March 31st, 2003
The recent capture of Al Qaeda leader Khalid Shaikh Mohammed is the latest indication that the taboo on torture has been broken. In the days after Mohammed’s arrest, an unnamed official told the Wall Street Journal that US interrogators may authorize “a little bit of smacky-face” while questioning captives in the war on terrorism. Others proposed that the United States ship Mohammed off to a country where laxer rules apply. “There’s a reason why [Mohammed] isn’t going to be near a place where he has Miranda rights or the equivalent,” a senior federal law enforcer told the Journal. “You go to some other country that’ll let us pistol-whip this guy.”
Asked about this by CNN’s Wolf Blitzer, Senator Jay Rockefeller IV, a Democrat from West Virginia and vice chairman of the Senate Select Committee on Intelligence, replied, “I wouldn’t take anything off the table where he is concerned, because this is the man who has killed hundreds and hundreds of Americans over the last ten years.” (An aide to Rockefeller subsequently insisted that the Senator did not condone turning Mohammed over to a regime that tortures.) In fact, sending US captives to abusive allies, and other policies that potentially implicate America in torture, have been in use for months.
On December 26 of last year, the Washington Post published a front-page story detailing allegations of torture and inhumane treatment involving thousands of suspects apprehended since the September 11 terrorist attacks. Al Qaeda captives held at overseas CIA interrogation centers, which are completely off-limits to reporters, lawyers and outside agencies, are routinely “softened up”–that is, beaten–by US Army Special Forces before interrogation, as well as thrown against walls, hooded, deprived of sleep, bombarded with light and bound in painful positions with duct tape. “If you don’t violate someone’s human rights some of the time, you probably aren’t doing your job,” one official said to the Post of these methods, which at the very least constitute cruel and inhumane treatment and may rise to the level of “severe pain or suffering, whether physical or mental,” the benchmark of torture.
The same article reported that approximately 100 suspects have been transferred to US 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.” Many 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.” In at least one case, a suspect was sent to Syria, where, the State Department says, torture methods include “pulling out fingernails; forcing objects into the rectum…using a chair that bends backwards to asphyxiate the victim or fracture the spine.” A story in Newsday published just after Mohammed’s arrest quoted a former CIA official who, describing a detainee transferred from Guantánamo Bay to Egypt, said, “They promptly tore his fingernails out and he started telling things.”
Just as pundits debated Mohammed’s possible transfer, evidence emerged that remaining in US custody might not be any safer : Death certificates released for two Al Qaeda suspects who died while in US custody at the Bagram base in Afghanistan showed that both were killed by “blunt force injuries.” Other detainees told of being hung from the ceiling by chains.
The Bush Administration insists that the United States has not violated the UN Convention Against Torture, which the Senate ratified in 1994. But the cascade of recent revelations has left human rights groups understandably alarmed. Shortly after the Washington Post article appeared, a coalition of organizations, including Amnesty International and Human Rights Watch, fired off a letter to Deputy Defense Secretary Paul Wolfowitz calling upon the Bush Administration to unequivocally denounce torture and clarify that the United States will “neither seek nor rely upon intelligence obtained” through such practices. But few have echoed their call. “There’s been a painful silence about this,” says Human Rights Watch executive director Ken Roth. “I haven’t heard anyone in Congress call for hearings or even speak out publicly.” The silence extends to the media, where, until Mohammed’s capture, no follow-up investigations and few editorials had appeared–not even in the New York Times.
The absence of debate may simply reflect a preoccupation with Iraq, but it may also signal that in these jittery times, many people see torture as justified. In the aftermath of the World Trade Center attack, numerous commentators did suggest that the absolute prohibition on torture should be reconsidered. Harvard law professor Alan Dershowitz famously proposed allowing US judges to issue “torture warrants” to prevent potentially catastrophic terrorist attacks. Writing in The New Republic last fall, Richard Posner, a judge on the US Court of Appeals for the Seventh Circuit, expressed reservations about Dershowitz’s proposal but 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.”
Lurking behind such comments is the specter of the so-called “ticking bomb”: the captive who knows of an imminent attack that will cost thousands of lives, imagined vividly on February 4 in the hit Fox series 24, in which US agents used electroshock to extract a confession about an impending nuclear attack.
Should an exceptional captive such as Mohammed be tortured to extract potentially lifesaving information? The Nation spoke with several prominent theorists of ethics, human rights and the law, all of whom acknowledged that this is very difficult emotional terrain, even if there is, in the end, only one truly ethical answer. Martha Nussbaum, a professor at the University of Chicago who has written several books on ethics and human rights, offered a frank–and somewhat jarring–admission. “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,” Nussbaum wrote in an e-mail to The Nation.
But as Nussbaum went on to note, in the real world, governments don’t just torture ticking time bombs: They torture their enemies, under circumstances that routinely stray from the isolated, extreme scenario. Even the most scrupulous regime is bound to do so, for the simple reason that 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 11 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 scenarios where torture might constitute a lesser evil, both favor a “bright line,” in Cole’s words, banning the practice.
Henry Shue, a professor of politics and international relations at Oxford who has published an influential academic article on torture, points out that the French experience in Algeria is illustrative. Though justified as a rare measure to prevent imminent assaults on civilians, says Shue, torture quickly spread through the French security apparatus “like a cancer.” “The problem is that torture is a shortcut, and everybody loves a shortcut,” Shue says. “I think it’s a fantasy to believe that the United States is that much better than anybody else in this respect.”
The Algerian experience recurred in Israel, where, until the Israeli Supreme Court formally banned the practice in 1999, preventing “ticking bombs” from carrying out suicide attacks served as the justification for hooding, beating and abusing hundreds of Palestinians. “Very quickly, from a rare exception torture in Israel became standard practice, in part because the ticking bomb metaphor is infinitely expandable,” says Human Rights Watch’s Roth. “Why stop with the bomber? Why not torture the person who could introduce you to the cousin who knows someone who planted the bomb? Why not torture the wife and kids? Friends? All of this becomes justified.”
And once torture becomes common practice, it severely undermines a society’s democratic norms. As Shibley Telhami, a professor at the University of Maryland and an expert on the Middle East, writes in his new book, The Stakes, “We cannot defend what we stand for by subverting our own values in the process.” In the current climate, conservatives may dismiss such talk as soft-minded idealism. In fact, nobody has more adamantly insisted that the war on terrorism is, at root, a conflict about values than George W. Bush. In his recent State of the Union address, the President 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.”
For the same government that denounces such practices to soften the rules when its own interests are at stake sends a disturbing message: that American moralizing is meaningless. That the United States is willing to dehumanize its enemies in much the way that it complains Islamic terrorists dehumanize theirs.
The parallel between terrorism and torture is instructive. Proponents of each practice maintain that the ends justify the means. They explain away violence by framing it as a necessary “last resort.” And they obscure the human impact of that violence by refusing to register the humanity of their victims.
For torture is–and has always been–a function not of brute sadism but of the willingness to view one’s enemies as something less than human. As Edward Peters, a professor of history at the University of Pennsylvania, has shown in his authoritative history of the subject, in ancient Greece only slaves and foreigners were subjected to basanos (torture). During the late eighteenth and early nineteenth centuries, as the Enlightenment swept across Europe, one nation after another abolished the practice, to the point where, by 1874, Victor Hugo could proclaim that “torture has ceased to exist.” Yet torture was reinstated during the decades that followed–just as the European powers established colonial empires. It became acceptable to treat “natives” in ways that were unacceptable for “the civilized.” In more recent decades, when torture has been employed–South Africa, Cambodia, Tibet–it has often been meted out to members of groups so demonized that their individual identities were erased. In this context, it is chilling that the names and identities of the captives in the war on terrorism are as unknown to us as the methods being used against them.
“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,” the Holocaust survivor (and torture victim) Jean Améry observed in his searing memoir At the Mind’s Limits. “It is fear that henceforth reigns…. Fear–and also what is called resentments. They remain, and have scarcely a chance to concentrate into a seething, purifying thirst for revenge.” In a recent article in the London Guardian, Hafiz Abu Sa’eda, head of the Egyptian Organization for Human Rights, described how the experience of being tortured by Egyptian authorities has played a role in radicalizing members of Islamist groups such as the Muslim Brotherhood.
“Torture demonstrates that the regime deserves destroying because it does not respect the dignity of the people,” Sa’eda explains. “[The Muslim Brotherhood] began to argue that society should be destroyed and rebuilt again on the basis of an Islamic state.” Among those who have been transformed from relative moderates into hard-line fanatics through such a process, the Guardian noted, is Dr. Ayman al-Zawahiri, a surgeon who, after being tortured in Egypt, fled to Afghanistan to join the mujahedeen and eventually became Osama bin Laden’s deputy. It’s possible that Zawahiri would have followed this path independently, of course. But no regime has ever quelled the hatred of its enemies by engaging in torture. The abuses instead fuel this hatred and indelibly transform not only the victims but the torturers themselves. “The screaming I heard on Saturday morning…those were screams which until today, when I sleep at night, I hear them inside my ears all the time,” an Israeli soldier who stood guard over tortured prisoners said in an oral history published in 1990. “It doesn’t leave me, I can’t get rid of it.”
To insist that the ban on torture should be absolute ought not to lead one to deny that this position comes with certain costs. It is probable that Israeli security forces have prevented some suicide bombings over the years by subjecting Palestinians to beatings and shakings, just as the French crushed the National Liberation Front during the Battle of Algiers partly by torturing (and killing) many of its members. In democratic societies, however, it is understood that, as the Israeli Supreme Court noted in its 1999 decision banning torture, “not all means are acceptable.” Torture, in this sense, is hardly unique: Most rights–free speech, privacy, freedom of assembly–entail potential costs by limiting what governments can do to insure order. Holding the line on torture should thus be viewed in the context of a broad debate about where to draw the line between liberty and security, and whether, in the aftermath of September 11, America is willing to stand by its professed values.
Those who advocate crossing the line frequently invoke the famous warning from Supreme Court Justice Robert Jackson 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. As the world’s wealthiest and most powerful country, the United States has enormous resources at its disposal and countless tools with which to wage its war on terror. In this respect, it’s worth asking why brutal CIA interrogation methods could be considered necessary for our security–while adequately funding homeland security is 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. Witness modern Israel–or for that matter France in Algeria.
A deeper problem is that, all too often, even the absolutist position goes unenforced. No government on earth admits to practicing torture, yet each year Amnesty International documents countless states that do. The disparity stems from the fact that torture nearly always takes place in private settings, and in societies loath to discuss the subject openly. In a forthcoming article, Sanford Levinson, a professor at the University of Texas Law School and a noted 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.
As William Schulz has argued persuasively in these pages [see “The Torturer’s Apprentice,” May 13, 2002], there are many reasons why, far from limiting torture, such a policy would end up making the practice more ubiquitous than ever. Any country in the world, Schulz points out, would henceforth be able to issue similar warrants and torture at will, free of criticism from the nation that pioneered the practice.
Levinson is right that it won’t do simply to pretend that torture is not being perpetrated, as CNBC news anchor Brian Williams did the day after Mohammed’s capture, saying to his guest, “Now, the United States says it does not engage in torture, and certainly for the purposes of this conversation and beyond we will take the government at its word.” What’s needed instead are scholars, reporters, politicians and citizens who are willing both to hold democracies such as the United States to their stated ideals, and to ask hard questions about what, in a democratic society, should constitute permissible methods of interrogation during wartime. If violence and the threat of violence are out, should prolonged interrogations be permitted? (The Supreme Court has ruled that any confession obtained after thirty-six hours of questioning is by definition coerced.) Should captives have access to lawyers? Should solitary confinement be allowed? This entire area of the law, says David Cole, remains nebulous, perhaps because it is an unpleasant topic to discuss.
Accompanying this discussion should be an equally frank dialogue about the safeguards we need to insure that rampant violations don’t occur. For torture, like all governmental abuses, thrives in the absence of openness and accountability. In January the International Secretariat of the World Organisation Against Torture (OMCT), a coalition of nongovernmental organizations from more than sixty-five different countries, issued a press release urging Washington to allow the United Nations Special Rapporteur on Torture to visit the Bagram base in Afghanistan, where the practices the Washington Post described are taking place. The OMCT’s recommendation was met with stony silence, not only in Washington but by the US media.
The chilled atmosphere is reminiscent of the cold war, when discussion of US support for regimes that engaged in torture (Pinochet’s Chile, Suharto’s Indonesia) was likewise swept beneath the rug of national security. A language of euphemism and evasion emerged that became so ingrained as to go unnoticed. On February 6, in a disturbing sign that the pattern is being repeated, the New York Times published a front-page story detailing the intelligence breakthrough that led US officials to connect the recent murder of a diplomat to an Al Qaeda cell in Baghdad. “Critical information about the network emerged from interrogations of captured cell members conducted under unspecified circumstances of psychological pressure [emphasis added],” the Times reported, a phrase you would expect to find in the training manual of a South American police state, not the world’s leading newspaper. In the days following Mohammed’s arrest, the US media uncritically accepted the Bush Administration’s vow not to violate the UN Convention Against Torture, while casually mentioning (sometimes in the same article) that America could persuade Mohammed to talk by reminding him that it has access to his two young children. (Any threat to physically harm a captive’s children would constitute torture.) London’s Economist, by contrast, has questioned whether the United States is “quietly sanctioning the use of some forms of torture” and called on Bush to stop “handing prisoners over to less scrupulous allies.”
In early March, the same week that news broke of the cause of the captives’ deaths in Afghanistan, the Post reported that some nineteen detainees have attempted suicide at the US Navy Prison at Guantánamo Bay, which Michael Ratner, president of the Center for Constitutional Rights, says “begs the question of the long-term psychological effects of the techniques that are being employed there.” For Americans to accept their government’s assurances in light of these and other recent disclosures is deeply disquieting. For, as historian Peters has noted, the source of torture throughout history has always been the same: not the depraved prison guard who relishes inflicting pain but the society that agrees to tolerate, or even encourage, his actions. “It is still civil society,” Peters writes, “that tortures or authorizes torture or is indifferent to those wielding it on civil society’s behalf.”
America’s unique stature encumbers it with a special responsibility in this regard. “For better or worse, the United States sets precedents and examples,” 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?” In Iran, a group of reformists in Parliament recently submitted a bill calling on their country to sign the UN Convention Against Torture. One can only hope that Teheran’s hard-line clerics haven’t been reading the Washington Post.
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