Thumbscrewing International Law
Torturers used to practice their craft behind a wall of secrecy. Now some U.S. officials are defending torture as a necessary tool in the "war on terror."
By Eyal Press
When U.S. Defense Secretary Donald Rumsfeld charged in March that Iraq had violated the Geneva Conventions by parading captured U.S. soldiers on television, the U.S. media were awash with stories about the fine-points of international law. Article 13 of the Geneva Conventions does in fact state that prisoners "must at all times be protected ... against insults and public curiosity." But there is something else that the Geneva Conventions prohibit: torture. And on this score, Rumsfeld and others in the Bush administration have been notably less attentive to the letter of the law.
Recent revelations in the media suggest that torture is becoming acceptable in some quarters of the U.S. government, with terrorism replacing communism as the official rationale. And as during the cold war when U.S. trainers taught torture techniques, Washington's tolerance of such practices could have a ripple effect around the world.
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Processing suspected Al Qaeda and Taliban detainees at Camp X-Ray at Guantánamo Bay, Cuba, January 2002. © AFP / Shane T. McCoy |
A Washington Post story on Dec. 26 detailed allegations of torture and inhumane treatment of some of the thousands of suspects the U.S. has apprehended since the Sept.11 terrorist attacks. U.S. Army Special Forces often "soften up" — that is, beat up — Al Qaeda captives held at the CIA interrogation centers overseas before interrogating them, according to the front-page report. Interrogators have also thrown suspects against walls, hooded them, deprived them of sleep, bombarded them with light, and bound them with duct tape in painful positions. Referred to by officials as "enemy combatants," the prisoners have no access to lawyers, reporters, and most outside agencies, including Amnesty International.
Such methods, at the least, constitute cruel and inhumane treatment and may rise to the level of inflicting "severe pain or suffering, whether physical or mental," the official benchmark of torture set forth in the U.N. Convention Against Torture.
The U.S. government insists it is conforming to international law, but one unnamed official told the Post, "If you don't violate someone's human rights some of the time, you probably aren't doing your job."
At least two prisoners have been killed in U.S. custody. In March, the story broke that death certificates for two Al Qaeda suspects at the Bagram base in Afghanistan showed both to have been killed by "blunt force injuries." A military doctor listed the deaths as homicides.
At the Guantánamo detention center, where detainees undergo frequent interrogations, about 25 prisoners have attempted suicide and dozens are being treated with anti-depressant drugs.
In some cases, Washington prefers to distance itself by outsourcing interrogations. The Post also reported that since 9/11 Washington has transferred approximately 100 suspects to U.S. allies, including Saudi Arabia and Morocco, whose brutal torture methods have been amply documented in the State Department's own annual human rights reports.
"We don't kick the [expletive] out of them," one official told the Post. "We send them to other countries so they can kick the [expletive] out of them."
In at least one case, a suspect was sent to Syria. According to a State Department Annual Report, torture methods in Syria include "pulling out fingernails; forcing objects into the rectum; ... using a chair that bends backwards to asphyxiate the victim or fracture the spine."
Other captives have been sent to Egypt, where, according to the State Department, suspects are routinely "stripped and blindfolded; suspended from a ceiling or doorframe with feet just touching the floor; beaten with fists, whips, metal rods, or other objects; subjected to electric shocks."
A former CIA official told Newsday about one detainee transferred from Guantánamo Bay to Egypt: "They promptly tore his fingernails out, and he started telling things."
The capture last March of Al Qaeda leader Khalid Shaikh Mohammed prompted some U.S. officials to suggest that such practices are warranted. An unnamed official told the Wall Street Journal that U.S. interrogators may authorize "a little bit of smacky-face" while questioning captives in the war on terrorism. Said another, "There's a reason why [Mohammed] isn't going to be near a place where he has Miranda rights or the equivalent. You go to some other country that'll let us pistol-whip this guy."
U.S. complicity in torture goes back at least to the 1970s when police and military forces trained by Washington engaged in the widespread torture and ill-treatment of leftists in countries such as Brazil and Uruguay. It was one of the cold war's most sordid (and hidden) chapters. With the collapse of the Soviet Union, hopes arose that such abuses would be relegated to the past.
Reports on the re-emergence of the practice have met with a strong response by a coalition of organizations, including Amnesty International and Human Rights Watch. The coalition fired off a letter to Deputy Defense Secretary Paul Wolfowitz, calling on the Bush administration to unequivocally denounce torture and clarify that the United States will "neither seek nor rely upon intelligence obtained" through such practices.
Yet, in these jittery times, some commentators have suggested reconsidering the absolute prohibition on torture codified in the 1975 international "Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment." The U.S. is bound by the agreement, which it signed and ratified. After September 11th, Harvard law professor Alan Dershowitz famously proposed allowing U.S. judges to issue "torture warrants" to prevent potentially catastrophic terrorist attacks. Writing in The New Republic last fall, Richard Posner, a judge on the U.S. Court of Appeals for the Seventh Circuit, expressed reservations about Dershowitz's proposal, but he argued that "if the stakes are high enough, torture is permissible. No one who doubts that this is the case should be in a position of responsibility."
The rationale behind such comments is the "ticking bomb" scenario, in which a captive knows of an imminent, catastrophic attack. Some argue that torture is justified to extract potentially lifesaving information. And even staunch opponents of torture acknowledge that the hypothetical scenario makes relaxing the prohibition seem appealing. "I don't think any sensible moral position would deny that there might be some imaginable situations in which torture [of a particular individual] is justified," wrote Martha Nussbaum, a professor at the University of Chicago, an expert on ethics and human rights.
But in the real world, as Nussbaum notes, governments don't just torture ticking time bombs. They torture their enemies under circumstances that routinely stray from the isolated, extreme scenario because nobody can know for certain whether a suspect really is a ticking bomb.
"There's an inevitable uncertainty," explains Georgetown law professor David Cole, the author of Terrorism and the Constitution and a forthcoming book on September 11th and civil liberties. "You can't know whether a person knows where the bomb is or even if they're telling the truth. Because of this, you end up going down a slippery slope and sanctioning torture in general." So while Cole and Nussbaum can imagine instances when torture might constitute a lesser evil, both favor a "bright line," in Cole's words, banning the practice.
Their warnings are based in history. Oxford professor Henry Shue, a specialist in international relations, describes how torture spread "like a cancer" through the French security apparatus as it tried to suppress the Algerian anti-colonial struggle in the 1950s. French officials justified torture as a rare measure to prevent imminent assaults on civilians, but Shue says, "The problem is that torture is a shortcut, and everybody loves a shortcut."
The Algerian experience recurred in Israel, where, until the Israeli Supreme Court formally banned the practice in 1999, the "ticking bomb" scenario was used as legal justification for hooding, beating, and abusing hundreds of Palestinians. In both countries, the governments cited terrorism, suicide bombings and violent attacks as their rationale.
For the United States to blur the line on torture at this particular moment seems particularly short-sighted. "When you are conducting a war in the name of the rule of law and at the same time violating the most fundamental rule of law, you are clearly handing fodder to your adversaries, who will then say, 'Look, all this talk about freedom and ideals and justice is just wind,' " says William Schulz, executive director of Amnesty International USA.
Although some conservatives counter that such talk is overly idealistic, nobody has insisted more adamantly than George W. Bush that the war on terrorism is, at root, a conflict about values. In his most recent State of the Union address, he catalogued the torture methods administered to prisoners in Iraq. "Electric shock, burning with hot irons, dripping acid on the skin, mutilation with electric drills," Bush said. "If this is not evil, then evil has no meaning."
By denouncing torture while softening the rules when its own interests are at stake, the United States sends a disturbing message: that it applies a different standard to its enemies than to itself.
One standard shared by those who practice terrorism and those who torture is a belief that the ends justify the means. They both explain away violence by framing it as a necessary "last resort." And they obscure the human impact of that violence by refusing to recognize the humanity of their victims.
"For the torturers, the sheer and simple fact of human agony is made invisible, and the moral fact of inflicting that agony is made neutral," writes Elaine Scarry in her powerful book The Body in Pain. But those facts are neither invisible nor neutral to the victims. "Whoever has succumbed to torture can no longer feel at home in the world," observed Holocaust survivor (and torture victim) Jean Améry in his searing memoir At the Mind's Limits. "It is fear that henceforth reigns. ... Fear — and also what is called resentments — [that] concentrate into a seething, purifying thirst for revenge."
Those who insist that the ban on torture should be absolute accept that the position comes with certain costs. Israeli security forces may, indeed, have prevented some suicide bombings by beating and shaking Palestinians. But there is a trade-off between freedom and security; in a democracy, as the Israeli Supreme Court noted in its 1999 decision that banned torture, "not all means are acceptable." Outlawing torture, in this sense, is like establishing rights to free speech, privacy, and freedom of assembly: It entails potential costs by limiting how governments can ensure order.
Those who advocate relaxing the ban on torture frequently invoke Supreme Court Justice Robert Jackson's 1949 warning that, however much we value our liberties, the Bill of Rights should not become "a suicide pact." But as real as the danger of Al Qaeda may be, few would argue that it constitutes an existential threat to the nation. The United States has enormous resources at its disposal and countless tools with which to wage its war on terror. It's worth asking why brutal CIA interrogation methods should considered necessary for our security–while providing adequate funding for such homeland security essentials as safeguarding nuclear and chemical facilities as well as addressing the socio-economic factors that engender terrorism are not.
As a tool for collecting information, moreover, torture is notoriously ineffective (since people in pain have the unfortunate habit of lying to make it stop), and has done little to solve long-term security threats. In fact, Hafiz Abu Sa'eda, head of the Egyptian Organization for Human Rights, argues that torture can actually promote terrorism. "Torture demonstrates that the regime deserves destroying because it does not respect the dignity of the people," he told the London Guardian. Members of Islamist groups such as the Muslim Brotherhood are among those transformed from relative moderates into hard-line fanatics after being tortured, Sa'eda explains. After being tortured in Egypt, Dr. Ayman al-Zawahiri, a surgeon, fled to Afghanistan to join the mujahedeen and eventually became Osama bin Laden's deputy.
The abuses irreversibly transform not only the victims but those complicit in torture themselves. "[T]o this day, when I sleep at night, I hear [the screaming] inside my ears all the time," said an Israeli soldier who stood guard over tortured prisoners. "It doesn't leave me, I can't get rid of it."
Unfortunately, even governments that preach an absolute ban on torture practice it behind closed doors. In a forthcoming article, Sanford Levinson, a professor at the University of Texas Law School and a legal realist, argues that this gap between rhetoric and reality may bolster Dershowitz's proposal that torture should be brought out into the open and regulated. Others counter that legitimizing a practice that is by definition illegitimate will only increase its acceptability and prevalence. They suggest that scholars, politicians and citizens must not only uphold the ideals of international law, they must define permissible methods of interrogation during wartime.
Also needed are national and international safeguards to prevent, expose, and punish violations. Torture, like all governmental abuses, thrives in the absence of openness and accountability. In January the International Secretariat of the World Organization Against Torture (OMCT), a coalition of non-governmental organizations from more than 65 countries, urged the U.S. government to allow the U.N. Special Rapporteur on Torture to visit the Bagram base in Afghanistan, where the practices described by the Washington Post are taking place. The OMCT's recommendation was met with stony silence, not only by Washington but also by the U.S. media.
"For better or worse, the United States sets precedents and examples," Oxford scholar Henry Shue says. "We're very visible. If the most powerful country in the world has to torture, how are we supposed to convince anyone else that they shouldn't torture?" 
