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Disabusing the U.S. of the Myths Used to Justify Prisoner Abuse:

Why Torture is Hurting America in the War on Terror

John Jett

Bruce Lusignan

Ethics of Development in a Global Environment

March 15, 2005

This essay is an expansion on a submission for PWR IV: Directed Writing. As such, I am indebted to Tenoch Esparza, my peer reviewer for that course, as well as instructor Dr. Alyssa O’Brien, PhD for her guidance and valuable suggestions.

“Look, I’m going to say it one more time…maybe I can be more clear. The instructions went out to our people to adhere to the law. That ought to comfort you. We’re a nation of law. We adhere to the laws. We have laws on the books. You might look at these laws and they might provide comfort to you. And those were the instructions, from me to the government.”

–U.S. President George W. Bush, June 10, 2004[1]

“They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”

-Benjamin Franklin, 1759[2]

At first glance, the current pseudo-war pales beside previous American victories. After all, has America not smote the so-called enemies of freedom many times before? The War on Terror, however, presents new challenges. What does America do when there is no enemy capital, no army, no economy to destroy? In such a case, conventional means are frustratingly unsuccessful. Joshua Dratel in The Torture Papers, his trenchant inquiry into torture at Abu Ghraib, frames the consequent U.S. government mindset as follows, “the Bush administration reasoned the United States was up against an enemy more insidious than the country had faced.”[3] This mindset causes a break with the past, in which America won wars not only because it was physically the strongest, but because its bedrock principles were unassailable and guided America’s actions. The current use of torture represents a departure from this successful legacy. This essay will demonstrate that by yielding often unreliable information as well as undermining American law at home and American standing in the international community, the use of torture runs counter to the U.S.’s interests in the War on Terror. In doing so, it will draw on several historical examples as well as illustrative anecdotes from recent press coverage of the U.S. War on Terror and its concomitant, the War in Iraq.

Before progressing forward further with the argument, an important term—torture—must be defined. Unfortunately, relevant interested parties (the U.S. government, NGOs, the United Nations, et cetera) fail to agree on a common definition. Some hold that any duress beyond that which is incidental to normal incarceration—such as poor quality food and accoutrements, denial of basic freedoms such as that of free movement—constitutes torture.[4] Others draw a middle line that defines torture as the result of deliberate action to cause prisoners pain. According to article one of the Convention Against Torture, torture is defined properly as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession…”[5] [6] Still others, such as certain representatives of the current White House administration, set the bar even lower by requiring that for torture to exist, the recipient must have experienced pain so great as to be comparable to major organ failure or death. According to this latter definition, a whole range of offenses that violate people’s common sense understanding of torture would be admissible.[7] For example, breaking all of the bones in a person’s hands or feet would be perfectly acceptable.

The two alternatives to rejecting torture outright are to ignore the practice of torture or to accept its use in certain cases. Both of these courses of action are mistaken. First of all, torture is an issue that Americans must grapple with, despite the difficulty this can present. Indeed torture makes even the stoutest “terror warriors” squeamish, as John Ashcroft, not the warm and fuzzy type, demonstrated in his uncomfortable writhing before a congressional hearing on the topic.[8] Torture is not popular domestically but then neither is terrorism, so the implicit bargain between policymakers and the public appears to be for the former to propagate an acceptable, if factually unlikely, moral line (i.e. the U.S. condemns the use of torture) and for the public to accept this sentiment without rigorous inquiry—in effect, to turn a blind eye. Torture represents an insidious threat to fundamental American values like respect for the law, human dignity, separation of powers, rejection of cruel and unusual punishment, and more. No American can afford to leave these values undefended, and hence to ignore torture is irresponsible.

[9]The second alternative is to accept that the use of torture is acceptable in certain cases. The leading theorist in favor of employing torture for national security ends is Alan Dershowitz, renowned American criminal-defense litigator and professor at Harvard Law School.[10] Rather than dismiss the use of torture categorically, Dershowitz poses the “ticking bomb urgency” scenario.[11] Suppose law enforcement apprehended a terrorist leaving the scene of a crowded sporting event. Suppose further that the terrorist had in his or her possession implements that could be used exclusively to arm a major bomb and for no other purpose. Would law enforcement officials act justly in torturing the man to find the location of the imminent threat? Dershowitz says yes despite reservations.[12]

Specifically, Dershowitz argues in favor of “torture warrants.”[13] These warrants would allow the lawful abrogation of rights in the same way that a search warrant allows law enforcement to search a home, which is otherwise illegal according to the fourth amendment to the U.S. constitution. Per Dershowitz, torture warrants would be a last resort, used sparingly and in only the most pressing of circumstances.[14] In arguing in favor of torture, however, Dershowitz fails to account for the danger torture poses and the likelihood that it will spiral out of control and rears back at those employing it. For the problem with starting down the road of torture is that it is nearly impossible to limit in its extent—that is, there is little reason to believe that an interrogator could successfully cause only a “small” amount of harm. In reality, there is compelling reason to believe that the interrogator will continue to apply force until he or she gleans the desired information. Such an open-ended approach to torture paves the way for widespread abuse, not entirely distinct from the allegations of behavior that the world is learning about at present. Dershowitz assumes that torture provides benefits that outweigh associated costs, but this is a false assumption.

Those who argue in favor of using torture believe that inducing pain will yield valuable information. Experience shows, however, that torture yields generally poor information. In fact, a major practical disadvantage of using torture to question suspects is that the information gleaned through the use of such methods is often unreliable, since many victims will say anything in hopes of escaping pain. The subjects, sometimes delirious, will supply information in keeping with the interrogator’s prompts, simply lie, or answer unrelated, often immaterial questions; in short, anything to halt the pain. Indeed, according to a former deputy director of the U.S. Federal Bureau of Investigation (FBI), “people will even admit they killed their grandmother, just to the stop the beatings.”[15] This was perhaps the case with one detainee in U.S. custody who recalls, “whatever [confessions] they wanted me to sign, I signed to survive.”[16] That particular detainee now denies flatly any of the wrongdoing found in his signed confessions. While some confessions might be legitimate, the specter of possibly false confessions hangs heavily over proceedings in which U.S. government or military prosecutors might use them. With a burden of reasonable doubt to contend with, do prosecutors really want to rely on evidence obtained through such questionable means? Perhaps it is better to have less information but for it to be of higher quality, both in terms in of legal use as well as ethical acceptability.

Proponents of torture operate under the tacit assumption that torture aids a war effort—after all, if torture did not help a war effort, it would be pure sadism, which presumably no rational person advocates. History teaches, however, that torture fails to help nations that practice it secure lasting peaces. Taking the long view of torture, a practice with an unfortunately lengthy pedigree, one observes that torture yields few positives and multitudinous negatives for those who employ it. One of the first salient examples of a western liberal state using torture is that of England in the 17th century. Guy Fawkes, a disgruntled Catholic living in Protestant-dominated England, sought to blow up the houses of parliament—along with the members. Fawkes plan failed and English authorities apprehended and then tortured a confession out of Fawkes that left him a shadow a of his former self. Still, the information gained from Fawkes proved valuable in foiling his still-at-large cohorts’ schemes. His example might serve to illustrate the potential gains of using torture.[17]

A second example, less sanguine than the first for those searching for redemptive characteristics in torture’s historical record, takes place in at the turn of the 19th century in South Africa. The British found themselves gripped in a struggle with Boer insurgents. After pressing the enemy with conventional means to no avail, the British resorted to the use of concentration camps. Thousands of Boers, descendants of early Dutch settlers in South Africa, died in unsanitary camps—this qualifies as torture under most definitions because captives are supposed to endure nothing more than the discomforts incidental to incarceration, not likely death. Though the method broke the spirit of the Boer insurgents, it weakened the morale of the British at home and diminished the esteem in which colonials throughout the empire viewed the home government. In net terms, the use of torture resulted in a foundation shaking blow that sent Britain off balance into World War I.[18] Likewise, in post-Reformation Geneva, the use of torture assaulted the communal nature of society, as authorities used torture not as a means towards guaranteeing greater security, as is generally the case in modern times, but rather to punish. Alleged witches, a capricious distinction and a highly undesirable one indeed, found themselves tortured prior to exile, perhaps as a means of dissuading the exiled from ever contemplating return.[19] Injecting such brutality into society surely harmed the community. These episodes illustrate one of torture’s characteristic effects: torture yields short term gains but over the long run it assaults a liberal state’s fundamental beliefs, leaving the state worse off.

Modern examples abound which demonstrate torture’s pernicious effects on its perpetrators. For example, the French state was left reeling in the wake of revelations that it tortured insurgents in the Algerian War of 1954—1962.[20] France, like the United States, prides itself on its respect for human dignity. However, as the stakes of the conflict escalated, France succumbed to the lures of torture, meeting greater violence from the insurgents with violence of its own. In one scholar’s view, “…the growth of violence hardened both sides.”[21] Thus France weakened itself in a way that the insurgents could have only dreamed when it betrayed its own core values. Indeed when France’s commitment to its revolutionary values came into question, the health of the state suffered along with the decline in national morale. Thus, even though France won a pyrrhic victory in putting down the insurgency—only temporarily—it delivered a grievous wound to its own self-image.[22] A similar situation in Northern Ireland left Britain with blood on its hands and reduced standing internationally as well as at home.[23] While Britain euphemistically called its actions towards detainees “interrogation in depth,” the truth of their tactics was lost neither on the Irish nor British public. The British government groped to find a distinction on which to base its actions, drawing a feeble distinction: “We consider that brutality is an inhuman or savage form of cruelty, and the cruelty implies a disposition to inflict suffering, coupled with indifference to, or pleasure in, the victim’s pain. We do not think that happened here.”[24] Recognizing this standard to be unsatisfactory, the government later raised the bar of acceptability to demand that a dispassionate third party observer would condone whatever treatment he or she witnessed taking place during British interrogation.[25] Whether in Britain or France, history teaches a clear lesson: torture wins short term victories but results in serious long term losses for states that employ it.

The entire argument about the ill effects of American torture is moot, of course, if America does not in fact use torture, which the government asserts to be the case. At every opportunity, the government rushes to condemn torture and claims to eschew the practice in its own intelligence gathering. Indeed, officially, America avoids engaging in “cruel, inhuman or degrading treatment,” a standard that is at least an order of magnitude below what most disinterested commentators would characterize as torture.[26] American officials acknowledge that recent military activity and incarceration on a grand scale has led to abuse. The key consideration, these officials contend, is that this abuse is aberrational. That is to say that the abuse is the work of a handful of misfit soldiers acting outside of their authority and violating American military codes of conduct and law that proscribe the mistreatment of prisoners. The official line: soldiers who break the law are criminals, but the state they represent is not. In other words, such conduct is the work of “a few bad apples,” and not that of the United States in aggregate. [27]

The evidence to support the government’s view is mixed. Statements by Jeremy Sivits, the first American soldier imprisoned as a result of prison abuse charges, claimed that he would not have acted as he did if senior officials had been present.[28] This statement aligns with the governments contention that senior officials oppose abusive behavior towards detainees and that lower level soldiers were acting without even implicit sanction, much less explicit orders.[29]

[30] Circumstantial evidence, however, suggests that the government might not occupy unassailable moral high ground. For example, two separate internal U.S. Army inquiries into military misconduct arrived at different conclusions. One commission toed the government line, but the other felt that abuses reflected “systemic” problems with the military—that is, the problems fell within the purview of high-ranking officials in addition to the lower level perpetrators.[31] One such top-echelon leader might be Major General Geoffrey Miller, an internal consultant of sorts for the U.S. military. General Miller visited both Guantanamo and Abu Ghraib and instructed intelligence officers to ensure detainees in both camps were “stripped naked and shackled before interrogation.”[32] According to the Schlesinger Commission, General Miller added military police personnel to the standard intelligence officer group charged with interrogation in order to “set the conditions.”[33] Human Rights Watch contends these methods should be read as cues to “soften up” detainees.[34] It requires little imagination to foresee how this variety of instructions might foster a culture in which rough treatment of detainees quickly devolved into outright abuse. In such an instance, one sees the danger of torture slipping out of control, as its practitioners fail to reign it in and “soften up” quickly devolves into abuse with devastating consequences for tortured and torturer alike.

In this same vein, critics contend that the penultimate voice in the American military, the Secretary of Defense, fostered the culture that led to prisoner abuse at Abu Ghraib and Guantanamo. One anonymous commentator in The Economist magazine asserted that Rumsfeld’s “…various inflammatory statements and aggressive policies towards detainees in the war on terror created a culture in where such abuse was more likely.” Thus, extrapolating from this logic, a frustrated U.S. interrogator would be more likely on account of Secretary’s Rumsfeld’s strident rhetoric to resort to tortuous means of information extraction. The validity of this reasoning holds great import because if the Secretary of Defense, acting as the representative of the president’s administration, can be tied causally to torture, then the such abuse would migrate from the realm of a few morally depraved soldiers to an insidious abandonment of core principles at the highest level of American government.

Bush and his inner circle counter such accusations pathetically with a policy meant to shield the administration from political or legal backlash. To wit, Bush stated to dubious reporters, “the instructions went out to our people to adhere to the law. That ought to comfort you.”[35] If the law were clear in itself, and furthermore if soldiers understood the law as their guiding principle, a part of their orders, then Bush’s words might provide the comfort he promises. Yet the law is in fact highly ambiguous—a point discussed subsequently—and because the administration chooses to interpret the law in a manner highly favorable to rationalizing its own policy ends, the law rightly puts few critics’ minds to rest. To illustrate the chasm of understanding between what the president presumes pervades the troops’ thinking with their actual beliefs, consider the following quotation from one U.S. Army veteran of the recent Iraqi campaign: “If you don’t violate someone’s human rights some of the time, you probably aren’t doing your job.”[36]

That soldier’s views explain the utter failure of this administration to deal effectively with detainees. Consider the New York Times recent revelation that American interrogators battered so severely two Afghan detainees that they ultimately died as a result of their injuries. According to the Times, the detainees were “…chained to the ceiling, kicked, and beaten…”[37] Such action certainly goes beyond the law that the administration cites as an adequate safeguard against such abuse, which was so brutal that “…even if [the detainee] had survived, both legs would have had to be amputated.”[38] Disturbingly, the soldiers purposefully focused their abuse on the detainees’ legs in order to reduce the likelihood of its detection. This intentional action for the purpose of hiding the abuse reveals that the soldiers were aware that their actions were wrong and their desire to keep their actions a secret. Also troubling is the fact that the abuse was not solely of a physical nature but included psychological and sexual abuse as well. To wit, on interrogator put “his penis along the face” of a detainee, and on a another occasion he “simulated sodomizing him (over his clothes).”[39] One commentator captures neatly the magnitude of the failure these actions represent, writing, “The White House has managed to turn a generally reviled group of prisoners, most of whom were picked up fighting for Al Qaeda in Afghanistan, into figures of international sympathy.”[40] Hence, one confronts the counter productivity that is inherent to torture. The administration argues shoddily that American law fails to extend to the U.S. Naval base at Guantanamo Bay, Cuba on the grounds that the land is only leased from Cuba, albeit in perpetuity, and therefore basic constitutional rights and legal protections do not apply. While a few scholars might content themselves with notions of sovereign territory and thereby somehow resolve the matter with their consciences, for a large number of Americans and indeed for much of the world, the distinction seems unreal—the product not of legal integrity but rather of political expedience. Torture is counterproductive because it fuels the forces it intends to fight—it makes martyrs of criminals, creates public relations nightmares for the country in the international media, and by relying on tenuous legal justifications that contradict common sense, it hurts national morale.

Aside from assaulting the public spirit, torture undermines the very foundations of the American legal system. Crucially, torture is divorced from what Supreme Court Justice Sandra Day O’Conner views as detention’s purpose: “to prevent captured individuals from returning to the field of battle and taking up arms once again.”[41] Rather than contributing to detention’s overarching purpose, torture actually undermines law enforcement efforts. After all, authorities in the United States may not obtain information from suspects under duress, yet this is precisely what occurs when U.S. interrogators or their designees use torture to extract information from uncooperative suspects. Information obtained from suspects under duress is inadmissible in court. This explains yet another negative consequence of employing torture—the U.S. leaves detainees in prison without a trial. If the United States removes detainees from the legal limbo that they currently occupy in their military prisons and decided to give them a trial, then the information gleaned through illegal means would be excluded from the trial. On the basis of scant information, there would be insufficient information to convict a significant number of the suspected terrorists.[42] This legal catch 22 explains why the administration denies trials for most of the detainees and leaves them in their Guantanamo purgatory.

Another way in which the government’s lack of clarity on the issue of torture weakens the American legal system is the nebulously defined character of the detainees’ legal standing. The White House claims that the enemy combatants occupy a space between the criminals, who would be tried in civil courts governed by U.S. law, and prisoners of wars, who would be subject to the protections set forth in the Geneva Convention.[43] In this undefined space, the enemy combatants apparently have only the rights assigned them arbitrarily by the administration. Since a one function of the law is to direct enforcement officials as to their conduct and duties, the undefined nature of the detainees might contribute to the lack of uniformity in prisoner treatment. Quite simply, the administration’s inability or unwillingness to classify the detainees in a standard manner encompassed in law sows confusion and frustration through the enforcement community. In turn, confusion and frustration lead to prisoner abuse or torture or both. Indeed an investigative panel into prisoner abuse and torture headed by James Schlesinger, a former U.S. Secretary of Defense, concluded that clarifying the status of the detainees would do a great deal towards reducing prisoner mistreatment.[44] Joining Secretary Schlesinger in making the case for greater clarity, Supreme Court Justice Antonin Scalia argues that “if civil rights are to be curtailed in wartime, it must be done openly and democratically.”[45]

In this same vein, lack of clarity as to the grounds for which the prisoners are held diminishes American legal standing. One of the bedrock principles of American law is that no person may be held indefinitely without being charged with a crime. Traditionally, prisoners can file a writ of habeas corpus—literally “show me the body”—and demand either to know the charges against them or to be released. Though under the constitution the president may suspend habeas corpus in wartime, the current president has not done so.[46] Conversely, the right to be free from torture is a non-derogable right, meaning it cannot ever be suspended in the way that habeas corpus can be in extenuating circumstances such as time of national emergency. Therefore, the indefinite detention of prisoners in Guantanamo Bay and elsewhere is unlawful. Ignoring rules in this way undermines the integrity of the legal system and makes it less legitimate and thus less effective.

Likewise, in any court proceeding concerning the use of torture, the constitution prohibition of cruel and unusual punishment is sure to be invoked in suspected terrorists’ defense. The problem for the government, of course, is that torture is tantamount to cruel and unusual punishment. Perhaps with this concern in mind, the Justice Department and Department of Defense drafted a memo in order to delineate the government’s torture definition: “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or death.”[47] This is a high standard indeed, but it misses the point. For even under such a controversial understanding, many violent interrogation methods—dunking a person’s head underwater to the brink of drowning; driving nails underneath a person’s fingernails—would presumably still be cruel and unusual and thus impermissible.[48] Hence, the U.S. constitution, a more fundamental standard than the Justice Department-DOD memo, precludes the actions that administration seeks to allow. Another issue that might affect American law is the relationship between torture and the Fifth Amendment’s guarantee of due process of law. In essence, torture might deprive people of due process of law, which is guaranteed by the Fifth Amendment to the U.S. constitution. U.S. national Jennifer Hargrave brought suit on these grounds against the U.S. government, charging it—in the guise of the Central Intelligence Agency (CIA)—with torturing her husband to death. Though her suit failed ultimately, it brings to light yet another consideration with respect to torture and the U.S. constitution.[49] In several ways, as discussed above, the use of torture violates the U.S. constitution and thereby diminishes the standing of American law.

The notion of the United States being above the law appears to be an extension of the administration’s view of its own legal standing. White House lawyers argue for sweeping presidential powers for the purpose of securing national defense, stating “the president “enjoys complete discretion in the exercise of his commander and chief authority.”[50] Accordingly, an executive branch memo notes that the president’s “inherent constitutional authority to manage a military campaign overrides any international conventions or domestic laws that prohibit the use of torture.”[51] The Supreme Court disagrees: “A state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”[52] This divergence of opinion stems from a debate lasting nearly a millennium, dating back to the Magna Carta of the 13th century in which English parliament asserted its autonomy vis-à-vis the crown. Besides said autonomy, a second consequence of the Magna Carta was to make the king, the chief executive, subject to law. American law is rooted in British common law, and the same principle of executive obedience to the law applies. Yet, as renowned investigative reporter Seymour Hersh points out in Chain of Command, the current U.S. administration repeatedly acts as if it were outside the law.[53] The current administration contends, as other have before it, that executive privilege and constitutionally mandated duties, such as that of commander in chief, excuse the president and his designees from abiding by certain laws. For civil libertarians, the consequences of this trend seem dire. Indeed Professor Niel Riemer of Drew University believes that George Orwell’s fear of torture becoming systemic policy, brought out in the Orwellian opus 1984, is basically true.[54]

In effect, the administration seeks to disseminate executive privilege from prosecution all the way down to interrogators. This is an excessively broad diffusion of presidential privilege, which goes far beyond the pale of the right’s original intention: namely to protect the president from litigation stemming from the regular practice of his constitutionally defined duties. As mentioned above, the constitution prohibits torture. Since the constitution cannot simultaneous excuse an action and condemn it, the administration’s attempt to bring all military interrogators under the aegis of executive privilege is invalid.

By the same token, the administration’s contention that torture is acceptable if it is part of a self-defense effort is excessively expansive in allowing prisoners maltreatment. An interrogator would be guilty of torture only if he or she acted with the “express purpose of inflicting severe pain, mental or physical,” and even then “torture can be justified if the interrogator believed that his act is necessary and designed to avoid greater harm.”[55] In essence, all military action from firing a cannon to ordering rations bears to at least a minimal degree on national security—and by extension self-defense. War sees two or more sides trying to harm one another, with each side exerting itself to defend itself as best it can. Thus, if one loosely interprets the President’s position, all actions in a war environment are self-defense in nature and would be permissible under the administration’s reasoning. This stance is invalid, since some actions in guaranteeing this defense are universally recognized within the military as illegal—for example, summarily executing unarmed enemy civilians; shooting surrendering enemy combatants; starving prisoners of war—and no attempt is made to excuse such transgressions on the basis of executive privilege.[56] Torture is analogously odious offense, as the military and administration recognized at an earlier time before the pressure of prosecuting the war on terror clouded their thinking. The current no holds barred approach to the war, however, threatens the foundation of any society’s strength: the rule of law both within its borders and in its international affairs.

Another negative domestic consequence of the use of torture is that it harms the military. After all, torture is a double-edged sword that scars both victim and victimizer, leaving some members of the military both shamed and shaken psychologically. For example, Javal Davis, a member of the U.S. Army and former prison guard at Abu Ghraib, stands convicted of battery and dereliction of duty for his part in beating prisoners under his supervision.[57] In defending himself, Davis pointed to the job-related stress that he claims drove him to “some foolishness.” Davis argued that fear and exhaustion wracked him constantly while on duty at Abu Ghraib, a facility where detainees outnumber guards significantly because of U.S. army manpower problems. He described the conditions for guards as comprising “filthy jail cells,” “bad food,” and “long hours.” Davis would have his jury, consisting of senior enlisted as well as officers, believe that he cracked beneath the pressure. In a sense, this is also the view the administration propounds, arguing the now familiar line that prisoner abuse is the purview of soldiers acting beyond their mandate. Yet when Davis found himself operating in such difficult circumstances—indeed circumstances trying even allowing for the exigencies of war—is the military high command and their civilian superiors not also implicitly responsible for creating a dangerous situation? Like a homeowner who leaves flammable materials near an open flame, leaves only to find his or her home in ashes upon returning, the upper level leaders might not have struck blows themselves but they created a situation in which prisoner abuse was not implausible, indeed probably likely. Echoing a sentiment held undoubtedly by many of the prisoners Davis supervised, including perhaps the Australian Habib, the army sergeant asserted at his trial that “Abu Ghraib was like hell on Earth.”[58] Thus, torture harms the soldier who commits the abuse in addition to his or her charge, diminishing net welfare on at least two counts.

[59]Torture harms soldiers in a second manner inasmuch as it might open U.S. soldiers to abuse when they themselves are detained by enemy forces. Senator Joseph Biden (D-DE) is one of many critics who worry that American treatment of POWs will lead to reprisals against American troops taken prisoner. Biden argues passionately, “there’s a reason why we sign these treaties…so when Americans are captured they are not tortured. That’s the reason in case anybody forgets it.”[60] Thus, torture has the further negative consequence of endangering the men and women of America’s armed forces, a result decisively not in the country’s interest and a practical, as opposed to ethical, reason why the administration should take a stronger, far plainer stand against torture.

Torture harms the American military in a third way inasmuch as it undermines military medical care by encouraging medics to inaccurately portray the treatment they offer. For example, according to Vice Admiral Albert Church, III, of the U.S. Navy, “…medical personnel may have attempted to misrepresent the circumstances of the death, possibly in an effort to disguise detainee abuse.”[61] As military medical officers begin to disguise facts and misconstrue the truth, they diminish their own capacity to pursue the practice of medicine objectively. They are, as a consequence, less able medical practitioners, a result that harms not only themselves professionally but also the American soldiers whom they serve.

The use of torture diminishes, however, not only American law but international law and America’s international standing as well. As Schlesinger notes, when America employs torture it assaults “…reciprocity and the preservation of US societal values and the international image that flows from an adherence to recognized humanitarian standards.”[62] Likewise, the European Convention for the Protection of Human Rights and Fundamental Freedoms declares, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”[63] In a similar vein, a leading German legal scholar contends, “…according to German jurisprudence, even the dignity of lawbreakers has to be respected.”[64] Returning to Schlesinger, the truth of the former Secretary of Defense’s claim is apparent in recent Iranian barbs about American duplicity.

The government’s tack plays into its enemy’s hands. For example, Iran, which the U.S. government labeled “the world’s primary state sponsor of terror,” an ignominious distinction it denies, now meets the U.S. blow for blow in public relations smear campaigns carried in worldwide media.[65] Indeed in a rejoinder to the aforementioned characterization, an Iranian spokesman quipped, “those who support [torture (i.e. the U.S.)] cannot talk about combating terrorism.”[66] American torture plays into its enemies hands, allowing them to win the vital battle for hearts and minds that plays a critical role in determining the outcome of modern struggles.

Some critics of U.S. foreign policy draw unwarranted conclusions about the role America has in fomenting torture around the world. In one article that suggests the pernicious effects of U.S. foreign policy, scholar Noam Chomsky, curiously a linguistics expert, argues that there is a correlation between U.S. aid and incidents of torture. In particular, he harps on purported infractions on international law outlawing torture in Latin America during the 1980’s and 1970’s.[67] This conclusion appears too strong in light of other confounding explanatory factors for the relatively high incidence of torture in countries which receive U.S. aid. Namely, these countries are less developed and are more likely to have a military less responsive and responsible to civilian control. In such circumstances, it is not implausible to believe that more torture occurs, yet these actions are independent of America’s involvement, as it is reasonable to believe that such abuse would occur in the absence of U.S. involvement. In short, the U.S.’s presence is by no means causal and the correlation that Chomsky sees is suggestive of little beyond the fact the recipients of U.S. aid are often underdeveloped. Therefore ascribing malicious intentions to U.S. foreign policy are unjustified.

One example that the Iranians might have in mind is that of Mamdouh Habib. Habib, a Muslim Australian, allegedly experienced American torture first-hand. Habib claims that he was in Afghanistan prior to September 11th looking for a religious school for his sons, but the U.S. and Australian governments claim that he was there to train terrorists and that he knew of the plot to attack the United States.[68] American soldiers captured Habib in Afghanistan after they invaded the country.

Habib’s account of his alleged ordeal while in captivity represents a potentially illustrative case of how the U.S. handles prisoners in the War on Terror—which for the purposes of this paper comprises the Iraqi War as well, since the latter endeavor began under the auspices of protecting the United States from a terrorist-state threat. He claims that American forces detained him at Abu Ghraib, Egypt, and Guantanamo Bay. According to Habib, guards put cigarettes out on his chest, banged his head against the floor of a cell, humiliated him sexually, and administered electric shocks to sensitive parts of his body. In addition, Habib accuses his guards of attacking his identity as a Muslim man, seeking to erode his self-worth through psychological assaults on his relationship with his wife, children, and religious community. During his captivity, Habib claims he ceased to “feel anything anymore. I want[ed] to die.”[69]

Recent events, however, suggest that the administration will not move to clarify and strengthen its opposition to torture and thereby act in keeping with its international treaty obligation. Indeed Alberto Gonzales, erstwhile White House Chief Counsel, now the Attorney General of the United States, once called the Geneva Convention “quaint.”[70] One must wonder how such a statement impacted fellow Republican Senator John McCain, a veteran of years of torture and imprisonment as a POW. Nonetheless, in keeping with the Attorney General’s sentiment, a Justice Department memo contends that bans on torture “must be construed as inapplicable to interrogations undertaken in pursuant to the president’s commander-in-chief authority.”[71] This disregard for international law undermines American standing abroad as it casts doubt on the country’s motivations for selectively upholding international statutes. For example, war on Iraq is justified because that country violated international law, yet outlawed interrogation methods are permitted. The American Bar Association (ABA) captures the problem with the administration’s tack on torture and international law when it condemns, “the widespread pattern of abusive detention methods…[which] feed terrorism by painting the US as an arrogant nation above the law.”[72]

America’s use of torture violates several agreements to which the United States is a signatory. The Convention Against Torture of 1984 rules out rendition, a process through which suspects are handed over to other governments in the expectation that those governments will use torture.[73] Yet America uses rendition routinely according to groups such as Human Rights Watch.[74] Though U.S. law enforcement would be prohibited by domestic law from extraditing a prisoner to a country where the prisoner was likely to suffer punishment illegal in the United States, the intelligence services practice rendition, a policy that is almost certainly illegal, if not in the letter of American law then in its spirit. Likewise, the Geneva Convention of 1949, which the United States signed as recently as 1994, stipulates that even unconventional combatants, like America’s “enemy combatant” detainees, shall in all circumstances be treated humanely.”[75] Torture hardly constitutes humane treatment and thus the U.S. violates the Geneva Convention as well, a fact that might endanger U.S. troops taken prisoner. Moreover, America’s recently cooled attitude towards the Geneva Conventions marks a significant break in policy. In Bush senior’s presidency, for instance, American policy was to apply “the Geneva Conventions of 1949 whenever armed hostilities occur with regular foreign armed forces even if argument could be made that the threshold standards for the applicability of the conventions are not met.”[76] One telling analysis observes, “Under international law, responsibility for torture, summary execution, or disappearances extends beyond the person or persons who actually committed those acts—anyone with higher authority who authorized, tolerated or knowingly ignored those acts is liable for them.”[77] Numerous agreements in addition to the aforementioned ones decry torture—notable ones include the 1975 Declaration Against Torture, the 1979 Code of Conduct for Law Enforcement Officials, the 1982 Principles of Medical Ethics, the 1988 Body of Principles for the Protection of All Persons Under Any Form of Detention and Imprisonment.[78] The use of torture greatly harms America’s international position.

Torture yields unreliable information, while weakening America at home and abroad. Speaking to this point, the Schlesinger Commission argued that “the damage these incidents have done to the US image among populations whose support we need in the War on Terror and to the morale of our armed forces must not be repeated.”[79] Indeed if America uses torture to win a war, it will undermine its own interests in that it will diminish respect for human dignity, wear thin the safeguards of the law, and propagate widespread disenchantment with the American vision of the world. This is not in America’s interest, and since a rational state only fights wars that somehow serve its interests, the use of torture is irrational. Instead America should look to a fellow democratic state that also confronts a serious, ongoing terrorist threat and adamantly opposes torture.

The United States should follow the example of Israel and categorically reject torture in word and deed. Israel, a nation arguably under greater threat from terrorists than the United States, has made a concerted effort to remove torture from its intelligence gathering toolbox, as Joshua Dratel records in The Torture Papers: the Road to Abu Ghraib.[80] In a country where Dershowitz’s “ticking bomb” scenario is not at all unrealistic, Israel has adopted the moral high ground and rejected torture, setting an example the United States might emulate.[81] Israel’s path to this ultimate understanding was fraught with difficulty; as late as 1996, in the case of Muhammad Abid al-Aziz Hamadan v. General Security Services before Israel’s Supreme Court, Israel’s highest court acknowledged circumstances where national security concerns warranted the use of torture.[82] Fortunately, the later case reversed this regrettable initial decision.

For his part, President Bush argues that “the United States is committed to the worldwide elimination of torture and we [the United States] are leading this fight by example.”[83][84] One presumes President Bush means the United States sets a good example, yet the American example with respect to torture in the recent War on Terror, comprising as it does the War in Iraq, is far from good. In fact, in many respects, such as America’s disregard for international law and its own law make it a bad example. When the war is over, America should be better for it, not worse, and therefore the United States must abandon torture once and for all at every level of government and in the military; and it must do so in no uncertain terms.

America must win the current war through a moral assault; force of arms alone is insufficient to win a conflict that is rooted in religion and emotion as much as is the current conflagration. As the administration slackens the strictures which hold American military and intelligence services to the highest standards, it inadvertently weakens the American war effort by undermining the war effort with unreliable information and a demoralizing effect on military personnel, erodes the foundation of American society—namely, the law—while also diminishing America’s standing abroad. Torture must be stopped and the President, as Commander and Chief and Chief Law Enforcement Officer, should lead the fight against its illegal use.

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-----------------------

[1] Danner, Mark. Torture and Truth: America, Abu Ghraib, and the War on Terror. New York, NY: New York Review of Books, 2004. pg. 46

[2] Franklin, Benjamin. Historical Review of Pennsylvania. 1759. As found in Bartlett’s Familiar Quotations. 16 ed. New York, NY: Little, Brown and Company, 1992. pg. 310.

[3] Dratel, Joshua. The Torture Papers: The Road to Abu Ghraib. New York, NY: Cambridge University

Press, 2004. pg. xiii

[4] “The Legal Prohibition Against Torture”. Human Rights Watch Online.

. June 1, 2004. Accessed on March 3, 2005.

[5] Danner Pg. 73.

[6] The Schlesinger Report specifically condemns “acts of brutality and purposeless sadism.” Pg. 331.

[7] “A Memo Too Far” The Economist Online.

. June 10,

2004. Accessed January 19, 2005.

[8] “ibid

[9] Danner pg. 219

[10] Dershowitz, Alan. America on Trial: Inside the Legal Battles that Transformed our Nation—from the

Salem Witch Trials to Guantanamo Detainees. New York, NY: Warner Books, 2004.

[11] “Ends, Means and Barbarity” The Economist Online.

. January 9, 2003. Accessed

January 19, 2005.

[12] “Is Torture Ever Justified” The Economist Online.

. January 9, 2003. Accessed

January 19, 2005.

[13] ibid

[14] ibid

[15] “The Legal Prohibition Against Torture”. Human Rights Watch Online.

. June 1, 2004. Accessed on

March 3, 2005.

[16] Bonner. pg 3.

[17] “Ends, Means and Barbarity”.

[18] Fergusson, Niall. Empire. London: Penguin Books, 2003. Pg. 280

[19] Monter, William. “Witchcraft in Geneva, 1537-1662”. The Journal of Modern History.

Vol. 43, No. 2, June 1971. 179-204. pg. 189

[20] “A Savage War of Peace: Algeria 1954-1962”. International Affairs. Vol. 54, No. 3. Jul

1978. 522-524. pg. 523

[21] ibid pg. 523

[22] According to Ted Glasser of the Stanford University Communications Department, images often have more evocative power than words, and the pictures of detainee abuse have struck a cord with the American public that is difficult to assess but can be estimated as great.

[23]“Is Torture Ever Justified?”

[24] O’Boyle, Michael. “Torture and Emergency Powers Under the European Convention on

Human Rights: Ireland and the United Kingdom”. The American Journal of

International Law. Vol. 71, No. 4. October 1977. 674-706. pg. 676

[25] ibid pg 676

[26] “Trials and Tribulations” The Economist Online.

. August 26, 2004. Accessed

January 19, 2005.

[27] What did he Know?” The Economist Online.

. Accessed January 19, 2005.

[28] “What did he Know?”

[29] “Trials and Tribulations”

[30] Danner pg. 222

[31] ibid

[32] “What did he Know?”

[33] “The Final Report of the Independent Panel to Review Department of Defense Detention Operations

(The “Schlesinger Report” as found in Danner, Mark. Torture and Truth: America, Abu Ghraib,

and the War on Terror. New York: Publishers Group West, 2004. ) pg. 334.

[34] “The Legal Prohibition Against Torture.”

[35] “What on Earth?”

[36] “Ends, Means and Barbarity.”

[37] Jehl, Douglass. “Army Details Scale of Abuse of Prisoners in an Afghan Jail”. The

New York Times Online. March 12, 2005. Accessed March 15, 2005.



[38] Jehl “Army Details…”

[39] ibid

[40] “Not Good Enough.”

[41] “The Final Report of the Independent Panel to Review DoD Detention Operations (The Schlesinger Report)” pg. 339.

[42] “Not Good Enough”

[43] “Too Far, Say the Justices” The Economist Online.

. July 1, 2004. Accessed

January 19, 2005.

[44] As found in “Trials and Tribulations” and “The Final Report of the Independent Panel to Review DoD Detention Operations (The Schlesinger Report)” as found in Danner, Mark. Torture and Truth: America, Abu Ghraib, and the War on

Terror. New York, NY: New York Review of Books, 2004. pp. 329-402

[45] “Not Good Enough” The Economist Online.

. July 1, 2004. Accessed

January 19, 2005.

[46] “The Legal Prohibition Against Torture.”

[47]“What on Earth were they thinking?”

[48] ibid

[49] “Application of the Fifth Amendment to Overseas Torture of Aliens”. The American

Journal of International Law. Vol 95, No. 3 (June 2001) 641-643. pg. 642

[50] “A Memo too Far?”

[51] ibid

[52] Economist. “Too Far, Say the Justices”

[53] Hersh, Seymour. Chain of Command. New York, NY: Harper Collins, 2004. and “J’Accuse”.

[54] Riemer, Neil. “Orwell’s Worries in 1984: Myth or Reality?” PS. Vol. 17, No. 2. Spring

1984. 225-226. pg. 226

[55] “A Memo Too Far”

[56] The Mi Lai massacre during Vietnam and subsequent trial is a clear illustration of that principle.

[57] “Abu Ghraib Guard Asks for Mercy.” . Accessed Feb 4, 2005.

[58] ibid

[59] Danner pg. 222

[60] “A Memo Too Far”

[61] Jehl. “Army Details…”

[62] “Trials and Tribulations”

[63] Brugger, Winfried. “May Government Ever Use Torture? Two Responses from German Law.” The

American Journal of Comparative Law. Vol 48, No 4. Autumn 2000. 661-678. pg. 666

[64] Brugger. pg. 665

[65] “Iran…”

[66] ibid

[67] Chomsky, Noam. U.S. Aid and Torture: a Correlation. Journal of Palestine Studies.

Vol. 13, No. 2. Winter 1984. 184-192. pg. 184

[68] Bonner, Raymond. “Detainee Says He was Tortured While in U.S. Custody”. New York Times Online Edition. /middleeast/13habib. Accessed February 13, 2005. pg. 2

[69] Bonner Pg. 3

[70] “What did he Know?”

[71] “A Memo Too Far”

[72] “Trials and Tribulations”

[73] “Ends, Means and Barbarity.”

[74] The Legal Prohibition Against Torture.

[75] “What on Earth were they Thinking?” The Economist Online. . Accessed January 19, 2005.

[76] Ratner, Michael. Guantanamo: What the World Should Know. Chelsea Green Publishing: White River

Junction, Vermont, 2004. pg. 120

[77] “Doctrine of Command Responsibility in U.S. Human Rights Cases”. The American

Journal of International Law. Vol. 96, No. 3 (July 2002) 719-723. pg. 720

[78] “The United Nations Convention Against Torture: A Handbook on the Convention on

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”. The

American Journal of International Law. Vol. 84, No. 3. Jul 1990. 786-786. pg. 784

[79] “The Final Report of the Independent Panel to Review DoD Detention Operations (The Schlesinger

Report).” Pg. 340

[80] Dratel Pg. xvi

[81] Though Israel has rejected torture after a 1999 case in the Israeli Supreme Court, groups such as Human Rights Watch hold that Israeli security forces still abuse detainees on occasion. “The Legal Prohibition Against Torture.”

[82] Brugger pg. 665

[83] “The Pledge.” The Economist Online.

. July 3, 2003. Accessed

January 19, 2005.

[84] Indeed, President Bush has claimed that this is a war about values in which the United States will uphold the “non-negotiable demands of human dignity.” “The Legal Prohibition Against Torture.”

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