"State Counterterror and Human Rights" at the Sakharov Center
State Counterterror and Human Rights
Sakharov Center, Moscow, Russia
Mark Danner with Andrei Soldatov, Alexander Tcherkasov,
Sergey Kovalev and Varvara Parkhomenko
May 19, 2014
Elena: [Statement in Russian.] 00:00:11 – 00:01:23
Danner: Thank you very much, [Elena]. It’s an honor to be here at the Sakharov Center to talk about counterterrorism and human rights. I’ll try to give a brief overview of how the counterterrorism policies of the last 13 years have affected human rights… Do you want me to say some sentences and then stop and let you translate?
Translator: You can talk in longer sentences.
Danner: So I’ll stop and then you translate.
Translator: Okay, thank you.
Danner: I’ll just talk for a few minutes about how counterterrorism policies since the attacks of September 11, 2001 have affected human rights in the United States and affected U.S. policy when it comes to human rights around the world. I think we can say, in general, that the attacks of September 11th introduced a period in the United States that we can call state of siege, state of emergency, martial law, or class under the broad category of state of exception.
During the days immediately after the attacks, the Bush Administration introduced policies that would have been considered, before the attacks, to be plainly illegal. These policies had to do with eavesdropping and surveillance, with detention and imprisonment, and with torture. A week and a day after the attacks of September 11th, George W. Bush secretly signed what is called a finding or a legal instrument giving the CIA greatly increased powers. It gave the CIA and other intelligence agencies the power to capture members of Al Qaeda, to interrogate them, to detain them, and to kill them.
During those first months after September 11th, the CIA set up a worldwide detention system with secret prisons in many countries. These secret prisons were called “black sites” and they were set up in, among other places, Afghanistan, Pakistan, Thailand, Poland, Lithuania, Romania, Morocco, and of course Guantanamo, Cuba, as part of a larger detention facility. Into these sites several hundred prisoners were placed. Very often when the prisoners were arrested or captured, there was publicity about it, but afterwards their location was secret. And in fact they became what is called disappeared, desaparecidos, which is a word that was developed during the late ‘70s during the dirty war in Argentina.
From the perspective of human rights, it’s important to consider the status of these prisoners, the special status of these prisoners. On the one hand, the Bush Administration declared a war on terror, and thus said that terrorism did not fall under criminal law. Thus these detainees had no rights as criminals.
At the same time, even though a war on terror was declared, it was decided that these detainees were what was called “unlawful combatants,” meaning they had no rights under the law of war. This means that these prisoners had neither criminal rights, nor rights under the law of war or the Geneva Convention, and thus they became, in effect, beings without any human rights at all.
It should be said that during the time since, because of various court battles, some of these rights have been restored to these detainees. At the time, however, they were no better, from the perspective of human rights, than animals. In the black sites, many of the so-called high value detainees, that is, the most important prisoners, were interrogated using special methods. Within the United States these special methods were called, by the Bush Administration, “enhanced interrogation techniques,” or EITs. President Bush himself called these techniques an “alternative set of procedures.”
It’s very important to note, I think, that beginning in late 2002, and especially after early 2004, many of these techniques, most of the most important ones, became known to the public. These techniques included sleep deprivation, beatings of various kind, stress positions, and most important of all, waterboarding.
Waterboarding is an ancient technique that was used very extensively by the Spanish Inquisition, by the French in Algeria in the late ‘50s, by the Argentines during their dirty war, by the Salvadorans during their civil war, and by many other regimes that use torture. Part of the interrogation program that was improvised by the CIA was based on certain precedents used by the Chinese during the Korean War and by the Soviet Union. In the event, several prisoners were waterboarded numerous times, included two who were waterboarded 83 and 183 times respectively.
From the legal point of view, it seems to be important to point out that these techniques were approved, in detail, by the Department of Justice of the United States. That is, when the CIA developed their program, they described it in very precise terms in a series of memoranda. These memoranda were sent to the Department of Justice, where lawyers examined the techniques in detail to determine if they considered they were legal.
Because the United States was a signatory of the Convention Against Torture, the Geneva Conventions, and also had domestic statutes, domestic laws that forbade torture, the question was whether those techniques violated those laws and treaties. These lawyers determined, in a series of secret memoranda which have now become public, that each of these techniques, including waterboarding, did not constitute torture under the law.
When the Obama Administration came to power, President Obama stopped the use of torture, vowed to close Guantanamo, and withdrew the memoranda. But the one thing he didn’t do was return the United States to a state of law. So the United States now, from the perspective of human rights in general, and torture in particular, is living in a strange twilight world.
On one hand, the current President and the current Attorney General declared publicly that waterboarding is against the law, that it’s illegal, that it, as the Attorney General says, plainly violates the law. On the other hand, the former President, the former Vice President, and other high officials state publicly, including in their memoirs, that they ordered these techniques and that they are proud to have done so.
At the same time, the Republican Party, one of the two political parties in the United States, supports torture, or, as it called it, enhanced interrogation techniques. When Governor Mitt Romney was running against President Obama, he declared that if he won the presidency, he would reinstate enhanced interrogation techniques as a policy of the United States. Therefore, I would say torture has gone, during the last 13 years, from being illegal to being a policy choice. This strikes me as a very consequential change, and absolutely essential, when we think about human rights in the United States.
It seems to me one broader question one could ask—and I could have spoken about surveillance or other issues—but one broader question we can ask with respect to torture and human rights is the following: need a terrorist attack or a terrorist challenge to a state always bring in its wake what I would call counterterrorism. And here I’m using the word counterterrorism to refer to torture and other techniques used by the Bush Administration, and to some extent retained by the Obama Administration.
So the question, it seems to me, the more broad question—and I will finish here—is whether, when a terrorist threat is mounted toward a state, whether it always brings in its wake extreme violations of human rights, or whether a state, knowing this risk, could take steps to try to counter those attacks, while in some way preserving its human rights regime. It seems to me that if this is one of the challenges of a state facing a terrorist onslaught, then the United States has certainly failed in this challenge. Thank you. I’ll stop there.
Kovalev: [Statement in Russian.] …cannot boast [to the] pioneers in having secret prisons.
Danner: Ah. No, I would never make such a boast.
Kovalev: [Statement in Russian.] [00:22:16 – 41:35]
Danner: I thought Mr. Kovalev made many interesting points about history, some of which I would disagree with. But I’ll confine myself to answering two contemporary points about the contemporary issue that we’re discussing. I would make two points. The first is that terrorist attacks, in Muslim cities and elsewhere, are not popular, in general; in particular, since many civilians have died, they’ve become less and less popular among the broader population.
The more important point is Mr. Kovalev’s proposal to have legal torture at the determination of the President. Such proposals have been made in the United States, notably by Professor Alan Dershowitz of Harvard, who proposed having so-called torture warrants signed by a judge. I must say I think this is a very terrible idea. There are a number of reasons for this.
The first is that this seems to suggest that the only way to reliably gain information is by torturing. Insofar as there is any reliable research on this question, and there is a good deal of research, this premise is simply not true, although it is widely believed. During the Second World War, for example, when the stakes were enormously high, the United States put together a highly successful interrogation program with an enormous amount of successes, and it did not use torture. The overwhelming evidence is that torture generally gives corrupted information, unreliable information, bad information.
On the other hand, there often are political pressures on leaders to order torture because it’s widely believed that torture is effective and ordering it shows a level of commitment—that is, leaders are willing to do whatever it takes. A law such as the one Mr. Kovalev suggests would carry on this false impression and also increase pressure, and any leader who was put in a position of fighting terrorism and who didn’t believe torture was effective would be under political pressure to order it nonetheless. So this becomes a matter of political folklore, essentially taking command of the actual policy and actual political process.
One final comment, which is though Mr. Kovalev gave many interesting historical examples of violations of human rights or regimes that didn’t abide by them, notably the mass bombing of civilians during World War II… I would not certainly deny these points. But I would say that the U.S.’s use of torture after September 11th is a unique and interesting phenomenon. It is an example of a state who thought of itself as a leader in certain major instruments of human rights, like the Convention Against Torture, deciding officially, as a matter of policy, documented policy, to use torture and violate purposefully those undertakings.
So though I would never claim that there are not many other cases where states violate human rights on a large scale, I think the particular case at issue of the United States and torture, and the aftermath of the United States and torture is particularly interesting and deserves discussion. And finally, it’s particularly interesting with regard to our discussion today and whether or not terrorism always provokes a response of counterterror. Thank you.
Soldatov: [Statement in Russian.] 00:49:22 – 00:54:16
Danner: To me that’s a very interesting and provocative point. Another way to put it, much more broadly, is that terrorism gives the intelligence services much greater power and a much larger political role. I think this is unquestionably true, and certainly we can argue that this is, without a doubt, the case in the United States as well.
The interesting question is where to place the diving line between acts of counterterrorism prevention, if you would put it that way, and political actions, though covert, that are strictly political. Certainly if we had the head of the KGB or FSB as part of our discussion here today, he would claim that the actions you point to, if they happened, were necessary to protect the country by ending the terrorist threat sooner. So the question is how to divide political actions from covert actions in the service of the state.
What I think is unquestionably true is that terrorist acts directed against the state make the security services much more powerful and much more politically powerful within the government. Insofar as terrorism is a politically dynamic force, that is, actions undertaken to frighten or otherwise influence the public, insofar as this is the case, leaders who are beset by terrorist attacks in a sense lose control of their own politics. To regain control, they find themselves overly dependent on their intelligence agencies and their security services.
For example, when Obama had been in office less than a year, a young man tried to blow up an airplane over Detroit. He failed. At that moment, President Obama must have realized that if that attack had succeeded, it could have ended his presidency. In effect, the future of his presidency was in the control of his intelligence and security services. Consequently, in my opinion, he has done everything he can subsequently not to upset or otherwise alienate his security services. This is a matter of politics within the government, but it’s a vitally important political fact, and I think your remarks suggest that it’s a universal fact.
Tcherkasov: [Statement in Russian.] 00:59:50 – 01:17:03
Parkhomenko: [Statement in Russian.] 01:17:04 – 01:31:53
Danner: I found the last two presentations particularly fascinating because they taught me much that I don’t know. I certainly agree with Alexander that you will never entirely eliminate terrorism. I believe that that’s the case. I also agree with Varvara that terrorism is a political problem that needs to be confronted, at least in part, with political methods. The reasonable goal can’t be to end terrorism entirely, but one can dry up its sources and make it less frequent. The way to do this is first to begin with methods that are political and that will make a violent response less likely.
One interesting point is the notion of rehabilitation, which I think is not adequately discussed. Counterterrorism is messy. It leaves great numbers of prisoners unless, as Alexander suggested happened in Chechnya, they are simply killed. The question is what should be done with those prisoners, and various countries, including, in different ways, Indonesia and Saudi Arabia, have developed so-called rehabilitation methods to try to convert them ideologically from commitment to violent methods of revolution to nonviolent ones. This is a very complicated question, and obviously depends, in its essence, on the broader political struggle going on.
Another way to get rid of terrorists, of course, or insurgents, is to export them to a foreign war. This was the case with the war in Afghanistan. It’s now the case with the war in Syria. The question, of course, is what these insurgents will do if they survive and when they return to their home countries.
Another point one should make, and that was suggested both by Alexander and Varvara in different ways, is that counterterrorism, and particularly torture, corrupt—it corrupts the legal system, it corrupts our system of laws, and it starts a kind of corruption that spreads. When people ask why we should care about these dirty things that go on in wars far away, one of the answers is very often the dirty things return to corrupt our own legal systems.
Varvara gave a very good example of that, I think, when it came to using torture to secure confessions in a legal system in which a confession alone can be used to convict someone. This, of course, was the method in pre-modern societies in which torture was often used to obtain confessions, and confessions were sufficient to prove guilt. This is one reason why, in the United States Constitution, there is the Fifth Amendment, which says that no one can be compelled to testify against one’s self. This was in part instituted to prevent torture.
Finally, I’d like to try to end on a somewhat optimistic note by pointing out that both of these presentations acknowledge that political effects can cause insurgent leaders to have less reliance on terrorism. It’s important, I think, to point out that many leaders of insurgent groups have come to understand that killing large numbers of civilians in terrorist attacks is counterproductive to their larger political goals.
Both previous speakers pointed this out, Alexander noting the after effects of the Moscow theatre attack in Beslan. He noted that because the security services were willing to kill so many people, in effect the other side decided the attacks were politically counterproductive.
Varvara pointed out the same thing has happened on the part of some insurgent leaders in the Caucasus. They’ve concluded that killing large numbers of civilians in terrorist attacks diminishes their political credibility, and thus hinders their political project. I’d add that this conclusion was drawn also by none other than Osama bin Laden, who we know, according to the papers found with him, was urging his supporters to stop launching mass casualty attacks that would kill civilians.
It seems to me that we can help this process—and again, this point was made by both speakers—by doing what we can to limit the extent of our response to terrorist attacks by making sure that what we do in response doesn’t help those groups politically. This means refraining from reacting in a way that will be politically lucrative to the insurgent groups themselves by launching mass arrests, by killing vast numbers of people, that is, on the part of the state, by imprisoning large numbers of people, and otherwise doing things that will help the insurgents politically.
The response needs to be focused and restrained, or else, in effect, the state is doing the work of the insurgents for them by helping them politically. A grand example of this helping the terrorists politically is the United States, after the 9/11 attacks, launching a mass invasion of Iraq, which was enormously useful to Al Qaeda around the world. The necessity is to respond in a focused way, with restraint, and intelligently, understanding that terrorists are trying, by launching a terrorist attack, to achieve a political result.
It seems to me, to conclude, and to return to our original question, that terrorism does not have to, by definition, provide counterterrorism. It can provoke a measured and restrained response from the state if the leaders of that state are intelligent, calm, and restrained in what they do. Of course the cynic would say that expecting such a response from political leaders is no less utopian than hoping to eliminate terrorism itself. I, for one, don’t believe this.
I’m hopeful that history teaches lessons, and people sometimes learn from them, and some of the examples today about rehabilitation, response to terrorism with soft power and others lead me to be more optimistic, although guardedly so. Having launched that pale plea for optimism, I want to thank my colleagues and the Sakharov Center for hosting this important event. It’s been an honor for me to be here. Thank you.
[End of recording.]