Coddling Terrorists with International Law 

By http://www.frontpagemag.com/bioAuthor.aspx?AUTHID=2948 Joseph Klein
May 03, 2009
Frontpage Magazine
Original Source:
http://www.frontpagemag.com/readArticle.aspx?ARTID=34665 http://www.frontpagemag.com/readArticle.aspx?ARTID=34665


Manfred Nowak, the United Nations Special Rapporteur on Torture, has added to the United Nations’ record of coddling terrorists.   
Nowak insisted recently that the UN Convention Against Torture requires the U.S. to prosecute Bush Administration lawyers who drafted legal opinions that justified the use of enhanced interrogation tactics on terrorist suspects.  The memos authorized such techniques as sleep deprivation; keeping detainees naked, in standing positions, in cold cells or in a cramped box filled with harmless insects; prolonged shackling; open-hand slapping and, last but not least, waterboarding.  According to the UN’s “expert” on torture, all of these techniques clearly constituted torture.  Therefore, under his reasoning, the lawyers’ rationalizations for the techniques made them participants in torture because “on the basis of these memoranda, then orders would be given, and persons would be subjected to these kind of interrogation techniques, that one should know actually can easily amount to torture”. 
Novak also said that President Obama’s recent decision to exempt CIA personnel who were allegedly complicit in the use of torture is in direct violation of the UN Convention Against Torture.  Not only is he telling us that our government’s lawyers should be punished for giving confidential legal advice to the President of the United States and Commander-in-Chief during a time of war.  He is also telling President Obama that he is wrong to simply move forward with revised interrogation guidelines and let go of trying to criminalize the behavior of officials who were scrambling to prevent another 9/11 while the acrid smell of the World Trade Center wreckage still pervaded the air.   
The UN’s top torture honcho and all other United Nations officials providing their uninformed opinions on what U.S. officials felt they had to do in the immediate aftermath of 9/11 should simply butt out.  Evidently, the well-being of terrorists is more important to them than the saving of thousands of innocent lives from the real threat of escalating terrorist attacks. For that matter, the Democrats now calling for witch hunt investigations of Bush administration lawyers and other officials should also keep their mouths shut, considering that their leaders, including House Speaker Nancy Pelosi, were fully briefed on these techniques back in September 2002 and raised no objections at the time.  
Nowak is blind to the existential threat that the global Islamic terrorists pose to the free world. 
  “I do not consider this so-called ‘war on terror’ as an international armed conflict”, said this UN expert with a display of moral obtuseness that boggles the mind.  How exactly would he define the terrorists’ use of suicide bombers, rockets and beheadings around the world?  Then again, he is only following the same logic as the International Criminal Court’s proposed exclusion of terrorists from prosecution for the new international crime of aggression, on which I have previously reported.    
Nowak also presents no evidence of any clear-cut, legally binding definition of torture that would expressly exclude any of the enhanced interrogation techniques, when used in very limited circumstances and in a carefully controlled environment in order to elicit information from top terrorist leaders that could save thousands of lives and for which all less harsh alternatives were tried and failed.  That is because there is no such definition contained either in the UN Convention itself or in U.S. law.  Therefore, it was perfectly reasonable for the Bush Administration attorneys assessing the techniques, in the immediate aftermath of 9/11 and amidst fears of more imminent attacks, to conclude that they are not torture at all in the manner in which they were conducted.  And they were reserved only for the most important and most difficult detainees who were expected to possess valuable, time-sensitive intelligence. 
The legal memos did not just tell the interrogators to operate as they saw fit without any guidance.  Limits on when and how to apply the techniques were specified to avoid any severe long-term physical or psychological harm, together with procedures for close monitoring of the interrogations and high-level signoffs in writing on a case-by-case. 
It would be immoral and a violation of the President’s constitutional duty to protect the American people if he deliberately refrained from using the enhanced techniques when less uncomfortable alternatives were tried and ran into a stone wall of silence and defiance.   
These harsher methods, for example, provided the CIA interrogators with enough actionable intelligence that the government was able to thwart an imminent deadly terrorist attack on Los Angeles.  Khalid Shaikh Mohammed, the 9/11 mastermind, gave up vital information that led to the capture of the terrorist leader plotting to hijack passenger planes and fly them into the tallest building on the West Coast, the Library Tower in Los Angeles. He also provided vital information that led to the disruption of an al Qaeda cell that was developing anthrax for attacks inside the United States. 
Such information did not freely flow from Khalid’s lips in a polite give and take interrogation session.  In his initial interrogation by CIA officers, according to former CIA Director George Tenet, Khalid Shaikh Mohammed had defiantly told them that “I’ll talk to you guys after I get to New York and see my lawyer.”  Waterboarding changed his mind, and the information he subsequently supplied ended up saving many thousands of lives.  
Yet, despite all this, the UN’s Special Rapporteur on Torture had the audacity to tell a news conference just recently, with perfect 20-20 hindsight: At that time, every reasonable person would know that waterboarding, for instance, is torture. 
The critics of waterboarding in particular claim that since we have called it torture when other nations have done it to Americans in past conflicts, then it must be torture when we do it to others. They cite as their prime example the conviction of several Japanese after World War II for supposedly waterboarding American and Allied prisoners of war. 
I hate to be the one to throw cold water, so to speak, on this comparison but it is bogus.  The few episodes of waterboarding following 9/11 were for very short periods of time and involved cellophane or a cloth placed over the mouth and nose so that no water entered the person's lungs, nose, or mouth.  There was never any possibility, much less an imminent threat, of drowning.   Khalid Shaikh Mohammed may have experienced a simulated sensation of drowning for no more than a couple of minutes which caused him momentary panic. But, to paraphrase FDR, the only fear that he had was his own transitory fear of an imagined fate.   
The charges of which the Japanese were convicted reportedly involved the strapping down of prisoners of war to stretchers with warm water poured directly down their nostrils for twenty minutes or so until they were about ready to pass out.  In other cases, our POWS were reportedly dunked in tanks of water in such a manner that water was forced into their noses and mouths, and consequently into their lungs, for as long as an hour at a time. Some were slid first into a tub of water and kept there until almost drowned.  After being revived, interrogation proceeded and they would be reimmersed. Sometimes, this was accompanied by severe beatings and stompings on the POWS’ stomachs.  
All of this was classic water torture.  Water was forced into the POWs’ noses, mouths and lungs, causing them severe physical distress from the aspiration of fluid and asphyxia. It was used to punish and elicit forced confessions.  It bears no resemblance to the very carefully controlled waterboarding, involving no forcing of water into the noses, mouths and lungs of detainees, which was used by the CIA in very limited circumstances shortly after 9/11 to obtain vital life-saving intelligence from only three al Qaeda leaders including the 9/11 mastermind, Khalid Shaikh Mohammed.   
In short, Manfred Nowak, the United Nations Special Rapporteur on Torture, is making up the law as he goes along when he asserts that the enhanced interrogation methods sanctioned by the Bush Administration lawyers are absolutely prohibited.  He has pointed to nothing in the UN Convention Against Torture or elsewhere in binding legal documents that outlaws these specific techniques as torture.   The same is true of his belief that capital punishment under any circumstances is a violation of international law.  There is simply no legal basis for that conclusion. Nowak has actually gone so far as to equate the beheadings of innocent people by terrorists with the execution of convicted murderers after a full trial and exhaustive appeals.  Needless to say, his judgment is not to be trusted. 
The Bush Administration lawyers were better off being guided by what the United States Senate stated when it approved the UN Convention Against Torture in 1994, rather than listening to United Nations officials with an axe to grind against the United States.   The Senate stated its understanding of torture as an act specifically intended to inflict severe physical or mental pain or suffering'', which is the definition of torture in the UN Convention itself (Emphasis added).  The Senate went on to define mental pain and suffering as “prolonged mental harm” resulting from such causes as “the intentional infliction or threatened infliction of severe physical pain or suffering or the threat of imminent death (Emphasis added). 
Congress adopted this definition in a 1994 law criminalizing torture committed abroad.  If Congress had wished to declare waterboarding or the other specific techniques used by the CIA to be included within the law criminalizing torture, they could have done so for the last seven years but have not. With big majorities in the House and Senate and a Democratic president, Congress can still do so today instead of pursuing witch hunts.  
As for the United Nations’ Special Rapporteur on Torture, he is simply another in the long litany of UN officials who seem to revel in their own tortuous reasoning that ends up protecting terrorists. They deserve to be ignored.