After the Wars of Terror: The U.S. “Light Footprint”

in the Post 9/11 World

 

Smolny Institute, St. Petersburg, Russia

 

Mark Danner

 

May 16, 2014

 

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Dmitri:           ...Mark Danner, who is a journalist, lecturer and writer, [a professor] at Bard College and Berkeley.  And because our practically last topic was the discussion about terrorism, counterterrorism and the violation of human rights, and we have a nice opportunity to have here Mark Danner for the week. 

And that’s why I’ve asked Mark to talk about his perspective, his understanding of what is the real challenges for human rights, what is the current situation of the so-called war against terror, mainly from the United States perspective, and from the perspective of the United States foreign policy, and how it’s possible to [relate] the changes and all the possible questions related to the topic of human rights in the perspective of counterterrorism and the war on terror.  And Mark, it’s all yours.

Danner:          Big subject.  Ah, thank you.  Thank you, Dmitri.  Thanks for inviting me here today.  It’s good to see all of you.  This is a very, very large subject, terrorism, counterterrorism and human rights.  I think the first thing one can say is that as a matter of fact, that is, a matter of historical fact... 

Female:          Sorry.

Danner:          Not at all.  You know, I should actually...why don’t I begin, since we have a little interruption here...I’ll let everybody sit down.  There’s no way to be discreet in this room.  Let me begin by saying, again, I’m happy to be here, and let me tell you just a little bit about what my perspective is. 

As Dmitri said, I teach at Berkeley and I teach at Bard, but I come to this subject not really as an academic or a professor, but as a reporter and a writer.  I’ve covered wars, been a war correspondent since I was in my 20s, wrote about the Central American war. 

My first book was about a massacre, a very large massacre, at a place called El Mozote in El Salvador, during the Salvador war.  I covered the Balkan wars of the ‘90s, I covered the Iraq war, wrote about Haiti and various other places that the State Department refers to as TFCs.  Does anybody know what TFC stands for?  No?  Totally fucked up countries.  So this was my beat as a reporter. 

So when I think about the matters that we’re going to be discussing today—and I wrote Dmitri this when he suggested the topic—I think of it more as a reporter practitioner, as it were, and only secondarily as a philosopher, academician, what have you.  So what I’m going to say really comes at this from very much the practical point of view, even though I’ve been identified, certainly, during the whole course of my career as a writer, as a so-called human rights journalist.  I write very much on human rights issues, including massacres, truth commissions, transitional justice, etc.  So that’s a brief précis of who I am.

And I will start by saying that it is a matter of historical fact, of practical fact, when we look into the history of terrorist movements, that terror very often brings in its wake counterterror.  Now, it isn’t necessary, and I’m not able to say that that’s a necessity and it always happens, but when we look into the history of the use of terrorism as a movement, as a tool of an insurrectionary movement, let’s put it that way, we find that very often the use of terrorism spurs on the use of the state to respond with counterterrorism. 

A cardinal example of this is Argentina during the dirty war of the late 1970s.  My god.  See, you pray for something and it comes.  [Laughter.]  Michael comes, and it’s wrought.  The angel.  Thank you.  Thank you very much.  I was hoping, hoping, hoping for that.  Perfect.  Perfect example of it, Argentina, late ‘70s, right?  You have several insurrectionary groups—the Montoneros, a couple of others—who are dedicated to bringing down the state.  And they do it, at least in the beginning, through at least some terrorist acts.

What are terrorist acts?  Terrorism, obviously, is one of these big flabby words that has a lot of different definitions.  It’s complicated, but we can start to define it as acts of violence intended to achieve an effect on public opinion, or intended to achieve a political effect.  In other words, they’re not just acts of violence intended to kill certain people, they’re acts of violence intended to have a consequence to create, for example, fear in the society, to build a movement, demonstration violence, okay?  We’ll talk a little bit more about the definition of terrorism, but let’s start with that.

So Argentina in the late ‘70s.  You have these small insurrectionary groups, and they’re kidnapping people, holding them for ransom to get money.  They’re also bombing things, right?  Prominent bombings.  Attacking military forces, attacking banks, attacking other public places.  And you have a reaction from the state where the security services essentially set up a secret system of prisons, start capturing people, some of them probably members of these groups, but many, many more people not members of these groups—union members, teachers, people who express leftist sympathies, very often. 

And they are brought into this secret prison system and they’re tortured, okay?  And this system evolves into a rather dark, you might call it a quasi-justice system, but it’s a secret quasi-justice system in which people are held in secret prisons.  We get, from Argentina in this period, the term “los desaparecidos.”  Does anybody know what that means, “los desaparecidos?”  No?  The disappeared, right?  The disappeared. 

These people are being...you know, you’ll be sitting in your house, smack-smack-smack, somebody’s at the door.  You open it up, guys come in, they’re probably in plain clothes, they grab you, they take you down to an unmarked car, you’re gone.  And your family tries to find out where you are.  The family goes to the police station, the family goes to the Justice Ministry, the family goes everywhere.  Who knows?  You become a desaparecidos, a disappeared. 

You’ve gone into a secret prison where odds are you’re going to be interrogated persistently, you’re going to live in very terrible conditions, you’re going to be tortured—use of torture that we’ll talk about—and at the end of this process, after being held secretary for six months, a year, or however long, the odds are you’re probably going to be killed, and secretly killed.  And in the case of Argentina, these people were taken out over the ocean in a helicopter, they were given an injection to make them unconscious, and they were dropped into the ocean.  That’s how most of them were killed.

So terror used by these small groups, counterterror used by the state.  Now, I’m going to suggest today that we see a similar phenomenon when we talk about the so-called war on terror that the United States launched in 2001, after the terrorist attacks of September 11, 2001.  Many people in the U.S., I think, and certainly people in the Bush Administration, would not agree with this.  They would not say there was a counterterror unleashed.  But I think, actually, the evidence is overwhelming to support this.

After the attacks, there were two major legal interventions taken.  There were more than two, but I’m going to mention two.  The first was on September 17, 2001, six days after the attacks, Congress passed the authorization for the use of military force.  This was essentially a declaration of war on Al Qaeda and associated groups that had attacked the United States.

 So this was kind of a public declaration of war, very short, under which the U.S. is still attacking isolated militants in Somalia, in Yemen, in Pakistan and Mali, various other countries, and under which the U.S. is using drones to kill people, right?  The United States has probably killed about 4,000 people using unmanned drones, a very large number of people.  So the authorization of military force which was passed, which is the legal instrument of the war on terror, was passed by the Congress of the United States on September 17, 2001.  That’s the public declaration.

The next day there was a private declaration, secret declaration, and this was a finding—that’s what it’s called, a finding, F-I-N-D-I-N-G—which is an order issued by the President to the intelligence community—so-called intelligence community—and specifically to the Central Intelligence Agency, empowering that agency and its associated agencies to go after Al Qaeda and its associated groups.  And it gave them the power to search out Al Qaeda, to attack Al Qaeda, to imprison Al Qaeda and set up secret prisons in which Al Qaeda insurgents would be held.  And finally, it gave them the power to use so-called lethal force against Al Qaeda.

It also empowered the CIA as the lead agency in the detention, imprisonment, and interrogation of terrorists.  Now I’m going to talk today a considerable amount about interrogation because I feel that—you know, there are many points where the war on terror smashes against the human rights regime, right, where you find that steps taken under the rubric of the war on terror violate basic precepts of human rights.  And we could talk about warrantless surveillance.  We could talk about drones and extra judicial killing, EJKs, as they’re known in the human rights community.

In my opinion, the most dramatic area where the war on terror violates—and violates perhaps is not the word we should use in the situation, because we’re trying to have a discussion—but where the war on terror puts very much in question the allegiance of the United States to a human rights regime is the area of interrogation and torture.  I use both terms because one of the things that’s happened since September 11th is we’ve had a kind of bifurcation of language. 

We’ve got the official language, the language of the state, in which the United States interrogates prisoners, in which it sometimes uses enhanced interrogation techniques—enhanced interrogation techniques, EIT, EITs, that’s the phrase that’s used—so that you will find that members of the Bush Administration, insofar as they used the word torture, they used it to make statements like—and this includes the President, President George W. Bush—the United States doesn’t torture, the United States will not torture, the United States will never torture, torture is illegal.  So the only time that that word is used by representatives of the state, it’s to deny that what the United States is doing is actually torture. 

However, we have a set of procedures, what President Bush called, in a brilliant, wonderful, remarkable speech on September 6, 2006—and I highly recommend the speech to you.  It is, I think, the only historic speech that George W. Bush ever gave because it’s a speech about torture in which he denied that the United States used torture, but he called what the U.S. does with prisoners an alternative set of procedures.  An alternative set of procedures.  Which I find to be a rather striking use of language. 

And I’m going to describe some of those techniques, and actually read some of the descriptions of those techniques by people who were subjected to them in a minute.  But I want you to take note, first of all, of language, of the importance of language, because there has been a struggle, not only within the state itself, when it comes to characterizing what these techniques are, but also within the broader elite community.  And I mean, in particular, newspapers. 

For example, the New York Times, when it speaks about waterboarding, which is one of the techniques used by the CIA, and also one of the techniques used by the Argentines, who I mentioned a few minutes ago, when the New York Times mentions waterboarding and its being done by the Argentines or the Spanish Inquisition—it’s a torture technique that goes back a long time—the New York Times calls it torture.  But when the New York Times talks about waterboarding as performed by the CIA, they call it interrogation, or harsh interrogation.  We are talking about exactly the same technique. 

And of course you can point to this and say, oh, that’s hypocritical.  What hypocrites.  How can they do that?  Oh, that’s misleading.  But in fact, it’s more than that, it’s interesting.  It suggests that the elite of the country—because at the end of the day, when we talk about torture and we talk about the kind of violations or at least strains against the human rights regime that we’re going to talk about today during the war on terror, we’re talking not just about the state, we’re talking about the elite of the country. 

And we’re talking about a population that, depending on how you ask the question in polls, will tell you, in their majority, that torture is sometimes necessary.  So one can’t understand the politics of the war on terror and the politics of human rights and the war on terror without looking at this question about the elite and its difficulty when it comes to allegiance to human rights and the balance between human rights and fear.

Let me say, secondly, let me talk a minute, before we get to the particular techniques I have in mind that were instituted after September 11th, at the dynamics of the war on terror, and what leads not only the United States in the war on terror, but the Argentines during their dirty war, the Chileans, the Uruguayans, you can point to many other examples in the Middle East as well, and other countries, where they face an insurgent threat and they use very harsh techniques, including torture, to respond to it.

What are the dynamics that lead to this?  Why do states, when they’re dealing with a problem of insurgency and terrorism, why do they deploy torture?  Does anybody want to suggest an answer to that?  Why do states use torture?  Really, nobody has any idea?  No?  Well, let’s put yourself in a position of being George W. Bush after September 11th.  You’re the President of the United States, the country’s been attacked, 3,000 Americans are dead.  You’re faced with the question of what to do, right?  What do you do? 

You know that Al Qaeda, representatives of a group, 19 men from a group called Al Qaeda, and a handful of planners, so no more than probably 30 people altogether, were involved in this attack.  They planned it minutely.  They hijacked airplanes, they flew them into the World Trade Center and into the Pentagon.  And this small group, based in Afghanistan, mostly.  And you’re faced with the question of what to do.  You’re President of the country.  How do you respond? 

And you have a certain problem, right?  You have armed forces that are very large.  You have nuclear weapons.  You’re the strongest military power on the face of the earth, but you’re facing a small conspiratorial group.  I mean, we’re talking about numbers like this in this room.  So what do you do?  How do you respond?  How do you capture these people?  How do you kill these people?  What’s the first thing you need in order to act? 

Male:             You need to define the enemy.

Danner:          Okay, you have to define the enemy.  That’s very true.  What’s your name?

Male:             George.

Danner:          George.  Oh, George, you were there yesterday, of course.  You have to define the enemy.  That’s quite true.  And what do you need to define the enemy?

Male:             You need to have information.

Danner:          You need information, right?  You need to know who they are, you need to know where they are, you need to know how you can find them.  So how do you get information?  I mean, put yourself in the position.  George has already been through this operation of putting one’s self in the position of what to do after the country has been attacked by a small group.  Remember, this is not an army.  It’s not like we can say oh, we have to attack the armed forces of Germany or Japan.  How do you get the information?  I’m asking.  Anyone?  No idea? 

Dmitri:           Don’t be so shy. 

Danner:          Yeah, don’t be so shy.

Dmitri:           This is not interrogation.

Danner:          It could be.  It could become so.  Be careful.  Well, you have an intelligence service, right?  The United States—we talked about it a minute ago—has the Central Intelligence Agency.  And what does an intelligence service do?  An intelligence service tries to sign up agents, basically.  You call the people in the intelligence service officers, CIA officers, and they try to get information by essentially bribing or in some way gaining the allegiance of people who can give them information.  They’re in that business.  Their other business is covert action.  They have two businesses, but one is intelligence gathering. 

So you say to the CIA guy, you know, George, George Tenet, who was Bush’s CIA guy, what can you tell me about these people?  Where are they?  How do I get them?  How do I find them?  And the U.S. has a certain problem—and not just the United States, but Argentina in the dirty war, France in Algeria.  Has anybody seen “The Battle of Algiers?”  A great account of this, of the Algerian, of the same dynamic during the rebellion in Algeria, the Algerian war of independence against France.  A very similar dynamic it shows you.

Okay, we’ve been attacked, 3,000 citizens are dead, what do we do?  Well, the first thing we have to do is find the enemy, and the thing we need is intelligence.  How do we get intelligence?  How do we get intelligence?  How do we find them?  Anyone?  Should I call on someone?

Male:             Well, I guess they usually have a list of people who are suspected to be terrorists, and they can start with these people to identify the people who actually were doing this thing.

Danner:          I think that’s a good point.  You probably—you’re not going to start with no intelligence, right?  You probably have lists of people who—you know, the CIA, if it’s doing its job, is watching people, it’s putting people under surveillance.  It knew about Al Qaeda.  Remember, Al Qaeda, the group that attacked the U.S. on September 11th, it attacked the United States, the USS Cole, the war ship, in Yemen in 2000; it attacked American embassies in 1998 in Africa, killed a couple thousand people, so the U.S. and the Central Intelligence Agency knew, to some degree, who these people were. 

So we have a list of people, as Giorgi says, you start watching them, or you start arresting them and capturing them, which is what the United States did.  It bombed Afghanistan.  We knew that’s where some of the bases were, and that’s where Al Qaeda was based.  But we also sent CIA agents into Afghanistan, started arresting and capturing people.  Then what do you do with them?  You’ve captured them.  Now what?  Anybody?  It’s a very shy class here.

Male:             No one has military experience here.

Danner:          This isn’t a matter of military, this is a matter of common sense, right?  You start asking them questions.  You interrogate them.  You say—

Female:          Why they attacked.

Danner:          Excuse me?

Female:          Why they attacked.

Danner:          Okay.  Why did you attack.  That’s one question.  What else would you ask?

Female:          Maybe ask about more people [in their group].

Danner:          More people who might be attacking or...exactly.  I think your overwhelming concern, right, after—I mean, think about it.  You’re running the country, it’s attacked, 3,000 people are killed.  You’re absolutely hysterically crazy to prevent another attack.  That’s really the characterization of the leadership after September 11th, the leadership in the United States. 

One prominent counterterrorism official said a couple of years afterwards, he said after 9/11 we panicked.  And I think that’s a fair description of what happened at the top levels of the government.  It’s embarrassing and it’s wrong, but I think there was a great degree of panic at the top levels of the American government, and you had an almost hysterical obsession with preventing a second attack.  Soon after the attacks of September 11th, a conviction set in among top policymakers in the United States that there was a so-called second wave attack on its way.  That is that any day now, there would be another attack. 

Now this is a very odd conviction, because if you look at the history of Al Qaeda attacks, you see they usually take, the major ones take at least two years to prepare, a year and a half, two years.  You can chart them beginning in the Riyadh attack of 1995, and they take at least a year in between, but usually 18 months to two years.  So it’s a very odd notion that there was going to be another one right away.  But it is a fact that there was a conviction among top policymakers in the United States that there is going to be an attack.  It’s going to happen any day.  We have to prevent it.  That’s our sole concern, preventing another attack.

So you had this degree of panic, and you had the top leadership of the government saying essentially do whatever it takes.  Do whatever it takes.  I don’t want to hear about obstacles.  I want to hear what can be done.  So you had the President sitting down with, for example, the head of the NSA, the National Security Agency, and saying, you know what, if you can wiretap everybody, wiretap everybody.  I don’t care about the law.  If you can look at everyone’s emails, look at everyone’s emails.  We’ll worry about the law later. 

Within the United States, at this time, immigration officials were arresting Muslims.  Somewhere between two and five thousand were arrested, usually on visa violations—the kind of visa violations, you know, you came as a tourist, you’re supposed to only stay three months, you now stayed four months, you’d never be arrested for that before 9/11.  After 9/11, they went out and arrested as many people as they could.  They put them in detention within the United States. 

Outside the United Sates, in Afghanistan, the United States military offered bounties, okay, for Al Qaeda.  They dropped from planes, right, over Afghanistan, they dropped flyers, pieces of paper, with written and in stick figures, these flyers said if you know Al Qaeda, if you know any dangerous foreigners, give them to the nearest American.  We’ll give you $5,000. 

You know what a fortune that is in Afghanistan?  Five thousand dollars.  So they’re starting to process where Afghan tribesmen would grab anybody—a drunk, a homeless person, any suspicious foreigner—they’d bring them to the American base and they’d say here, this is an Al Qaeda guy, let me have $5,000.  I’m not making this up.  This happened. 

And the people at the base took them, gave them to the interrogators.  The interrogators said who are you, who are you?  The people said I’m just a farmer, or I’m just a guy from Pakistan on a trip, or I’m just a drunk.  And the interrogators said to themselves even if I believe this guy, what if he actually is a terrorist and he turns out to launch a terrorist attack?  It’s better to be safe, send them to Guantanamo. 

The Guantanamo Bay prison was opened up about this time, in January 2002, so that’s four months after 9/11, you had an offshore prison camp opened up on Guantanamo Bay, Cuba.  Cuba obviously is a sovereign country, but Guantanamo Bay is a military base that the U.S. leases there, so it was an offshore prison that the United States opened up, and soon planes started to come in bringing Afghans, Pakistanis, people from other countries who had been identified, in this stupid way, as terrorists.

Now, why did they do this?  Because people in the administration were desperate.  Meantime—and again, all of this is under the rubric of trying to find information—how do we find out about the next attack, how do we keep the next attack from happening.  We’re still in the fall of 2001.  Imagine yourself at the top of the U.S. government.  How do we stop the next attack from happening?  What do we do?  What do we do? 

The first thing we do is we go out and we find Al Qaeda.  Find them.  So we offer bounties, we take them to Guantanamo, we start interrogating them.  Then we start active CIA paramilitary operations to find and capture the so-called high value detainees.  High value detainees, HVDs, which is an abbreviation in U.S. documents at this time, high value detainees. 

So there began a series of operations in which the United States special forces, paramilitary forces, CIA forces—usually these were a combination of military and intelligence forces—would swoop down on a hiding place somewhere in Pakistan, usually, and grab some person they wanted, some person on the list.  And then that person, the arrest would be announced. 

Let me describe a particular case, Abu Zubaydah.  Abu Zubaydah was captured in March, March 28th, I believe, 2002, so about seven months after the attacks of 9/11.  And he was in a safe house in Faisalabad, Pakistan.  A force of Americans and Pakistanis raided the house.  They had a firefight.  They shot at one another.  Abu Zubaydah jumped off a roof.  He was shot four times, wounded very badly, taken into custody, almost died, was bleeding a huge amount.  The CIA called a prominent surgeon at Johns Hopkins Hospital in Baltimore, flew him to Pakistan to save Abu Zubaydah’s life.  Why?  He was just a member of Al Qaeda.  Why save his life?  Well, he had information.

When this happened, George W. Bush, at a fundraiser in Connecticut the next day, came up and said, “We captured Abu Zubaydah.”  It’s a big victory in the war on terror.  Abu Zubaydah is no longer threatening the United States.  Abu Zubaydah is somewhere now where he can’t hurt us anymore.  He didn’t say where.  Abu Zubaydah had disappeared.  Okay, so it was publicly known he’d been captured.  The administration announced it.  But Abu Zubaydah disappeared into a network of what came to be called black sites.  Black sites. 

These were secret prisons that were set up by the CIA at various places around the world outside the United States.  There was one in Pakistan, there was one or more in Afghanistan.  Abu Zubaydah was taken to Pakistan and then to Thailand.  There was a black site in Thailand.  These were usually on military bases.  On military bases of U.S. allies.  There are other black sites in Poland, Lithuania, Morocco, Romania.  There’s technically a black site at Guantanamo as well.  Guantanamo, of course, was known publicly, but there was also a secret prison there as well.

So the arrest was public.  The guy was badly wounded.  He was taken to the secret prison.  We don’t know anything more about him.  Now, he became—this is kind of...I mentioned the disappeared in Argentina, right?  You’re sitting in your house, security forces come in, they grab you right in front of your parents or whatever, they take you, you’re gone, right?  People don’t know where you are.  All they know is you’re in the grip of some mysterious state power.

The question of the disappeared, when it comes to the United States and the war on terror, is somewhat different, because very often, with prominent Al Qaeda members, the arrests were announced publicly.  “We got Khalid Sheikh Mohammed.”  And the picture would be shown.  The President would make the announcement.  Then they would disappear.  So it was a kind of public disappearance, a remarkable thing. 

So we knew that they had been captured, but the government denied it.  Abu Zubaydah’s family called up the Department of Justice and said we want access to our son, where is he.  The Department of Justice would deny that they knew where he was, even though the President announced that he had been arrested.  So this is a different kind of disappearance.  Why would the state do this?  In other words, why would it announce it publicly and then deny it had them?  Any idea about this? 

Female:          Well, they had to announce these publicly because they had to show people that they did something.

Danner:          Yeah.

Female:          But why [deny it], I could not...

Danner:          Well, I think that—what’s your name?

Female:          Helen.

Danner:          Helen?  I think that’s a very good point you make.  That is, on the one hand it was very valuable as a propaganda tool.  I mean, I say propaganda.  You can put it in a kinder way and say it was very valuable in rallying the public and encouraging the American public.  Look, we’re winning.  We captured this dangerous terrorist.  So they wanted to have that advantage. 

The question is why then were they secretly imprisoned and the country denied having them officially.  So actually, it’s a very important point for this class, for the subject of this class.  Why do you deny officially having a prisoner?

Female:          Because if you have them, have to have defense, you have to have proper...

Male:             Trial?

Female:          A proper trial.

Danner:          Yes.

Female:          [Unintelligible]

Danner:          You have to what?

Female:          [Unintelligible]

Danner:          Yes.

Female:          You cannot [unintelligible].  You cannot [unintelligible] human rights [unintelligible].

Danner:          Defend them.  Yes, that’s a very—Helen has made a very good point.  One consequence, possibly, of declaring it publicly is that you’re responsible for this prisoner, and they have to be kept, in some notion, according to the laws of war, right?  Now, this is an important and also a complicated point that I’m not going to go into very deeply. 

But one, at this point, has to observe that the U.S. established a very odd regime during the war on terror.  On the one hand it said terrorists were not liable under criminal law.  These are not criminals.  When Al Qaeda attacked the U.S. embassies in Africa in 1998, those people, those suspects, were eventually tried in criminal courts.  This was before the Bush Administration, before September 11th.  So terrorism had been treated as a criminal offense, prosecutable in criminal courts. 

After 9/11 the Bush Administration declared that this is a war, we’re fighting a war, so these are not criminal defendants.  So you can divide criminal war from war and the law of war.  These are two different things.  However, these people we captured are also not prisoners of war because we’re going to say that the Geneva Convention and other instruments of the law of war that are internationally recognized are not applicable to these prisoners.  We’re going to call them unlawful combatants.  Unlawful combatants.  Very important term. 

And we’re not going to refer to them as prisoners, they’re detainees.  Detainees.  Detainee is simply someone you detain.  Prisoner actually smacks, the word smacks of officialdom.  But there’s nothing official about them.  So on the one hand they don’t have the protections of the criminal law because they’re not considered criminals, so Helen’s point about bringing them to trial and so on doesn’t apply.  But they also don’t have the protections of the law of war because we’re not going to recognize them under the Geneva Convention. 

So they fall between these two stools, and they in fact have no protection against the power of the state.  They’re considered, in a sense—this is Agamben, Giorgio Agamben, in his book State of Exception, says they’re the object of a pure arbitrary rule.  They have no protection from the power of the state.  They’re not considered criminals with rights under the criminal law, they’re not considered prisoners of war with rights under the law of war, they’re nothing.  We can do whatever we want with them.

So they go into the black sites, we don’t hear anything more about them, and the process begins whereby information is extracted from them.  They are exploited for their information value, for their intelligence value.  So these people are, whether they’re in Guantanamo or, as Abu Zubaydah was, in a prison in Thailand, the government of the United States doesn’t acknowledge that it has possession of them. 

Do you know the term habeas corpus?  Habeas corpus.  Habeas corpus is a basic—yes?  You learned habeas corpus.  This is a very important thing.  As I’m sure you’ve learned, it’s a basic stricture of the Western legal tradition.  It goes back to the Magna Carta.  And it simply says—I mean, you can state it simply.  It’s actually a complicated and very important concept. 

But it says that, you know, the basic meaning is produce the body, or here is the body.  A write of habeas corpus says if you have this prisoner, bring him or her forward.  You need to acknowledge who this prisoner is, acknowledge charges.  The state has certain responsibilities.  It cannot simply take someone and imprison them and do what it wants with them. 

But, in fact, during the war on terror, during the opening years of the war on terror, that is precisely what the United States did.  It’s precisely what the Bush Administration did.  So it threw aside, among other things, the Geneva Convention and, in fact, habeas corpus.  Very radical, very dramatic actions.  And that’s one of the reasons we can talk, I think, as the title here has it, about terror and counterterror.  Counterterror is when, to some degree, the state throws away its own rules.  The state throws away its own rules.

Now, remember that the United States is a signatory of the Geneva Conventions.  The United States is a signatory of the convention against torture, under which it’s committed not to torture.  The United States has forbidden itself to torture under domestic statute as well.  The United States also has passed the War Crimes Act, under which it’s committed to punish violations of the Geneva Convention as violations of criminal law.  So there are a great many laws governing how prisoners can be treated, and what can’t be done to them.  Notably, they can’t be tortured.

Why don’t we talk a little bit about Abu Zubaydah, who is the example I’m going to talk about today.  We could choose other examples.  There are many others.  But I think Abu Zubaydah is, in some ways, the best one.  Now remember he is captured in Faisalabad, Pakistan during a firefight.  He’s wounded.  He’s shot four times.  A surgeon is flown over, an American vascular surgeon from the United States, to save his life.  He’s in a coma. 

George W. Bush announces, at a fundraiser, the No. 2 member of Al Qaeda has been captured.  Now he’s where he belongs.  He can no longer hurt Americans.  He’s where he belongs.  On the other side of the world—this was President Bush in Greenwich, Connecticut—on the other side of the world this guy who’s 31 years old, a Palestinian Saudi, wakes up one day out of his coma, okay?  So I’m going to describe a little bit—I’m going to read a little bit of his account of what happened to him. 

And I should say, first of all, by the way, that he is not the No. 2 in Al Qaeda.  He’s actually kind of a travel agent guy, he’s a logistics guy.  American intelligence had it completely wrong about who he was, among other things.  But we can talk a little bit more about that in a second.  This is Abu Zubaydah’s account of his initial imprisonment after he wakes up from the coma.  This is Abu Zubaydah’s account.

“I woke up naked, strapped to a bed, in a very white room.  The room measured approximately 13 feet by 13 feet.  The room had three”

—so keep in mind he doesn’t know where he is.  So he’s woken up, he has no idea where they’ve taken him, where in the world.  It could be anywhere in the world.  And in fact he was captured in Pakistan, but he’s waking up in Thailand.  So while he was in a coma, they had flown him from Pakistan to Thailand, but he has no idea.  So he wakes up, he’s naked, he’s strapped to a bed, strapped down on a bed.

“The room had three solid walls, with a fourth wall consisting of metal bars separating it from a larger room.  I’m not sure how long I remained in the bed.  After some time, I think it was several days, but can’t remember exactly, I was transferred to a chair, where I was kept, shackled by the hands and feet, for what I think was the next two to three weeks.”

So you’re talking about being shackled to a chair like this, naked, for two to three weeks, without moving.

“During this time I developed blisters on the underside of my legs due to the constant sitting.  I was only allowed to get up from the chair to go to the toilet, which consisted of a bucket.  Water for cleaning myself was provided in a plastic bottle.  I was given no solid food during the first two or three weeks while sitting on the chair.  I was only given Ensure”—this is a kind of nutrient supplement—”and water to drink.”  So he’s not fed at all.

 

“At first the Ensure made me vomit, but this became less with time.  The cell and room were air conditioned and were very cold.  Very loud, shouting type music was constantly playing.  It kept repeating about every 15 minutes, 24 hours a day.  Sometimes the music stopped and was replaced by a loud hissing or crackling noise.  During the first two to three week period I was questioned for about one to two hours each day.  American interrogators would come to the room and speak to me through the bars of the cell.”

So he’s seated in a chair naked, strapped to it, and the interrogators would come up to the bars.

“During the questioning the music was switched off, but was then put back on again afterwards.  I could not sleep at all for the first two to three weeks.  If I started to fall asleep, one of the guards would come and spray water in my face.”

Okay, you have here the kind of opening procedure in a regime of interrogation.  It’s just the opening phase.  And what does it consist of?  Well, the primary thing it consists of is sleep deprivation.  Has anybody here ever pulled an all nighter?  Yes?  Just one person?  Two people.  Only two people have pulled all nighters?  I don’t think you do your schoolwork very well if you don’t stay up all night. 

Okay, well, if you’ve stayed up all night, you know the kind of thing that happens to your mind by the morning.  Has anybody ever pulled two in a row, stayed up two nights in a row?  Yes?  You know what happens after two nights of not sleeping?

Female:          [Inaudible.]

Danner:          Yes, everything seems really weird.

Female:          [Inaudible.]

Danner:          You start hallucinating.  You have no judgment of how much time has passed.  You have no judgment of when things happened.  You start salivating.  Your walk is very unsteady.  I mean, your physical systems start to break down after two nights. 

So he thinks he’s been in this state for three weeks.  It’s actually, most evidence suggests it’s about 11 days.  Eleven days without any sleep at all.  Now, the sleep deprivation is facilitated, it’s made possible, by a number of things: use of noise to induce stress. 

These are the terms that the American government used in describing these interrogation techniques, because this was all worked out within the government.  We have voluminous documentary evidence of what the techniques were and how they were used.  So under the general heading of sleep deprivation we have use of noise to induce stress.  That’s the music playing constantly, very loud, again and again, a loop of maybe 15 minutes of music very loud, playing 24 hours a day. 

Adjustment of temperature.  He’s sitting there naked and they turn the temperature down as low as they can do it without actually causing hypothermia.  So there’s a doctor on duty to make sure that he doesn’t actually turn blue and die of hypothermia, but they’re keeping him very, very cold.  He’s naked.  Adjustment of clothing to induce stress or to induce shame.  All of these things have names. 

And then the use of water in his face to keep him awake.  So this is the so-called correction phase.  It’s the opening phase in this suite of interrogation techniques.  So Abu Zubaydah is subjected to them at the beginning, and then we have a second phase.  I’m reading to you just excerpts.  There are various longs accounts.  For those of you who are interested in torture and how the U.S. applied it, you can find a lot of literature on the subject. 

After a couple of weeks of this immobilization, keeping him immobilized in one position in a chair, he says,

“One day two black wooden boxes were brought into the room outside my cell.  One was tall, slightly higher than me and narrow, measuring perhaps three and a half by two and a half by six and a half feet,” so about the size of a very small coffin.  “The other box was shorter, perhaps only three feet in height.  I was taken out of my cell and one of the interrogators wrapped a towel around my neck, then used it to swing me around and smash me repeatedly against the hard walls of the room.  I was also repeatedly slapped in the face.” 

So he’s taken out of the chair, stood up, towel’s wrapped around his neck and he’s smashed, smashed, smashed.  His head is smashed against the wall, slapped in the face.

“I was then put into the tall black box for what I think was about one and a half to two hours.”  “The box”—so it’s this coffin that he stood up inside.  “The box was totally black on the inside as well as the outside.  They put a cloth or cover over the outside of the box to cut out the light and restrict my air supply.”  So he’s in this coffin and he can’t breathe very well.  “It was difficult to breathe.  When I was let out of the box I saw that one of the walls”—I won’t go into this. 

Okay, so he’s put in the tall box.  The next day he’s beaten again, more extensively, smashed against the wall. 

“After the beating I was placed in the small box.”  This is the box that’s three feet high.  “They placed a cloth or cover over the box to cut out all light and restrict my air supply.”  So he’s basically suffocating.  “As it was not high enough even to sit upright, I had to crouch down.” 

So you can’t sit, and obviously you can’t stand, so among other things, this is what’s called a stress position.  These two techniques are called stress positions and close confinement.  Close confinement.

“It was very difficult because of my wounds.”  Remember, he’d been shot four times and the wounds, one was in the stomach, one was in the leg, so it was putting “stress on my legs, held in this position meant my wounds both in the leg and stomach became very painful.  It was always cold in the room, but when the cover was placed over the box, it made it hot and sweaty inside.  The wound in my leg began to open and started to bleed.  I don’t know how long I remained in the small box.  I think I may have slept or maybe fainted.”

Okay, so he’s put in these boxes for a couple hours, he faints, can’t breathe, he’s bleeding.  All right, let me read you the next phase.

“I was then dragged from the small box, unable to walk properly, and put on what looked like a hospital bed and strapped down very tightly with belts.  A black cloth was then placed over”—so he’s put on a gurney, like in a hospital, but he’s strapped down on it.  “A black cloth was placed over my face and the interrogator used a mineral water bottle to pour water on the cloth so that I could not breathe.”

Okay, so a cloth is placed over the face and then water is poured continuously, so the air supply is cut off.

 “After a few minutes the cloth was removed and the bed was rotated into an upright position.”  So he’s turned upwards, so he’s vertical, but still strapped together.  “The pressure of the straps on my wounds was very painful.  I vomited.  The bed was again lowered in a horizontal position and the same procedure carried out again with a black cloth over my face and water poured on from a bottle. 

On this occasion my head was in a more backward, downward position,” so his head is lower than his feet, “and water was poured on for a longer time.  I struggled against the straps, trying to breathe, but it was hopeless.  I thought I was going to die.  I lost control of my urine.  Since then, I still lose control of my urine when under stress.  I was then placed again in the tall box.  When I was inside the box, loud music was played again and someone kept banging repeatedly on the box from the outside.”  Da-da-da-da-da.  “I was then made to sit on the floor with a black hood over my head.  The room was kept very cold.”

Anyway, this gets repetitive, very repetitive, but you see the kind of things that were done.  This procedure, we’re talking here about close confinement, stress positions and then waterboarding, which is the best known of the techniques that the United States used on prisoners.  The Argentines also used it during the dirty war. 

The Argentines would strap a prisoner down on a board and they would have a basin of water, or dirty water, or water with detergent, or sometimes urine on the floor and they would simply lift the board up so his head was submerged in the water or the liquid until he started sputtering and drowning.  And this torture goes far, far back into the Middle Ages.  It was a favored torture during the Spanish Inquisition, called the water torture or the water cure.  So it’s very traditional.  It has a long history. 

It works...does anybody understand what this thing does?  You’re covering up the face, pouring water, and then you can’t breathe, so there’s a feeling of complete suffocation, no air, and then a feeling of panic.  And there is a panic mechanism that sets in that is truly terrifying that’s very basic in the human psyche.  It’s not conscious, really, at all.  It’s kind of an unconscious urge, but extremely terrifying, and you start drowning, basically. 

The New York Times, when they would describe this, would sometimes call it false or artificial drowning.  But what it really is is interrupted drowning.  Essentially the procedure, what it does is drown someone and then stop before they die.  That’s what the procedure is about.

So that’s a kind of picture of the kind of interrogation techniques that the United States was using after September 11th.  The ones I’ve described to you were used by the CIA, which had control of several hundred prisoners, probably.  Other techniques were used by the U.S. military, notably in Guantanamo.  So these particular techniques were used in one of the black sites by the CIA.  Black sites eventually became a kind of worldwide network of prisons between which prisoners were flown. 

These techniques changed and evolved during the time they were used.  When Khalid Sheikh Mohammed was captured, for example, instead of being handcuffed or strapped to a chair naked, he was actually chained with his hands on the ceiling, so his hands were chained above his head, his feet were chained to the floor, and he was kept in that position for, he estimates, the better part of a month.  So he has fairly distinct scars on his wrists that are remnants of that, of being chained to the ceiling in that way. 

Waterboarding was also—I should say, by the way, that Abu Zubaydah, does anybody want to guess how many times he was water boarded?  We actually have figures on this.  Anyone?  Eighty-three times.  And Khalid Sheikh Mohammed was water boarded 183 times.  These figures are from the CIA, from documents that have been made public.

Now, I should say that we have voluminous documents about this.  I don’t know if you’re writing a paper for this class, but if you’re interested in this subject, there is a lot of material that you can look at to study it.  So this stuff is going on.  You say, well, it’s going on in the black sites, it’s secret stuff.  In fact, by the end of 2002, the Washington Post publishes an article on its front page called “Stress and Duress Techniques Deployed in the War on Terror.” 

So less than...or a little more than a year after the attacks of 9/11, it was known publicly that some of these techniques were being used.  The New York Times, in early 2003, also did a front page story on it.  Then, what the Abu Ghraib photographs were published of what was going on in Abu Ghraib prison in Iraq, you had a flood of leaked documents, including documents that described waterboarding, from within the administration. 

Now, some of these documents came from the Department of Justice.  Now, this is a fascinating part of the story.  You look at these things—and I think probably—you’re taking a class on human rights, are these illegal, what I’ve described?  Are they illegal?  I’m going to call on somebody if nobody—I mean, that’s a pretty simply question.  Are they illegal or not?  Yes?  Do other people think they’re illegal?  Yes, no?  You’re not sure?  Okay.  Do you think they’re illegal?  Do you think the techniques I’ve described are illegal?

Female:          They should be.

Danner:          Sorry?

Female:          They should be illegal.

Danner:          They should be.  But do you think they are under...? 

Female:          [Inaudible.]

Danner:          Okay, under international law they are.  Good.  How about under U.S. law?  Go ahead.

Female:          [Inaudible.]

Danner:          Yes.  I mean, you know, this is a question we can argue about, but the United States, as I mentioned before, is a signatory of the convention against torture.  I mean, obviously we can get into definitions of what torture is, and I’m going to talk about this in a second, but if you believe that what I’ve described can be called torture, then this is illegal, you would think, right?  Yeah, Giorgi.

Male:             I think even [apart from] the convention, all of these actions are illegal.

Danner:          I’m sorry.  Start again.

Male:             Even apart from the convention, because these people weren’t charged with anything.  All of these tactics were illegal.  So it doesn’t really matter what the tactics were [unintelligible].

Danner:          Everything from detention onward was illegal.  Okay.  Helen.

Female:          I think we discussed this matter the last time when we talked about people who are known within [the law] [unintelligible].  And if we believe that these detainees...they don’t exist within the [unintelligible] anymore, so it’s like the people who have lost their citizenship.  They can’t be discussed within the [material] of the law.  We understand this, it’s inhuman, and [unintelligible].  It’s not a question of law.

Danner:          Okay, that’s a very interesting analysis, and you’re getting very much into the areas of argumentation that the Bush Administration used.  So I’m glad you’ve kind of anticipated what I was about to say, which is absolutely fine. 

The answer to my question, when I ask everybody here isn’t this plainly illegal is, well, under what regime of law?  I mean, according to whom?  What law applies?  And as Helen just pointed out very eloquently, the question is who are these people when it comes to the law?  And according to the United States, they’re not criminals, who enjoy the protections of the criminal law, right?  You can’t arrest somebody for stealing and then beat the hell out of them to get a confession.  That’s illegal.  Not that it doesn’t happen, but you can’t do it legally.  But these people are not criminals. 

You can’t take a prisoner of war and torture a prisoner of war, but these people are not prisoners of war.  There’s something in the Geneva Conventions called Common Article 3 that puts a kind of floor under treatment of anyone captured during a war, but the administration argued that this Common Article 3 did not apply.  So the administration is taking these prisoners and putting them into a separate category. 

Now, what they did with respect to the law, it gets a bit complicated after that.  I can talk about it a little.  But there are two questions here: does this constitute torture, yes or no; does it constitute cruel, inhuman and degrading treatment, CID, yes or no.  And the administration’s position early on was that cruel, inhuman and degrading treatment, because these people are not protected under the Geneva Conventions, is not illegal.  In other words, we can treat them cruelly and in an inhumane and degrading way, we have the right to do that.  That was actually their position.

They believed that they only had to prove that this was not torture.  And what began, what happened was during the time, or after the time that Abu Zubaydah was captured in March, 2002, the administration asked the Department of Justice in Washington to give legal opinions on the interrogation techniques that I’ve just described.  So all of these techniques were described in some detail in legal documents and sent to lawyers at the Department of Justice. 

The lawyers at the Department of Justice, most famously a lawyer called John Yoo, who is now a professor at Berkeley, analyzed these techniques—they were listed: close confinement, the prisoner is put in a box; forced nudity, prisoner is stripped of his clothes; adjustment of temperature, all these things were listed.  And the lawyers went through them and said is this torture?  No.  Here’s the reason it’s not torture.  Is this torture?  No.  Here’s the reason. 

They wrote these memoranda, which basically said that everything I’ve described to you is not torture as defined under the law.  And these were secret opinions that they sent to the administration, to the Department of Defense, and to the CIA that basically said if you do these things to prisoners, it will not constitute torture, and we are telling you that. 

I mean, it’s interesting...this is actually, from the point of view of human rights, what you’re interested in in this class, it’s very important, because in the lawyers’...when the Department of Justice lawyers wrote these memos—and also included in this memo was for something to be torture, it has to be severely painful.  The pain has to be so severe as to be equivalent to organ failure or death.  That was the kind of notorious locution.  The pain has to be so severe as to be equivalent to organ failure or death. 

Now this is a very, you know, if you think about this for a minute, it’s  a very weird use of language.  I mean, some deaths aren’t painful, first of all.  The same with organ failure.  So what exactly does that mean?  But basically they were saying for something to be torture, it has to be this prolonged, severe pain.  And they argued that waterboarding, for example, was simply a confined, acute episode.  It was not prolonged enough to actually be torture.

Now, once these documents were written, they were sent to the top levels of the administration and to the CIA, and they basically were used to say okay, the stuff we’re about to do is legal.  And they’re interesting because in effect the documents—and this depends on your view of positive law—the documents, some people would argue, mean that what was done was legal.  That is, at the end of the day, what I’ve described to you was legal.  Why was it legal?  Because the lawyers said it was legal. 

Now that may seem an outrageous proposition to you, but in fact it has held sway, because as we sit here today, and we can zoom forward a dozen years, okay, what I described to you happened 12 years ago.  Now, the President who was in power is out of office, the Attorney General and Secretary of Defense and CIA director who were in power are out of office.  You have a new President, new officials at all levels. 

And we are in a very weird situation, because the former President wrote a memoir in which he said, well, you know, my CIA director came to me and said we need to waterboard Abu Zubaydah, we need to waterboard Khalid Sheikh Mohammed to find the information they have; should I do it, Mr. President?  And according to George W. Bush, in his own memoir, his response to that question was, “Damn right.”  Damn right.  So he is on record as having approved it and still being in favor of it.  The former Vice President, Dick Cheney, same thing.  In his memoirs, yes, I approved it, yes, I’m in favor of it, absolutely.

Now we have an Attorney General in office who was asked—this is Eric Holder—he was asked during his confirmation hearings before the Senate, is waterboarding illegal.  This is the Attorney General, the highest law enforcement official of the United States, and he said yes, waterboarding is illegal.  The President of the United States, Barack Obama, has also said publicly waterboarding is illegal.  So you have the current President, current Attorney General saying this was illegal, and the former President and former Attorney General, or former Vice President and other officials saying it was legal. 

That’s a very strange situation when it comes to the law.  And the question is, from the point of view of human rights, what exactly does this mean.  Was it legal, was it illegal?  Can you have two different legal regimes that are absolutely diametrically opposed on an issue so important as torture?  And if you can, what does it say about human rights? 

President Obama, as you probably know, was awarded the Nobel Peace Prize in 2009.  He went and made a very eloquent speech in Helsinki, I believe.  Or I think it was Stockholm, excuse me.  He made a very eloquent speech accepting the Nobel Peace Prize.  He talked about the importance of international law.  Among other things, he said in order for international law to be effective, there needs to be accountability.  Accountability.  In other words, when international law is broken, there need to be consequences.  And he was standing there as the President of the United States whose predecessor had approved legal torture. 

And one of the questions I would ask you today to consider is, is torture still illegal if the previous President did it and there were no consequences?  I mean, at present the people who actually did the torturing can point to those memos and say it was legal, I was told it was legal.  You can’t prosecute me.  I acted under the law.  So should those people be prosecuted?  Should the officials who ordered it be prosecuted?  If so, how?  How do you have accountability?  How do you have accountability?  How do you bring it?  And if you don’t have accountability, can we say truly that torture is still illegal?

I would argue that torture used to be illegal and that now it’s a policy choice.  When Mitt Romney was running for President against Barack Obama in 2012, a memorandum was released from his campaign saying that if he won the presidency, he would reinstitute enhanced interrogation techniques.  So you have one administration that uses them and goes out of office, another that comes in and doesn’t use them, but doesn’t prosecute, and another that comes in that uses them again.  So you have a procession here where torture has gone from something that was illegal and anathema to essentially a policy choice that different administrations can choose.

Now, back to the original question here, which is terror and counterterror.  I think the key question that I would like to ask you, in starting a discussion, because I have talked long enough, is, is this linkage in some way a necessity?  In other words, does a terrorist assault on a state—and when I say that, I mean an assault by a small, conspiratorially minded group that uses terrorist techniques—bombings, public attacks and so on, mass casualty attacks, attacks against civilians—will that sort of assault on state power always lead to counterterror, always lead to what I would call a violation of the law?  Is there something inescapable about that dynamic between terrorism and counterterrorism? 

I started by saying that the one thing we can say for sure is whether or not this is an a priori connection, whether or not this is a necessary connection, we see many instances in history—and I cited the Argentine one, you can talk about the French in Algeria, many others—where in fact this happens.  Insurgents use terrorism, the state responds with counterterror, usually involving mass arrests, secret detention, and torture of the sort that I’ve described today. 

So I guess I would end this by thanking you for listening to me and saying that to me, that, I think, is the basis for—that question, it seems to me, is the basis for a discussion, and I look forward to hearing what you think.  Thank you.  [Applause.]

Dmitri:           How about questions?

Danner:          Yes?

Female:          [Can you remember] any situations when counterterrorism didn’t [unintelligible] because—

Danner:          When counterterrorism didn’t...?

Female:          Didn’t [break] some people [unintelligible] human rights, because when there was a terrorist attack on [unintelligible] last year, [unintelligible] investigation [unintelligible] the terrorists [unintelligible] give them to [unintelligible] just because it was some kind of statement, I am not sure.  And because this situation, human rights, is not...I have not very much [unintelligible].  I feel something is wrong.  In this situation happened in our country, and every time I read something, commentaries on this [unintelligible], something is wrong.  So it looks like there is no choice to [unintelligible] and not [unintelligible].

Danner:          I’m not sure I understand precisely the question, but let me try, okay?

Female:          The question is, is there any situation that there isn’t the case, is there any situation in which counterterrorism didn’t [break]...

Dmitri:           Did not or did?

Female:          Didn’t.  When everything was absolutely all right, absolutely legit.

Dmitri:           Legitimate.

Danner:          That’s a very good question.  Well, let me make a couple, or at least one thing clear.  One can talk about counterterrorism policies, and these are policies used against terrorism.  And those policies can be a lot of different things.  They can have to do with propaganda, for example.  They can have to do with simply arresting people in the legitimate justice system. 

The United States, before September 11th, had what could be called counterterrorism policies, and many of them—you had a department within the Department of Justice that was concerned with this.  You had measures in the criminal law to arrest people who were accused of criminal acts.  So there are counterterrorism policies that aren’t what I’m calling counterterror. 

So I’m distinguishing counterterrorism policies, which is a broad area, many of which we would consider to be certainly legal under the current legal regime, you can distinguish those from what I’m calling counterterror.  When I talk about counterterror, I’m talking about things that are, in my judgment, are illegal or seem to break human rights norms.  And that’s really what I was talking about today. 

It certainly...I mean, what you...your question really enlarges on the question I was trying to answer, which is, is it a necessity that terror is always followed by counterterror.  And I think it isn’t a logical necessity, but it’s a historical fact that that often happens. 

I think that there has been management of terrorist wars—one example would be Northern Ireland—in which there have been very bad violations of human rights.  But also there have been police actions and more normal operations that I wouldn’t describe as violations of human rights; they’re a mixture of the two.  For that matter, the U.S. war on terror is also a mixture of the two, without a doubt.  But I’m not sure if you’re asking for a response to terrorist attacks that haven’t broken the law.  Is that what you’re saying?

Female:          No, no.  I just didn’t see the distinction you talk about, so now this is more clear.

Danner:          Oh, okay.  Good.

Female:          I assumed that counterterror fall into this violation of human rights and [unintelligible].

Danner:          Okay, great.

Dmitri:           Yeah, well, speaking about our experience, I mean, many in Chechnya, in Chechen Republic during the ‘90s, it is important to understand, but I can see the difference in our historical or current experience.  I’m afraid that in contrary with the U.S. administration, Bush Administration tried to legalize somehow this torture, put in the way of democratic language. 

So that’s...it’s in contrary, that was my experience to asking people that practically everyone might know, what is Guantanamo and what is the Abu Ghraib, right?  Who here knows the Chernokosovo?  Do you know the Chernokosovo place?  No, you don’t. 

The Chernokosovo place is the place where, during the Chechen war, totally disappeared.  I mean, their body never have been found, several hundred people, from so-called bandits or, I don’t know, terrorists, [never mind], the people simply disappeared.  They have been kidnapped or harvested, then got together to these concentration camp, and then they simply disappeared.  Sometimes their body might be found. 

And there is at least six applications to the European Court of Human Rights that Russia lose these cases because the Russian investigation did nothing to investigate this case and to identify the criminals.  But the problem is—well, I would say two interesting points. 

Our experience is quite different in two positions.  One position is that officially nobody even discuss the question of violations.  Well, in your case the persons somehow do not exist because they’re outside of law.  But in our case, even the place, Chernokosovo, do not exist to the public opinion and public knowledge, because some of the human rights activities they published and reported and describing in appeal to the European Court of Human Rights, and... 

Well, I have a very nice example.  In Chechen Republic, one guy was attacked by a helicopter.  A military helicopter shoot at him and his family, and practically all of them died.  Well, he just drove the car with all his family there.  The military helicopter attacked his car.  And he tried to address the court with the complaint of the murder, complaint against the military attack on his peaceful car. 

And the answer was brilliant, because the prosecutor answered we cannot open the case because unfortunately we cannot identify what country sent the helicopter to attack your car.  It was again on the southern area of Russian Federation.  But that prosecutor refused to open the case because they can’t identify what kind of military helicopter attacked your car and [killed] your family.  So this is a good example of what’s going on. 

And secondly, it seems to me interesting about the jurisdiction, especially interesting in terms of Chechen Republic.  Chechen Republic, at that time at least, had at least two different states, I mean, in terms of jurisdiction, because it was the Russian Federation on one side.  On the other side there was the jurisdiction of the Chechen Republic.  It [was] an independent state, [failed] state, state of terror, never mind, but it was a different jurisdiction. 

And interestingly, all that time when we officially don’t have any war in the [area], as [you] should know, for the first war it called restoration of constitutional order.  That was official title of the occupation for [several year].  And the second war called fighting against terror.  But it wasn’t war, it was the fight against terror on the southern area, southern states of Russian Federation. 

So it seems to me interesting to compare because in this perspective there’s—well, different story because America did something outside of their sovereign territory.  And Guantanamo, it’s still outside of the sovereign territory.  So what happened in Russia, we have...well, our security service could operate without this kind of...creating additional capacity or black sites so that Chernokozovo was closed several years ago and nobody knows what’s going on with the prisoners. 

So that’s very much interesting, from my perspective, because that’s still the [indication] even in the discussion with the [unintelligible], because when we are starting to discuss the violation of human rights and the war on terror, immediately, the people immediately, because that was active debates in [unintelligible] about Guantanamo and about Abu Ghraib, about torture and the degrading behavior of the military in Abu Ghraib, nobody mentioned Chernokozovo, nobody, even on the [mass media].  So that’s very much interesting, how it is to discuss this question, if it touch that question, in different country, but how difficult to start this conversation in the perspective of the Russian Federation experience.

Danner:          Well, you know, I will take this a step farther and say that it is true that there has been vivid discussion of Guantanamo in the American press.  There have been many books about Guantanamo.  There have been vivid discussions of Abu Ghraib.  I wrote one of those books.  And there’s been a lot of debate about torture.  I’ve written a couple of books about it, and hundreds of books have been published. 

And I suppose that we should say, as people who believe in a liberal order and so on, that it’s a good thing that these things are discussed.  But the fact is that it’s hard for me to...I mean, discussion has had an effect in the United States, certainly, but it has also left a country that, politically speaking, probably half the population is sympathetic to claims that torture is necessary to fight terrorists. 

So we assume, I think, very often in the press, that if you reveal things that seem to be wrongdoing, that this wrongdoing will be corrected because the public will be informed and the public will press for political rectification in some way, that once it’s no longer secret, something will happen.  And that, I think, is the premise of what you were saying about Chechnya. 

But it’s arguable in the U.S....I suppose one could argue on the plus side that a President was elected who stopped using these sorts of techniques.  That’s a plus.  But you could argue on the down side that you have a public that, in general, has shown itself willing to countenance them, and a political class that, in general, the Republican Party is generally in favor of enhanced interrogation techniques.  So you have a political division within the United States, and one of the major political parties is in favor of these things. 

So I think that the message, when it has to do with disclosure and public debate, is a distinctly mixed one.  Exposure is a necessary, obviously, step for there to be a public debate, and a public debate is useful and necessary, but how useful it is is a matter of discussion.  In the United States it certainly hasn’t solved the problem.  On the contrary.  As I mentioned during my remarks, we’ve known that the U.S. was using these techniques since late 2002, more than 12 years, or almost 12 years, so it’s a very long time.  And it’s not as if knowing it and exposing it solved the problem; it didn’t.  Any questions? 

Female:          I just wanted to know if the United States signed the convention against torture and they gave certain permission for their [state], was it completely different from the definition that that commission had?

Danner:          Was what completely different?

Female:          The definition of torture.

Danner:          Oh, you mean in the documents as opposed to—

Female:          Yes.

Danner:          Yes, yes, it was.  The definition in the UN documents and in the convention—I should be able to cite it verbatim, but I can’t—it’s something like the imposition, under color of law, of severe pain or mental suffering in order to achieve some end, including the extraction of information.  So it’s a fairly broad definition that certainly would include waterboarding. 

And the definition that was used...I mean, essentially what the lawyers did was they looked at words in the law, for example “severe,” and they said, well, what is severe pain anyway?  And they arrived at, I think...I don’t think the analysis survives the laugh test.  I think you read and are like, are you kidding me?  And in fact, it was eventually, when new lawyers came into office, they withdrew this document.  They thought it was embarrassing.  But they didn’t change their opinion on waterboarding, for example.  They contended still that it was legal. 

To go back to your question, the definitions were very different in the two documents.  But the Bush Administration lawyers relied on a kind of ambiguity in the language.  Other questions? 

Dmitri:           Thank you very much.

Danner:          My pleasure.  Thank you for inviting me.

[End of recording.]