Marjorie Cohn, a legal critic of the Bush administration, testified before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties House Judiciary Committee Tuesday on the justification of the use of harsh interrogation tactics by intelligence officers. Cohn points to the U.S. War Crimes Act of 1991 that makes the use of torture or humiliating and degrading treatment a violation of U.S. national interests and policies. In 2002 and 2003, however, former White House counsel John Yoo briefed the Bush administration on the definition of torture, defining it in such narrow terms that it amounted only to incidents of organ failure or near death. The Bush administration sanctioned the use of “harsh interrogation” techniques in response, including the controversial practice of water-boarding.
Cohn argues that the Bush administration is in violation of the Constitution and international law because it exempts the so-called unlawful enemy combatants from protection under the Geneva Conventions and skirts the language of the U.S. War Crimes Act. Cohn, who teaches law at the Thomas Jefferson School of Law in San Diego, notes the War Crimes Act makes any attempt to commit, or conspire to commit, torture is a violation of the law. She points to a closed-door meeting with former U.S. Attorney General John Ashcroft, Vice President Dick Cheney, former Secretary of State Colin Powell, former Defense Secretary Donald Rumsfeld, then-National Security Adviser Condoleezza Rice and former director of the Central Intelligence Agency George “Slam Dunk” Tenet that sanctioned the use of “specific torture techniques such as waterboarding.”
“They are all liable under the War Crimes Act and the Torture Statute. The president can no more order the commission of torture than he can order the commission of genocide, or establish a system of slavery, or wage a war of aggression,” said Cohn. As one point of contention, barring considerations of diplomatic immunity, it is the policy of the CIA to avoid extending legal protection to its officers because a common practice of the clandestine intelligence community is to not only break the laws of other nations, but to break those of the United States, if it serves the overall national interest.
