USA: Human dignity denied: Torture and accountability in the 'war on terror' 83 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 committed to the cradication of torture 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 tolerated and that the country's military and law enforcement agencies would live by that principle at this and any other time.34* 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 steps on to a slippery slope when it begins to chip away at the prohibition on torture and cruel, inhuman or degrading treatment. In its first major report on torture 30 years 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 extreme circumstances like a bomb, it is logical to use it on people who might plant bombs, or on people who might think of planting bombs, or on people who defend the kind of person who might think of planting bombs...". .. 349 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 immediately usable intelligence. For example, the Pentagon has claimed that Secretary Rumsfeld's December 2002 approval for use at Guantánamo of interrogation techniques including stress positions, sensory deprivation, isolation, hooding, stripping and the use of dogs to inspire fear stemmed from the need for "additional techniques... for use against highvalue detainees", including Saudi national Mohamed al-Kahtani, suspected of being involved in the 11 September 2001 conspiracy (see page 15). 350 Asked about this in June 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 evidence suggests that torture and ill-treatment by US personnel has not been 348 Public education is an important part of a government's human rights responsibilities. For example, the Human Rights Committee has said that it "should be informed how States parties disseminate, to the population at large, relevant information concerning the ban on torture and the treatment prohibited by 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. Report on Torture. Amnesty International, 1973. 349 350 'Department of Defense Deputy General Counsel. Press briefing, 22 June 2004, supra, note 16. 351 Secretary of Defense Rumsfeld interview with David Frost (BBC TV). Department of Defense news transcript, 27 June 2004. 84 USA: Human dignity denied: Torture and accountability in the 'war on terror' limited to “high value" detainees. 352 In any event, international law prohibits torture or illtreatment 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 detainees is reminiscent of the concept of the judicial "torture warrant" that has been promoted during the "war on terror" by Harvard law professor Alan Dershowitz. According to Professor Dershowitz, torture by US agents happens anyway, so to have it out in the open, it 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 need to obtain immediate information in order to save lives coupled ༣༨༣ 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. 35 353 355 Amnesty International is also troubled by a letter to Congress signed by some 450 US law professors and other academics six weeks after publication of the Abu Ghraib photographs, suggesting that "any decision to adopt a coercive interrogation policy... should be made within the strict confines of a democratic process". 356 Yet the same letter states, 352 Amnesty International, for example, has spoken to two Afghan taxi drivers - Wazir Mohammed and Sayed Abbasin - whom the organization remains convinced were erroneously 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. 353 Is there a torturous road to justice? By Alan Dershowitz. Los Angeles Times, 8 November 2001. See also Dershowitz, Why Terrorism Works: understanding the threat, responding to the challenge, New Haven, Yale University Press, 2002, Ch. 4. 354 Let America take its cues from Israel regarding torture. Jewish World Review, 30 January 2002. 355 For some, 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 error. Amnesty International considers the death penalty to be the ultimate cruel, inhuman and degrading punishment. International law and standards, while being abolitionist in outlook, recognize the possibility that some countries may retain the death penalty. President Bush supports capital punishment in the stated belief that it "ultimately saves lives" (White House press briefing, 7 May 2001). The USA's “war on terror" 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 terror" detention and interrogation policies are undermining long-term security by eroding respect for fundamental human rights. 356 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 USA: Human dignity denied: Torture and accountability in the 'war on terror' 85 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 international human rights and humanitarian law prohibiting torture and cruel, inhuman or degrading treatment. "Democracy” should surely not be used to justify any measures that strip individuals, however few, of basic rights, or to destroy an international legal consensus, built over centuries, around such rights. 357 Professor Dershowitz has said of his proposal for torture warrants against security detainees: "If someone asked me to draft the statute, I would say, "Try buying them off, then use threats, then truth serum, and then if you came to a last recourse, non-lethal pain, a sterilized needle under the nail to produce excruciating pain'. You would need 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, for example, Pappas interrogation plan, page 71). Rather than confront the Dershowitz proposal with a clear and categorical putdown, the administration has engaged in its own version of it. For example, echoing the proposal, the Pentagon Working Group report states: "If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaida terrorist network." 358 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 regrettably find it hard to resist the expedient of torture 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 torture during interrogation is no longer even motivated by 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. foreign location" of IBI interrogation policy. The memorandum, dated 19 May 2004, reminds its recipients that “it is the policy of the FBI that no interrogation of detainees, regardless of their status, shall be conducted using methods which could be interpreted as inherently coercive". Treatment 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 warned 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. 357 The psychology of torture. Washington Post, 11 May 2004. 358 Pentagon Working Group, page 31, supra, note 56. 86 USA: Human dignity denied: Torture and accountability in the war on terror' 359 A former US marine, now a military analyst with the mainstream Fox TV News Channel, has reportedly said that he tortured a Vietcong prisoner during the Vietnam War by attaching electrodes to his genitals and threatening electrocution. Licutenant Colonel William Cowan claimed that the torture "worked like a charm", making the prisoner talk. Lt. Col. Cowan has also suggested that torture should be used against high-ranking al-Qa'ida suspects: "If it's Abu Zubaydah, you start out being tough – physical pain and emotional pain. You're putting him under physical duress outside the bounds of what the United Nations accepts. Government agents are already alleged to have done so (see Point 3.2). 1360 361 Some of the torture and cruel, inhuman or degrading treatment in Abu Ghraib was apparently carried out as punishment or for the sadistic amusement of guards. As already noted, the lay report found that authorized techniques such as nudity and physical stress were followed by violent physical and sexual assaults by some personnel. The Schlesinger report noted that one of the soldiers involved in the Abu Ghraib torture and ill-treatment said that it had been committed "just for the fun of it". During the Taguba investigation, a soldier assigned to Abu Ghraib stated: "The MPs military police] were using the detainees as practise dummies, like they would show each other how to knock someone out by knocking the detainee out. They did this while another detainee would watch, when the other detainee would start to get scared, the MPs would calm him down and then hit him in another way.' 19362 On 17 January 2004, an Abu Ghraib detainee, Abd Alwhab, gave military investigators a statement in which he alleged that he was subjected to brutal punishment: 359 360 361 "One day while in the prison the guard came and found a broken toothbrush, and they said that I was going to quack the American Police. I said the wothbrush wasn't mine. They said we are taking away your clothes and mattress for six days and we are not going to beat you. But the next day the guard came and cuffed me to the cell door for two hours, after that they took me to a closed room and more than five guards poured cold water on me, and forced me to put my head in someone's urine that was already in that room. After that they beat me with a broom and stepped on my head with their feet while it was still in the urine. The pressed my ass with a broom and spit on it. Also a female soldier, whom I don't know the name was standing on my legs. They used a loudspeaker to shout at me for three hours, it was cold.”363 Punitive brutality has also been alleged in Guantánamo: "Soldiers told us personally of going into cells and conducting beatings with metal bars which they did not report. Soldiers told us we can do anything we want.' We The dark art of interrogation. Atlantic Monthly, October 2003. The psychology of torture. Washington Post, 11 May 2004. Punishment and amusement: Documents indicate three photos were not staged for interrogation. Washington Post, 24 May 2004. 362 Sworn statement of Samuel Provance, 302nd Military Intelligence Battalion, 21 January 2004. http://www.publicintegrity.org/docs/AbuGhraib/Abul1.pdf. 363 Translation. http://media.washingtonpost.com/wp-srv/world/iraq/abughraib/150425.pdf USA: Human dignity denied: Torture and accountability in the 'war on terror' 87 ourselves witnessed a number of brutal assaults upon prisoners. One, in April 2002, was of Jummah Al-Dousari from Bahrain, a man who had become psychiatrically disturbed, who was lying on the floor of his cage imunediately near to us when a group of eight or nine guards known as the ERF Team (Extreme Reaction Force) entered his cage. We saw them severely assault him. They stamped on his neck, kicked him in the stomach even though he had metal rods there as a result of an operation, and they picked up his head and smashed his face into the floor. One female officer was ordered to go into the cell and kick him and beat him which she did, in his stomach. This is known as "ERFing”. Another detainee, from Yemen, was beaten up so badly that we understand he is still in hospital eighteen months later. It was suggested that he was trying to commit suicide. This was not the case. ..364 Support for such allegations has come from an unusual source. On 24 January 2003, an orange jump-suited individual was reportedly choked and beaten at Guantánamo Bay, and has suffered a brain injury as a result. Ilis name is Sean Baker. Ile was not a detainee, but a US military guard who had volunteered to pose as an uncooperative detaince in a training exercise. However, the five-man team sent in to extract him from his cell was not told it was an exercise. Ile says that they slammed him to the floor, put him in a painful chokehold, and pounded his head at least three times against the steel floor. He was treated in a number of military hospitals, and a military evaluation referred to his "service-connected disability” and traumatic brain injury received as a result of his "playing role of detainee...during training exercise". 365 The pursuit of intelligence at all costs Despite such evidence of a degree of punitive or sadistic brutality, much of the torture and cruel, inhuman or degrading treatment allegedly carried out by US forces in Afghanistan, Guantánamo and Iraq appears to have been for intelligence-gathering purposes, to “soften up” detainees prior to or during interrogation (see Point 4.1). The authorities claim that they have obtained substantial intelligence from interrogations. For example, the Schlesinger Panel stated that the interrogation of detainees has "yielded significant amounts of actionable intelligence", adding that much of the information in the 9/11 Commission Report on the attacks of 11 September 2001 “came from interrogation of detainees at Guantanamo and elsewhere" The Schlesinger Panel, however, failed to qualify this in the way in which the 9/11 Commission had. The latter pointed out that the information could be unreliable. Neither the Commission nor the Schlesinger Panel, 367 366 304 Shafiq Rasul and Asif Iqbal, Letter to Senate Armed Services Committee, 13 May 2004. 365 Ex-soldier recalls beating he received in Guantánamo drill. Los Angeles Times, 16 June 2004. 366 Schlesinger report, page 18, see supra, note 30. 367 "Assessing the truth of statements by these witnesses - sworn enemies of the United States - is challenging. Our access to them has been limited to the review of intelligence reports based on communications received from the locations where the actual interrogations take place. We submitted questions for use in the interrogations, but had no control over whether, when, or how questions of particular interest would be asked. Nor were we allowed to talk to the interrogators so that we could |