Written by Kristofer M., Washington Journal Watch, 11/10/05.
Taken from the interview broadcast on C-SPAN's Washington Journal

“What a terrorist wants more than anything else is to goad the country that it attacks into acting in ways that undermine that country's image and undermine it's strength in the world,” says David Cole, a professor at the Georgetown University Law School. “That's exactly what we've done. We've played into their hands”

During his interview on C-SPAN's Washington Journal, Professor Cole argues against the United States' use of cruel, inhuman, and degrading treatment.

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“I don't think anyone expects Al-quaeda to abide to Geneva conventions,” Cole says, but he advises that the government “shouldn't stoop to their level.”

According to Cole, the “United States has signed on to” the Geneva Conventions with the principles stating that “every human being deserves to be treated humanely. The laws of war say no matter how heinous an individual is he deserves to be treated humanely.” Cole states these rights are “not limited to citizens.” He adds that the Geneva convention dictate that “torture is never permissible as a legal matter.”

“They may be the worst of the worst but they are human beings.”

Cole states the existence of rights including due process, and equal protections apply “to persons” are written into the foundations of this country. “The United States Constitution say no matter how heinous an individual acts he deserves to be treated humanely and we can do that, we've done that in the past, there's no reason we should for the first time in our history depart on a basic prohibition.”

The Bush administration has been pushing for the removal of a provision in the defense appropriations bill proposed by Senator John McCain calling for the limiting of treatment of detainees. The Bush administration stands by their policy of treatment of detainees giving the reason that it is necessary to fufil their “obligation to protect the American people.”

“Never before has officials of the United States government argued that we need cruel, inhuman, and degrading treatment on people in order to win a war,” Cole responds to the White House position. “It's simply not necessary to win this war.”

According to Cole, the public has learned from FBI documents, leaked army interrogation logs, and human rights committees, that there have been incidents of burning cigarettes being placed into detainee's ear, forced enemas, shackling in cells where they defecate and urinate on themselves, and CIA interrogations resulting in death.

The perception by some Americans believing that this type of abuse is a result of a “few bad apples on a night shift, is an illusion,” Cole argues.

Mr. Cole believes that the administration purposely positioned themselves to allow these types of abuses.

“John Yoo is a law professor at Berkley, who was in the Justice Department in an office called the Office of Legal Counsel immediately after 9/11 for the Bush administration,” Cole says. According to him he was one of the “most influential people within the Justice Department in crafting the Bush's administration response to the attacks of 9/11.”

“He took the position now in the infamous torture memo, that while there is a prohibition on torture, it does not include a prohibition on inflicting physical pain,” Cole explains, “unless it is the kind that is associated with organ failure or death.”

“While there is a prohibition on torture, it doesn't prohibit threatening people with death it doesn't prohibit impose mental suffering on people as long as it is not prolonged and extended mental suffering,” Cole says.

Cole states that Yoo gave the President unrestrained powers in ordering the practice. He says Yoo “took the position that it is unconstitutional for Congress to restrict the President in using torture.”

“Under John Yoo's understanding of the Constitution, the McCain amendment itself is unconstitutional because it seeks to limit the President's use of torture and other coercive treatment in the way we pursue our war on terror.”

He also holds upper level military officials responsible for the treatment of detainees.

“What happened In Iraq happened very shortly after we sent over Jeffery Miller, who was the commander in charge of Guantanamo, to instruct the people in Iraq on how to get information,” Cole explains.

He suggests that Miller ordered prison officials to basically “loosen them up, set the conditions by abusing them by making feel dependent” and by setting the “conditions for interrogation.”

Cole also states that leaked documents are found to “muddy the water” and “make less clear” the practices of handling of detainees in order to allow coercive interrogations to take place.

Cole argues that this practice is unnecessary and self defeating.

“The military has expressly said they have no problem with abiding by the prohibition on cruel, inhuman, and degrading treatment.”

“We can catch Al-qaeda people, we can detain Al-qaeda people, we can interrogate Al-qaeda people without violating the laws of war.”

Cole says that the Geneva Conventions restrict what can be done to prisoners but it “doesn't mean we can't lock them up.”

During the interview, Cole comments on the Vice President's, Dick Cheney, lobbying Congress to exempt CIA agents from the McCain provision.

“And why do they want that exemption? Because the CIA has these we learned about this last week 'black sites,' secret prison cells around the world in which we are disappearing people on the war on terror. Approximately 100 people have been disappeared according to the Washington Post story into these so called 'black sites' in where we don't allow any monitors to come in what so ever including the International Committee for the Red Cross.”

“The reports are that the CIA are making people doing is believe they are drowning in order to encourage them to talk. Holding their heads underwater until they can't breathe so we can encourage them to talk,” Cole says. “They're engaging in mock burials pretending to essentially threaten people with death,” he adds, “they are threatening to send people to countries that we know they will be tortured in order to get them to talk.”

During the interview David Cole shares his views on previous wars.

“We've fought World Wars and we have not engaged in official policy of cruel, inhuman, and degrading treatment. This is a prohibition on torture and other cruel, inhuman, and degrading treatment is an international treaty that we signed and ratified in 1994 when the first President Bush was in office that is signed by virtually every country in the world that permits no exceptions including, expressly, in the state of war. And yet our administration has interpreted that treaty to allow it cruel, inhuman, and degrading treatment on foreign nationals held abroad.”

Cole further argues that the practice is done “without any showing they in fact are a terrorist. Without any showing that they in fact have any information in some sort of emergency situation.”

Some of the viewers bring up an imagined situation where there is a ticking time bomb and the US is holding a detainee who is the key in locating it.

“It is a hypothetical,” Cole says. “In the real world I don't think it has ever arisen a situation that we know there's a ticking time bomb about to go off, (where) we know that the person we have before us has the information about it, (where) we know that if we employ torture on him he will in fact tell us that information and not some other inaccurate information.”

“In absent knowing all of that, I think the hypothetical falls apart,” Cole explains. “In the real world, what happens is if you loosen the strictures against torture,..lazy interrogators will employ those forms of interrogation ins situations that are far from the ticking time bomb.”

Cole says in “Abu-Ghraib, there was no ticking time bomb,” and adds, “there's no ticking time bomb in Guantanamo.”

Cole stresses that the Bush's administration policy of treatment of prisoners and detainee alters the world's image of the United States resulting in the increased threat to national security.

He describes the White House policy as “a remarkable position” that “brings us down a significant notch in terms of our image around the world as a leader of human rights.”

Cole believes the practice is “ultimately undermining our efforts on the war on terror because they undermine the legitimacy of the effort we are engaged in, they make it easier for the other side to gain recruits to their side.”

Looking back at the day after 9/11 he believed that the United States captured the “worlds sympathy“. He believes the response to the attacks “squandered” the world's feelings toward the wounded nation. According to Cole, before September 11, Osama bin Laden did not receive popular support. After 9/11, due to the treatment of the captured, the numbers in favor of the US plummeted, while bin Laden's numbers went up.

News of prisoner and detainee abuse became the “rallying cries for the other sides to gain adherence to their side,” Cole says. He suggests that this issue has become an argument for terrorists that the US doesn't treat it's enemies like human beings and they “deserve to be attacked.”

Due to our image, Cole says we are “living in a world where anti-Americanism has never been higher.” He states he sees this as the “greatest threat to US security.”

Cole states that there is hope in reversing this negative image held by the world.

One signal that the United States is stepping away from the practice of abuse is seen in the McCain legislation with the wide support from Congress.

He is supportive of John McCain's amendment to the defense appropriations bill, but feels “the administration has yet gotten the message.”

“President Bush and Vice President Cheney are really the out liers on this one,” Cole says. He adds that the administration is “going against the wishes of ninety Senators,” with only nine supporting the White House position.

Cole has concern with South Carolina's Republican Senator Lindsey Graham's added proposal addressing the rights of prisoners and detainees. Cole calls this addition “a very dangerous provision”.

“If you block them from going to court to challenge their treatment , how are you going to enforce the very amendment that he is cosponsored with John Mccain?” Cole asks.

The Georgetown University professor believes that by sharing his opinion he will raise “popular pressure” and “public criticism” against the policy of treatment.

“The right of us as Americans to come on shows like this and express our points of view is critical, indeed one of the critical checks on government abuse,” he says. “We have a political process because a number of people have raised our voices objecting to this kind of tactic as inhuman.”

“In a democracy, this is the only way we can go forward.”


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SHOW SCHEDULE AND BACKGROUND INFORMATION


Washington Journal Schedule For November 10, 2005.

7am - Newspapers, Phones & Roll Call

7:45am - David Cole, Georgetown University Law School, Professor

8:30am - Supreme Court Watch: Eric Freedman, Hofstra University Law School, Prof. of Constitutional Law | Rompilla v. Beard

9:15am - John Yoo, UC Berkeley School of Law, Law Professor

****** David Cole ******

Professor of Georgetown University Law School

Related Links:

GU: Biography

Professor Cole has received numerous awards for his civil rights and civil liberties work, including from the Thomas Jefferson Center for the Protection of the Freedom of Expression, the American Bar Association’s Individual Rights and Responsibilities Section, the National Lawyers Guild, the American-Arab Anti-Discrimination Committee, the Political Asylum and Immigrants’ Rights Project, the American Muslim Council, and Trial Lawyers for Public Justice.

Uruknet: Tomgram: David Cole on John Yoo and the Imperial Presidency

The proposition that judicial processes -- the very essence of the rule of law -- are to be dismissed as a strategy of the weak, akin to terrorism, suggests the continuing strength of Yoo's influence. When the rule of law is seen simply as a device used by terrorists, something has gone perilously wrong. Michael Ignatieff has written that "it is the very nature of a democracy that it not only does, but should, fight with one hand tied behind its back. It is also in the nature of democracy that it prevails against its enemies precisely because it does." Yoo persuaded the Bush administration to untie its hand and abandon the constraints of the rule of law. Perhaps that is why we are not prevailing.

The Nation: Intolerable Cruelty

Even if inhuman treatment might induce a suspect to talk in a specific case, such methods are difficult to control and in the long run ill-advised, as the migration of such abuses from Guantánamo to wider use in Iraq demonstrates. These tactics ultimately undermine our security, as they impair our legitimacy and create ideal recruiting tools for the enemy. It is simply immoral to claim that we can inflict on other countries' nationals cruel and inhuman treatment that would not be tolerated if it were imposed on our own citizens.

If we are to prevail in the war on terror, we must do so by distinguishing ourselves from our enemy. Terrorism is a moral evil because to achieve its ends it brutally disregards the value of human life. Torture and cruel, inhuman and degrading treatment are evil for the same reason. As John McCain said, this is not about who they are, "this is about who we are."

****** John Yoo ******

Law Professor of UC Berkeley School of Law

Wrote the Book: The Powers of War and Peace : The Constitution and Foreign Affairs after 9/11

Wrote Recent Article for USA Today: Terrorists are not POWs

To protect the United States against another 9/11-style attack, it makes little sense to deprive ourselves of important, and legal, means to detect and prevent terrorist attacks. Physical and mental abuse is clearly illegal. But should we also take off the table interrogation methods that fall short of torture - such as isolation, physical labor, or plea bargains - but go beyond mere questioning?

Cited in recent articles:
Executive Intelligence Review: Cheney's Addington Was Chief Author of U.S. Torture, War Crimes Policy

It is clear beyond any reasonable doubt, as we have shown in our coverage over the past few years, that Cheney, Addington, and the others, such as the Justice Department's John Yoo, knew that what they were advocating constituted war crimes under U.S. and international law.

Associated Press: Judge active in legal society

Judge Alito's Federalist Society membership is seen as "an important signal to conservatives in the legal community," said John Yoo, a law professor at the University of California at Berkeley, who worked in the U.S. Justice Department from 2001 through 2003. "It shows an interest in thinking deeply about the role of the courts in society and the proper interpretation of the Constitution based on its text and history," said Mr. Yoo, himself a member of the Federalist Society since his college days.

The New Yorker: A DEADLY INTERROGATION Can the C.I.A. legally kill a prisoner?

These two memos sanction such extreme measures that, even if the agency wanted to discipline or prosecute agents who stray beyond its own comfort level, the legal tools to do so may no longer exist. Like the torture memo, these documents are believed to have been signed by Jay Bybee, the former head of the Office of Legal Counsel, but written by a Justice Department lawyer, John Yoo, who is now a professor of law at Berkeley.