Torture and American leadership
May 13th, 2009Author: Peter Van Ness, International Relations, ANU
During his first days in office, President Obama banned torture and restricted US interrogations to the non-coercive methods of the US Army Field Manual. He also ordered the closing of Guantanamo Bay and the CIA’s secret prisons abroad.
More recently, the President published some of the internal memos written by Bush administration lawyers that attempted to argue that torture was legal. By taking decisive action, President Obama hoped to deal with the problem and put the issue to rest. But the debate about torture is still raging.
The fact that the United States used torture in the interrogation of people captured during President Bush’s ‘war on terror’ is obviously a serious and complicated issue. This essay aims only to clarify three aspects: the language, legal status, and responsibility for this controversial policy.
The language
It is time for all of us, especially the media, to stop accepting the Bush administration’s euphemisms for torture. They have been used to obfuscate and to confuse the issue. Water-boarding, in particular, is not just a ‘harsh interrogation technique’ or ‘what critics say amounts to torture.’ It is a well known form of torture, and has been used by many countries in different forms at least since the Spanish Inquisition.
It is not ‘simulated drowning.’ It is a process of purposeful, repeated drowning and reviving of the person being tortured, or what the International Committee of the Red Cross has called ‘suffocation by water.’
In some cases the water being used is polluted (with urine for example) to make the torture even more horrible. Abu Zubaydah (thought to be an al-Qaeda logistics operative) was water-boarded at least 83 times, and Khalid Sheikh Mohammed (alleged mastermind of the 9/11 attacks) at least 183 times, according to one Justice Department memo.
Legal status
Acts of torture by US officials violate all of the following:
- Constitution of the United States – Amendment 8 in the Bill of Rights on Cruel and Unusual Punishment;
- United Nations Charter;
- Universal Declaration on Human Rights – Article 5: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment;
- Geneva Conventions – which consist of four treaties that principally deal with the treatment of non-combatants and prisoners of war (the American military has registered serious concerns about US torture from the perspective that it might make it more likely that US soldiers would be tortured if they were captured);
- International Covenant on Civil and Political Rights – the United States has ratified the Covenant but with 5 reservations, 5 understandings, and 4 declarations; and
- UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – which the US has both signed and ratified.
In short, torture by US officials is illegal both in terms of American domestic law and international law.
Responsibility
President Obama has said that he would not prosecute those CIA and American military interrogators who used torture during the Bush administration, and this news was roundly welcomed when the President recently visited the CIA headquarters in Langley, Virginia. These interrogators are said to have been, as they say, ‘just following orders’.
It is less clear, however, whether the Attorney General Eric Holder will prosecute those lawyers in the Bush administration who wrote the legal briefs used to justify the use of torture. But weren’t these officials also ‘just following orders’? For example, according to US Senate intelligence committee documents, Condoleezza Rice, when she was National Security Advisor to President Bush, approved the use of water-boarding before the legal briefs were produced, but pending a legal finding by the Justice Department.
In those circumstances, the Justice Department lawyers presumably knew very well what was expected of them. Apparently, they were not ordered to find a legal justification for water-boarding, but they knew what was wanted by the White House.
In the end, it is difficult to see how the US government could legitimately prosecute either the interrogators or the lawyers without prosecuting the higher level officials who gave the orders. Those ultimately responsible for the policy of torture were the President and Vice President. Former Vice President Cheney does not deny this, and he continues in public discussions to advocate torture techniques as an important tool for fighting terrorism.
Torture by US officials has probably done more to erode US moral authority globally even than the US decision to invade Iraq without United Nations authorisation. This blatant violation of America’s most revered principles has made a mockery of Washington’s claim to be a champion of global human rights. As President Obama said, torture ‘corrodes the character of a country,’ and provides a critical recruitment device for terrorists who seek to demonize the US enemy.
Questions remain.
Should the United States establish a truth commission, as has been done in South Africa and other countries? Or should the Attorney General appoint a special prosecutor? Can a truly independent and bi-partisan procedure be found to investigate and to hold accountable the officials responsible for these serious violations of US and international law?
Peter Van Ness is a visiting fellow in the Research School of Pacific and Asian Studies at the Australian National University, and editor of the book, Debating Human Rights: Critical Essays from the United States and Asia (available as an eBook from Routledge).
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