On torture, war crimes and Trump’s pick for CIA director

Donald Trump has nominated a woman who ran a torture site to be head of the CIA.

Within the United States, there is a “debate” over whether “enhanced interrogation” was legitimate or illegitimate.

Here’s a test for Americans who can’t figure it out.

If Iraqis or Iranians or Russians treated captured Americans the same way, would Americans say that water-boarding, stress positions, sleep deprivation, and other forms of enhanced interrogation were fair and appropriate, given the stress of circumstances, or would they say such actions were war crimes? 

The test works for anyone. Just put in a member of your tribe as the captive and a chosen enemy as the abuser.

The nomination should be a huge problem.

Torture is against US law. Against several US laws.

The US “ratified” the UN Convention Against Torture as a “treaty” in 1994.

“Treaty” has two meanings in the US. The first is the simple and ordinary one of an agreement between nations. However, under Article II, Section 2, of the US Constitution, if the president gets the “advice and consent” of two-thirds of the Senate, it becomes a “treaty” as the term is used in Article VI, Section 2. “Treaties made …” by that process “… shall be the supreme Law of the Land“.

Ratifying that treaty was a long process. The US was involved from its inception. Nonetheless, the Senate was reluctant to let it be a “self-executing treaty”. If only to satisfy issues of sovereignty, it would only be accepted if the US passed its own anti-torture laws first. The US then passed 18 US Code 2340A, “which made it a crime for a US national or foreigner present in the US to have committed torture outside the US”. Torture inside the US was already covered by existing statutes.

18 US Code 2340A is clear and blunt:

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.

Also, the perpetrator need not personally turn the thumb screws, do the waterboarding or execute the beatings.

Supervising, directing, aiding and abetting all come under section (c) Conspiracy – “A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death).”

Then there’s 18 US Code 2441, the War Crimes Act of 1996. It defines a “war crime” as any “grave breach” of the Geneva Conventions, including torture, cruel or inhuman treatment, and sexual assault or abuse. The penalty is to be “imprisoned for life or any term of years … if death results to the victim … the penalty of death.”

The high ground of War Crimes morality and law was established after WWII at the Nuremberg Trials.

At the time, the accused Nazis said the charges were only the vengeance of the victors. The Americans and the Allies claimed that this was not so and that they would apply the same standards to themselves.

To a certain degree, they did so. There is no doubt that in World War II, Korea, and in various operations around the world, Americans committed actions that could be charged as war crimes. The Phoenix Program in Vietnam, designed to use terror to counter what Americans considered the Viet Cong’s and the North’s use of terror, definitely falls under that definition. Yet these were regarded as aberrations, and, from time to time, the US has prosecuted Americans for War Crimes. There was a degree of hypocrisy, but the commitment to the higher values remained.

Until the 9/11 and the Bush Administration.

The excuse was fear. The people who wrote the Convention Against Torture – which is supposed to be America’s “supreme law of the land” – understood the temptation, the lure of opportunity, and power of panic. Right in the law, it says: “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”.

Antonin Scalia, one of the most influential recent Supreme Court Justices, and widely considered to be brilliant, made the case for using torture. “Jack Bauer saved Los Angeles … He saved hundreds of thousands of lives,” he once said. For those who might not know, Bauer was not real. He was the made-up hero of the TV show 24. Its conceit was to have 24 episodes with each representing a sequential hour. If Jack was to save anything, it had to happen in a rush. Naturally, that led to “ticking bomb” storylines, and the demands of television action dramas made the solutions physical. Torture.

However dangerous al-Qaeda was at the time, they hardly had the firepower of the Third Reich or Imperial Japan, let alone both together. Germany had conquered Czechoslovakia, Poland, Denmark, Norway, the Netherlands, Belgium, Yugoslavia, Greece, and France, was halfway to Moscow, and was bombing Britain, before the US even entered the war. Japan had taken over Manchuria, Indochina, and part of China, before the attack on Pearl Harbor, which was quickly followed by their invasions and conquests of the Philippines, Malaysia, Singapore, and Indonesia. These would be wars in which the United States lost over 400,000 people, but Americans did not decide that they had to embrace torture. Instead of abandoning such things as the Geneva Convention, they fought back by championing them.

The other excuse that the Nazis offered was that they were only following the orders of a duly constituted government and military. At Nuremberg, the judges said that people had a positive duty – if it was possible – to refuse orders that were common crimes or crimes against humanity. For decades afterwards, “I vas only following or-ders!” became a ubiquitous tag-line and gag line.

Still, when the lawyers for the Bush Administration had to come up with an argument to convince CIA operators, military personnel, and others that they could commit war crimes without finding themselves on trial for war crimes sometime in the future, that’s exactly where they went. First, they made the claim that the president’s powers as “commander-in-chief” trumped all other laws and limitations – including the Constitution. Therefore, anything done at his behest was, by extension, also legal. In sum, the Nazi defence, “I vas only following or-ders!” was declared valid.

Then photos of Abu Ghraib came out along. Also the stories about black sites, extreme rendition, and torture. That was followed by internal studies by the military and intelligence services and a congressional investigation. Within and without, the split was between the fact-checkers and the ideologues. The former concluded that torture didn’t work. That was the conclusion that the professionals went with. The ideologues also had their victories, in that they avoided prosecutions and, for the most part, retained their positions, status, and money.

Now, Trump, has reached out, and taken one of the torturers from an obscure – though high – bureaucratic position and offered her up as the next head of the CIA. The report of Gina Haspel being a villainess out of James Bond movie, who took joyful glee in torture and mocked her victim, had been retracted. But it is a fact that she was in charge of a black site in Thailand where she supervised “enhanced interrogations”. They were videotaped. She had the evidence hidden away, lobbied to be rid of them, then participated in their destruction, so the world would not be able to see what she had done.

She has reputable supporters. They describe her as being very professional, thorough, and competent. As were so many of the German war criminals tried at Nuremberg. If there is such a thing as the moral high ground and if it matters, this is profoundly self-destructive.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.