January 18, 2007
by Sam Kornell
Photo by Ron Haviv/VII
In April 2004, vivid photographs of American military and intelligence personnel torturing Iraqi detainees at the Abu Ghraib prison facility were leaked to the press. Instantly iconic, the images became political rallying flags for terrorist recruitment throughout the Arab world, and within the United States they inspired shock and disgust.
Yet for all their brutal immediacy — or perhaps because of it — the Abu Ghraib photographs occupied only an isolated place in the American discussion of torture. Today, despite documented evidence of other American-ordered torture, Abu Ghraib is not just the signal scandal of the Bush administration’s extraordinary interrogation practices, but the only scandal. Journalist Mark Danner, who wrote what is now — and will likely remain — the authoritative account of Abu Ghraib in his book Torture and Truth: America, Abu Ghraib, and the War on Terror, described this curious fact in a recent essay:
Beginning with a lecture by Danner this evening, UCSB will offer a six-month series of symposia and lectures meant to grapple with the questions that torture and indefinite detention pose for the United States. Open to the public, the series will give us a chance to reflect on the exceptional liberty the Bush administration has claimed in its commission to fight the war on terror. And it will give us the opportunity to examine whether the threat posed by Islamic terrorism warrants “work[ing] through the dark side,” as Vice President Dick Cheney put it five years ago when explaining on national television how the administration planned to stop terrorist acts.
Underlying the series, Torture and the Future: Perspectives from the Humanities, will be the extensive documentary record, amassed by journalists, human rights agencies, and government investigations, of what, apparently, Cheney’s “dark side” has entailed. That record is far from complete, but it reveals that since September 2001, the United States government has held thousands of men and boys rounded up during the war on terror, without criminal charge and without bail, at various prisons, military bases, and detention camps around the world. The detainees have not been allowed to make telephone calls, write letters, or contact embassies, have not, except in a few cases, been furnished with legal representation, and have in many cases been subjected to methods of interrogation that appear to legally constitute systematic torture.
Initiated by UCSB Professor Elisabeth Weber, the series will consider the foundational ideals embedded in the U.S. Constitution and Bill of Rights, and how these ideals have weathered other perceived national security crises. And it will seek to imagine how history will judge the Bush administration’s extraordinary measures in the war on terror. And, indeed, how we should judge them now.
Fighting Ideology with Ideology
Mark Danner Describes the Advent of Torture as U.S. Policy
A longtime staff writer at the New Yorker, Mark Danner is the recipient of numerous journalism awards. He has reported on war from South America, the Balkans, and the Middle East, and for the last three years has written in the New York Review of Books a number of widely read and influential essays on torture, the Bush administration, the war on terror, and the Iraq War (these essays have been compiled into two books — The Secret Way to War, about the Downing Street memo, and Torture and Truth). Our telephone interview with Danner has been edited to fit limited space. Danner will appear at UCSB’s Campbell Hall at 8 p.m. this evening. Admission is free to the public.
You’ve used a striking sentence in a number of your essays, something to the effect of: “The U.S. government, since 9/11, has been transformed from a country that officially prohibits and condemns torture to one that practices it.” What does that mean? What it means is that after the attacks of 9/11, the highest officials of the Bush administration decided one of the things that had to change — in the changed world of the war on terror — was the traditional American approach to interrogation. There were various public acknowledgments of this, beginning with the decision not to extend Geneva Convention protections to prisoners taken in Afghanistan. Another artifact of it is the category “unlawful enemy combatants” that was created.
What followed from these decisions were changes in what was permitted in interrogations, changes that led to, among other things, some of the abuses that were very well publicized in what came to be known as the Abu Ghraib scandal. These changes included the widespread use of waterboarding — which is the use of water to create the impression that a prisoner is drowning — the use of temperature manipulation, striking the prisoner, stress positions, sensory deprivation, and many other techniques that up to then had been prohibited, in particular by the U.S. military.
The Bush administration has responded to critics of its interrogation and detention practices by arguing that the war on terror is extraordinary, so that with torture, for example, traditional codes of conduct don’t apply. Well, I think members of the administration do believe that. But that isn’t in fact the argument they’ve made publicly. The argument they’ve made publicly is they don’t torture, and that the photographs from Abu Ghraib, for example, were of the actions of a few bad apples and don’t represent what is being done in interrogations of prisoners generally.
But they have argued that legally the president isn’t subject to traditional interpretations of international and American law on torture and due process. You’re quite right. From the beginning, members of the administration have looked at laws that seem rather forthright — the Geneva Convention Against Torture is one of them — and used lawyers to extract from those documents an almost absurdly, almost comically narrow reading of what they mean.
The Department of Justice documents really made the argument in a couple ways. The first was essentially that Congress cannot limit the president’s powers related to war. The second was somewhat contradictory because they said, “Okay, we’re committed not to torture. Fine. What is torture?” They essentially redefined it to say that for something to be torture it must cause pain equivalent to major organ failure or death. So basically they were saying, “Well, on the one hand, Congress cannot limit the president’s war powers, which encompass interrogations. But on the other hand, the law prohibits torture, and we’re not doing torture because torture actually has to do with activities that cause very, very large degrees of pain.” But of course you can do a lot to somebody that almost anyone would acknowledge is torture without necessarily going beyond the level of pain that’s caused by major organ failure.
The first part of this argument is strikingly broad. The implication seems to be essentially that the president is constitutionally unconstrained by the law. These people … believe in what they call a unitary executive. Essentially, it means there are certain powers on which the judiciary and Congress cannot tread. And one area where that is the case is in the president’s war-making powers. John Yoo, who was one of the central architects of the administration’s legal case … was at a public event recently and someone said, “So you’re saying that if the president wanted to order a child tortured in front of his parents in order to coerce his parents to give up information, there’s nothing Congress and the Judiciary can do about it?” He responded: “No, there’s nothing they can do about it.” He really believes the president is unchallengeable in these areas. And, you know, I don’t. And a lot of other people don’t. Most people don’t.
In June 2004, the Supreme Court decided Hamdan v. Rumsfeld, which was a challenge to the administration’s definition of “enemy combatants” and its withholding of various prisoners’ rights. At the time, many observers took the decision to mean, if not necessarily the demise of Guantánamo, at least the reinstatement to some degree of due process rights. But now we have the Military Commissions Act (MCA), which was legislated by Congress in September 2006. How is the MCA related to Hamdan v. Rumsfeld? The Hamdan v. Rumsfeld decision essentially said, your assumption that you can say the Geneva Conventions don’t apply [to prisoners captured in the war on terror] is wrong. The Geneva Conventions do apply. Period. The decision presented the administration with a very difficult problem, a problem having to do with the military commissions [proposed to try the prisoners], and a problem having to do with the consequences for people in the administration who acted in good faith in developing and applying this alternative set of procedures. If the Geneva Conventions do apply, those people may be subject to some kind of prosecution under the War Crimes Act.
The MCA was a response to all that, with the intent to nullify the effect of Hamdan. … It basically portrayed the decision as a usurping of the powers of the president and a usurping of the powers of Congress. There were these very highly publicized negotiations [with senators John McCain, Lindsey Graham, and John Warner], the result of which was really not terribly significant, frankly. That is, the law had in it a nod to the Geneva Conventions, but then let the president decide whether something was a violation of the Geneva Conventions. It put the power in his hands.
Will the MCA stand up under the new Congress? Senator Patrick Leahy of Vermont, who is the incoming chairman of the Judiciary Committee, has declared his intention to revisit that law. My impression is there is a general recognition that this law was a disgrace. For reasons including not only the ones we’ve talked about, but also the stripping of habeas corpus, the placing in the president’s hands the power to declare virtually anyone an unlawful enemy combatant, the removal from the federal courts of oversight — not just habeas but other kinds of oversight … you can go down a list. I think there’s a general recognition this law is one of the great disgraces of American legal history.
Having said that, it’s very difficult to calculate what the politics are going to be. The reason the MCA became law to begin with is out of Democrats’ fear the president would use their opposition to the law as a way to brand them as soft on the war on terror going into the November midterms. So most of the Democrats hung back. Most of them voted against it, but they didn’t make an issue of it. They didn’t filibuster it, for example, as they could have done and should have done, I think.
The fact that it was politically expedient for Democrats not to filibuster a bill like the MCA raises an interesting issue about how torture has caught the American imagination — or how it hasn’t. And why it hasn’t. That’s a critical issue, and it’s something Americans have to come to grips with. It’s the question: Why is it that the president can get political mileage out of supporting a bill that essentially legalizes torture?
There are a lot of pop-culture markers that [help explain] this. One I often refer to is the Fox television program 24, which is enormously popular. I think it’s in the top 10 programs watched. And it is a program that has as a very important part of its narrative — it’s really in almost every episode — an episode of torture, usually committed by the hero. Torture in it is used essentially to signify the determination of the government to protect the population. I think anybody who wants to talk about torture has to come to grips with the fact that, you know, here we are. Americans seem to watch this show and approve of this behavior.
I think in some ways it is a response to fear. There is the notion that this kind of untrammeled government power is what is needed to protect people, and that is something that is in some way reassuring to people.
What if someone has information that can only be extracted by torture and that information will save lives? Would one be morally remiss not to torture that person? That is a prevalent argument — the so-called ticking bomb scenario, which is: What if you capture somebody, there’s a nuclear bomb in New York City, he knows where it is, you know he knows, so wouldn’t it be morally reprehensible not to torture him if that’s what’s necessary? You hear that a lot. But it’s a fraud, that argument, because that’s not how torture is used. You should always wonder when you’re looking at a case that’s actually happening — and torture is a case that’s actually happening — when the argument that’s always made about it is a hypothetical one.
Torture is used on suspects who are suspected to have some kind of knowledge, but it’s very unusual to actually know what knowledge they have. For example: You pick up somebody, you think they’re part of the Al Qaeda hierarchy, you thereby assume they know things, and you interrogate them using these [harsh] techniques. And what they usually give you is not plans for attacks — although that has happened, not immediate [plans] but eventual [plans] — but what they usually give you is names of other people. So one of the problems with this whole ticking bomb argument is that it’s quite unreal. It doesn’t have much relation to what’s actually happening.
How has American torture affected the political component of the war on terror? One of the ironies of what’s happened since 9/11 is the Bush administration was so keen to declare this war [on terror] an utterly new phenomenon with new rules, but in making many of these new rules, it ignored the damage these activities would have on the U.S. reputation, and the way they would undermine the president’s chosen response, which is, as he puts it again and again: You can’t fight an ideology without an ideology. President Bush believes only democracy can fight the overarching cause of jihadism that motivates the enemy in the war on terror. In fact, the use of torture really constitutes a kind of affirmation of the whole philosophy of jihadism because it shows the United States as the oppressor — as the oppressor of Muslims, as the ruthless underminer of Muslim dignity and Arab manhood — and all the other things embodied, for example, in that famous photograph from Abu Ghraib of Lynndie England holding the leash tied to the throat of the naked prisoner lying on the floor, his face contorted in agony. So there’s not only what it does to the tortured and the torturer, it’s what it does to the underlying cause of putting the U.S. forward as the democratic solution, rather than as the oppressor, which is the characterization the jihadists depend on.
4•1•1
Mark Danner speaks on Into the Light of Day: Torture, Human Rights, and the War on Terror. Tonight, Thursday, January 18 at 8 p.m. UCSB’s Campbell Hall, free.
How the Symposia on Torture Began
It was the Military Commissions Act that finally spurred Elisabeth Weber to take action. “The [MCA] gave President Bush the right to define torture,” Weber said recently. “Torture now means something different in almost every country in the world than it does in the United States.” Weber is a professor of comparative German literature at UCSB. The object of her anger is a congressional bill advocated by the Bush administration and signed into law in mid October. Introduced by Republican members of Congress, the Military Commissions Act allows the president to identify, imprison, and interrogate anyone he feels threatens the United States, without traditional court review. And it allows him to decide the meaning and application of the Geneva Conventions, which stipulate laws and protocol for international conflicts, including the treatment and detention of prisoners.
“The Military Commissions Act and the ‘torture memos’ [memos prepared by the Department of Justice to legally define the Bush administration’s approach to interrogation] send a message to the whole society that it is okay to torture. I felt I had to say something to my students.” Most of Weber’s students “didn’t have a clue” what the Military Commissions Act was. But once they understood, she said, “they were horrified.”
To broaden the discussion, Weber and 12 of her colleagues at UCSB decided to organize a broad inquiry into U.S. government torture, which they called Torture and the Future: Perspectives from the Humanities. The series will last through June. So far, eight events are planned, as well as a film series; to view the events and learn more about the series, visit www.complit.ucsb.edu/projects/tortureandthefuture/index.html.
By Sam Kornell | January 18, 2007 | 0 Comments | 0 TrackBacks
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