Disabusing the U.S. of the Myths Used to Justify Prisoner Abuse:

Why Torture is Hurting America in the War on Terror

John Jett

Bruce Lusignan

Ethics of Development in a Global Environment

March 15, 2005

This essay is an expansion on a submission for PWR IV: Directed Writing. As such, I am indebted to Tenoch Esparza, my peer reviewer for that course, as well as instructor Dr. Alyssa O’Brien, PhD for her guidance and valuable suggestions.

“Look, I’m going to say it one more time…maybe I can be more clear. The instructions went out to our people to adhere to the law. That ought to comfort you. We’re a nation of law. We adhere to the laws. We have laws on the books. You might look at these laws and they might provide comfort to you. And those were the instructions, from me to the government.”

–U.S. President George W. Bush, June 10, 2004[1]

“They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”

-Benjamin Franklin, 1759[2]

At first glance, the current pseudo-war pales beside previous American victories. After all, has America not smote the so-called enemies of freedom many times before? The War on Terror, however, presents new challenges. What does America do when there is no enemy capital, no army, no economy to destroy? In such a case, conventional means are frustratingly unsuccessful. Joshua Dratel in The Torture Papers, his trenchant inquiry into torture at Abu Ghraib, frames the consequent U.S. government mindset as follows, “the Bush administration reasoned the United States was up against an enemy more insidious than the country had faced.”[3] This mindset causes a break with the past, in which America won wars not only because it was physically the strongest, but because its bedrock principles were unassailable and guided America’s actions. The current use of torture represents a departure from this successful legacy. This essay will demonstrate that by yielding often unreliable information as well as undermining American law at home and American standing in the international community, the use of torture runs counter to the U.S.’s interests in the War on Terror. In doing so, it will draw on several historical examples as well as illustrative anecdotes from recent press coverage of the U.S. War on Terror and its concomitant, the War in Iraq.

Before progressing forward further with the argument, an important term—torture—must be defined. Unfortunately, relevant interested parties (the U.S. government, NGOs, the United Nations, et cetera) fail to agree on a common definition. Some hold that any duress beyond that which is incidental to normal incarceration—such as poor quality food and accoutrements, denial of basic freedoms such as that of free movement—constitutes torture.[4] Others draw a middle line that defines torture as the result of deliberate action to cause prisoners pain. According to article one of the Convention Against Torture, torture is defined properly as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession…”[5][6] Still others, such as certain representatives of the current White House administration, set the bar even lower by requiring that for torture to exist, the recipient must have experienced pain so great as to be comparable to major organ failure or death. According to this latter definition, a whole range of offenses that violate people’s common sense understanding of torture would be admissible.[7] For example, breaking all of the bones in a person’s hands or feet would be perfectly acceptable.

The two alternatives to rejecting torture outright are to ignore the practice of torture or to accept its use in certain cases. Both of these courses of action are mistaken. First of all, torture is an issue that Americans must grapple with, despite the difficulty this can present. Indeed torture makes even the stoutest “terror warriors” squeamish, as John Ashcroft, not the warm and fuzzy type, demonstrated in his uncomfortable writhing before a congressional hearing on the topic.[8] Torture is not popular domestically but then neither is terrorism, so the implicit bargain between policymakers and the public appears to be for the former to propagate an acceptable, if factually unlikely, moral line (i.e. the U.S. condemns the use of torture) and for the public to accept this sentiment without rigorous inquiry—in effect, to turn a blind eye. Torture represents an insidious threat to fundamental American values like respect for the law, human dignity, separation of powers, rejection of cruel and unusual punishment, and more. No American can afford to leave these values undefended, and hence to ignore torture is irresponsible.

[9]The second alternative is to accept that the use of torture is acceptable in certain cases. The leading theorist in favor of employing torture for national security ends is Alan Dershowitz, renowned American criminal-defense litigator and professor at Harvard Law School.[10] Rather than dismiss the use of torture categorically, Dershowitz poses the “ticking bomb urgency” scenario.[11] Suppose law enforcement apprehended a terrorist leaving the scene of a crowded sporting event. Suppose further that the terrorist had in his or her possession implements that could be used exclusively to arm a major bomb and for no other purpose. Would law enforcement officials act justly in torturing the man to find the location of the imminent threat? Dershowitz says yes despite reservations.[12]

Specifically, Dershowitz argues in favor of “torture warrants.”[13] These warrants would allow the lawful abrogation of rights in the same way that a search warrant allows law enforcement to search a home, which is otherwise illegal according to the fourth amendment to the U.S. constitution. Per Dershowitz, torture warrants would be a last resort, used sparingly and in only the most pressing of circumstances.[14] In arguing in favor of torture, however, Dershowitz fails to account for the danger torture poses and the likelihood that it will spiral out of control and rears back at those employing it. For the problem with starting down the road of torture is that it is nearly impossible to limit in its extent—that is, there is little reason to believe that an interrogator could successfully cause only a “small” amount of harm. In reality, there is compelling reason to believe that the interrogator will continue to apply force until he or she gleans the desired information. Such an open-ended approach to torture paves the way for widespread abuse, not entirely distinct from the allegations of behavior that the world is learning about at present. Dershowitz assumes that torture provides benefits that outweigh associated costs, but this is a false assumption.

Those who argue in favor of using torture believe that inducing pain will yield valuable information. Experience shows, however, that torture yields generally poor information. In fact, a major practical disadvantage of using torture to question suspects is that the information gleaned through the use of such methods is often unreliable, since many victims will say anything in hopes of escaping pain. The subjects, sometimes delirious, will supply information in keeping with the interrogator’s prompts, simply lie, or answer unrelated, often immaterial questions; in short, anything to halt the pain. Indeed, according to a former deputy director of the U.S. Federal Bureau of Investigation (FBI), “people will even admit they killed their grandmother, just to the stop the beatings.”[15] This was perhaps the case with one detainee in U.S. custody who recalls, “whatever [confessions] they wanted me to sign, I signed to survive.”[16] That particular detainee now denies flatly any of the wrongdoing found in his signed confessions. While some confessions might be legitimate, the specter of possibly false confessions hangs heavily over proceedings in which U.S. government or military prosecutors might use them. With a burden of reasonable doubt to contend with, do prosecutors really want to rely on evidence obtained through such questionable means? Perhaps it is better to have less information but for it to be of higher quality, both in terms in of legal use as well as ethical acceptability.

Proponents of torture operate under the tacit assumption that torture aids a war effort—after all, if torture did not help a war effort, it would be pure sadism, which presumably no rational person advocates. History teaches, however, that torture fails to help nations that practice it secure lasting peaces. Taking the long view of torture, a practice with an unfortunately lengthy pedigree, one observes that torture yields few positives and multitudinous negatives for those who employ it. One of the first salient examples of a western liberal state using torture is that of England in the 17th century. Guy Fawkes, a disgruntled Catholic living in Protestant-dominated England, sought to blow up the houses of parliament—along with the members. Fawkes plan failed and English authorities apprehended and then tortured a confession out of Fawkes that left him a shadow a of his former self. Still, the information gained from Fawkes proved valuable in foiling his still-at-large cohorts’ schemes. His example might serve to illustrate the potential gains of using torture.[17]

A second example, less sanguine than the first for those searching for redemptive characteristics in torture’s historical record, takes place in at the turn of the 19th century in South Africa. The British found themselves gripped in a struggle with Boer insurgents. After pressing the enemy with conventional means to no avail, the British resorted to the use of concentration camps. Thousands of Boers, descendants of early Dutch settlers in South Africa, died in unsanitary camps—this qualifies as torture under most definitions because captives are supposed to endure nothing more than the discomforts incidental to incarceration, not likely death. Though the method broke the spirit of the Boer insurgents, it weakened the morale of the British at home and diminished the esteem in which colonials throughout the empire viewed the home government. In net terms, the use of torture resulted in a foundation shaking blow that sent Britain off balance into World War I.[18] Likewise, in post-Reformation Geneva, the use of torture assaulted the communal nature of society, as authorities used torture not as a means towards guaranteeing greater security, as is generally the case in modern times, but rather to punish. Alleged witches, a capricious distinction and a highly undesirable one indeed, found themselves tortured prior to exile, perhaps as a means of dissuading the exiled from ever contemplating return.[19] Injecting such brutality intosociety surely harmed the community. These episodes illustrate one of torture’s characteristic effects: torture yields short term gains but over the long run it assaults a liberal state’s fundamental beliefs, leaving the state worse off.

Modern examples abound which demonstrate torture’s pernicious effects on its perpetrators. For example, the French state was left reeling in the wake of revelations that it tortured insurgents in the Algerian War of 1954—1962.[20] France, like the United States, prides itself on its respect for human dignity. However, as the stakes of the conflict escalated, France succumbed to the lures of torture, meeting greater violence from the insurgents with violence of its own. In one scholar’s view, “…the growth of violence hardened both sides.”[21] Thus France weakened itself in a way that the insurgents could have only dreamed when it betrayed its own core values. Indeed when France’s commitment to its revolutionary values came into question, the health of the state suffered along with the decline in national morale. Thus, even though France won a pyrrhic victory in putting down the insurgency—only temporarily—it delivered a grievous wound to its own self-image.[22] A similar situation in Northern Ireland left Britain with blood on its hands and reduced standing internationally as well as at home.[23] While Britain euphemistically called its actions towards detainees “interrogation in depth,” the truth of their tactics was lost neither on the Irish nor British public. The British government groped to find a distinction on which to base its actions, drawing a feeble distinction: “We consider that brutality is an inhuman or savage form of cruelty, and the cruelty implies a disposition to inflict suffering, coupled with indifference to, or pleasure in, the victim’s pain. We do not think that happened here.”[24] Recognizing this standard to be unsatisfactory, the government later raised the bar of acceptability to demand that a dispassionate third party observer would condone whatever treatment he or she witnessed taking place during British interrogation.[25] Whether in Britain or France, history teaches a clear lesson: torture wins short term victories but results in serious long term losses for states that employ it.

The entire argument about the ill effects of American torture is moot, of course, if America does not in fact use torture, which the government asserts to be the case. At every opportunity, the government rushes to condemn torture and claims to eschew the practice in its own intelligence gathering. Indeed, officially, America avoids engaging in “cruel, inhuman or degrading treatment,” a standard that is at least an order of magnitude below what most disinterested commentators would characterize as torture.[26] American officials acknowledge that recent military activity and incarceration on a grand scale has led to abuse. The key consideration, these officials contend, is that this abuse is aberrational. That is to say that the abuse is the work of a handful of misfit soldiers acting outside of their authority and violating American military codes of conduct and law that proscribe the mistreatment of prisoners. The official line: soldiers who break the law are criminals, but the state they represent is not. In other words, such conduct is the work of “a few bad apples,” and not that of the United States in aggregate. [27]

The evidence to support the government’s view is mixed. Statements by Jeremy Sivits, the first American soldier imprisoned as a result of prison abuse charges, claimed that he would not have acted as he did if senior officials had been present.[28] This statement aligns with the governments contention that senior officials oppose abusive behavior towards detainees and that lower level soldiers were acting without even implicit sanction, much less explicit orders.[29]

[30]Circumstantial evidence, however, suggests that the government might not occupy unassailable moral high ground. For example, two separate internal U.S. Army inquiries into military misconduct arrived at different conclusions. One commission toed the government line, but the other felt that abuses reflected “systemic” problems with the military—that is, the problems fell within the purview of high-ranking officials in addition to the lower level perpetrators.[31] One such top-echelon leader might be Major General Geoffrey Miller, an internal consultant of sorts for the U.S. military. General Miller visited both Guantanamo and Abu Ghraib and instructed intelligence officers to ensure detainees in both camps were “stripped naked and shackled before interrogation.”[32] According to the Schlesinger Commission, General Miller added military police personnel to the standard intelligence officer group charged with interrogation in order to “set the conditions.”[33] Human Rights Watch contends these methods should be read as cues to “soften up” detainees.[34] It requires little imagination to foresee how this variety of instructions might foster a culture in which rough treatment of detainees quickly devolved into outright abuse. In such an instance, one sees the danger of torture slipping out of control, as its practitioners fail to reign it in and “soften up” quickly devolves into abuse with devastating consequences for tortured and torturer alike.

In this same vein, critics contend that the penultimate voice in the American military, the Secretary of Defense, fostered the culture that led to prisoner abuse at Abu Ghraib and Guantanamo. One anonymous commentator in The Economist magazine asserted that Rumsfeld’s “…various inflammatory statements and aggressive policies towards detainees in the war on terror created a culture in where such abuse was more likely.” Thus, extrapolating from this logic, a frustrated U.S. interrogator would be more likely on account of Secretary’s Rumsfeld’s strident rhetoric to resort to tortuous means of information extraction. The validity of this reasoning holds great import because if the Secretary of Defense, acting as the representative of the president’s administration, can be tied causally to torture, then the such abuse would migrate from the realm of a few morally depraved soldiers to an insidious abandonment of core principles at the highest level of American government.

Bush and his inner circle counter such accusations pathetically with a policy meant to shield the administration from political or legal backlash. To wit, Bush stated to dubious reporters, “the instructions went out to our people to adhere to the law. That ought to comfort you.”[35] If the law were clear in itself, and furthermore if soldiers understood the law as their guiding principle, a part of their orders, then Bush’s words might provide the comfort he promises. Yet the law is in fact highly ambiguous—a point discussed subsequently—and because the administration chooses to interpret the law in a manner highly favorable to rationalizing its own policy ends, the law rightly puts few critics’ minds to rest. To illustrate the chasm of understanding between what the president presumes pervades the troops’ thinking with their actual beliefs, consider the following quotation from one U.S. Army veteran of the recent Iraqi campaign: “If you don’t violate someone’s human rights some of the time, you probably aren’t doing your job.”[36]

That soldier’s views explain the utter failure of this administration to deal effectively with detainees. Consider the New York Times recent revelation that American interrogators battered so severely two Afghan detainees that they ultimately died as a result of their injuries. According to the Times, the detainees were “…chained to the ceiling, kicked, and beaten…”[37] Such action certainly goes beyond the law that the administration cites as an adequate safeguard against such abuse, which was so brutal that “…even if [the detainee] had survived, both legs would have had to be amputated.”[38] Disturbingly, the soldiers purposefully focused their abuse on the detainees’ legs in order to reduce the likelihood of its detection. This intentional action for the purpose of hiding the abuse reveals that the soldiers were aware that their actions were wrong and their desire to keep their actions a secret. Also troubling is the fact that the abuse was not solely of a physical nature but included psychological and sexual abuse as well. To wit, on interrogator put “his penis along the face” of a detainee, and on a another occasion he “simulated sodomizing him (over his clothes).”[39] One commentator captures neatly the magnitude of the failure these actions represent, writing, “The White House has managed to turn a generally reviled group of prisoners, most of whom were picked up fighting for Al Qaeda in Afghanistan, into figures of international sympathy.”[40] Hence, one confronts the counter productivity that is inherent to torture. The administration argues shoddily that American law fails to extend to the U.S. Naval base at Guantanamo Bay, Cuba on the grounds that the land is only leased from Cuba, albeit in perpetuity, and therefore basic constitutional rights and legal protections do not apply. While a few scholars might content themselves with notions of sovereign territory and thereby somehow resolve the matter with their consciences, for a large number of Americans and indeed for much of the world, the distinction seems unreal—the product not of legal integrity but rather of political expedience. Torture is counterproductive because it fuels the forces it intends to fight—it makes martyrs of criminals, creates public relations nightmares for the country in the international media, and by relying on tenuous legal justifications that contradict common sense, it hurts national morale.