Amnesty Magazine


Summer 2004

'Our Heart of Darkness'


The Abu Ghraib torture scandal exposes a top-down disregard for human rights that stretches from Guantánamo to Afghanistan to Iraq, from prison guards to the top of the chain of command.

BY LISA HAJJAR

"A
s a result [of the removal of Saddam Hussein], there are no longer torture chambers or mass graves, or rape rooms in Iraq,” President George W. Bush said on April 30. Even as he spoke, the world was seeing photos of U.S. soldiers and contractors torturing and sexually humiliating Iraqi detainees at Abu Ghraib prison.

As the scandal grows and implicates U.S. military prisons and detention facilities around the world, it is becoming clear that violations are not confined to the actions of a few “bad apples” or a single location. Since 2003, the International Committee of the Red Cross (ICRC), Amnesty International, and other human rights groups have been documenting treatment of Iraqi prisoners and decrying abuses to the highest levels of the U.S. government and military. Recent investigations by the military itself and the media have documented torture as a part and consequence of official policy. That policy has not only damaged the U.S. image, but more importantly has undercut the 1949 Geneva Conventions and the 1984 U.N. Convention on Torture that define and govern humane standards for the treatment of prisoners around the world.

Iraqi artist Salah Edine Sallat finishes a mural based on a photo of an Abu Ghraib prisone
In Bagdhad's Sadr City, Iraqi artist Salah Edine Sallat finishes a mural based on a photo of an Abu Ghraib prisoner, with the Statue of Liberty pulling the switch.
(© AFP/Ramzi Haidar)

After 9/11 the Pentagon surreptitiously approved tougher interrogation guidelines that allowed interrogators to “soften up” detainees through “stress and duress” techniques such as violence or threats of violence, extended food, sleep, sensory, or water deprivation, exposure to extreme heat or cold, or being forced to assume positions intended to cause pain or sexual humiliation.

According to Newsweek, Secretary of Defense Donald Rumsfeld was so “impressed by the success of techniques used… at Guantánamo Bay [that he] seemingly set in motion a process that led to their use in Iraq, even though that war was supposed to have been governed by the Geneva Conventions.”

Interrogators at numerous U.S. facilities allegedly overstepped even these laxer guidelines by subjecting prisoners to rape, threats of electrocution, and mock execution by drowning. And according to the Pentagon, at least 37 prisoners have died in custody in Iraq and Afghanistan since August 2002. Two deaths at Bagram Collection Point in Afghanistan were ruled homicides by “blunt force injuries;” no one has yet been prosecuted.

Writing in The New Yorker, reporter Seymour Hersh ascribed responsibility for Abu Ghraib to Pentagon officials, who “encouraged physical coercion and sexual humiliation of Iraqi prisoners in an effort to generate more intelligence about the growing insurgency in Iraq.” Rumsfeld and Gen. Richard Myers, chairman of the Joint Chiefs of Staff, were “completely read into the [secret] program,” he wrote. Hersh also quotes an ex?intelligence official on the combination of torture and denial: “We’re not going to read more people than necessary into our heart of darkness. The rules are ‘Grab whom you must. Do what you want.’”

Newsweek points the finger even higher, charging that President Bush, along with Attorney General John Ashcroft and Rumsfeld, authorized memos, plans, and policy directives that allowed interrogators to “sidestep the historical safeguards of the Geneva Conventions, which protect the rights of detainees and prisoners of war. ...[T]he prime movers in this effort were DoD Under Secretary for Policy Douglas Feith and Defense Department General Counsel William Haynes.” These men ignored the warning by State Department officials and military judge advocates general (JAGs) that violations of the Geneva Conventions posed Aa real disaster” for U.S. interests, Newsweek reported.

If the revelations are accurate, and administration officials conspired to violate international law, the scandal rises to a whole new level: Because the Geneva Conventions prohibit torture, and because violations that constitute grave breaches are subject to universal jurisdiction, perpetrators or abettors of torture not prosecuted by their own government can potentially be prosecuted in a competent legal system anywhere in the world.

Schultz on Torture

What could have possessed seven young Americans to mistreat Iraqi prisoners, as we have learned recently they did? Lack of training, we are told. But learning not to beat or humiliate a helpless person is something every one of us should have learned as children. Or was it a personal proclivity for violence? Solzhenitsyn wrote in Gulag Archipelago, “The dividing line between good and evil cuts through the heart of every human being and who is willing to destroy his own heart?” He may be right, but much as our government would like us to believe that what occurred at Abu Ghraib was the perverse acting-out by a “few rotten apples,” we know better.

For more than a year, Amnesty International has been raising the alarm about U.S. mistreatment of prisoners -- in Afghanistan, at Guantánamo Bay, at diverse secret detention centers housing Al Qaeda suspects, and, beginning in July 2003, in Iraq itself. My U.S. human rights organization colleagues and I raised these concerns in face-to-face meetings at the highest levels of the Pentagon and National Security Council, but our pleas for investigation and intervention were obviously ignored.

Abu Ghraib is part of a long and wide pattern. The torture of prisoners in U.S. custody goes back at least to the war in the Philippines at the turn of the 20th century. Nor is it the military, Defense Department, or even the CIA alone that is responsible. When Vice President Cheney called terrorism suspects “barbarians” and President Bush characterized the war on terror as a war against Absolute Evil, they implied that our adversaries are less than human and hence undeserving of fundamental rights.

Pundits and commentators, including Jonathan Alter in Newsweek, Alan Dershowitz of Harvard Law School, and Bruce Hoffman of RAND, share blame for suggesting that after 9/11, torture may be defensible. They created the intellectual cover under which those officials who ordered the abuse have tried to hide.

Amnesty will not let them. This is exactly the kind of situation we were born to fight. AIUSA has taken the lead in condemning these actions and demanding that those responsible be brought to justice.

We are working with our grassroots membership to mobilize teach?ins, demonstrations, community forums, and online actions to ensure that citizens demand an end to torture carried out in their name.

Torture never makes the world safer, only more hideous.

– Bill Schulz, executive director AIUSA

D
espite growing evidence and the testimony of dozens of alleged victims, the dominant response of the Bush administration has been to blame a few aberrant individuals and label their actions “abuse.” In this respect, official U.S. response to the scandal unleashed by the Abu Ghraib photos resembles reactions by virtually every other state accused of engaging in torture.

Stanley Cohen, author of States of Denial, identifies three common forms of denial of torture and other atrocities. “Literal denial” is when the accused state responds that nothing happened and that those who claim otherwise are liars or “enemies of the state.” “Interpretative denial” is when a state refutes allegations by saying that what happened is not torture but “something else” -- like “moderate physical pressure,” “stress and duress,” or “abuse and humiliation.” “Implicatory denial” -- that is, denial by implicating others -- is when a state acknowledges torture but blames it on aberrant agents. U.S. officials are employing all three forms, although implicatory denial is the favored one.

"All of us are disappointed by the actions of the few,” Brig. Gen. Mark Kimmitt told CBS’s 60 Minutes II, the first major exposé on the torture in Abu Ghraib. “[The] acts that you see in these pictures may reflect the actions of individuals, but by God, it doesn’t reflect my Army.”

Such implicatory denial does not stand up. Maj. Gen. Taguba, who investigated prisons and interrogation centers in Iraq between October and December 2003, testified before the Armed Services Subcommittee of the Senate on May 11 that responsibility extends beyond the soldiers now facing court martial. Brig. Gen. Janis Karpinski, who oversaw 16 prisons in Iraq and has been relieved of those duties because of the scandal, said, “The [Abu Ghraib] prison, and that particular cell block where the events took place, were under the control of the MI [military intelligence] command.” Karpinski claimed that MI officers went “to great lengths to try to exclude the ICRC from access to that interrogation wing.” The Taguba Report described the practice of hiding “ghost detainees” as “deceptive, contrary to Army Doctrine, and in violation of international law.”

The prohibition of torture has a distinctive status in the pantheon of international rights: It is absolute. Torture refers to the purposeful harming of someone in custody -- unfree to fight back or protect himself or herself and imperiled by that incapacitation. The right not to be tortured protects all people -- regardless of social status, political identity, or affiliations -- from being brutalized, injured, or degraded while in the custody of an authority. The right not to be tortured is stronger than almost any other human right because the prohibition of torture is absolutely non-derogable and because the law recognizes no exceptions. What this means is that no one -- ever, anywhere -- has a “right” to torture, and that everyone -- always, everywhere -- has a right not to be tortured. It also means that anyone who engages in or abets torture is committing a crime. In the words of the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification for torture.” The U.S. ratified this convention in 1994.

“Torture and ill treatment cannot be defined by a list of prohibited practices,” says AIUSA’s international justice specialist Vienna Colucci. “The Geneva Conventions avoided a detailed list of prohibited acts precisely to ensure the broadest possible reach with no loopholes.”

While states torture people for various reasons -- and Amnesty International reports that two?thirds of the world’s countries do -- many justify their actions by citing a threat from terrorists. In national security discourse, the term terrorism typically refers to non?state
actors or organizations engaged in attacks or struggles against the state, emphasizing but not necessarily limited to violence, to which the state responds with “counterterrorism.”
But whether unprovoked or retaliatory; whatever the political, religious, or ideological motivation; and whoever the perpetrators, deliberately targeting civilians or civilian infrastructures as a tactic in the furtherance of some cause is terroristic. However, as international law expert Richard Falk explains:

With the help of the influential media, the state over time has waged and largely won the battle of definitions by exempting its own violence against civilians from being treated and perceived as “terrorism.” Instead, such violence was generally discussed as “uses of force,” “retaliation,” “self-defense” and “security measures.”

National security is a legitimate interest of any state, and states have a responsibility to provide for the security of their citizens. But the tendency to characterize and treat all enemies as “terrorists” or “terrorist sympathizers” causes a delineation between “legitimate” and “illegitimate” communities, leaving the latter vulnerable to state violence, and enabling the state to justify that violence is a necessary reaction to terror.

Terrorism is, by definition, a violation of human rights, but some of the worst violations around the world have been committed by states, in the name of counterterrorism. Michael Ignatieff, director of the Carr Center of Human Rights Policy at Harvard, writes:

The two terms -- human rights and terror -- look like a simple antithesis: human rights good, terror bad. ...[But] the antithesis is not so simple. Of course, human rights and terror stand opposed to each other. Terrorist acts violate the right to life, along with many other rights. But equally, human rights -- notably the right to self-determination -- have constituted major justification for the resort to violence, including acts of terror.

Ignatieff points out that it is not international human rights law (which is inherently pacifist), but rather international humanitarian law that obtains in any war, including a war on terrorism. The Geneva Conventions are agnostic about the causes or justness of war; rather, they govern what is legally permissible. Their aim is to minimize suffering and destruction and to provide guidelines for the detention and treatment of enemy civilians and combatants. International humanitarian law is not pacifist, but on the issue of torture it concurs with human rights law: Even in war, the right not to be tortured is absolutely non-derogable, and the use of torture in the context of conflict can constitute a war crime.

S ince September 11, the Bush administration has articulated positions and pursued policies that blatantly contravene the Geneva Conventions. “There was a before 9/11, and there was an after 9/11. After 9/11 the gloves come off,” Cofer Black, head of the CIA’s counterterrorist center during the 9/11 attacks, told Congress.

Rationalizing that terrorists do not deserve legal rights and protections, the Bush administration has embraced “stress and duress” techniques, and declared them legitimate, ignoring the fact that both torture and “cruel and degrading treatment” are outlawed under the Geneva Conventions. A Senate investigation asked Gen. Peter Pace, second in command at the U.S. Joint Chiefs of Staff whether detaining an American soldier, naked with a bag over his head and squatting with his arms lifted for 45 minutes, was a good interrogation technique or a Geneva Convention violation. He replied: “I would describe it as a violation, sir.”

The administration also invented the label “unlawful combatants,” a classification that does not exist in international law, and used it to hold people indefinitely incommunicado at Guantánamo Bay and other locations -- subjected to years of interrogation with no judicial oversight, no public accountability, and virtually no visitation by representatives of the ICRC. One former Bush administration lawyer characterized Guantánamo as “the legal equivalent of outer space.”

This pattern extends beyond Iraq, as Amnesty and others have documented, but the Abu Ghraib images provide hard evidence that the U.S. has joined the list of countries -- including Egypt, Israel, and Uzbekistan -- that are fighting wars on terrorism partly through the use of torture. The Abu Ghraib images also demonstrate that flouting international standards has global as well as individual consequences. Keeping torture illegal and struggling to enforce its prohibition are the front lines of a battle to defend one of the core rights that all human beings can claim. If torture is legitimized and legalized in the future, it is not “the terrorists” who will lose, but “the humans.”

Lisa Hajjar teaches in the Law and Society Program at the University of California, Santa Barbara, and serves on the editorial committee of Middle East Report. Her book, Courting Conflict: The Israeli Military Court System in the West Bank and Gaza, will be published in 2004 by the University of California Press.

This article appeared in Amnesty Magazine,the quarterly magazine of Amnesty International USA. For copies of the original article, the full magazine, subscriptions ($12/yr), or membership to AIUSA including subscription ($25/yr) please: email now@aiusa.org; write to Amnesty Magazine, 322 8th Ave. New York, NY 10001; or call 212.633.4246. Text and photographs are copyright protected.