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Site Map THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB |
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From Fear to Torture The word torture, long an outcast from the discourse of democracy, is now in frequent usage. Alongside the word, the practice of torture is now in place as well. The coercive techniques that have been discovered at Abu Ghraib and Guantanamo resulted from advice given by leading figures at the Department of Justice, the Department of Defense, and the White House. The policy came about as the result of a series of memos in which the Administration asked for -- and was granted -- the right to interrogate prisoners with techniques possibly outlawed by the Geneva Conventions and by American military and civil law. The authors of the memos then justified the interrogation techniques on the grounds that in these specific cases, the legal restrictions did not apply. The result is a carefully constructed anticipation of objections at the domestic and international levels and a legal justification based on considerations of failed states, non-state actors, and the national security agenda of the United States. This volume contains the documentary record of the Bush Administration's path to the coercive interrogation of prisoners held on the suspicion of terrorist activity. Many of the documents included here were brought initially to public attention through the investigative work of reporters at The Washington Post and Newsweek as well as at the American Civil Liberties Union. Through the publication of these documents, we can now reconstruct the chronological, legal, and political story of how a traditionally banned form of interrogation became policy. The assent to coercive interrogation techniques, defined under international law as torture, constitutes a landmark turn in American legal and political history. It did not happen without sustained debate on the part of Americans responsible for directing the course of their nation, individuals at the Pentagon, in the State Department, and in the Department of Justice. The memos do not overlook basic ethical and legal questions. From the start, the Administration is concerned about the legality of harsh interrogation techniques and the importance of establishing a legally viable argument for such procedures to be implemented. These memos argue, with increasing acknowledgment of the tenuous legal ground on which they stand, for the right to implement "Counter-Resistance Strategies." Most of the memos ask for approval without specifying the goal of such techniques. By October, 2002, the Commander of the U.S. Southern Command, James T. Hill, explains, "... despite our best efforts, some detainees have tenaciously resisted our current interrogation methods. Our respective staffs, the Office of the Secretary of Defense and Joint Task Force 170 have been trying to identify counter-resistant techniques that we can lawfully employ (Memo #16)." The result is the creation of three categories of torture and a final compendium of approved techniques taken from all three categories in light of the arguments outlined in the memos. There are a number of moral and legal issues embedded in these documents. They include the matters of reciprocity, of human rights protocols, and of constitutionality. The concepts of rights and reciprocity are easy when it comes to the behavior of other nations, but it is in times of crisis and fear that such a principle is truly tested. In the wake of 9/11 and the stresses and strains of an undeclared war on Arab states and persons, the principle faltered at an early stage. The search for legal grounds for these strategies began with the argument that the Taliban and al Qaeda are not covered under the Geneva Conventions, the former on the grounds that Afghanistan was at the time a failed state, the latter because al Qaeda is a non-state actor. Therefore, the authors of these memos reasoned, the right of reciprocity for the United States would not be abrogated. Despite raising numerous legal questions, there is much these memos overlook. Nowhere is the matter of precedent raised in terms of changes in the American treatment of prisoners; what kinds of across-the-board policies would the approval of such procedures launch? This lapse raises the further question, to what extent were these practices in place elsewhere within the American penal system, military or otherwise? Also missing is a discussion of the fact that these procedures were designed for use on detainees picked up in the Afghan theatre and yet they were applied, as the Reports included in this volume demonstrate, to alleged terrorists and to prisoners in Iraq. The justifications for this are hard to find. Also missing from these discussions is the matter of the effect of such procedures and policies upon those who implement them. As the American historian Arthur Schlesinger, Jr., recently suggested, "the abuse of captives brutalizes their captors." [1] Finally, there is but scant mention of such techniques. As Michael Dunlavey, an Army lawyer pointed out, while the techniques may work initially, over time, there is less proof of their efficacy. [2] These concerns are but the beginning of the debate which must ultimately call into question not the Bush Administration but the American people. The use of coercive interrogation techniques was downplayed, not only by the military, but by the American press as well. The American public insisted in the early stages of the exposure of the memos and reports included in this volume that the practice could not possibly be systematic, reasoned, or intended. The general consensus was that Americans could not possibly be involved in such tactics. Which brings into focus yet another aspect of the decision to use torture; namely, what will be the spiritual cost, the overall damage to the character of the nation? In the path to torture, there have been numerous individuals involved. They include: those who wrote the memos, those who ordered the torture, those who carried it out, and those in government and later in the public sector who refused to register the abuses as wrongdoing. Many have a distinctive history of academic accomplishment. John Yoo studied at Harvard (B.A.) and Yale (J.D.), taught at Stanford University, and now teaches at Boalt Hall at Berkeley. Alberto Gonzales attended Rice University and Harvard (J.D.). Donald Rumsfeld graduated from Princeton (A.B.). William J. Haynes II, earned his degrees from Davidson College (B.A.) and Harvard (J.D.). William H. Taft, IV, who advised against the policy of torture, attended Yale (B.A.) and Harvard (J.D.). Jack Goldsmith received his J.D. from Yale. Rumsfeld, Taft, Haynes, Timothy Flanigan and Jay S. Bybee worked in the administration of the first President Bush. Some of the main players in the torture narrative -- for example, Bybee and John Ashcroft -- have deeply religious beliefs. In addition to the authors and recipients of these memos, there remains the possibility that there is advice coming from numerous quarters that is not documented here. The confluence of prior associations, overlapping affiliations and other connections among the drafters of the torture memos remains for journalists and historians to discover over time. Ultimately, what the reader is left with after reading these documents is a clear sense of the systematic decision to alter the use of methods of coercion and torture that lay outside of accepted and legal norms, a process that began early in 2002 and that was well defined by the end of that year, months before the invasion of Iraq. The considerations on torture included here relate exclusively therefore to Guantanamo. Not only did the lawyers and policy makers knowingly overstep legal doctrine, but they did so against the advice of individuals in their midst, notably Secretary of State Colin Powell and William H. Taft, Legal Advisor to the Secretary of State. Powell's memo, a virtual cry in the dark, warns that the policy will "undermine the protections of the law of war for our troops." [3] He warns also about the "negative international reaction" [4] that will follow and the possibility that the implementation of coercive interrogation practices will "undermine public support among critical allies, making military cooperation more difficult to sustain." [5] In regard to the war on terror, he foresees the possible deleterious effect upon anti-terrorist legal cooperation with Europe. Yet another voice of dissent comes many months later from Guantanamo Bay Staff Judge Advocate Diane E. Beaver, recommending "legal, medical, behavioral science and intelligence" [6] vetting of the recommended interrogation procedures. The reports included in this volume show the use of these techniques in Abu Ghraib and against individuals picked up apparently outside of the Afghan theatre, leaving open the question of how and why these considerations were drafted for one context and utilized in the war on terror as well as in the war in Iraq. It remains for scholars and policy makers to explore the links between the initial policies that served Bagram Air Force Base and Guantanamo and the later polices in Afghanistan and against terror suspects picked up outside of the Afghan battlefield. It remains for lawyers and judges, military and civil, to recommend the remedies to address the legal license taken in accordance with these documents, remedies for lawyers, for government officials, for interrogators, and for agency policies as well. It remains for human rights activists, journalists, and others to discover the extent to which these procedures were utilized. With the documents before us, it is possible now to begin these explorations and to consider the record both as symptom of its time and as precedent to the future. Fear is an irrefutable catalyst. More than the law, more than treaties, it must stand the judgment of good men and women who flinch less from fear than from the loss of respect for one another. The constructive value of these memos and reports is to enable open-minded reflection and self-correction even in times such as these. _______________ Notes: 1. Arthur Schlesinger, Jr., "The Making of a Mess," The New York Review of Books, 42, September 23. 2004. 2. October 11, 2002, Memo from Maj. Gen. Michael E. Dunlavey to Commander, U.S. Southern Command. 3. January 26, 2001, Memo from Colin L. Powell to Counsel to the President and Assistant to the President for National Security Affairs. 4. Ibid. 5. Ibid. 6. October 11, 2002, Memo from Diane E. Beaver to Commander, JTF 170.
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