Standards applied by the Allies after WWII to those who tortured my father help to explain why a special prosecutor should investigate Bush Administration officials for war crimes today...
By Ernest A. Canning on 12/30/2014, 6:35am PT  

If there is a downside to the recently released executive summary of the U.S. Senate Torture Report [PDF], it can be found in the extraordinary lengths to which it goes to demonstrate a long-established fact: Torture is ineffective as a means for extracting actionable intelligence.

Emboldened by that focus, U.C. Berkeley Law Prof. John Yoo authored a response to the Senate Torture Report by way of a recent, Los Angeles Times op-ed. In 2002, while serving as the Deputy Assistant U.S. Attorney General, Yoo authored a memo that green-lighted CIA torture following the 9/11 attacks. The memo, according to UC-Irvine's renowned constitutional law professor Erwin Chemerinsky, should now serve as the basis for the prosecution of Yoo for war crimes. Shielded by the Obama/Holder Dept. of Justice's refusal to prosecute, Yoo shamelessly argued in his Los Angeles Times editorial that the newly released Senate Torture Report had shifted [emphasis added] "the debate beyond legality to effectiveness."

The issue of torture's "effectiveness" is not and never has been an appropriate subject for "debate." Robert Colville, the U.N. High Commissioner for Human Rights makes that clear in referencing the U.N. Convention against Torture, an international human rights treaty to which the U.S. is a signatory. "Torture is prohibited absolutely, in all circumstances, at any time," he explains in regard to the treaty signed by President Ronald Reagan. "It cannot be practiced in war, in peace, during emergencies, during internal instability, any circumstances whatsoever."

Those legal proscriptions apply not only to those who carry out torture but also, under the principle of "command responsibility," to high level officials who facilitate or fail to prevent torture by their subordinates.

As I revealed in my five-part series on the History of CIA Torture: Unraveling the Web of Deceit back in 2009, for me, torture is exceedingly personal. In late 1942 my father, James R. Canning, was waterboarded at Shanghai's Bridge House, an infamous torture chamber --- something that entailed a frightening, traumatic and "exquisitely painful," six-hour ordeal. He eventually signed a "false confession" stating that he was a British agent, even though he knew it wasn't true and even though he believed at that moment he was signing his own death warrant.

This Partial Trial Transcript [PDF] includes my father's testimony at the 1948 Hong Kong War Crimes Trials. It exposes the hypocrisy in the Obama/Holder DoJ's failure to apply the same ("command responsibility") legal standard to Yoo, former Vice President Dick Cheney --- who now proudly declares "I'd do it again in a minute!" --- and other high-level, Bush administration officials.

In 1948, that "command responsibility" standard was used to convict Lt. General Eiichi Kinoshida, who received a life sentence even though there was no evidence he personally participated in torture.

If we are indeed, as proclaimed by Sen. Diane Feinstein (D-CA) in her Forward to the Senate Torture Report, a "nation of laws," President Obama will heed the calls now being made by the ACLU, Human Rights Watch and even by The New York Times to appoint a special prosecutor who would investigate the crimes the CIA allegedly committed at the behest of Cheney et al --- crimes that appear as heinous and more so than those that were inflicted upon my father and his fellow civilian inmates during World War II...

Worse than Bridge House?

No doubt many readers will find the partial trial transcript of the 1948 war crimes trial disturbing. The conditions it depicts at Shanghai's Bridge House include the crowding of as many as 19 prisoners in a filthy, insect and vermin infested 19' x 11' cell with inadequately fed and, especially during cold winter months, inadequately clothed, civilian prisoners, left with nothing more than a single bucket in the same cell to relieve themselves.

As described in the partial transcript, prisoners at Bridge House were subjected to a variety of tortures, including electric shock treatments, prolonged beatings, stringing prisoners up by their thumbs and waterboarding in order to "make their bodies confess." The transcript reveals that at least two Bridge House detainees died while in custody of the Japanese military, including a Chinese man who was deliberately deprived of food and water.

Despite a number of horrific descriptions of similar techniques carried out by the CIA against many prisoners (many of whom turned out to be completely innocent of any crime whatsoever), the Senate's 499-page executive summary might appear relatively sterile to the uninformed. However, it must be kept in mind that the Senate's more than 6,700-page full report remains classified. The CIA destroyed videotapes that could potentially show that CIA waterboarding was as brutal as my father's 6-hour ordeal in which he repeatedly lost consciousness, only to awaken to observe one of the Japanese soldiers rolling back-and-forth on his stomach in order to extract water that had been forced up his mouth and nostrils and into his lungs.

Importantly, where the war crimes trial after WWII exposes the brutality of torture from the point of view of the tortured, the Senate Report, a compilation of more than 6 million pages of internal CIA documentation, reveals only the point of view of the torturers themselves.

The methods applied by the Japanese Kempetai at Bridge House were crude in comparison to the CIA's application of the science of torture, which, as discussed in Part II of our five-part series on the History of CIA torture, quoting Prof. Alfred McCoy, was the product of a "Manhattan Project of the mind" conducted by the CIA between 1950-1962 at a cost of more than $1 billion/year.

While the Bridge House prisoners suffered tremendously, at least they had one-another in that horrific 19'x11' cell. By contrast, the Senate Torture Report reveals a systematic application of the CIA's 1963 KUBARK torture manual. CIA detainee/victims, in the years following on 9/11, were forced to suffer prolonged isolation and prolonged sleep and sensory deprivation coupled with the Soviet KGB technique of self-inflicted pain brought on by being forced to remain in inhumane stress positions for extended periods.

The Senate Torture Report documents:

Sleep deprivation involved keeping detainees awake for up to 180 hours, usually standing or in stress positions, at times with their hands shackled above their heads. At least five detainees experienced disturbing hallucinations during prolonged sleep deprivation and, in at least two of those cases, the CIA nonetheless continued the sleep deprivation.

In one instance, the victim was "chained to a wall in the standing position for 17 days." Other victims were stripped naked, doused with or submerged in freezing water, shackled and deprived of light. And, unlike the Bridge House prisoners, the victims of CIA torture were subjected to what amounts to rape by a foreign object in the form of "rectal hydration" tubes.

Accountability

Comparative analysis suggests that the most disturbing gap between then (post-WWII) and now (post-9/11) can be found within the concept of accountability.

As explained by Prof. Suzannah Linton, a British law professor who compiled the Hong Kong War Crimes Trial Collection, the question of legal accountability for war crimes committed during World War II was first addressed by President Franklin D. Roosevelt in an Oct. 7, 1942 declaration. The United Nations War Crimes Commission began collecting lists of criminals in 1943 and a "Sub-Commission" to investigate Japanese war crimes was created in May 1944.

While due process was afforded when the victorious World War II allies conducted the Nuremberg and Hong Kong War Crimes Trials, the legal basis for doing so was perhaps more tenuous in 1948 than it is now. Japan, for example, was not a party to the U.N. War Crimes Commission when that U.N. Commission began collecting lists of criminals in 1943. By contrast, the United States is a party to the 1984 United Nations Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment.

Under that treaty, and the 1949 Geneva Convention, the U.S. has a legal obligation to either investigate, and when warranted, prosecute those suspected of torture or to extradite every person reasonably accused of having legal responsibility for torture to other nations who, in lieu of our doing so, are willing to carry out the prosecution required by signatories of the treaty.

While Feinstein praises Obama for ordering an immediate end to CIA torture, as we explained in "Fixing the Facts and Legal Opinions Around the Torture Policy", the President's use of sophistries in which, out of political expediency, he equated law enforcement with "retribution", amounted to a violation of his solemn oath to see that the laws of the United States are faithfully executed. That oath applies to our treaty obligations under the "Supremecy Clause" of the U.S. Constitution (Article 6) declaring that all such treaties to which the U.S. are signatories "shall be the supreme law of the land".

If the President belatedly heeds calls for a special prosecutor and the standard applied at the 1948 Hong Kong War Crimes Trials where my father testified, is applied now, Bush, Cheney, Yoo and others would be brought before the bar of justice.

Though belated, the appointment of a special prosecutor would represent a significant step towards restoring the concept of "Equal Justice Under Law" that appears above the entrance to the U.S. Supreme Court.

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• U.S. Senate Torture Report (executive summary, released 12/9/2014) [PDF]
• Shanghai Kempetai Bridge House Trial (partial transcript, James R. Canning, 12/23/1948) [PDF]

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.

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Article Categories: CIA, Dick Cheney, War On Terror, U.S. Constitution, Diane Feinstein, Accountability, Dept. of Justice, U.S. Senate, Barack Obama, U.S. Supreme Court, Torture, Bush Legacy