TORTURE AND THE WAR ON TERROR
Volume 37, Nos. 2 & 3 (2006)
FOREWORD: TORTURE AND THE WAR ON TERROR
THE ELEPHANT IN THE ROOM
by Michael P. Scharf & Rory T. Hood
37 Case W. Res. J. Int'l Law 145
“Sobiraetes’ li vi govorit’ o slone v komnate?” After a short pause, the Russian-accented voice in my headset translated: “Are you going to be addressing the elephant in the room?” That was the first question asked as I began a week-long human rights training program in Prague (March 12-19, 2006) for fifty judges from former Soviet Republics under the auspices of the U.S. Department of Justice. The individual who posed that question, an appeals court judge from a Eurasian country, said that he and his colleagues wanted to know how representatives of the United States could expect to be taken seriously in speaking about the importance of human rights law when the United States itself has recently done so much that is contrary to that body of law in the context of its so-called “Global War on Terror.”
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TORTURING THE LAW
by José E. Alvarez
37 Case W. Res. J. Int'l Law 175
I accepted the invitation to address this symposium reluctantly. It is distressing that lawyers, whose lives are, after all, dedicated to establishing constraints on the exercise of arbitrary power, now find themselves addressing a topic that involves the ultimate exercise of arbitrary power over another human being. Lawyers—of all people—should not be addressing torture and cruel, inhuman, degrading treatment as if this were just another policy choice over which reasonable, civilized people can disagree. Yet the actions of the United States government and its allies in the “War on Terrorism” appear to have made it necessary to revisit that ‘hostis humanis generis’—the torturer.
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DEFINING TORTURE
by David Sussman
37 Case W. Res. J. Int'l Law 225
In the On the Genealogy of Morals, Nietzsche observes that “only that which has no history is definable.” Torture has a long and varied his-tory, and has indeed proved surprisingly resistant to any very clear defini-tion in current debates about its use and justifiability. The United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment3 defines torture as
Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Unfortunately, the convention does not address the central question of what counts as the infliction of requisite sort of suffering here, or the broader context that might have to be in place to distinguish torture from other forms of coercion, manipulation, or intimidation.
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TORTURE IN DREAMLAND: DISPOSING OF THE TICKING BOMB
by Henry Shue
37 Case W. Res. J. Int'l Law 231
“Nothing has changed. The body still trembles as it trembled before Rome was founded and after, in the twentieth century before and after Christ. Tortures are just what they were, only the earth has shrunk and whatever goes on sounds as if it’s just a room away.”
Torture is wrong. But sometimes we feel justified in doing what we know is wrong because the stakes are so very high. So the next question is: is torture so wrong that it is inexcusable no matter how high the stakes are? I will argue that all actual arrangements for torture are inexcusable, in spite of the fact that we can imagine hypothetical cases, like the notorious ticking-bomb cases in which it seems excusable. Why are imaginary examples like ticking-bomb hypotheticals so badly misleading about how to plan for real cases? They mislead in two different ways that compound the error: idealization and abstraction. Idealization is the addition of positive features to an example in order to make the example better than reality, which lacks those features. Abstraction is the deletion of negative features of reality from an example in order to make the example still better than reality. Idealization adds sparkle, abstraction removes dirt. Together they make the hypothetical superior to reality and thereby a disastrously misleading analogy from which to derive conclusions about reality.
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TORTURE, MORALITY, AND LAW
by Jeff McMahan
37 Case W. Res. J. Int'l Law 241
The morality of torture is similar to the morality of capital punishment in the following respect. There are in principle, and probably in practice, certain rare instances in which either would be morally justified. At the same time, morality itself demands that both be categorically banned in law.
Suppose that we have captured someone we know to have committed a series of daring and spectacular murders. The murderer is proud of these acts and boasts of them openly. He even had them video recorded. Suppose that because of the manner in which they were done, these murders are admired by certain people and that the evidence suggests that there are likely to be various series of “copycat” murders unless this murderer is exe-cuted. He has boasted that the state does not have the “guts” to execute him; therefore his execution will be regarded by his admirers as a defeat and a humiliation rather than a martyring.
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WAR BY PROXY: LEGAL AND MORAL DUTIES OF 'OTHER ACTORS' DERIVED FROM GOVERNMENT AFFILIATION
by Michael A. Newton
37 Case W. Res. J. Int'l Law 249
The theme for this panel is outsourcing torture, which of course harkens back to a contractual model in conducting our campaign against those who would commit terrorist acts. I want to do something that I realize may be a bit unusual in this setting; I want to focus on the substantive framework of the laws themselves with regard to the regulation of private contractors who are suspected of having committed torture. My premise, which I recognize is shared by most of you, is that the United States gov-ernment cannot simply relegate its duty to protect the American people to friends and allies. By the same token, neither can our government relinquish its legal and moral obligations to ensure the proper treatment of persons in our custody to proxies acting on its behalf. This difficulty is most pointedly raised in recent operations by the presence of paid civilian contractors who are charged with sensitive aspects of our military operations, yet operate beyond the boundaries of established military lines of authority.
You have doubtless all seen the commentary about our presence in a new paradigm of warfare. That is certainly true in the political and legal sense. In the context of dealing with civilian contractors supporting the war effort, it is equally true. The reliance on paid civilian contractors is a direct consequence of the fact that our military structure is roughly 40% smaller than it was at the height of the Cold War. After the United States military, the second largest deployments in Afghanistan and Iraq today are the hun-dreds of contractors funded by the United States government. The reality at present is that the legal framework for regulating the conduct of civilian contractors is not a tightly woven and interconnected whole. This, in turn, raises the real potential that paid civilian contractors, who earn salaries that seem astronomical to those in uniform, actually undermine our war effort through undisciplined and illegal acts beyond the control of the affected military commanders.
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TORTURE AND CONTRACT
by Laura A. Dickinson
37 Case W. Res. J. Int'l Law 267
This symposium has raised important questions about the problem of torture and, in particular, the use of torture in the so-called “War on Ter-ror.” In considering this problem, I would like to focus on an aspect of the issue that has only recently received popular and scholarly attention, but that is likely to have profound implications: the privatization of military functions, and specifically, the privatization of torture. Such privatization may, at first blush, seem to render it more difficult to hold human rights abusers accountable because private actors might not be deemed subject to various international human rights instruments that were initially drafted primarily with states in mind. Yet, while the extensive outsourcing of tor-ture to private military contractors is certainly a cause for serious concern, it is my perhaps controversial claim that such outsourcing may not provide as serious an impediment to accountability as it may at first seem. Indeed, abuses by private contractors may actually be more readily subject to legal sanction than abuses by official governmental actors. Nevertheless, I do believe that scholars and policymakers need to look beyond simply the for-mal instruments of international human rights law and consider alternative modes of accountability as well, such as the use of contractual provisions and internal institutional structures. These alternative modes of accountability harness the potential of the government contracts that are the very engine of privatization to help deter and prevent torture and other abuses.
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AMERICAN INNOCENCE
by Robert N. Strassfeld
37 Case W. Res. J. Int'l Law 277
One of my earliest enduring memories of the Vietnam War is of torture. Thankfully, my memories come not from first-hand experiences, but from a photo essay published by Life Magazine in June 1964. Nevertheless, the pictures and text produced memories that are vivid, powerful, and lasting. Under what would prove to be an overly optimistic title, A Little War, Far Away—And Very Ugly, the text and photographs presented a grim picture. Japanese photojournalist Akihiko Okamura was unflinching in his depiction of the misery and death that he saw.
A portion of the essay involved a combat mission of a South Viet-namese (“Army of the Republican of Viet Nam” or “ARVN”) military unit near the Cambodian border. After a helicopter bombardment of a South Vietnamese village, the ARVN soldiers were airlifted to the village, where they met no resistance. Initially finding only women, children, and older men, they eventually flushed out forty-three military-aged men, whom they assumed to be guerillas. Over Okamura’s protests, hours of interrogation followed. The text and Okamura’s photographs depict ARVN soldiers beating and kicking the “guerillas.” They placed the prisoners in uncomfortable stress positions: they were “jackknifed into positions of agony.” The ARVN soldiers also employed various water torture techniques. They held prisoners under water in the nearby river, or put rags on the prisoners’ faces and then poured water on the rags to create the sensation of drowning. Elsewhere Okamura described the torture in greater detail and the account is, as one would expect, chilling and disturbing.1 Okamura did not have the benefit of the Bybee Memorandum, of recent U.S. Department of Defense memoranda delineating permissible interrogation techniques, nor of Central Intelligence Agency (“CIA”) Director Porter Goss’ assurance that such techniques are merely “professional interrogation.” Thus unenlightened, Okamura had no trouble recognizing the acts he photographed as “torture.”
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GHOST PRISONERS AND BLACK SITES: EXTRAORDINARY RENDITION UNDER INTERNATIONAL LAW
by Leila Nadya Sadat
37 Case W. Res. J. Int'l Law 309
The waging of war inevitably involves the taking of prisoners, and the U.S. “Global War on Terrorism” (“GWOT”) has been no exception. Some prisoners have been detained abroad at the behest of the United States government; others are held in U.S. interrogation facilities in the U.S. or abroad, such as the prisons at Guantanamo Bay (Cuba); Bagram Air Force Base (Afghanistan) or Abu Ghraib (Iraq); others, it has even been alleged, are being held at sea. Human Rights groups have probably overestimated the total number of prisoners to be as high as 70,000; the number of known prisoners in Iraq, Afghanistan, Guantanamo Bay, and U.S. prisons according to available published sources is more consistent with a figure of 12,000 or 15,000. Whatever the total number of prisoners, the legal framework governing them is clear: their treatment is governed by the four Geneva Conventions of 1949, which have, since World War II, been the gold standard regarding the capture, detention, treatment and trial of prisoners of war and civilian internees. Indeed, the four Geneva Conventions enjoy unparalleled support among States, having been ratified by 192 countries, that is, virtually every country in the world, including the United States, Afghanistan and Iraq, and are, without a doubt, part of the customary laws of war. Geneva law, as it has come to be called, requires that prisoners be treated humanely, forbids secret detention sites, and appoints the International Committee of the Red Cross as the international monitor for Geneva compliance.
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COMBATING TERRORISM: ZERO TOLERANCE FOR TORTURE
by Richard Goldstone
37 Case W. Res. J. Int'l Law 343
In the short time available to me I would like to discuss the manner in which the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Convention”) influenced the approach of the United States with regard to torture, the oldest and most despicable of policing techniques. I will then turn to consider the effects of September 11th on this approach.
The starting point of any discussion of the role of international law and torture is the recognition that torture and other cruel or degrading treatment are prohibited. This prohibition is absolute and non-derogable.
Few countries have suffered more at the hands of terror attacks than Israel. The response of the Israel Supreme Court to torture has, however, remained uncompromising. It was put as follows by President Barak:
While terrorism poses difficult questions for every country, it poses especially challenging questions for democratic countries, because not every effective means is a legal means. I discussed this in one case, in which our Court held that violent interrogation of a suspected terrorist is not lawful, even if doing so may save human life by preventing impending terrorist acts.
An Irish judge, Kingsmill-Moore J said, “To countenance the use of evi-dence extracted or discovered by gross personal violence would in my opinion, involve the State in moral defilement.”
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THE CRIME OF TORTURE AND THE INTERNATIONAL CRIMINAL TRIBUNALS
by William A. Schabas
37 Case W. Res. J. Int'l Law 349
Torture has held a prominent place in the list of international crimes since the Commission on Responsibilities, which was established at the Paris Peace Conference in 1919, listed “torture of civilians” as the third of thirty-two distinct violations of the “laws and customs of war”, immediately following “murder and massacres; systematic terrorism” and “putting hos-tages to death”. According to its authors, this early list of international crimes was prepared in light of “explicit regulations”, “established customs” and “the clear dictates of humanity”, although at the time there was no formal codification of such acts in an international treaty. One of the early guides to such “dictates of humanity” was the instrument prepared for and proclaimed by President Abraham Lincoln during the Civil War, drafted by Colombia University professor Francis Lieber. Article 16 of the famous Lieber Code declared: “Military necessity does not admit of cruelty—that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions.”
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WHY NOT THE COURTS?
by John Hutson
37 Case W. Res. J. Int'l Law 365
My remarks are going to be, probably, as non-legal as you may have heard since you've been here. But I've discovered since I've gotten older and, perhaps, wiser—that remains to be seen, that law is less important than I thought it was as compared to other human considerations.
I've been a lawyer since 1972 and the longer I'm a lawyer, the more I believe that none of this really makes any difference. I used to think that it was all the law and that was the only thing that really mattered and we would argue these little points of esoteric detail and I have come to realize that in the end, if people of ill will or un-wisdom or malevolence are work-ing on some of these issues, it is not going to make any difference, no mat-ter what the laws say or how we parse the various treaties and statutes and so forth. So, my remarks today are entitled, Why Not the Courts? And why not the courts, indeed? Why not the courts, because they are not the most capable of dealing with these tremendously important issues for two reasons. One is they do not always get the issues that are most important and the courts can only deal with that which is brought to them. So, that's one reason for us not to rely solely on the courts because the courts are not go-ing to face the most important issues oftentimes. And the other is for those cases, those issues that do finally come to the courts they are bound by the law. And I think the more important considerations, I've come to believe than just the law, are other things, social, moral, practical and so forth.
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ALI V. RUMSFELD: CHALLENGING THE PRESIDENT'S AUTHORITY TO INTERPRET CUSTOMARY INTERNATIONAL LAW
by Julian G. Ku
37 Case W. Res. J. Int'l Law 371
Can a federal court override the Executive Branch’s interpretation of customary international law (“CIL”)? Ali v. Rumsfeld, the landmark lawsuit brought by the ACLU and Human Rights First against Donald Rums-feld, squarely presents this important question, which has never been resolved by any court. By alleging that Secretary Rumsfeld violated CIL prohibitions against torture and cruelty in the development and implementation of interrogation policies for detainees in Iraq and Afghanistan, the Ali plaintiffs raise a direct challenge to the Secretary’s, and the President’s, interpretation of CIL.
Of course, the Ali suit also alleges violations of constitutional and treaty law, in particular the Fifth and Eighth Amendments and the Geneva Conventions. Each of these causes of action raises important and complex questions in their own right. My limited goal in this symposium essay, however, is to focus on the problems created by the lawsuit’s challenge to the government’s interpretation and application of CIL.
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THE INSTITUTIONALIZATION OF TORTURE UNDER THE BUSH ADMINISTRATION
by M. Cherif Bassiouni
37 Case W. Res. J. Int'l Law 389
The institutionalization of torture became a reality when President Bush authorized the establishment of Camp Delta at Guantanamo Bay, Cuba, concluded that the Geneva Conventions did not apply to combatants seized in Afghanistan (Taliban and Al Qaeda), approved the use of “enhanced interrogation techniques,” issued an Executive Order that bypassed Congress, and unilaterally established a new parallel system of justice to deal with “terrorists” through Military Commissions. The above actions were further compounded by the interrogation regulations issued by the Secretary of Defense and the procedures he issued in connection with the Military Commissions at Guantanamo. Subsequently the President, the Vice President, and the Secretary of Defense made several official statements on the need for U.S. interrogators to obtain “results,” thus creating a top-down command influence leading subordinates to commit torture, while their superiors felt compelled to look the other way. The practices that followed this policy have resulted to date in the estimated deaths of over 200 detainees in U.S. custody, presumably as a result of torture; probably as many as several thousand persons have been tortured during interrogation at U.S.-controlled detention facilities and at foreign detention facilities where officials acting for and on behalf of the U.S. have engaged in torture. What is known about these policies and practices has been disclosed through the media, Pentagon documents released under the Freedom of Information Act, some autopsy reports, a few investigations and courts martial, and a few officers’ statements, which together offer only a glimpse of what may have actually taken place.
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THE UNHOLY TRINITY: INTELLIGENCE, INTERROGATION AND TORTURE
by Amos N. Guiora & Erin M. Page
37 Case W. Res. J. Int'l Law 427
The greatest contemporary challenge faced by liberal democratic societies in confronting terrorism is the dilemma of balancing the legitimate national security interests of the State and the civil liberties of the individual. Perhaps no issue represents that tension more than the dilemma faced by democratic societies about how to conduct interrogation of suspected terrorists in custody. Accounts of abuses that have occurred at Abu Ghraib, Guantanamo Bay, and Bagram have served to bring this balancing issue to the forefront of the debate of how the United States (“U.S.”) reacts to terrorism.
A number of commissions have investigated the events at Abu Ghraib, Guantanamo Bay, and Bagram and several members of the American armed forces have been court-martialed. As a result, a one-star general has been demoted one rank to full colonel and there have been demands for the resignation of Defense Secretary Donald Rumsfeld and others. The pictures from detention centers have been disturbing and distressing. Although their effect in confronting Americans with a certain reality has been very powerful, they are not the real story. What the President has termed "a few bad apples" in referring to Pvt. Charles Graner, Jr., Pfc. Lynndie England, and Spc. Sabrina Harman, among others, ignores the larger and more critical issues: the relationship between intelligence and interrogation and whether the confluence of the two must necessarily lead to torture. I propose that these issues have not yet been fully addressed.
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THE DANGEROUS WORLD OF INDEFINITE DETENTIONS: VIETNAM TO ABU GHRAIB
by Jennifer Van Bergen & Douglas Valentine
37 Case W. Res. J. Int'l Law 449
The thesis of this paper is that where you find administrative detentions, you are likely to find torture. We will show that this connection exists even where it is clear that investigations and screenings leading to such detentions are, as Alberto Gonzales put it, “not haphazard, but elaborate, and careful . . . reasoned and deliberate.”
This reason is simple and can be traced to the elements of administrative detention itself: the absence of human rights safeguards and normal legal guarantees such as due process, habeas corpus, fair trial, confidential legal counsel, and judicial review; vague and confusing definitions, standards, and procedures; inadequate adversarial procedural oversight; excessive Executive Branch power stemming from prolonged emergencies; and the involvement of the Central Intelligence Agency (“CIA”) or other secret, thus unaccountable, Executive Branch agencies.
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THE ROLE OF MILITARY COMMISSIONS IN THE GLOBAL WAR ON TERRORISM
by Col. Morris D. Davis
37 Case W. Res. J. Int'l Law 537
I am here to talk about the people we are holding at Guantanamo Bay and our efforts to hold them accountable in our part of the “Global War on Terror.”
Some ask me why we are doing this. We are doing this because of people like Boeing employees Chandler Keller, Dong Chul Lee, and Ruben Ornedo, who were murdered when al Qaeda hijacked American Airlines Flight 77 and crashed it into the Pentagon, killing sixty-four people on the plane and 125 people in the Pentagon. If you look around outside right now, folks do not realize—it is not readily apparent at least—that we are at war. But we are.
Last week, at Guantanamo Bay, we had a preliminary hearing in the al Bahlul case. Mr. al Bahlul said during the proceedings, “I do not want an American military lawyer to represent me. I am from al Qaeda. He is from America. He is my enemy, and we are at war.” Mr. al Bahlul has been removed from the battlefield for quite some time, but he understands that we are at war with al Qaeda. We get comfortable in our everyday lives and we lose sight of the fact that that we are a nation at war.
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NOTES
GUANTANAMO AND CITIZENSHIP: AN UNJUST TICKET HOME?
by Rory T. Hood
37 Case W. Res. J. Int'l Law 555
Jamal Abdullah Kiyemba, Bisher al-Rawi, Jamil al-Banna, Shaker Abdur-Raheem Aamer, and Omar Deghayes are currently in the custody of the United States government at Guantanamo Bay, Cuba. A citizen of Uganda, an Iraqi exile, a Jordanian refugee, a Saudi citizen, and a Libyan exile, respectively, these men form an unlikely group; yet, each share one common trait. All five are British residents interned at Guantanamo Bay. The plight of this group led the British media to label them “The Forgotten Five.”
Alleged mistreatment of the detainees at Guantanamo Bay has created international and domestic unrest. This delicate situation led one inter-national journalist to remark, “the whole Guantanamo saga has been a disgrace from the start and something that has sullied the reputation of the United States the world over.” Moreover, in memoranda to superiors, numerous FBI agents allege that they witnessed aggressive interrogation practices used against the detainees. Detainees were “shackled to the floor in fetal positions for more than 24 hours at a time, left without food and water, and allowed to defecate on themselves . . . .” Interrogators also used growling dogs, and “one detainee was wrapped in an Israeli flag and bombarded with loud music in an apparent attempt to soften his resistance to interroga-tion.” Additionally, in an August 2002 memorandum to Alberto R. Gonzales, Jay S. Bybee concluded that “certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within [U.S. statutory] proscription against torture.” Notwithstanding alleged abuse at Guantanamo Bay, “The Forgotten Five” remain in the custody of the United States without formal charge.
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MALE RAPE IN U.S. PRISONS: ARE CONJUGAL VISITS THE ANSWER?
by Rachel Wyatt
37 Case W. Res. J. Int'l Law 579
Male prison rape is “the most tolerated act of terrorism in the United States.” Prison inmates describe rape as a common event in prison life and an accepted part of court imposed punishments. News reports, documentaries, films, and books extensively document the prevalence of male prison rape. The United States Supreme Court has declared that prison rape constitutes “cruel and unusual punishment” under the Eighth Amendment of the U.S Constitution. Despite widespread recognition of the problem, prison officials and law enforcement agencies take little action to combat the occurrence of male rape within the U.S. prison system. Inmates report that prison officials often do not investigate claims of male prison rape and prosecutors rarely bring charges against the perpetrators.
Why has so little been done to address the problem of prison rape in the United States? The literature suggests a variety of reasons. Studies indicate that prison officials have trouble determining if prison rape is occurring since many prisoners use coercive, nonviolent tactics to sexually assault other inmates. In addition, inmates often underreport instances of rape for fear of being labeled “snitches.” Therefore, prison officials often underestimate the extent of the problem. Also, societal attitudes towards prison rape may explain why prison officials, law enforcement agencies, and state legislatures are often unresponsive when inmates do come forward with claims of sexual assault. Scholars have stated that efforts to help male rape victims have been hindered by societal views that prison rape is an acceptable part of a prisoner’s punishment.
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