[Mb-civic] GRISLY BUT GREAT: Torture, American-Style - David Luban - Washington Post Sunday Outlook

[William Swiggard]

> Torture, American-Style
> This Debate Comes Down to Words vs. Deeds
>
> By David Luban
> Washington Post Sunday Outlook, November 27, 2005; B01
>
> There are two torture debates going on in America today: One is about 
> fantasy, and the other is about reality.
>
> For viewers of TV shows such as "Commander in Chief" and "24," the 
> question is about ticking bombs. To find the ticking bomb, should a 
> conscientious public servant toss the rulebook out the window and 
> torture the terrorist who knows where the lethal device is? Many 
> people think the answer is yes: Supreme emergencies demand exceptions 
> to even the best rules. Others answer no: A law is a law, and a moral 
> absolute is a moral absolute. Period. Still others try to split the 
> difference: We won't change the rule, but we will cross our fingers 
> and hope that Jack Bauer, the daring counterterrorism agent on "24," 
> will break it. Then we will figure out whether to punish Bauer, give 
> him a medal, or both. Finally, some insist that since torture doesn't 
> work -- that it doesn't actually unearth vital information -- the 
> whole hypothetical rests on a false premise. Respectable arguments can 
> be made on all sides of this debate.
>
> Real intelligence gathering is not a made-for-TV melodrama. It 
> consists of acquiring countless bits of information and piecing 
> together a mosaic. So the most urgent question has nothing to do with 
> torture and ticking bombs. It has to do with brutal tactics that fall 
> short -- but not far short -- of torture employed on a fishing 
> expedition for morsels of information that might prove useful but 
> usually don't, according to people who have worked in military 
> intelligence. After Time magazine revealed the harsh methods used at 
> the Guantanamo Bay detention facility to interrogate Mohamed Qatani, 
> the so-called "20th hijacker," the Pentagon replied with a memo 
> describing the "valuable intelligence information" he had revealed. 
> Most of it had to do with Qatani's own past and his role in the 
> attacks of Sept. 11, 2001. Other parts concerned al Qaeda's modus 
> operandi. But, conspicuously, the Pentagon has never claimed that 
> anything Qatani revealed helped it prevent terrorist attacks, imminent 
> or otherwise.
>
> The real torture debate, therefore, isn't about whether to throw out 
> the rulebook in the exceptional emergencies. Rather, it's about what 
> the rulebook says about the ordinary interrogation -- about whether 
> you can shoot up Qatani with saline solution to make him urinate on 
> himself, or threaten him with dogs in order to find out whether he 
> ever met Osama bin Laden. And the trouble is that this second debate 
> is so wrapped up in legalisms, jargon and half-truths that it is truly 
> hard to unravel.
>
> The most recent issue is Arizona Sen. John McCain's amendment 
> <http://mccain.senate.gov/index.cfm?fuseaction=NewsCenter.ViewPressRelease&Content_id=1611> 
> to a defense appropriations bill, designed to plug loopholes in 
> current anti-torture law. It has passed the Senate, and the House is 
> scheduled to vote on it sometime next month. President Bush has 
> responded that we do not torture, we treat prisoners humanely, and we 
> follow our legal obligations. But what, exactly, are the politicians 
> arguing about?
>
> The starting point is the U.N. Convention Against Torture 
> <http://www.unhchr.ch/html/menu3/b/h_cat39.htm>, a treaty that the 
> United States ratified in 1994. Under the convention, we agreed to 
> criminalize overseas torture -- official torture was already a crime 
> within the United States -- and to "undertake to prevent . . . other 
> acts of cruel, inhuman or degrading treatment or punishment" (CID, for 
> short) that "do not amount to torture." Many of the controversial U.S. 
> methods are CID, sometimes called "torture lite." CID includes 
> techniques used in Guantanamo: 18- to 20-hour-a-day questioning for 48 
> out of 54 days, blasting prisoners with strobe lights and 
> ear-splitting rock music, menacing them with snarling dogs, 
> threatening to hurt their mothers, and humiliations such as leading 
> them around on leashes Pfc. Lynndie England-style, stripping them 
> naked in front of women, or holding them down while a female 
> interrogator straddles them and whispers that we've killed their comrades.
>
> All of these methods were used on Qatani, and documented in the Army's 
> Schmidt report 
> <http://www.defenselink.mil/news/Jul2005/d20050714report.pdf> (PDF), 
> which was commissioned in response to FBI allegations of abuses at 
> Guantanamo. (Most of the report, co-authored by Lt. Gen. Randall M. 
> Schmidt, remains classified, so we do not know whether the classified 
> portions contain worse.)
>
> Methods like these were banned in U.S. criminal investigations years 
> ago, because, in the Supreme Court's language, they "shock the 
> conscience." Assaults on human dignity are not who we are or what we 
> stand for. Given the U.S. commitment under the torture convention to 
> "undertake to prevent" CID, why are we using it abroad in cases that 
> have nothing to do with ticking time bombs? Why does the president 
> still insist that we're following our legal obligations, and that we 
> treat detainees humanely?
>
> It depends what you mean by "legal obligations" and "humanely." A 
> quick glossary of the unique Bush administration definitions might help.
>
> Cruel, inhuman or degrading. In the Bush lexicon, these words have no 
> meaning outside U.S. territory because we have no obligation to 
> prevent such methods from being used in interrogations performed 
> outside the United States and its possessions. That was Attorney 
> General Alberto Gonzales's startling argument at his confirmation 
> hearing, and it goes like this: Before the Senate ratified the torture 
> convention, it added the reservation that CID means the cruel, inhuman 
> or degrading treatment forbidden by our Constitution. But the Supreme 
> Court has held, in other unrelated contexts, that the Constitution 
> does not apply outside U.S. territory. Therefore, the administration 
> maintains, outside U.S. territory (including the U.S. military base in 
> Guantanamo, on the island of Cuba) anything goes except outright torture.
>
> This was not at all what the Senate meant, according to Abraham 
> Sofaer, the State Department's legal adviser when the Reagan 
> administration signed the Convention Against Torture in 1988. In a 
> letter this past January to Sen. Patrick Leahy, the Vermont Democrat, 
> Sofaer explained that the purpose of the Senate's reservation was to 
> ensure that the same standards for CID would apply outside the United 
> States as apply inside -- just the opposite of Attorney General 
> Gonzales's conclusion. The point was to define CID, not to create a 
> gaping geographical loophole.
>
> This is the loophole that McCain, a Republican, is trying to close. 
> His amendment requires that the ban on CID not be "construed to impose 
> any geographical limitation."
>
> Humane. This month, the Pentagon issued a new directive on 
> interrogation, requiring "humane" treatment of subjects. It came up 
> with that terminology to replace more specific language in an early 
> draft of its directive that had been modeled on the Geneva 
> Conventions' ban on cruel or humiliating treatment. The reason for the 
> change: Vice President Cheney's office vehemently objected to the 
> initial Geneva-like phrasing.
>
> But what does "humane" mean? Not much, it seems. Amazingly, the Army's 
> Schmidt report declared that none of the tactics used in Guantanamo 
> were "inhumane." Along similarly minimalist lines, Gonzales defined 
> "humane treatment" as requiring nothing more than providing food, 
> clothing, shelter and medical care. In the Bush lexicon, therefore, 
> sexual humiliation, acute sleep deprivation and threats to have a 
> detainee's mother kidnapped and imprisoned are humane.
>
> Oddly enough, the Schmidt report also concluded that most of the 
> Guantanamo tactics were already authorized by U.S. Army doctrine -- a 
> conclusion that the Army never previously accepted. The basic Army 
> doctrine on interrogations is the Golden Rule: Before using a tactic, 
> interrogators should ask themselves whether they think it would be 
> permitted if used by an enemy against American prisoners of war. Given 
> our protests at the public display of downed American fliers in Iraq 
> during the first Gulf War, it is obvious that the answer would be "no" 
> to the sexual humiliations at Guantanamo.
>
> The Army's manual 
> <http://www.globalsecurity.org/intell/library/policy/army/fm/fm34-52/> 
> does discuss so-called "futility" tactics -- making the prisoner 
> believe that further resistance is futile by presenting "factual 
> information . . . in a persuasive, logical manner." Schmidt, however, 
> twisted this doctrine to justify blasting detainees with high-volume 
> "futility music" (the report's phrase) by Metallica and Britney 
> Spears, dressing a detainee in a bra, and making him do dog tricks. 
> McCain's amendment would restrict interrogations to those authorized 
> by the Army's manual -- but the way the Schmidt report reads the 
> manual, this limitation amounts to very little. (In any case, the Army 
> is rewriting the manual.)
>
> Legal obligations. Bush declared that al Qaeda members have no Geneva 
> Conventions rights -- not even the minimum rights against cruel and 
> humiliating treatment that the Geneva accords guarantee to detainees 
> who don't qualify as POWs. Although in February 2002 the president 
> ordered the military to treat detainees according to the Geneva 
> standards, his order conspicuously omitted any mention of non-military 
> agencies such as the CIA. It also left a large loophole for "military 
> necessity."
>
> In the law of war, military necessity encompasses anything that 
> contributes to victory, so the president's directive really forbids 
> nothing but pointless sadism. Cheney and his new chief of staff, David 
> Addington, have fought the McCain amendment precisely because it would 
> prohibit CID treatment. In short, we comply with our legal obligations 
> because, in the Bush lexicon, we hardly have any.
>
> We don't torture. "We don't torture" means that we don't use worse 
> tactics than CID -- except when we do. Waterboarding (in which a 
> prisoner is made to believe he is drowning) and withholding pain 
> medication for bullet wounds cross the line into torture -- and both 
> have allegedly been used. So does "Palestinian hanging," where a 
> prisoner's arms are twisted behind his back and his wrists are chained 
> five feet above the floor.
>
> A Nov. 18 ABC News report quoted former and current intelligence 
> officers and supervisors as saying that the CIA has a list of 
> acceptable interrogation methods, including soaking naked prisoners 
> with water in 50-degree rooms and making them stand for 40 hours 
> handcuffed and shackled to an eyebolt in the floor. ABC reported that 
> these methods had been used on at least a dozen captured al Qaeda 
> members. All these techniques undoubtedly inflict the "severe 
> suffering" that our law defines as torture.
>
> Consider the cases of Abed Hamed Mowhoush and Manadel Jamadi. 
> Mowhoush, an Iraqi general in Saddam Hussein's army, was smothered to 
> death in a sleeping bag by U.S. interrogators in western Iraq. Jamadi, 
> a suspected bombmaker, whose ice-packed body was photographed at Abu 
> Ghraib, was seized and roughed up by Navy SEALS in Iraq, then turned 
> over to the CIA for questioning. At some point during this process, 
> according to an account in the New Yorker magazine, someone broke his 
> ribs; then he was hooded and underwent "Palestinian hanging" until he 
> died. The CIA operative implicated has still not been charged, two 
> years after Jamadi's death. And the SEAL leader was acquitted, 
> exulting afterward that "what makes this country great is that there 
> is a system in place and it works."
>
> He got that right. Shamefully, it is a system that permits cruel, 
> inhuman and degrading treatment, smudges long-standing lines about 
> what is and is not permitted in routine interrogations -- and then 
> expresses hypocritical horror when soldiers and interrogators cross 
> the blurry line into torture and murder.
>
> McCain has said that ultimately the debate is over who we are. We will 
> never figure that out until we stop talking about ticking bombs, and 
> stop playing games with words.
>
> Author's e-mail:
>
> luband at law.stanford.edu <mailto:luband at law.stanford.edu>
>
> David Luban is a professor at Georgetown University Law Center and a 
> visiting professor this year at Stanford University Law School. He 
> writes frequently about legal ethics and contributed a chapter to the 
> forthcoming book "The Torture Debate" (Cambridge University Press).
>

http://www.washingtonpost.com/wp-dyn/content/article/2005/11/25/AR2005112501552.html
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