Nuremberg Revised
t r u t h o u t | Perspective
Tuesday 15 June 2004
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The document is titled 'Standards of Conduct for Interrogation under U.S.C. 2340-2340A.' It is a memo dated August 1,
2002, and was written at the specific request of Alberto R. Gonzales, Counsel to the President of the United States of
America.
U.S.C. 2340, one of two sections of the U.S. Code referred to in the August 1 memo, reads as follows:
(1) "torture" means an act committed by a person acting under the color of law specifically intended to inflict severe
physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person
within his custody or physical control;
(2) "severe mental pain or suffering" means the prolonged mental harm caused by or resulting from -
(a) the intentional infliction or threatened infliction of severe physical pain or suffering;
(b) the administration or application, or threatened administration or application, of mind-altering substances or other
procedures calculated to disrupt profoundly the senses or the personality;
(c) the threat of imminent death; or
(d) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the
administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the
senses or personality.
U.S.C. 2340A reads as follows:
(a) Offense. - Whoever outside the United States commits or attempts to commit torture shall be fined under this title
or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this
subsection, shall be punished by death or imprisoned for any term of years or for life.
(b) Jurisdiction. - There is jurisdiction over the activity prohibited in subsection A if -
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged
offender.
The first paragraph of the August 1 memo to Gonzales reads as follows:
We conclude below that Section 2340A proscribes acts inflicting, and that are specifically intended to inflict, severe
pain or suffering, whether mental or physical. Those acts must be of an extreme nature to rise to the level of torture
within the meaning of Section 2340A and the Convention. We further conclude that certain acts may be cruel, inhuman or
degrading but still not produce pain and suffering of the requisite intensity to fall within 2340A's proscription
against torture.
The Convention' referred to in that paragraph is the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, which was ratified by the United States in 1994. As with any treaty ratified by the U.S., the
Convention against Torture carries the full force of law.
Note well the import of that first paragraph from the August 1 memo. The argument leaps blithely over the definitions of
torture as described in U.S.C 2340, and proceeds directly to the import of 2340A, the section which demands a 20 year
prison term for any American who tortures another human being. If the person being tortured should die, U.S.C. 2340A
demands the death penalty for the American responsible.
The limited series of photographs which has been released from the Abu Ghraib prison in Iraq requires us, as American
citizens, to consider carefully those definitions of torture in U.S.C. 2340. They are straightforward and unambiguous,
as an American law should be.
A review of a segment of the photographs released from Abu Ghraib reveals:
- Men ordered to masturbate in front of each other and in front of female American soldiers, a humiliating experience
which offends their religion (see: "The application of procedures calculated to disrupt profoundly the senses or
personality");
- Men ordered to simulate homosexual sex with one another, a humiliating experience condemned by their religion (see:
"The application of procedures calculated to disrupt profoundly the senses or personality");
- A man, hooded, standing on a box with electrodes attached to his fingers and penis, who was told that if he stepped
off the box, he would be electrocuted to death (see: "Prolonged mental harm caused by or resulting from the intentional
infliction or threatened infliction of severe physical pain or suffering, the threat of imminent death");
- A naked man menaced by, and then attacked by, a vicious dog (see: "Prolonged mental harm caused by or resulting from
the intentional infliction or threatened infliction of severe physical pain or suffering, the threat of imminent
death");
- A man lying dead swathed in a plastic bag with two U.S. soldiers grinning up at the camera and flashing a thumbs-up
sign (see: "Whoever outside the United States commits or attempts to commit torture shall be fined under this title or
imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this
subsection, shall be punished by death or imprisoned for any term of years or for life").
This is what we have been allowed to see, but there is more. Seymour Hersh, the reporter who first broke the Abu Ghraib
story, spoke recently at the University of Chicago. Hersh is one of the few people alive today who has seen all of the
photographic evidence of the torture which took place in that prison. "You haven't begun to see evil," he said,
"horrible things done to the children of women prisoners, as the cameras run." Words like "Rape" and "Murder" have been
used to describe the evidence which remains as yet unreleased.
The Bush administration is scrambling to defend itself against accusations that section 2340 has been grossly violated
with intent, which means a number of American officials stand in peril of punishment as demanded by section 2340A. Not
long ago, administration officials described the barbarism at Abu Ghraib as the rogue behavior of a few wretches, and
not a policy deliberately formulated and put into effect. The leaking of memos like that from August 1st, several of
which have since been deemed 'Classified' and which Attorney General Ashcroft is refusing to release, prove this defense
to be a bald-faced lie.
The truth is that, beginning as early as 2002, the Bush administration worked long and hard to come up with as many
justifications as possible for the horrors we have seen from Abu Ghraib, the purpose of said justifications being to
defend Administration officials from the punishments required by law for those who engage in the torture of their fellow
human beings. The sum and substance of these defenses would hold that what happened at Abu Ghraib was not torture, and
even if it was, the President of the United States can do whatever he wants.
This broad exculpation of George W. Bush was delineated in another memo, dated March 2003, and titled 'Working Group
Report on Detainee Interrogations in the Global War on Terrorism.' In this report, now classified, torture is justified
because, "The president's inherent constitutional authority to manage a military campaign" frees him to behave however
he wishes. By this rationale, legal prohibitions like those found in U.S.C. 2340 and the Convention against Torture,
"must be construed as inapplicable to interrogations undertaken pursuant to his commander in chief authority."
The March 2003 report goes on to say that torture can be justified by necessity. This 'Doctrine of Necessity' would have
us believe that any horror performed against another human being is justified because it supposedly ensures that no more
terror attacks will happen. The rationale reaches back to the disgraced and discredited Nuremberg Defense, once put
forth by the Nazis, which would pardon dealers of death and agony because they were just following orders. In this case,
according to these Bush administration memos, those orders came from a President not bound by law because of the
aforementioned Necessity Doctrine.
There are two clear holes in this disturbing rationale:
1. The Convention against Torture, given the force of American law in 1996, states: "No exceptional circumstances
whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may
be invoked as a justification of torture." Simply put, there is no rationale available to George W. Bush or any of his
people that removes them from the need to obey the law.
2. The original reason for the development of these legal excuses for torture came about because American military
and intelligence officials felt they were not getting enough information from Taliban and al Qaeda detainees using
'conventional' interrogation techniques. The people tortured in Abu Ghraib, however, were not Taliban, were not al
Qaeda, were not capable of perpetrating the kind of terrorist attacks against the United States which created the
rationale for this 'Necessity Doctrine' in the first place. Those tortured and killed were not terrorists, but were
Iraqi civilians unjustly swept up by American forces. There is no aspect of the 'Doctrine of Necessity' which can
justify the torture and murder of innocent people.
According to the UK Telegraph, the Nuremberg Defense is about to be tested again, but this time it will be the American
government under the hammer. A report from the Telegraph dated June 13th states, "New evidence that the physical abuse
of detainees in Iraq and at Guantanamo Bay was authorized at the top of the Bush administration will emerge in
Washington this week, adding further to pressure on the White House. The Telegraph understands that four confidential
Red Cross documents implicating senior Pentagon civilians in the Abu Ghraib scandal have been passed to an American
television network, which is preparing to make them public shortly."
According to lawyers familiar with the Red Cross reports," continues the Telegraph, "they will contradict previous
testimony by senior Pentagon officials who have claimed that the abuse in the Abu Ghraib prison was an isolated
incident. 'There are some extremely damaging documents around, which link senior figures to the abuses,' said Scott
Horton, the former chairman of the New York Bar Association, who has been advising Pentagon lawyers unhappy at the
administration's approach. 'The biggest bombs in this case have yet to be dropped.'"
These four Red Cross documents will likely become part of the defense being mounted by attorneys representing Lynndie
England, the woman featured in several Abu Ghraib photographs. England has been portrayed as some sort of Dragon Lady,
one of the wretches who tortured Iraqi civilians all on their own. England's attorneys have put forth a list of 100
witnesses they intend to put on the stand to prove that she was acting under orders, and not on her own. The excuses
prepared for George W. Bush and his people, like the August 1 memo and the March 2003 report, support her claim that she
was just following orders.
Some of those witnesses include Vice President Dick Cheney, Defense Secretary Donald Rumsfeld, Deputy Defense Secretary
Paul Wolfowitz, Defense Undersecretary for Intelligence Stephen Cambone, Lt. Gen. Ricardo Sanchez, commander of U.S.
forces in Iraq, and White House General Counsel Alberto Gonzales.
It would be the final irony of this matter to have a person like Lynndie England be central to the process of bringing
the true barbarians in this horror show to justice. It would be the final irony of this matter to have this woman, who
tortured her fellow human beings with a smile on her face, be instrumental in bringing about the final and long-overdue
death of the Nuremberg Defense.
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William Rivers Pitt is the senior editor and lead writer for truthout. He is a New York Times and international bestselling author of two
books - 'War on Iraq: What Team Bush Doesn't Want You to Know' and 'The Greatest Sedition is Silence.'
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