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The Unending Legacy of Torture

Saturday, 24 December 2011 07:09 By Jonathan Hafetz, Truthout | News Analysis
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One of the most troubling legacies of 9/11 is the United States' decision to resort to torture to fight terrorism. Torture has tarnished the United States' reputation and undermined the rule of law. Although the worst abuses may be in the past, it will be a long time before the United States can regain the legitimacy and credibility it has lost.

The United States' systematic use of torture has been extensively documented. The International Committee of the Red Cross, human rights organizations and the United States Senate have all detailed the gross mistreatment of prisoners in US custody as part of the "war on terror." Interrogation methods included not only such infamous tactics as waterboarding, but also extreme sensory deprivation, prolonged isolation and sleep deprivation. Although these tactics may not leave physical marks, they cause profound pain and suffering. In their own way, these tactics are as barbaric as the rack and screw of medieval torture chambers.

Ironically, these interrogation methods grew out of a program originally designed to help American soldiers resist torture at the hands of enemy forces. That program - known as SERE - was developed in response to the brutal interrogation methods used by the Chinese Communists against American soldiers during the Korean War to extract false confessions. With the aid of psychologists Bruce Jessen and James Mitchell, the Bush administration reverse-engineered the SERE program. Tactics intended to help train US soldiers to resist torture were used against prisoners held by the United States at Guantanamo Bay, at Bagram in Afghanistan and in secret CIA "black sites" to produce a sense of total hopelessness and despair. The photos from Abu Ghraib that shocked the world were merely the tip of an iceberg of brutality.

The law may be unclear on some questions, but torture is not one of them. The prohibition against torture is well established under both domestic and international law. It applies in time of peace as well as in time of war. The Geneva Conventions, which the United States had played a critical role in drafting, ban the torture of all prisoners in a government's custody, no matter their classification. The Geneva Conventions, moreover, do not stop at torture, but prohibit lesser forms of mistreatment as well.

The Convention Against Torture, which has been ratified by more than 140 nations, similarly bans torture. This treaty also requires that nations ensure that those who engage in acts of torture are subject to punishment, and that victims of torture have a mechanism to receive compensation.

The Bush administration sought to circumvent the prohibition on torture through a series of legal distortions. Bush asserted that the United States was engaged in a "war on terror" to which the Geneva Conventions and human rights treaties did not apply. It similarly held that noncitizen terrorism suspects detained as "enemy combatants" at offshore prisons such as Guantanamo had no rights under US law or the Constitution. The result, as noted British jurist Johan Steyn commented, was the creation of a legal black hole.

But even this was not enough. Bush still had to get around a federal statute criminalizing torture. To avoid the prohibition, Bush administration lawyers such as John Yoo gutted the definition of torture. In a memo designed to legitimate brutal interrogation tactics, Yoo defined torture so narrowly that it included only activities resulting in "death, organ failure, or the serious impairment of a significant bodily function." Under this definition, even waterboarding did not constitute torture, nor did the other harsh interrogation measures euphemistically labeled "enhanced interrogation tactics."

For good measure, Bush administration lawyers also asserted that the president had the authority to override any legal prohibition if he deemed it necessary to protect the country's security. The administration's position echoed that of former President Richard Nixon: If the president does it, that means it is not illegal. The position was an assault not only on the prohibition against torture, but also on the idea of law itself.

To be sure, defenders of torture have argued that these methods were justified by the terrorist threat and produced valuable intelligence necessary to keep the country safe. Neither is true.

Torture is illegal under all circumstances, even during emergencies. That government officials could maintain that the United States is exempt from this prohibition is not merely wrong. It suggests the dangerous proposition that the United States does not need to adhere to the same rules that bind other nations.

In addition, torture undermines security. Information gained through torture is notoriously unreliable, as people will tell interrogators what they believe interrogators wish to hear to stop the suffering.

The misinformation gained through torture can have devastating consequences. The United States decision to go to war in Iraq was predicated on false information gained through the brutal treatment of terrorism suspect Ibn al-Shaykh al-Libi. Following his capture in Afghanistan in late 2001, al-Libi was interrogated by the FBI using traditional law enforcement methods. Although the interrogations were yielding useful information, the CIA decided tougher tactics were needed. The White House agreed. So, al-Libi was strapped to a stretcher, bound and gagged with duct tape and rendered to Egypt, where he was locked in a tiny cage for 80 hours and then repeatedly beaten. Pressed to identify a link between Saddam Hussein and al-Qaeda, al-Libi invented one, telling interrogators that Iraq was helping al Qaeda obtain weapons of mass destruction. Al-Libi's coerced confession became the basis for Secretary of State Colin Powell's presentation to the United Nations in February 2003, in which he laid out the case for US military intervention in Iraq. The confession, the United States later learned, was false.

Torture also helps fuel terrorism by instilling the desire for vengeance. Al-Qaeda leaders such as Ayman al-Zawahiri, for example, have cited their abuse in Egyptian prisons as sparking the desire to take revenge through violence. While some may gravitate toward terrorist groups regardless of how the United States treats prisoners, torture harms its ability to win the hearts and minds of those who have not yet committed to that path.

Additionally, torture can alienate Arab and Muslim communities, undermining the United States' ability to gain support from those whom it needs in fighting terrorism.

The problem of torture is not merely one of law or utility. It corrodes the United States' values and the image it presents to the world. Torture is invoked on the theory that is necessary to defeat terrorism, but once a nation resorts to torture, the terrorists have won.

President Obama was elected on a platform of change and promised to change the way the United States responded to the terrorist threat. Obama vowed to restore the rule of law and spoke poignantly about how the nation's commitment to its Constitution and traditions made it safer. "Time and again," Obama explained in an important speech at the National Archives, "our values have been our best national security asset - in war and peace; in times of ease and in eras of upheaval."

Obama took important steps to realize these goals. He banned the most controversial interrogation techniques employed during the Bush administration. He also released several Justice Department memos detailing past torture practices in an effort to promote transparency.

But Obama has refused to seek any meaningful form of accountability for the abuses committed during the prior administration, urging the country instead "to look forward as opposed to looking backward." Obama has opposed a commission of inquiry, declined to order a criminal investigation of administration officials who designed and approved the torture program and sought to block all lawsuits by victims seeking compensation for their mistreatment. For the Obama administration, restoring the law is a prospective project, where past crimes and misconduct are swept under the rug and the slate wiped clean.

The United States cannot move beyond torture without first coming to grips with it. By declining to seek accountability, the United States' repudiation of torture rings hollow. Instead of restoring the rule of law, the Obama administration has helped entrench a culture of impunity.

The last decade underscores the corrosive effects of torture. All branches of government have been affected. So, too, has American society. While the United States engaged in abuses before 9/11, it had never attempted to justify torture at the highest levels of government. What was once deemed unthinkable (not to mention illegal) has become a topic of legitimate public debate. Torture has changed America fundamentally and perhaps forever.

Jonathan Hafetz

Jonathan Hafetz is a law professor at Seton Hall School of Law where he focuses his research on national security, human rights, immigration, and constitutional law. He is the former litigation director of the Brennan Center's Liberty and National Security Program.


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