.com/newsletter3817/70126.asp ] .=20

What about the possibility of sending suspects and material witnesses to=20
other countries for interrogation? It worked to foil the millennium bombing=20
plot. We probably can't ask the Egyptians to torture them, but we would=20
certainly benefit from information gained if they did. The 700 detainees=20
aren't being tortured here, but they aren't being treated very nice. They=20
have been held over a month without charges, many in solitary confinement in=
=20
8-by-10-foot cells. Some report being deprived of toothbrushes, showers, and=
=20
warm clothing. They have limited contact with attorneys and none with their=20
families. The material witness statute allows them to be held only "a=20
reasonable amount of time," and it's clear that many of these detentions are=
=20
not reasonable. It's approaching Nosenko treatment, and in a few weeks it=20
really will "shock the conscience." Among those 700 individuals are Zacarias=
=20
Moussaoui and Nabil al-Marabh. (Moussaoui is the Moroccan who wanted to lear=
n=20
how to steer a jetliner but wasn't interested in takeoffs or landings.=20
Al-Marabh allegedly had ties to at least two of the New York hijackers and=20
was involved in transferring money for the foiled millennium plot in 1999.)=20
And the United States has already convicted Bin Laden follower Ramzi Yousef=20
for the 1993 World Trade Center bombing. Yousef has reportedly refused to=20
speak since Sept. 11. Still, it's clear that these detainees are not being=20
beaten, drugged, or subjected to pain per the CIA torture manuals.=20

According to Professor Robert Turner at the Center for National Security Law=
=20
at the University of Virginia, there is no legal or moral justification for=20
beating information out of suspects. Within the confines of the United=20
States, torture is not a legal option, even if you knew an individual had th=
e=20
code to stop a nuclear bomb, although that hypothetical is a close call,=20
according to Turner. This "ticking time bomb" exception was held illegal by=20
the Israeli Supreme Court, who recently outlawed the use of "moderate=20
physical force," even when suspects could offer information about imminent=20
attacks. Whether or not it's "legal," torture still happens in Israel. And=20
it's easy to imagine any U.S. cop turning into Dirty Harry if he knew that=20
tens of thousands of lives were on the line. He'd be more than willing to=20
answer for it later, while they're pinning the medal on his chest.=20

Some of the 700 detainees have vital information about Osama Bin Ladin and=20
al-Qaida, and unless the president plans to suspend the right to habeas=20
corpus, as Abraham Lincoln did, his options will become increasingly=20
unattractive. He can release them, along with all the secrets they harbor. H=
e=20
can deport them or extradite them to places like Saudi Arabia and Egypt,=20
where they may well be subject to torture and abuse. Or he can stick with ou=
r=20
current plan, which appears to be confined to the soft bigotry of indefinite=
=20
confinement. That will, at some point, amount to torture in its own right.=20
Fortunately, the Supreme Court once found that the indefinite internment of=20
U.S. citizens of Japanese descent [=20
http://go.msn.com/newsletter3817/70127.asp ] , on the basis of nothing but=20
their race, was not torture; it wasn't even racial discrimination. No doubt=20
they will accommodate the Justice Department this time around as well.=20

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Content-Transfer-Encoding: quoted-printable
Content-Language: en

<HTML><FONT FACE=3Darial,helvetica><FONT  SIZE=3D2>argh. ugh. ouch.
<BR>
<BR>politics
<BR>
<BR>Tortured Justice
<BR>There are ugly ways to extract information from suspects. What are the l=
egal limits?
<BR>By Dahlia Lithwick
<BR>
<BR>Friday, Oct. 19, 2001, at 1:00 p.m. PT
<BR>
<BR>The best strategy in fighting terrorism, some say, is to "disrupt" the g=
roups and cells planning future missions. One way of doing that, already pra=
cticed by the United States, is to farm out torture assignments to countries=
 such as Egypt, Jordan, or Saudi Arabia, where they have no compunctions abo=
ut extracting information from sources with violence or by threatening their=
 family members.=20
<BR>
<BR>The fact that the United States avails itself of the fruits of foreign t=
orture is legally and morally problematic. But the truth about torture is mo=
re troubling still. Although U.S. and international law prohibit the use of=20=
torture to obtain information, the United States has tortured suspected spie=
s here at home and coached other nations on the best techniques for doing it=
 too. What is the legality of the U.S. approach? Can it contract out its tor=
turing to foreign nations? Can it torture suspects=E2=80=94even just a littl=
e=E2=80=94if they have information about imminent attacks or anthrax sources=
 that could save thousands of American lives?=20
<BR>
<BR>As a legal matter, the issue of "torture" is only invoked in U.S. courts=
 after the fact, when: 1) the prosecution introduces evidence resulting from=
 interrogations into evidence (as the now-convicted African embassy bombers=20=
did during their trial last year); or 2) the suspect sues later for civil ri=
ghts violations (as Abner Louima [ http://go.msn.com/newsletter3817/70119.as=
p ] &nbsp;did in 1997). Thus, the question of whether or not torture is "leg=
al" is one issue. The answer is: It isn't. The more relevant question is whe=
ther U.S. courts would admit evidence procured via torture (it might) or pro=
secute an American for torture (it might).=20
<BR>
<BR>There's no doubt that torturing terrorists and their associates for info=
rmation works. In 1995, Philippine intelligence agents tortured Abdul Hakim=20=
Murad, whom they arrested after he blew up his apartment making bombs. The a=
gents threw a chair at Murad's head, broke his ribs, forced water into his m=
outh, and put cigarettes out on his genitals, but Murad didn't talk until ag=
ents masquerading as the Mossad threatened to take him back to Israel for so=
me real questioning. Murad named names. His confession included details of a=
 plot to kill Pope John Paul II, as well as plots to crash 11 U.S. airliners=
 into the ocean and to fly an airplane into the CIA headquarters in Langley,=
 Va. His co-conspirator Ramzi Yousef was later convicted for the 1993 World=20=
Trade Center bombing. Similarly unappealing methods helped the CIA uncover t=
he millennium bomb plot of 1999, after al-Qaida terrorists were questioned i=
n Egypt and Jordan.=20
<BR>
<BR>The CIA has always known that torture works. According to declassified C=
IA interrogation manuals [ http://go.msn.com/newsletter3817/70120.asp ] , th=
e CIA has taught others how it's done, in Nicaragua, Guatemala, and other La=
tin American countries. The manuals refer to using "deprivation of sensory s=
timuli," "threats and fear," "food and sleep deprivation," and pain to extra=
ct information. The most famous case of CIA use of domestic torture was that=
 of Yuri Nosenko, a former KGB agent who defected to the United States in 19=
64. Believing he was a Soviet spy, the CIA kept Nosenko in solitary confinem=
ent for more than three years in a 10-foot-square concrete cell. He was, for=
 long periods of time, denied food, sunlight, reading materials, and human c=
ontact. He claims to have been given LSD. When he attempted to build toys ou=
t of lint, they were confiscated. The CIA freed Nosenko in 1967, finally con=
cluding he was a bona fide defector after all. This episode and government i=
nquiries into similar situations prompted the dismissal of many executives o=
f the counterintelligence department in the 1970s.=20
<BR>
<BR>A more recent case of CIA-sanctioned torture involved Efrain Bamaca Vela=
squez, a Guatemalan revolutionary. His widow, Jennifer Harbury, alleges in a=
 lawsuit that the agency financed and indirectly participated in efforts to=20=
torture information out of him, leading ultimately to his death in the early=
 1990s. She also alleges that the Guatemalans who tortured her husband were=20=
paid by the CIA and that two had been trained in torture and interrogation t=
echniques at the U.S. Army's School of the Americas [ http://go.msn.com/news=
letter3817/70121.asp ] . Last January, in Harbury v. Deutch [ http://go.msn.=
com/newsletter3817/70122.asp ] , the D.C. Circuit Court of Appeals found tha=
t the torture had not violated Bamaca's Fifth Amendment due process rights.=20=
Prior case law holds that noncitizens' rights are violated only in cases of:=
 1) physical presence in the United States at the time; 2) their mistreatmen=
t in a country where the United States exercises de facto political control;=
 or 3) abuse in the course of abduction for trial in an American court. The=20=
D.C. Circuit relied heavily on a Supreme Court case, U.S. v. Verdugo-Urquide=
z [ http://go.msn.com/newsletter3817/70123.asp ] &nbsp;(1990), holding that=20=
evidence found during an illegal Fourth Amendment search of a nonresident al=
ien's property in a foreign country was admissible at trial in the United St=
ates.=20
<BR>
<BR>Given this precedent, it's difficult to imagine a Bin Laden associate wh=
o's been tortured abroad prevailing in a claim that he was tortured for info=
rmation, so long as he's not a citizen. It also means we can probably use th=
at information in a U.S. trial. The defendants in the African embassy bombin=
g trials, heard last year in New York City, met with a similar fate. They cl=
aimed that during the investigation the FBI threatened to turn them over to=20=
the brutal Kenyan authorities if they didn't cooperate with U.S. prosecutors=
. Confessions were made. The court, finding no evidence that the defendants=20=
had actually been mistreated, allowed the evidence to come in.=20
<BR>
<BR>The rights of U.S. citizens are more significant than the rights of nonc=
itizens or nonresident aliens. The Eighth Amendment [ http://go.msn.com/news=
letter3817/70124.asp ] &nbsp;proscribes "cruel and unusual" punishment outri=
ght, and the case law (Rochin v. California [ http://go.msn.com/newsletter38=
17/70125.asp ] ) establishes that it's a Fifth Amendment violation to do any=
thing to procure evidence that "shocks the conscience." In U.S. courts, the=20=
general rule of evidence bars confessions obtained through "oppression" (def=
ined generally as "torture, inhuman or degrading treatment and the use of or=
 threat of violence"). International law also forbids the use of torture, mo=
st notably in the U.N. Convention Against Torture and Other Cruel, Inhuman o=
r Degrading Treatment or Punishment [ http://go.msn.com/newsletter3817/70126=
.asp ] .=20
<BR>
<BR>What about the possibility of sending suspects and material witnesses to=
 other countries for interrogation? It worked to foil the millennium bombing=
 plot. We probably can't ask the Egyptians to torture them, but we would cer=
tainly benefit from information gained if they did. The 700 detainees aren't=
 being tortured here, but they aren't being treated very nice. They have bee=
n held over a month without charges, many in solitary confinement in 8-by-10=
-foot cells. Some report being deprived of toothbrushes, showers, and warm c=
lothing. They have limited contact with attorneys and none with their famili=
es. The material witness statute allows them to be held only "a reasonable a=
mount of time," and it's clear that many of these detentions are not reasona=
ble. It's approaching Nosenko treatment, and in a few weeks it really will "=
shock the conscience." Among those 700 individuals are Zacarias Moussaoui an=
d Nabil al-Marabh. (Moussaoui is the Moroccan who wanted to learn how to ste=
er a jetliner but wasn't interested in takeoffs or landings. Al-Marabh alleg=
edly had ties to at least two of the New York hijackers and was involved in=20=
transferring money for the foiled millennium plot in 1999.) And the United S=
tates has already convicted Bin Laden follower Ramzi Yousef for the 1993 Wor=
ld Trade Center bombing. Yousef has reportedly refused to speak since Sept.=20=
11. Still, it's clear that these detainees are not being beaten, drugged, or=
 subjected to pain per the CIA torture manuals.=20
<BR>
<BR>According to Professor Robert Turner at the Center for National Security=
 Law at the University of Virginia, there is no legal or moral justification=
 for beating information out of suspects. Within the confines of the United=20=
States, torture is not a legal option, even if you knew an individual had th=
e code to stop a nuclear bomb, although that hypothetical is a close call, a=
ccording to Turner. This "ticking time bomb" exception was held illegal by t=
he Israeli Supreme Court, who recently outlawed the use of "moderate physica=
l force," even when suspects could offer information about imminent attacks.=
 Whether or not it's "legal," torture still happens in Israel. And it's easy=
 to imagine any U.S. cop turning into Dirty Harry if he knew that tens of th=
ousands of lives were on the line. He'd be more than willing to answer for i=
t later, while they're pinning the medal on his chest.=20
<BR>
<BR>Some of the 700 detainees have vital information about Osama Bin Ladin a=
nd al-Qaida, and unless the president plans to suspend the right to habeas c=
orpus, as Abraham Lincoln did, his options will become increasingly unattrac=
tive. He can release them, along with all the secrets they harbor. He can de=
port them or extradite them to places like Saudi Arabia and Egypt, where the=
y may well be subject to torture and abuse. Or he can stick with our current=
 plan, which appears to be confined to the soft bigotry of indefinite confin=
ement. That will, at some point, amount to torture in its own right. Fortuna=
tely, the Supreme Court once found that the indefinite internment of U.S. ci=
tizens of Japanese descent [ http://go.msn.com/newsletter3817/70127.asp ] ,=20=
on the basis of nothing but their race, was not torture; it wasn't even raci=
al discrimination. No doubt they will accommodate the Justice Department thi=
s time around as well. </FONT></HTML>

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