Obama and Standards of Torture
My friend Allie pointed out that the Senate Judicial committee hearing of Eric Holder’s nomination to be the first African-American Attorney General took place on Martin Luther King’s birthday. Another milestone, quietly noted.
The biggest news coming out of the hearing is that Holder acknowledges that “waterboarding is torture.” We’ll hold him to that. Jonathan Nichols is pretty upbeat, if cautious:
Holder is not a perfect nominee. He will not be a perfect Attorney General. But his declaration to the committee that the Department of Justice must serve not a president or a party but the Constitution and the American people was a refreshing indication that Holder “gets it” in ways that Alberto Gonzales and Michael Mukasey never did.
That said, while Holder’s statements were important, he should also have been listening to the committee charged with providing not just consent but advice to the new administration and its Attorney General.
“We need an Attorney General, as Robert H. Jackson said 68 years ago, ‘who serves the law and not factional purposes, and who approaches his task with humility,'” said Leahy in his opening statement. “The next Attorney General will understand our moral and legal obligation to protect the fundamental rights of all Americans and to respect the human rights of all people.”
Nichols goes on to contend that Holder’s record strongly indicates he will live up to Leahy’s expectations.
But I think it all depends on how Obama himself views torture. Perhaps Holder will be his own man, but Obama, a Constitutional scholar in his own right, had pledged to use the U.S. Army Field Manual as a government-wide standard for interrogation by any agency, including the C.I.A. Jeffrey S. Kaye recently wrote that such a standard has been complicated by the codification of the use of torture within the manual itself.
While George W. Bush was signing a presidential directive allowing the CIA to conduct other, secret “enhanced interrogation techniques,” which may or may not have included waterboarding, the new AFM was sold to the public as a return to civilized norms, in regards to interrogation.
Before long, opponents of U.S. torture policy were championing the new AFM as an appropriate “single-standard” model of detainee treatment. Support for implementing the revised AFM, as a replacement for the hated “enhanced” techniques earlier championed by Defense Secretary Donald Rumsfeld and the CIA, began to appear in legislation out of Congress, in the literature of human-rights organizations and in newspaper editorials. Some rights groups have felt the new AFM offered some improvements by banning repellent interrogation tactics, such as waterboarding, use of nudity, military dogs and stress positions. It was believed the AFM cemented the concept of command responsibility for infractions of the law.
There was only one problem: the AFM did not eliminate torture. Despite what it said, it did not adhere to the Geneva Conventions. Even worse, it took the standard operating procedure of Camp Delta at Guantanamo Bay and threatened to expand it all over the world.
NPR reports that “Obama himself appears to be keeping his decision options open.”