Are we all torturers now?

 

Following a discussion on the justifiability of torture at Fake Barn Country
I wrote this:

If someone had taken my family and I had access to someone who knew where they were, I would probably torture on the slimmest possibility that it would help.

I would probably feel justified when doing this, just as I would probably feel justified in pleading to the court to execute him if he had killed my family too. But this kind of justification and righteousness is a far cry away from institutionalised torture and capital punishment, both which I oppose.

Why? Because all ethics is about is drawing a line. You can give reasons to draw here instead of there or move it back and so forth but you draw lines. Some of which are set in stone, they cannot be moved, allowing the state to torture its or other state's citizens crosses that line, well and truly.

You can give a thousand utilitarian arguments against that but it doesn’t matter, would we have the police rape ten women if it would save thousands, or is that ‘too’ much? Would we have the state go nuclear on an entire country if it would save our citizens, or is that ‘too’ much? Would we have the state negotiate with terrorists, just give them a little, or would that set a dangerous precedent? Or maybe we draw a line and we say, “this shall not be crossed.”

I think it is pertinent to publish an article by Marian Wilkinson I read in The Age newspaper

Are we all torturers now?
January 15, 2005

The "urgent report" landed on the desk of FBI director Robert Mueller just as Washington was preparing for summer holidays last June. It was carefully copied to every key law enforcement officer in the bureau. It could not be lost, destroyed, misplaced or overlooked. It was explosive.

A witness had walked into the Sacramento office of the FBI with first-hand accounts of "serious physical abuses of civilian detainees" in Iraq. He described to agents "strangulation, beatings, placement of cigarettes into detainees' ear openings and unauthorised interrogations".

These claims alone did not hold the shock value in the report. Two months earlier, sensational photographs depicting gross sexual and physical abuse of Iraqi detainees at the Abu Ghraib prison outside Baghdad had been splashed around the world. What was more disturbing in this report was the allegation from the witness that US officials "were engaged in a cover-up of these abuses".
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But the report, dated June 25 last year, stayed buried at FBI headquarters for the next six months, as the Pentagon and the CIA went through the motions of investigating allegations of prisoner abuse triggered by the Abu Ghraib scandal.

None of those investigations resulted in criminal charges being laid against any senior figure, and in the euphoria of President George Bush's re-election, the prisoner abuse scandal appeared dead.

But last month - due largely to the efforts of the American Civil Liberties Union, human rights groups and the American Bar Association - the Bush Administration was compelled under the Freedom of Information Act to release hundreds of new documents graphically detailing evidence from FBI and US military officers of the abuse of prisoners under interrogation in Guantanamo Bay, Iraq and Afghanistan. Among the documents released was the heavily censored copy of the report sent to the FBI director last June.

While nearly all the documents have censored deletions, their damning contents have forced the Bush Administration and Congress to re-examine the abuse scandal.

At the heart of this is whether, after the September 11, 2001, terrorist attacks, Bush, his top legal advisers and Defence Secretary Donald Rumsfeld authorised interrogation techniques that were so extreme they amounted to torture under both US and international law. If so, did this approval from the White House result in the beatings, sexual abuse and deaths of scores of detainees held by the US in Guantanamo Bay, Afghanistan and Iraq?

"It is now reasonably clear that there was action by the President," the American Bar Association's Scott Horton told The Age. "I have now seen several further documents which persuade me that there is in fact a determination by the President that dates from roughly April 2002. It is addressing extreme interrogation procedures, though not in detail."

Article 3 of the Geneva Convention, signatories to which include the US, states that all detainees should be treated humanely. To this end, it says, acts including cruel treatment and torture "are and shall remain prohibited at any time and in any place".

The US is also a signatory to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which defines torture as the intentional infliction of "severe pain or suffering, whether physical or mental" for political or military reasons. Article 2 states: "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 of torture."

While the White House now vehemently denies that Bush signed any secret executive order authorising torture, Scott Horton and other independent lawyers question those denials. "They are consciously deceptive," says Horton, who has worked closely with US military lawyers trying to expose the scandal. While there was no "executive order", he believes a so-called "presidential determination" or top-secret authorisation opened the door to torture and abuse of terrorism suspects.

The new round of congressional and legal probing has enormous implications for the Howard Government, a key US ally in the war on terror. If the use of interrogation techniques tantamount to torture was authorised up the chain of command to the President's office, Prime Minister John Howard and the Australian Defence Force chief Peter Cosgrove will likely be forced to examine whether any Australian military or intelligence personnel engaged in or witnessed criminal acts of torture or abuse in Iraq, Afghanistan or Guantanamo Bay.

Until now, the Howard Government has brushed off allegations of abuse made by the two Australian detainees at Guantanamo Bay, Mamdouh Habib and David Hicks, and failed to press the Bush Administration for a final report on the cases.

But the dramatic descriptions of Habib's torture in Egypt after US officials helped render him to that country raise the question of whether Australian intelligence agencies, including ASIO and the Federal Police, have relied on information gained from torture or criminal abuse.

It is not only a legal and moral question. Well-trained interrogators have rejected the use of torture to extract intelligence because they believe it is unreliable, especially in the war on terror. Douglas Johnson, of the US Centre for Victims of Torture, explains: "Nearly every client at the Centre for Victims of Torture, when subjected to torture, confessed to a crime they did not commit, gave up extraneous information or supplied names of innocent friends or colleagues to their torturers."

In the US, a string of legal cases involving lower-ranking military officers and a CIA contractor is also threatening to push the scandal up the chain of command to Rumsfeld and former CIA director George Tenet.

Last October, two US military intelligence officers, chief warrant officers Lewis Welshofer and Jeff Williams, were charged over the death of an Iraqi Air Force major-general, despite the strong objections of their commanding officer, who described Abed Hamed Mowhoush as "a very, very bad man".

Mowhoush died in November 2003 at a US base in Iraq after being subjected to days of interrogation. At the time, the Pentagon put out a death certificate and press release claiming the general had died of natural causes. But an army investigation, forced by the Abu Ghraib scandal, found the major-general died of "asphyxia due to smothering and chest compression" and there was evidence of "blunt-force trauma to his chest and legs".

Welshofer and Williams had allegedly placed Mowhoush in a sleeping bag and rolled him back and forth during the interrogation. One had then sat on his chest and covered his mouth. An electrical cord was also used. When questioned by a Denver Post reporter who obtained a copy of the investigators' report, Welshofer simply said: "I saved lives."

Welshofer's defence is expected to rely heavily on the claim that he was following orders and using interrogation methods known to his commanders. But the much-anticipated evidence may never be heard publicly. Last month, the US military succeeded in closing the court martial to the media. Frustrated US military lawyers and human rights advocates are now pressing Congress to support a full, open investigation into the prisoner abuse scandal to determine whether it does lead to the Oval Office. Senator Ted Kennedy is publicly advocating "an independent 9/11-style commission".

Kennedy and several other Democratic and Republican senators last week turned a day-long Senate hearing into the appointment of Bush's new attorney-general, Alberto Gonzales, into the first serious probe of the White House's role in the abuse scandal. As White House legal counsel, Gonzales is a key figure in the unfolding scandal. When Bush launched the war on terror after the September 11 attacks, Gonzales sought to provide him with the legal cover he wanted to fight a "new kind of war" against al-Qaeda and its allies. The war on terror would include targeted assassinations and the kidnapping and rendering of suspects to allies known to practice torture and harsh interrogations. The CIA and Pentagon believed this would produce "actionable intelligence" to help prevent another terrorist attack on US soil.

In intensifying his questioning of Gonzales last week, Kennedy bluntly told him: "It appears that legal positions that you have supported have been used by the Administration, the military and the CIA to justify torture and Geneva Convention violations by military and civilian personnel."

Kennedy said that Gonzales believed that in fighting the war on terror, Bush held almost unlimited presidential power as commander-in-chief to override US laws on torture. "The Administration ignored and excluded top military lawyers and experts in the State Department and Defence Department who raised objections to your policies," he told Gonzales. "That arrogance of executive power has led to national embarrassment."

Gonzales repeatedly denied that Bush had authorised the use of torture, but thousands of pages of declassified documents and testimony from military officers and officials tell another story. They indicate that the White House embarked on a series of decisions from early 2002 that freed the CIA and teams of US Special Forces to use interrogation methods since denounced by the International Committee of the Red Cross and US military lawyers as violations of international and US laws on torture.

At last week's Senate hearings, Gonzales did admit that in 2002, he asked the Department of Justice for a legal opinion on the US laws on torture that had come into effect after the US ratified the International Convention against Torture. Gonzales directed his request to a Bush appointee, Jay Bybee, then head of the Office of Legal Counsel.

Bybee was already on record advising the White House that Bush had sweeping powers as commander-in-chief to fight the war on terror. After discussions with Gonzales, Bybee produced an extraordinary memo in August 2002. He stated that the statutes on torture should only be read as covering what he called extreme acts.

"Where pain is physical," he wrote, "it must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure. There is a significant range of acts that, though they might constitute cruel, inhuman or degrading treatment or punishment, fail to rise to the level of torture."

Even more arresting in Bybee's 60-page memo to Gonzales was a detailed list of "possible defences that would negate any claim that certain interrogation methods violate the statute (on torture)".

The principal defence, as Bybee saw it, was Bush's power as commander-in-chief in wartime. Applying the laws on torture to interrogations of al-Qaeda suspects or their allies would be unconstitutional, he wrote, because it would interfere with the defence of the country.

Finally, Bybee said, even if an interrogation method vio- lated the torture statutes, "self-defence could provide justifications that would eliminate any criminal liability".

Last week, Harold Koh, the dean of international law at Yale University, described the Bybee opinion as "a stain upon our law and our national reputation".

Appearing at the Senate hearings, he said: "A legal opinion that is so lacking in historical context, that offers a definition of torture so narrow that it would have exculpated Saddam Hussein, that reads the Commander-in-Chief power so as to remove Congress as a check against torture, that turns Nuremberg on its head and that gives government officials a licence for cruelty, can only be described as a disaster."

As Koh pointed out, the US bill of rights and the constitution include a prohibition on "the use of cruel or unusual punishment" and, in 1994, the US ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. But for almost two years, until the Abu Ghraib scandal, Gonzales and the White House accepted Bybee's advice.

Within weeks of the Bybee advice, military interrogators at Guantanamo Bay were lobbying for harsher interrogation techniques. A struggle developed among US military lawyers, between those who supported Bybee and those who argued officers would be exposed to court martial.

While the new interrogation methods may or may not have extracted "actionable intelligence" from top al-Qaeda suspects, by December 2002, abuse of detainees in Guantanamo Bay and Afghanistan was becoming widespread. That month, a young Afghan man died in US custody under a savage interrogation that would ultimately result in charges against 28 US personnel.

Major-General George Fay, who investigated US military intelligence officers after the Abu Ghraib scandal, found that by December 2002, "interrogators in Afghanistan were removing clothing, isolating people for long periods of time, using stress positions, exploiting fear of dogs and implementing sleep and light deprivation".

Critically, Fay noted that "the use of clothing as an incentive (i.e. nudity) is significant in that it likely contributed to an escalating 'dehumanisation' of detainees and set the stage for additional and more severe abuses."

By April 2003, Rumsfeld had approved scores of interrogation techniques that many military lawyers believed broke military law and that human rights lawyers and the Red Cross believed violated the convention on torture. While some of the techniques, such as sleep deprivation, were within the law if used within strict time limits, at Guantanamo Bay and in Afghanistan they were applied at the extremes.

The US had already begun the invasion of Iraq and very quickly the abusive interrogation methods used at Guantanamo Bay and in Afghanistan began in Iraq. Rumsfeld and Bush publicly stated the Geneva Convention would apply to the Iraq conflict. But within a month of the overthrow of Saddam, the drive for intelligence appeared to be overriding that commitment. In May 2003, the Red Cross wrote to the head of coalition forces in Iraq detailing 200 allegations of ill-treatment of detainees.

By November of that year, the Red Cross was reporting that interrogation techniques in Guantanamo Bay and Iraq had shifted from harsh to becoming "tantamount to torture".

Johnson, of the Centre for Victims of Torture, says that once abusive interrogation is officially sanctioned, even in a few cases, it is impossible to control. "Torture has always been justified by reference to a small number of people who know about the 'ticking time bomb', but in practice it has always been extended to a much wider population."

Military investigators found that this is what happened at Abu Ghraib. On one day in November last year, the CIA and Navy special forces, the SEALs, brought in an Iraqi suspect they believed to have been involved in a deadly attack on the Red Cross headquarters in Baghdad.

Within an hour the suspect was dead, with a bag over his head, face down on a floor and handcuffed. The elite intelligence officers then persuaded junior soldiers to help cover up the death until the body could be disposed of quietly. One of the soldiers photographed the body packed in ice, with his colleague grinning next to the corpse.

That night, elsewhere in the prison, a junior female soldier and her colleagues, apparently on a whim, forced another detainee to stand on a box with simulated electrical wires attached to his fingers and penis and a hood over his head. They also captured this in a photograph that would later become infamous around the world.

By then, even relatively junior military police and intelligence officers had ran amok at Abu Ghraib, physically and sexually abusing detainees, forcing them to masturbate, riding them like animals and making them pose in graphic sexual scenes. Sometimes it was to assist military intelligence operations, sometimes it was for "fun".

Evidence this week in the court martial of military police officer Charles Graner, one the alleged ringleaders of the Abu Ghraib abuses, indicates he enjoyed the unchecked sadism of his role as much as helping out on military interrogations.

Until recently, Bush cocooned his Administration, in particular Rumsfeld and the CIA, from responsibility in the Abu Ghraib scandal. Every investigation so far has been run by hand-picked officials who have placed the blame at the lower rungs of the chain of command. But this strategy is unravelling.

Days before Gonzales was to face the Senate last week, the Justice Department replaced the Bybee advice on torture with an opinion expressly stating that torture is prohibited under US law and opposed by the President. But even this new opinion evaded the issue of whether Bush had the authority as commander-in-chief to override the laws on torture in the war on terror. Last week, Gonzales repeatedly evaded answering that question, leaving some senators deeply sceptical and threatening to support calls for an independent investigation of the scandal.

More than 100 of America's leading military, academic and human rights lawyers have written to the Senate judiciary committee saying it is time for an independent bipartisan commission with full subpoena powers to find out whether the White House approved the torture.

It was essential, they said, to ensure that the treatment of prisoners adhered "faithfully to the constitution, the laws of the United States and to its treaties".