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USA: Human dignity denied: Torture and accountability in the war on terror'

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Senator: So if he's dressed up, that's fine. But this also has other environmental manipulation. Let me put it this way. Seventy-two hours without regular sleep. sensory deprivation, which would be a bag over your head for 72 hours

do you think that's humane, putting a and thai's what it is, a bag over your head for 72 hours - is that humane? Deputy Secretary: Let me come back to what you said the work... Senator: No, no. Answer the question, Mr Secretary. Is that humane? Deputy Secretary: I don't know wheiher is means a bag over your head for 72 hours, Senator. I don't know. Senalor: Mr Secretary, you're dissembling, non-responsive. Anybody would say putting a bag over someone's head for 72 hours, which is... Deputy Secretary: 1 believe it's not humane.

Members of an administration that has discussed how lo push the boundaries of acceptable interrogation techniques and of how agents could avoid criminal liability for torture might display a rclicence to call lorture by its namc. Official cquivocation over the question of torture and ill-ucatmcat may betray a willingness to tolerato unacceptable conduct on the spectrum of torture and other cruel, inhuman or degrading treatment.

As of October 2004, Amnesty International was not aware of President Bush or any official in his cabinet relerring 10 what happened in Abu Ghraib as lorture or a war crime, preferring the term "abuse”. 337 In his statement on 26 June 2004 rcaffirming the USA's "commitment to the worldwide elimination of torture", President Bush referred to "the abuse of dctainees al Abu Ghraib" 358 The following day, Secretary Rumsfeld said that "cverything we know thus far suggests that what was taking place in the photographs was abuse". At a Pentagon briefing on 4 May 2004, in one of several statements apparently downplaying the allegations, he stated that his “impression is that what has been charged so far is abuse, which I believe technically is different from torture”.

The reports of the various revicws and investigations into detention operations have maintained this position. On 24 August 2004, John Schlesinger, Chairperson of the Secretary Rumsfeld-appointed Independent Panel to revicw Department of Descnsc detention

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Visiung Abu Ghraib, General Richard Myers followed a speech by the Secretary of Defense with his own comments, including: "Well, I think the Secretary covered the abuse situations, so I'm going to lei thai go. I think that was covered adequately.” He then added to the assembled military and press: “I have great confidence that, hopefully, you haven't been tortured by any of the testimony (in hcarings on the Abu Ghraib scandal hefore congressional committees) we've been involved in the last several days" (emphasis added). Department of Defence news transcript, 13 May 2004.

President's Statement on the UN International Day in Support of Victims of Torture, 26 June 2004.

Secretary of Defense Rumsfeld interview with David Frost (BBC TV). Department of Defense news transcript, 27 Junc 2004. A US army intcrrogator who has reportedly scrved in Afghanistan and Guantánamo has said that nothing seen in the pictures constitutes the torture of a detained person." How Expert Geis Delainees To Talk. The Capital Times (Wisconsin), 17 August 2004.

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operations, said that “there is a problem in defining torture. We did not find cases of torture, however". J44. The following day, Major General George Fay admitted in a press conference what had not been put in writing in his report on Abu Ghraih. Asked whcthcr any of what the investigation had found in Abu Ghraib amounted to torture, he replied:

Torture is a subjective lerm, bu in my use of the word worture, I would consider these things to be abusive in nature. Torture sometimes is used to define something in order to get information. There were very few instances where in fact you could say that was torture. It's a harsh word, and in sonu instances, unfortunately, I think it was appropriate here. There were a few' instances when tornare was being used."

On the question of torture, Secretary Rumsfeld has suggested that "headline writers and people dramatic things". 14. This is apparently standard Pentagon thinking. The final report of the Working Group on Derainee Interrogations in the Global War on Terrorism, completed a year before the Abu Ghraib revelations, contains the following conclusion: “Should information regarding the use of more aggressive techniques than have been used traditionally by US forces become public, it is likely to be exaggerated or distorted in the US and international media accounts". The report recommended the preparation of a “press plan" 10 anticipate and address potential public inquiries and misunderstandings regarding appropriate interrogation techniques."

In June 2004, an ABC News/Washington Post opinion poll reportedly found that 35 per cent of the US population felt torture was acceptable in some circumstances.

In an opinion poll conducted in the USA in May, only a third of those pollcd said that thcy would define what happened in Abu Ghraib prison as torture. Would they describe such treatment as lorlurc is it was happening closer to bomc rather than to distant forcign nationals long demonized by US Icaders, or indccd if those same Icaders would describe it as such? Onc well-known radio commentator, Rush Limbaugh, who has an audience of over 20 million, characterized the torturc al Abu Ghraib as soldiers “having a good time” and nccding “to blow some steam oft”. 3* He has noted that “the closer you get to 9/11 the more everybody was willing to speak out about the need for torture in the 'war on terror'], but now 9/11 is in thc past and we're doing this in Iraq. And look, we all know what war is... and wc arc in a war for our way of life, and so that's why I say just keep all this in perspective".

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Press Conference with Schlesinger panel. 24 August 2004, supra, note 67.

Special Defense Department Briefing on results of investigation of military intelligence activities at Abu Ghraib prison facility. Department of Defense News Transcript. 25 August 2004.

Defense Department regular briefing, 17 Junc 2004.
Pentagon Working Group Report. Page 69-70, supra, note 56.

Cited in: The hidden history of CIA torture: America's road 10 Abu Ghraib. By Alfred W. McCoy. 2004. http://www.tandispatch.com/index.mhimn/?pid=1975.

Torture and physical abuse: what Americans will allow, Washington Post, 27 May 2004. The report cites a new Wa on Posu ABC News poll.

Rush: MPs just 'blowing off steam'. CBS News.com, 6 May 2004.
Liberals were for torture after 9/11. Radio Transcript, 10 May 2004.

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Rush Limbaugh was referring to the public debate that there has been in the USA since 11 September 2001 on whether torture can be acceptable in the “war on terror”. A government fully and unswervingly commillcd lo thc cradication of lorturc would have participated directly and continuously in this debate in order to make clear that torture and cruel, inhuman or degrading treatment must never be wlerated and that the country's military and law enforcement agencies would live by that principle at this and any other time. *** Instead, while making general statements against torture, aimed mainly at an international audience, the administration was secretly discussing and authorizing interrogation techniques that were unacceptable under international standards.

A country slops on lo a slippery slopc il begins lo chip away at thc prohibition on torture and cruel, inhuman or degrading treatment. In its first major report on torture 30 ycars ago, Amnesty International wrote:

History shows that torture is never limited to just once: 'just once becomes once again becomes a practice and finally an institution. As soon as its use is permitted once, as for example in one of the exireme circumstances like a bomb, it is logical 10 use it on people who might plant bombs, or on people who might think of planning bombs, or on people who defend the kind of person who might think of planting bombs...".

The USA claims to have reserved its harsh interrogation techniques for what it calls a few “high-value" detainees that is, those detainees considered to be in possession of immcdiatcly usablc intclligencc. For example, the Pentagon has claimed that Secretary Rumsfeld's December 2002 approval for use at Guantánamo of interrogation techniques including stress positions, sensory deprivalion, isolation, hooding, stripping and the use of dogs to inspirc fcar stemmed from thc nccd for “additional techniques... for usc against highvalue detainees”, including Saudi national Mohamed al-Kahtani, suspected of being involved in thc || September 2001 conspiracy (scc page 15).350 Asked about this in Junc 2004, Secretary Rumsfeld stated that the techniques "were not used, I'm told, on anyone one other than Kahtani. We may find out that's not correct at some point in the future". 351

According to what released prisoners have alleged, this discovery has already occurred. Their cvidence suggests that lorlure and ill-ircalment by US personnel has not been

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Public education is an important part of a government's human rights responsibilities. l'or example, the Human Rights Commillee has said that it “should be informed how Slates parties disseminate, 10 the population at large, relevant information concerning the ban on torture and the trcatment prohibited hy Article 7 (of the International Covenant on Civil and Political Rights)". Human Rights Committee. CCPR General Comment No. 20. (General Comments), Replaces general comment 7 concerning prohibition of torture and cruel treatment or punishment (Article 7), 10 March 1992, para. 10. 349

Report on Torture. Amnesty International, 1973.
Deparuncnt of Defense Deputy General Counscl. Press bricfing, 22 June 2004, supra, note 16.

Secretary of Defense Rumsfeld interview with David Frost (BBC TV). Department of Defense news transcript, 27 June 2004.

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USA: Human dignity denied: Torture and accountability in the war on terror

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limited to "high value” detainees. In any event, international law prohibits torture or ill-
treatment regardless of the “value” it would allegedly produce.
An official version of the 'torture warrant'
The administration's explanation that it was approving techniques in limited circumstances
against a small number of dciainccs is reminiscent of the concept of the judicial “lorlurc
warrant” that has been promoted during the “war on terror” by Ilarvard law professor Alan
Dershowitz. According to Professor Dershowitz, torture by US agents happens anyway, so to
have it out in the open, il should be authorized by a judge when circumstances call for it:
“Thus we would not be winking an eye of quiet approval at torture while publicly
condemning it". "" He has said that “an application for a torture warrant would have to be
based on the absolute nccd 10 oblain immcdiatc information in order 10 save lives coupled
with probable cause that the suspect had such information and is unwilling to reveal it". * Of
course, were such a policy adopted by any country, let alone one as influential as the USA,
others would surely follow and the international consensus against torture would be broken. 999

Amnesty International is also troubled hy a letter to Congress signed by some 450 US law professors and other academics six weeks afier publication of the Abu Ghraib photographs, suggesting that "any decision to adopt a coercive interrogation policy... should be made within the strict conlines of a democratic process". *** Yet the same letter stalcs,

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Amnesty International, for example, has spoken 10 Two Alghan laxi drivers - Wazir Mohammed and Sayed Abbasin – whom the organization remains convinced were crroneously taken into custody in Afghanistan in 2002 and subjected to cruel, inhuman and degrading treatment before being flown out to detention without charge or trial in Guantánamo Bay. They have since been released without charge. See: USA: The threat of a bad example: Undermining international standards as 'war on terror detentions continue. August 2003, supra, note 95.

Is there a torturous road to justice? By Alan Dershowitz. Los Angeles Times, 8 November 2001. See also Dershowitz, Why Terrorism Works: understanding ihe threas, responding to the challenge, New Ilaven, Yale University Press, 2002, Ch. 4.

Let America take its cues from Israel regarding torture. Jewish World Review, 30 January 2002.

For somc, the proposal for torture warrants” may bring to mind the issue of death warrants, almost 1,000 of which have been carried out in the USA since 1977. This policy of judicial killing continues despite the absence of evidence that it has offered a constructive solution to violent crime and in the face of overwhelming evidence that the death selection process is marked by arbitrariness, discrimination and citur. Amnesty International considers the death penalty to be the ultimate crucl, inhuman and degrading punishment. International law and standards, while being aboliuonist in outlook, recognize the possibility that some countries may retain the death penalty. President Bush supports capital punishment in the stated belief that il “ultimately saves lives" (White House press bricfing, 7 May 2001). The USA's "war on tcrror” interrogation and detention policies are driven by a similar stated belief, i.e. to deter or pre-empt future acts of criminal violence. The deterrence value that some attribute to the death penalty has generally been discredited, and there is evidence that it may even have a brutalizing or counter-deterrence effect. Amnesty International believes the USA's "war on lerror" detention and interrogation policies are underinining long-term securily by eroding respect for fundamental human rights.

In the wake of the Abu Ghraib revelations, the Federal Bureau of Investigation sent a memorandum to all its divisions to remind all personnel deployed in Iraq, Afghanistan, Guantánamo, “or any other

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USA: Human dignity denied: Torture and accountability in the 'war on terror

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correctly, that the Third and Fourth Geneva Conventions prohibit any “physical or moral coercion" of prisoners of war or civilian detainees to obtain information, in addition to other provisions in internalional human rights and humanitarian law prohibiting lorlurc and cucl, inhuman or degrading treatment. “Democracy” should surely not be used to justify any measures that strip individuals, however lew, of basic rights, or lo destroy an international lcgal consensus, huilt over centurics, around such rights.

Professor Dershowitz. has said of his proposal for lorturc warrants against security detainees: "If someone asked me to draft the statute, I would say, "Try buying them off, then use threals, then truth serum, and then if you came to a last recourse, non-lethal pain, a slcrilizcd nccdlc under thc nail to producc cxcruciating pain. You would nccd a judge signing off on that. By making it open, we wouldn't be able to hide behind the hypocrisy”. Hypocrisy there has been, at the highest levels of government. But rather than a judge signing off on torture, the Secretary of Defense and others have signed off on interrogation techniques that violate the prohibition on torture and other cruel, inhuman or degrading treatment (see, Tor example, Pappas interrogation plan, page 71).

Rather than confront the Dershowitz proposal with a clear and calegorical puidown, the administration has cngaged in its own version of it. For example, cchoing the proposal, the Pentagon Working Group report states: "If a government defendant were to harm an enemy combalant during an interrogation in a manner that might arguably violatc criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaida terrorist network." The slippery slope of brutalization Amnesty International's 1973 torture report, referring to the conflict in Vietnam, suggested that “an administration defending itself against what it or its major ally construes to be an insurrectionary movement may regrellably find it hard to resist the expedient of torlurc in its efforts to crush its elusive opponent". It also stated that "the brutalizing effects of the Vietnam War have become so entrenched that some of the time the use of lorture during interrogation is no longer even molivalcd hy a desire to gather 'intelligence”." The slippery slope from limited authorization of torture to a wider tolerance of such methods is a part of the landscape of this human rights violation.

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foreign location" of IBI interrogation policy. The memorandum, dated 19 May 2004, reminds its recipients that " is the policy of the FBI thai no interrogation of detainees, regardless of their status, shall be conducted using methods which could be interpreted as inherently coxrcive". Trearmene of prisoners and detainees. From General Counsel, Federal Bureau of Investigation, 19 May 2004. It has been reported that the senior officials at the FBI had been so concerned about the severity of interrogation techniques used by the CIA in the “war on terror" (see Point 3.2), that they have wamed their operatives to stay out of interrogations of high-level detainees interrogated by the CIA. Harsh CIA methods cited in top Qaeda interrogations. New York Times, 13 May 2004.

The psychology of torture. Washington Post, 11 May 2004.
Pentagon Working Group, page 31, supra, note 36.

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