The United States has both the oldest written constitution in the world and a long history of ignoring it in times of national crisis.
– Foreword, The Administration of Torture (Columbia Univ. Press, 2009)
The use of torture during various stages of the “war on terror” has been off the front pages for years, but the issue, and the nation’s legal and ethical understanding of the use of torture, is far from resolved. The American public remains largely unaware of the full story of the nation’s interrogation practices, and those responsible for torturing detainees in U.S. custody have not been held accountable. A 6,000-page report from the Senate Intelligence Committee remains classified, but it has been described by some lawmakers as highly critical of the Central Intelligence Agency’s detention and interrogation programs and accuses the agency of misleading Congress and the White House. In late July Senator Dianne Feinstein of California, the committee chair, called for the release of at least its 300-page summary. While the public awaits the release of that document, what do we already know about the practice of torture and U.S. responsibility for it?
Let us begin with Maher Arar. He stands clinging to the wall in a dark and airless cell, seven feet high, six feet long and three feet wide. He is in Syria in a notorious prison outside Damascus known as “the grave.” He has been there for 10 months, beaten with cables, threatened with electric shocks and tortured in other ways. Cats urinate on the prisoners through grates in the ceiling, and roaches and rats share the cell. He begins to bang his head against the wall.
Mr. Arar is 43 years old, a graduate of McGill University in Montreal; he had emigrated to Canada with his family as a teenager. A dual citizen of Canada and Syria, he was on his way home from a family vacation in Tunisia. On Sept. 26, 2002, he attempted to change planes at John F. Kennedy airport in the United States when U.S. authorities, based on inaccurate and prejudicial information supplied by the Canadian Mounted Police, nabbed him and interrogated him for two weeks. The U.S. Immigration and Naturalization Service decided he was a member of Al Qaeda and orderd him removed from the United States.
Shackled, Mr. Arar was delivered to a small airport in New Jersey; his plane took off, making stops in Washington, D.C.; Bangor, Me.; and Rome, Italy. Suddenly guessing he was headed for prison in Syria, Mr. Arar recalled his mother’s warning about the barbaric practices of Syrian police and pleaded with his captors not to take him there. At first, Syria refused to accept him, so he landed in Amman, Jordan. After 10 days, he was driven to Syria, where he was immediately beaten and then “buried alive” in the “casket” cell. There he could hear the screaming of others, including the voice of the man who had falsely implicated him and caused his arrest. Over a year later, in October 2003, he was released without charges after his wife finally prevailed upon the Canadian government to come to his aid.
The Syrian ambassador in Washington reported that no terrorist links to Mr. Arar had been found. The Canadian government also investigated his case and found no links to terrorism. It eventually awarded him 10.5 million Canadian dollars, or $9 million, in compensation. The United States government refused to clear his name from the terrorist watch list and blocked his attempt to sue for damages by invoking the “state secrets privilege,” a judicial rule that excludes evidence that the government says would disclose information that might endanger national security.
The Context: ‘Gloves Off’
On Sept. 26, 2002, the same day Mr. Arar was picked up at Kennedy airport, J. Cofer Black, then director of the Central Intelligence Agency’s Counterterrorism Center, testified before Congress that the rules for rendition had changed radically from the days before Sept. 11, 2001, to the norms that applied after that fatal date. “After 9/11 the gloves come off,” Mr. Black said in Congressional testimony. The phrase exemplified the split-level morality that would justify illegal and immoral use of violence from that point forward.
The Arar case compromised the laws and values of five countries conspiring in varying degrees to torture an innocent man. The quality of the evidence that was used to arrest and interrogate Mr. Arar would have never held up in a court of law. The State Department’s human rights report in 2003 charged that Syria tortured its detainees with electric shocks, pulling fingernails, invading the rectum and stretching the spine to the breaking point. Four months before the C.I.A. sent Mr. Arar to Syria, John R. Bolton, then a state department official, in a speech to the Heritage Foundation, added Syria and two other “rogue states” to the “axis of evil.” There is little doubt U.S. officials knew what awaited Mr. Arar in Syria.
Today Mr. Arar still suffers nightmares, and he fears strangers and flying. His psychological health has been shattered. In order to gain his freedom, he had to sign false confessions. In a sense his case proves that torture “works”: a victim of torture will confess to anything his interrogators want to hear.
The Origins of Torture
In “A Painful History,” Darius Rejali reminds us that even democracies have been innovators of torture (The Chronicle of Higher Education, 1/25/08). The Italian republics drew on techniques from the church’s inquisitors, including the strappado, a method still used today, in which the victim, his hands tied behind his back, is hoisted by the wrists by a hook and pulley and dropped back to the ground. Viewers of “The Battle of Algiers” (1966) may recall how the French in the 1950s tortured suspects into naming members of their underground revolutionary group. All this was justified, of course, because of a national emergency.
The science of torture has progressed since then: Sleep deprivation increases pain, for example; and “clean” torture, like the use of electric shocks, leaves no marks, undermining the victim’s credibility to the outside community. As a result, the practice of torture acquired its own safe hold in American culture. A new book, Kill Anything That Moves, by Nick Turse, documents that Vietnam included many My Lai’s; one veteran said the norm was “the enemy is anything with slant eyes who lives in a village.” The film “Zero Dark Thirty” (2012) falsely insinuates that “enhanced interrogation techniques” helped lead to the killing of Osama bin Laden. Why? Perhaps that is what the audience wants to believe.
Torture and the Law
The U.N. Convention Against Torture, the descendant of documents approved by the United Nations in 1975 and 1987 and ratified by the U.S. Senate in 1994, is part of international and U.S. law. It forbids all forms of cruel, inhuman or degrading treatment. Its prohibition is absolute, without exception for war or other national emergency.
In January 2002 the White House counsel, later attorney general, Alberto Gonzales, told President George W. Bush that in his judgment the war on terror “renders obsolete [the Geneva Convention’s] strict limitations on questioning of enemy prisoners.” The unorthodox war had ushered in a “new paradigm,” enshrined in a legal doctrine created by Vice President Dick Cheney’s lawyer, David S. Addington, which argued that the president had the authority to disregard previous legal boundaries if national security required it. President Bush responded in February 2002 with a memo declaring that Al Qaeda and Taliban prisoners were not entitled to Geneva protections. Assuming they no longer needed to follow the rules laid out in the Army Field Manual, field commanders devised new methods of interrogation based on the torture U.S. troops were trained to endure if captured by enemies. Then with Defense Secretary Donald H. Rumsfeld’s endorsement, the new “enhanced interrogation techniques” (including waterboarding) were applied to Mohammed al-Qahtani, a detainee suspected of being the 20th hijacker in the Sept. 11 attacks. Confined for 48 days in isolation in a cell flooded with light, enduring 20-hour interrogations, sexual humiliation and harassment by military dogs, he cowered in the corner of his cell under a sheet as he was driven insane. Since this treatment “met the legal definition of torture,” said Susan Crawford, a senior Pentagon official, she dismissed charges against Mr. al-Qahtani in the military commissions system.
The F.B.I. consistently argued that these methods were illegal, ineffective and harmful to the fight against terrorism. Alberto J. Mora, a Navy general council, opposed these interrogation techniques as torture. But John Yoo, a lawyer in the Office of Legal Counsel from 2001 to 2003, even argued that eye gouging and the crushing of the testicles of a detainee’s child could be permissible.
Torture techniques were used in C.I.A. secret prisons, Guantánamo, Iraq and Afghanistan, where in December 2002 a prisoner died after he had been shackled by his wrists to the ceiling and beaten on his legs. Six days later the prison staff beat another prisoner to death. The techniques included stripping detainees naked, hooding them, tormenting them in darkness, blasting music and subjecting them to low-voltage electrocution and attacks by dogs and snakes. Between 2002 and 2006 there were nearly 100 deaths of detainees in U.S. custody, 34 marked as suicide. The White House’s oft-repeated expression of “taking the gloves off,” combined with ambiguous legal parameters, created an environment conducive to abusive treatment.
All this in spite of the fact that military intelligence officers cited by the Red Cross estimated that 70 to 90 percent of the prisoners retained in Iraq “had been arrested by mistake”; and an Abu Ghraib assessment that revealed 85 to 90 percent of its detainees were innocent and had no intelligence value.
Two Cases
A classic rendition case is that of Ibn al-Shaykh al-Libi. A Libyan citizen, Mr. al-Libi, who really was connected to Al Qaeda, was arrested in Pakistan shortly after Sept. 11, 2001, and interrogated by the C.I.A. and F.B.I. He was held in custody by the C.I.A., which transferred him to a U.S. naval ship, the U.S.S. Bataan, on Jan. 9, 2002, and then he was rendered to Egypt. The C.I.A. believed he had access to information about Iraq’s potential in chemical and biological weapons, so they tortured him until he finally told them what he thought they wanted to hear. On Feb. 5, 2003, Secretary of State Colin L. Powell relied on this information when he addressed the United Nations and made the case for war against Iraq. Within a year Mr. al-Libi admitted he had fabricated all his testimony on Iraq’s weapons of mass destruction because he was terrified of being tortured. He was then “disappeared,” shipped to various countries till he ended up in a Libyan jail, where in 2009 his body was found in his cell, according to Libyans, a death by suicide.
And consider the case of Binyam Mohamed, a young Egyptian citizen and British resident, captured in Pakistan and tortured in Morocco, then shuttled to the C.I.A.’s “dark prison” (detainees there say they were held for weeks in complete darkness) in Kabul, Afghanistan. Tortured in Morocco for 18 months, interrogators beat him, put him in a room with open sewage, drugged him, blasted him with loud music, broke his bones, sliced his genitals and threatened him with rape, electrocution and death. In Kabul they chained him to the floor of a 6-by-6-foot cell in darkness for 23 hours a day. He was flown to Guantánamo in 2004. Released in February 2009, he returned to England. Mr. Mohamed attempted to sue the U.S. government over his treatment in U.S. custody, but a court rejected the suit since the evidence could compromise national security. In November 2010, however, Mr. Mohamed and several other Guantánamo detainees settled with the British government for millions of dollars—an attempt by the U.K. to prevent further public knowledge of their treatment while detained.
What Is to Be Done?
I interviewed Amrit Singh, author of Globalizing Torture and co-author of Administration of Torture: A Documentary Record from Washington to Abu Ghraib and Beyond, in the Open Society Foundation’s offices in New York. A graduate of Cambridge University, Oxford University and Yale Law School, Ms. Singh is soft spoken, but she holds the strong ideals and cool temperament necessary for a lawyer who has spent a career studying barbarous behavior. I asked: Does the South African process of forgiveness and reconciliation have any relevance to resolving this moral void into which the previous administration dragged the nation, which the current administration prefers to ignore? She was not satisfied by the prospect of immunity; she demanded that the guilty parties pay for their crimes.
Her report concluded: “The time has come for the United States and its partner governments to admit to the truth of their involvement in secret detention and extraordinary rendition, repudiate these practices, and conduct effective investigations directed at holding officials accountable.”
I asked how this kind of scholarship affected her emotions. She hesitated, so I shared my reaction: horror at the mystery of how one human being can deliberately make another suffer, and shame that my country would do this. She replied that her own horror makes her plunge more deeply into the terrible suffering the victim has endured. She described a lunch meeting with a victim who, after several years, has not recovered. His life is broken; he barely functions. What he wants most is just a basic acknowledgment of what happened to him, which the United States refuses to give him.
The Constitution Project’s Task Force on Detainee Treatment, released in April of this year, has numerous recommendations: admit that torture violates our nation’s laws and values, stop the force-feeding of detainees on hunger strike in Guantánamo and swiftly free those in Guantánamo who have been cleared. The report also calls for the Obama administration to stop keeping the details of torture and rendition from the public. This would apply particularly to the 6,000-page report of the U.S. Senate intelligence committee on black sites, which remains classified.
In The Ethics of Interrogation, Paul Lauritzen emphasizes that it is clear that a leader who orders torture must understand that what he or she has done is a crime and accept the moral burden of having committed a crime. Americans must also understand that torture is inherently contrary to the nation’s legal system. Mr. Lauritzen calls the prohibition of torture a “legal archetype,” a rule that transcends an individual law or statute in that it captures the spirit of an area of law. He counters the deceptive “ticking time bomb scenario,” one favored by apologists of torture, the proposal that it would be permissible to torture someone who could disclose the location of a planned bomb attack. The scenario has been well absorbed into popular culture, rising to the surface in films like “Zero Dark Thirty” and television shows like “24.”
“We cannot justify even the exceptional case of torture,” Mr. Lauritzen writes. “If we accept torture, we will need torture experts, new instruments of torture, and a pedagogy of torture.” In short there is no “just this one time” when a culture first caves in.
Finally, morally and religiously, torture is a life issue, one the religious leadership in this country has not faced with the vigor the problem demands. We need no better contemporary case study than what happened in Jerusalem 2,000 years ago: a man was arrested on false charges, mocked, stripped, whipped and crucified. Whenever we turn away from, rather than face the reality that this violence continues in our own nation, we sacrifice our honor and another human being.
