I Know Few Americans are Tortured By This

I’ve always been a sucker for international respect for anti-torture treaties.   Few things are more horrifying to consider than the intentional state-sponsored infliction of severe and prolonged suffering done in the name of some holy cause.   I think of the brutal Spanish Inquisition, inquisitors torturing people in the name of Christ until they admitted they did not believe in the divinity of the Prince of Peace, Jesus Christ, or that they did.  

The research shows that torture works very well as hideous punishment, badly for any other purpose, such as extracting reliable information.   People under torture will eventually say whatever their interrogators want them to say, to make the torture stop.  Torture does not work as a way to extract actionable intelligence.  The classified Senate report on our recent torture program concludes as much.

International law became quite explicit, and unanimous, in rejecting all forms of torture, including cruel, inhuman and degrading treatment of prisoners, after the atrocities of World War Two.  Japanese officers were punished for water-boarding Americans and Australians.  Water-boarding would no longer be tolerated in the civilized world, although it had been widely employed by the U.S. in its war against Philippine “insurgents” after the Spanish-American war.

This rejection of torture by the civilized world also applied specifically to medical personnel who oversaw or participated in torture or sadistic medical experiments.   Doctors, who had taken the Hippocratic Oath to first do no harm, were prosecuted at Nuremberg for the harm they had done in the name of their causes.  Nazi doctors. Talk about your oxymorons.  

We had a couple of these motherfuckers who became multi-millionaires, on the U.S. taxpayers dime, testing their theories of torture and “learned helplessness” on detainees suspected of involvement with, or knowledge of, terrorist activities.   They actually travelled to “Black Sites” to test out the techniques personally on experimental victims.   The ACLU has brought a lawsuit against these dedicated, can-do psychologists.  You can read the details here.

Few villains deserve prosecution more than these two generously remunerated former military psychologists, Mitchell and Jessen.   OK, maybe Dick Cheney, tenured constitutional law professor John Yoo and federal judge for life Jay Bybee, the primary architects and theoreticians of our recent, extensive, still mostly top secret, torture program.  Like “collateral damage” is so much more refined than “massacred civilians”, the term “enhanced interrogation” is so much more dignified than “torture”, don’t you think?  Here is John “More Patriotic Than You” Yoo’s infamous “legal” definition of torture, signed off on by now federal judge Jay “Otherwise Anonymous Fuckface” Bybee:

Torture, according to that memo, “must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Yoo also advised that for mental pain or suffering to amount to torture, “it must result in significant psychological harm of significant duration, e.g., lasting for months or even years.”     source

The ACLU lawsuit, Salim v. Mitchell, brought on behalf of two torture survivors with the requisite years of severe PTSD, Suleiman Abdullah Salim and Mohamed Ahmed Ben Soud, and the family of Gul Rahman, a man killed by his American torturers (he died, according to the complaint, “as a result of hypothermia caused by his exposure to extreme cold, exacerbated by dehydration, lack of food, and his immobility in a stress position.”) is proceeding in the United States District Court in Washington D.C.  As of January, 2017 it was scheduled for trial on June 26, 2017.  

While I am speaking of torture, check this out, from Judge Quackenbush’s January ruling in the case, rejecting Mitchell and Jessen’s arguments that the case against them must be dismissed, as a matter of law, for lack of jurisdiction.   (Defendants are the two innovative, torture-endorsing, torture-performing psychologists)

The Defendants’ instant Motion was filed on November 18, 2016, and contends the Military Commissions Act (“MCA”), specifically 28 U.S.C. § 2241(e)(2), deprives this court of jurisdiction over “non-habeas detention-related claims” brought by an alien when the alien was determined to have been properly detained by the United States as an “enemy combatant”. (ECF No. 105, p. 1). Plaintiffs’ Response (ECF No. 12) contends the MCA does not apply for two primary reasons: 1) Defendants are not military servicemembers or government employees or agents, but are independent contractors; and 2) none of the three Plaintiffs were determined by an executive branch tribunal to have been properly detained as an enemy combatant. (ECF No. 120, p. 1).   source

The law is tortuous, and sometimes torturous, chockablock with the devilish details.  For purposes of this lawsuit, if the Defendants could prove they were acting as agents of the United States, the case against them would have to be dismissed under the law the ACLU seeks to use against them — as long as the plaintiffs were also ‘enemy combatants’.  The judge, in dismissing Defendants’ claim that they were agents of the United States, and therefore asserting the court’s jurisdiction over them under the law, used a slightly salty phrase I liked: 

It is telling the Defendants, who wish to establish the nature of the legal relationship between themselves and the Government, did not cite to the contracts in their Motion.  

The judge concludes:

Defendants have not established, based on the record submitted with the Motion to Dismiss, they were “agents” of the United States.

As for whether or not the plaintiffs (torture victims) were enemy combatants, and therefore not protected by the law they seek to use against the rogue psychologists, the judge wrote:

Plaintiffs argue the determination must be made by a military tribunal, a Combatant Status Review Tribunal (“CSRT”), to trigger the jurisdiction-stripping portion of the statute.  Defendants argue no tribunal finding is required, and appear to argue any reference to an individual as a “combatant” in a governmental memo, or reference to affiliation with a hostile organization, suffices.

Getting a little tingle of foreshadowing on which way the Court is leaning?

None of the three Plaintiffs was determined by a Combatant Status Review Tribunal to be an “enemy combatant.”

Therefore, Defendants’ Motion to Dismiss rejected, Defendants are subject to the court’s jurisdiction and this particular law applies to them.  Game on.  Trial, for evils done over a decade ago, starts Monday.  At least that’s what the judge wrote in January, 2017.   For the latest on the progress of the case, this was recently posted by lawyers for the plaintiffs.  Apparently there is going to be some oral argument on the ALCU’s motion , on behalf of torture victim plaintiffs, on July 28.

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