|The Guardian (UK)|
The Brutal Truth
Read other reviews for "Torture and Truth"
|By Stephen Sedley||March 05, 2005|
The outrages of Abu Ghraib are no accident, says Stephen Sedley
TORTURE AND TRUTH
THE TORTURE PAPERS
How cruelly is a captor allowed to treat a captive before the pain and fear amount to torture? According to advice given by US Assistant Attorney-General Jay S Bybee to President's Counsel Alberto Gonzales in August 2002, it "must be equivalent in intensity to the pain accompanying serious physical injury such as organ failure, impairment of bodily function or even death." With the sanction of such morally and legally ignoble advice, the US has been interrogating, and from time to time killing, an unknown number of captives in Guantánamo, Afghanistan, Iraq and almost certainly elsewhere.
Meanwhile the author of the advice had been made a judge of the ninth circuit federal appeal court, and the presidential counsel who accepted and adopted it is now the United States attorney general. The solitary governmental voice apparently raised against it was that of Colin Powell, who is no longer secretary of state.
Europe is not entirely divorced from this process. When Ireland took the United Kingdom to the European Court of Human Rights over the treatment of suspects in Northern Ireland in 1978, the Strasbourg court held that such practices as hooding, sensory disorientation and sleep disruption in pursuit of information amounted to inhuman and degrading treatment - which are also banned by the human rights convention - but not to torture.
Bybee and his colleagues built on this in seeking to limit the meaning of torture, for the purposes of the international Convention Against Torture, to little more than mutilation and murder. But they also, and inconsistently, developed a theory that in fighting terrorism the president, as commander-in-chief, is in any case not bound by either national or international law. Gonzales, for his part, brought into being the hitherto unknown category of "unlawful combatant", to whom the protections of the Geneva Conventions could be denied because, although a soldier, such a combatant was fighting for a faction (the Taliban or al-Qaida) and not a state. The word "unlawful" in this context has no meaning except to signify that such people will be denied the protection of the law. The licence it carries has been silently transferred to Iraq, which on any view is a state. Powell's objections to the destruction of the work of a century of international law were brushed aside by Gonzales.
The documents which have now revealed all this, and very much more, are collected in each of these solid volumes. They cover largely the same ground - an assembly of official memoranda and reports, most of them never intended for publication, prefaced by brief editorial essays. Although Mark Danner's book is short of an index, there is little need for more: comment on most of the documents would look feeble beside the documents themselves.
The official military reports on the revealed abuses have been published by the US administration. The rest (including, one assumes, the report of the International Red Cross, which ordinarily speaks only to governments) have been leaked; though in some cases - notably that of the legal memoranda - partial leakage prompted full disclosure. Nothing much seems to have been obtained under the Freedom of Information Act.
For Iraqis, already accustomed to unspeakable things happening to anyone detained by Saddam's police in Abu Ghraib, little can have changed. But one of America's leading legal journalists, Anthony Lewis of the New York Times, in an illuminating introduction to The Torture Papers, draws out the grim moral that - in the words of the former national security adviser to George Bush senior, Donald Gregg - it was the legal memoranda that "cleared the way for the horrors that have been revealed" in the US-run detention facilities.
These books contain extensive evidence that Lewis and Gregg are right. They include a mass of depositions and reports about what was going on in the detention facilities. Reading the detailed and objective findings of investigating officers, one begins to wonder whether the brutality was not in truth the rogue activity of a few privates, corporals and paramilitaries, while the legal sanctioning of torture thousands of miles away in Washington had more to do with the sophisticated techniques taught over many decades by the US Special Forces and CIA to client dictatorships. But it becomes inexorably apparent that the crude use of fear and pain on detainees was not simply the localised abuse of absolute power by individuals unfit to hold it.
Stripping Iraqi men of their clothing and making them wear women's underwear for days on end, or setting dogs on them when naked, makes a precise fit with the official doctrine that anything short of killing and maiming is a legitimate way of breaking people down for interrogation. Evidence has crept out of Afghanistan of the use of similar techniques there. Danner, in one of his own New York Review of Books articles which introduce his volume, traces "water-boarding" (repeated near-drowning) from the French war in Algeria through the dirty war in Argentina to the interrogation since 9/11 by CIA operatives of "high value" suspects in locations which have never been disclosed.
Does even a democracy have nevertheless to countenance such methods when its back is to the wall? Other democracies have not thought so: many of their governments have refused to pass illiberal laws in response to terrorism, and where some have sought to do so their judiciaries have pointed out that if the reaction to terrorists is to abandon the rule of law, terrorism will have achieved an irreversible victory.
The supreme court of India in 2003 held that India's prevention of terrorism laws must respect the fundamental human rights recognised in the constitution. The Israeli supreme court, under its remarkable president Aharon Barak, has - not too successfully, it must be said - told the government and army in a series of judgments that while democracy is fated to fight with one hand tied behind its back, "none the less, it has the upper hand. Preserving the rule of law and recognition of individual liberties ... strengthen its spirit, and this strength allows it to overcome its difficulties". In this country the law lords, rejecting the legacy of wartime decisions permitting arbitrary executive detention, have found detention without trial a greater evil than the evil it is intended to challenge.
Perhaps the strongest evidence that the abuse of prisoners in US hands has been systemic, not aberrant, is the simplest: it is the fact that those involved felt it was quite safe to be photographed repeatedly while committing it. Personnel who fear disciplinary reprisal, or even disapproval, do not usually make a visual record of their conduct. If it says something for Donald Rumsfeld, the defence secretary, that he twice tendered his resignation over the Abu Ghraib disclosures, it says rather more about the Bush administration that his offer was on both occasions rejected.
The outcome of the events tracked in these two books, for which both men bear responsibility, is a world order of which the icon has become a hooded figure, its arms outstretched in torment. The apologists who blame a few bad apples in the barrel might do well to remember what a few bad apples do: they make the whole barrel rotten.
Stephen Sedley is a judge of the court of appeals for England and Wales