Studying the Inhumanities

The United States does not torture. We have been told as much by the president, and more than once, in terms that are clear, forceful, unqualified. Even (so one must surmise) categorical. If the United States permits an interrogation technique, then it cannot be torture. Q.E.D.!

And so it is very disagreeable to have to quote statements such as the following: "Waterboarding is a torture technique that has its history rooted in the Spanish Inquisition. In 1947, the U.S. prosecuted a Japanese military officer for carrying out a form of waterboarding on a U.S. civilian during World War II. Waterboarding inflicts on its victims the terror of imminent death. And as with all torture techniques, it is, therefore, an inherently flawed method for gaining reliable information."

The nattering nabob of negativism in this case happens to be writing in Armed Forces Journal, which might be described as something like a trade journal for the U.S. military. One notes that the comment, published recently, is framed not in moral terms, but strictly with reference to torture's failure to meet the industry's needs: "In short, it doesn’t work. That blunt truth means all U.S. leaders, present and future, should be clear on the issue."

Well, it's a little late for that now, of course. Jameel Jaffer and Amrit Singh, both of the American Civil Liberties Union, have recently edited a volume called Administration of Torture: A Documentary History from Washington to Abu Ghraib and Beyond (Columbia University Press) that collects government memoranda from 2002 through 2005. They were selected from more than 100,000 pages of material released under the Freedom of Information, though only after litigation.

They add up to an account of how official talk of the "New Paradigm" after 9/11 led American forces to condone acts that would be would be be called torture if anyone else in the world did them. Perhaps we shouldn't get into semantics. But then again, even the expression "New Paradigm" seems a bit evasive. While John Milton was a bit inconsistent as a libertarian, Paradise Lost offers a plainspoken gloss on the thinking reflected in the documents gathered in the Columbia volume:

So spake the Fiend, and with necessitie,
The Tyrants plea, excus'd his devilish deeds.

Jameel Jaffer, one of the editors of Administration of Torture, answered a few questions by e-mail. A transcript of the exchange follows.

Q:Your introduction states that the prohibition of torture is "jus cogens." A puzzled layman turning to The Penguin Dictionary of International Relations discovers that this term "refers to a body of principles or norms in international law which override and supercede others" -- such that no treaty, for example, can be in violation of it. Piracy and genocide are prohibited by the same terms. But according to the same dictionary's account, "the precise application of jus cogens is not universally agreed upon."

Does international law include a clear, sharp definition of the criteria for torture? A line where it is distinguished from the kind of vigorous and disagreeable questioning of enemy combatants that is bound to happen during wartime? Or is this a matter in which "the precise application of jus cogens is not universally agreed upon"?

A: Everyone, including the Bush administration, agrees that the law prohibits torture. Torture is proscribed by the Geneva Conventions and the Convention Against Torture. It is also proscribed by the U.S. torture statute and the U.S. war crimes statute. I don't think anyone seriously argues that torture is anything other than a jus cogens norm. A problem arose in 2002, though, because the Office of Legal Counsel issued legal opinions that defined torture exceedingly narrowly -- vanishingly narrowly, in fact.

The OLC's unconscionably narrow definition of torture allowed the Bush administration to adopt interrogation methods that went far beyond those that had previously been considered acceptable. It's important to recognize, though, that the dispute was not over whether torture was illegal; it was over what kinds of methods would constitute torture. The U.S. torture statute defines torture to mean any act "specifically intended to inflict severe physical or mental pain or suffering."

What the OLC did in 2002 was to decide that methods like forcing prisoners into stress positions, waterboarding them, confining them in freezing cold cells, etc. didn't amount to torture. It concluded, absurdly, that an interrogation method would amount to torture only if it caused pain equivalent to that caused by organ failure or death. And it made the argument that even if interrogators engaged in torture, they couldn't be held criminally liable if they were acting under the president's authority as commander in chief.

It's worth pointing out that the Geneva Conventions proscribe not just torture but also cruel, inhuman, and degrading (CID) treatment. In 2002, though, the Bush administration took the position that al Qaeda and Taliban prisoners weren't protected by the Geneva Conventions -- not even by the most basic protections enshrined in "Common Article 3." Ultimately Congress enacted new statutes to make even clearer that CID was illegal. The Bush administration then did for "CID" what it had previously done for "torture": it just redefined the phrase so that the phrase wouldn't encompass the interrogation methods that it wanted to use. We're in court now arguing that the OLC's 2005 memos about CID should be released to the public.

Q: Some of the bureaucratic crosstalk among these documents can be a challenge to keep straight. There are exchanges among the Department of Defense, the Department of Justice, and the Federal Bureau of Investigation. Other material here quite unambiguously documents inhumane and even lethal treatment of prisoners. Most of that testimony seems to have been gathered in 2004 and '05, following the outcry over Abu Ghraib.

Do earlier documents show that reports of such treatment went up the chain of command? Or did things operate on a "don't ask, don't tell" basis, so to speak?

A: One of the most useful sets of records we obtained through the FOIA came from the FBI. The records I'm thinking of are e-mails and memos written by FBI agents who were stationed at Guantanamo in 2002 and 2003. The e-mails and memos document the agents' concerns with the harsh methods that were then being used by military interrogators. Towards the end of 2002, FBI agents began to express these concerns to their superiors, and on several occasions representatives of the FBI met with General Geoffrey Miller (who was then the commander of the military base at Guantanamo) to convey their concerns to him.

But the problem was not that military interrogators were exceeding the authority they had been given. The problem was that they were exercising the authority they had been given. They had been authorized to hold prisoners in stress positions, deprive them of light and auditory stimuli, strip them naked, isolate them for weeks at a time, and use military dogs to terrorize them. When military interrogators used those methods against prisoners, they weren't inventing the methods ad hoc. The methods had been approved by Defense Secretary Rumsfeld.

Q: Your Freedom of Information Act request (and subsequent litigation) led to the release of more than 100,000 pages of material. It sounds like this might be the tip of the iceberg. Two years ago the CIA destroyed videotapes of the interrogation of Al Qaeda figures, and recordings of the questioning of Jose Padilla have been "lost."

How much do you know about the kinds of material you are being denied access to? Are you aware of documentation that may already have gone down the memory hole?

A: Donald Rumsfeld famously distinguished between the "known unknowns" and the "unknown unknowns". Here, the known unknowns -- the records we know that the government is withholding -- include photographs of prisoner abuse at facilities other than Abu Ghraib; a September 2001 Presidential directive that authorized the CIA to set up a system of secret prisons in Eastern Europe and elsewhere; and an August 2002 Justice Department memorandum that advised the CIA about the legality of waterboarding and other extreme interrogation methods.

We learned several weeks ago that the Justice Department's Office of Legal Counsel is withholding three legal memos, all written in May of 2005, that narrowly construe the laws against cruel treatment and contend, wrongly, that waterboarding and other extreme methods can be used without offending those laws. When we learn of documents like the May 2005 memos, it's difficult not to wonder what else is still out there -- what unknown unknowns will come to light tomorrow.

Q: You write: "Senior administration officials, perhaps emboldened by Congress's failure to conduct any serious inquiry into past abuse, continue to violate domestic and international law." This volume reads like a dossier for a trial in the Hague. Suppose that did come to pass. Who would end up in the dock? Who is most culpable? (We're speaking hypothetically, here, of course, since that outcome does seem unlikely.)

A: I think any investigation would have to look at the very highest levels of the Bush administration. White House Counsel Alberto Gonzales (who later became Attorney General) wrote legal memos that were intended to allow interrogators to use inhumane methods and to insulate interrogators -- and officials -- from war crimes charges. John Yoo, a lawyer for the Justice Department's Office of Legal Counsel, wrote legal memoranda that allowed the use of torture. Defense Secretary Rumsfeld authorized interrogators to use inhumane methods at Guantanamo, and Lieut. General Ricardo Sanchez authorized interrogators to use similar methods in Iraq. Maj. Gen. Geoffrey Miller supervised the use of inhumane methods at Guantanamo and oversaw the "Gitmo-ization" of Abu Ghraib.

And it was President Bush, of course, who directed the CIA to set up secret detention centers abroad, allowed the CIA and Defense Department to adopt methods that in some cases amounted to torture, and said that al Qaeda and Taliban prisoners should be treated humanely only to the extent consistent with "military necessity." All the available evidence suggests that principal responsibility for the abuse and torture of prisoners belongs not to small groups of "rogue soldiers" but to senior officials in the Bush administration.