LONDON, 13 December 2005 — Torture is probably as old as the history of human civilization. ‘Criminals’, political opponents and others who dared to challenge the ruling classes have long been silenced by brutal torture, disappearances and killings. Advocates of torture argue that sometimes it is necessary to use it for interrogation purposes. They claim that without the use of torture it is not possible to make hardcore culprits confess to their crimes.
Torture attacks the essential physical and psychological integrity of a human being. Therefore, international, regional, and national laws prohibit torture. However, the practice of states proves that there still exists an operational code that accepts and sometimes, advertently or inadvertently, supports torture. This is despite torture being completely antithetical to the notion of good governance and the democratic ideal. It attacks the authority and legitimacy of the state, provokes or intensifies social conflict, undermines the idea of peace and justice and, in its tacit claim to unlimited social control, challenges the idea of rule of law itself. Finally, torture is pointless as if one is subjected to excessive torture one is forced to admit to anything, whether one is guilty of it or not, simply in order to put an end to the pain.
Laws relating to the prohibition of torture have evolved through intensive involvement by the international community, through the United Nations as well as regional governments in the form of international human rights and humanitarian law treaties and are thus regarded as a general principle of international law.
The US has long officially denounced torture. During the Cold War, it was proclaimed that the US was “better than the Russians” due to the harsh practice of torture employed in the Soviet bloc. However, it can be questioned whether a change in the international political climate has required a different response. After the Sept. 11 attack The Patriot Act, passed by the American Congress in October 2001, enabled the American government to arrest or detain indefinitely hundreds of people in secrecy under the vague catch-all concept of “reasonable grounds” that they might constitute a threat to “national security”.
Prisoners suspected of ‘terrorism’, against many of whom no evidence exists, have been mistreated, humiliated, and tortured. This practice has challenged the foundations of the US Constitution and international law relating to torture.
To quote Cofer Black, former director of the CIA’s counter terrorist unit, “There was a before 9/11 and an after 9/11. After 9/11 the gloves came off. The attack on the US resulted in a new thinking that winning the ‘war on terror’ required that the United States circumvent international law.” American policymaking elites like Black constantly search for moral and ideological justifications for torture. They try to elevate the morality of its use of violence by appeals to notions of self-defense, the protection of security interests at all levels (including ‘national security’) or the survival of the state. In January 2002 many people captured in Afghanistan and arrested on various charges of terrorism were sent to Guantanamo Bay, Cuba. It was a deliberate attempt to put the detainees beyond the jurisdiction of the US courts. In the case of Gherebi V, Bush the US government argued that US courts would not have jurisdiction over detainees even if they were being tortured or summarily executed.
The US administration declared these detainees as unlawful combatants so they could not seek protection under the Geneva Convention as prisoners of war (POWs). The captured Al-Qaeda suspects are treated as mercenaries who do not enjoy the rights of combatants or POWs. There is, however, an argument for not treating Taleban detainees as POWs. The Taleban were an army of Afghanistan and recognized by some countries with diplomatic ties to Washington. The declaration of war by the United States against the Taleban should have led to a recognition that the Geneva Convention did apply to the detainees, because, contrary to US claims, the Geneva Convention protects every person captured in an international conflict.
Despite the principles outlined above, through a series of legal memoranda the American Justice Department tried to dilute international law if not completely evade it. The Justice Department and Secretary of Defense urged the president to use his extraordinary powers under the US Constitution to declare both the Taleban and Al-Qaeda outside the jurisdiction of the Geneva Convention. The Justice Department’s memorandum argued that laws banning torture did not bind the president, who, it argued, has the authority as commander-in-chief of the armed forces to approve any physical or psychological actions during interrogation to obtain intelligence vital to the protection of American citizens. The department used legal doctrines like “necessity”, “self-defense” and the “inherent power” of the president. The authority to set aside laws in wartime is inherent in the president’s position, it argued. In response to a CIA request, the Justice Department advised that torturing Al-Qaeda detainees in captivity abroad “may be justified”, and stated that international laws against torture may be unconstitutional if applied to interrogations carried out in the ‘war against terrorism’. Contrary to the view of the American Justice Department, the Convention Against Torture of 1984 provides that 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. Moreover, the International Covenant on Civil and Political Rights clearly mentions that, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. This right cannot be suspended by a state because it cannot be derogated.
After a debate about the memorandum and strong international criticism President Bush announced that the Geneva Convention would be applied to the detainees, but they would not have POW status. He said, “Let me make very clear the position of my government and our country: We do not condone torture. I have never ordered torture. I will never order torture. The values of this country are such that torture is not a part of our being.”
Contrary to this, a report issued by Human Rights Watch indicates that in some cases Al-Qaeda suspects were deliberately moved to countries known for their use of torture to ease constraints on their interrogation. Among the most disturbing cases, perhaps unprecedented in US history, are the detainees who have simply “disappeared”. Perhaps out of concern that the US courts would eventually monitor Guantanamo, and certainly to ensure even greater secrecy, the Bush administration does not appear to hold its most sensitive and high-profile detainees there.
The White House released a Defense Department memo detailing some of the harsh interrogation methods approved and then rescinded by Defense Secretary Donald Rumsfeld. According to a memo dated Jan, 8, 2003, written by a Judge Advocate General office and circulated among army intelligence officials, it is permissible to use some interrogation techniques that amount to torture under international human rights law.
On the one hand the detainees are not nice men, to say the least. They are alleged to have committed the most heinous criminal acts. Why, some have argued, should we care about what happens to them? On the other hand, the American torture of detainees invites all the unsavoury governments in the world to do the same by citing these actions to justify their own practices or to blunt criticism. Its treatment of detainees has betrayed America’s claim to upholding the rule of law.
For Al-Qaeda, the ends apparently justify the means, which have included smashing hijacked planes into buildings and bombing train stations and places of worship. The United States should not endorse that sinister logic. The interrogation techniques sanctioned by the US State Department and the reports of widespread abuse of prisoners in Bagram, Guantanamo Bay and Abu Ghraib prison have seriously challenged the law against torture.
The US, imbued with an exaggerated sense of an impending Armageddon, has failed to learn the lessons of the past. It has refused to concede the profound damage that torture inflicts, not only on the victims but also on the individuals and regimes that deploy it. The issue is not about ‘permissible’ and ‘impermissible’ degrees of torture, as some see it. Nor is it simply about conventions that ban torture. Rather, it is all about the claim to being a ‘civilized nation’.
• Azim Sherwani is a research scholar at the University of London. ([email protected])
