On January 28, 2008, the Committee Against Torture adopted General Comment 2 (CAT/C/GC/2), an important and persuasive reaffirmation of basic values of the Convention Against Torture, starting with one that lies at its heart: the universality principle. The Committee’s work on this document is admirable. But the circumstances that made it necessary were distressing. The United States, a nation which played a vital role in advocating the Convention, and indeed much of the edifice of international human rights, adopted a series of policies that reflected persistent gross breaches of the Convention—particularly with respect to the operation of a concentration camp in Guantánamo, and other prison operations in Afghanistan and Iraq, as well as “black sites” maintained by U.S. intelligence operatives around the world. When called to account for its misconduct by the global community, the Bush Administration responded by making a series of grotesque arguments which were designed to convert the Convention into a trivial bagatelle with no obvious application or relevance. This assault was led by John Bellinger, the current legal adviser in the Department of State.
Professors Kälin and Satterthwaite have reviewed the position that the United States took with respect to its obligations under the Convention Against Torture that led the expert committee to issue General Comment 2. Professor Kälin reviewed the basic argument that human rights law does not apply in the context of the war on terror, because that war is governed by the law of armed conflict as a lex specialis. He also reviewed the claim that the Convention should not be applied extraterritorially. Professor Satterthwaite covered much the same ground, and added to this a very persuasive discussion of the practice of extraordinary rendition and the violation of the policy of non-refoulement–that is, return of persons to custodians who would more likely than not torture them–that it presents. I could review these arguments once more, but that would serve little purpose. In fact, I fully embrace the analysis that my predecessors on the podium have presented.
Is it really appropriate to honor the Bush Administration’s posture with so much learned analysis? I don’t think so. In fact, the Bush Administration’s arguments do not meet a test of facial plausibility—as Meg Satterthwaite said, they are riddled with contradictions, irreconcilable with the actual text of the Convention, and for the most part just plain incoherent. So it makes sense to ask, “What were they thinking?” The preposterous positions taken by the United States team during the country review process in Geneva were not driven by anything like a careful study of law. To the contrary, they were a frontal assault on well-established, fundamental U.S. policies that date back to the Revolutionary War (General Washington prohibition of torture in 1777) and the Civil War (Abraham Lincoln’s prohibition of torture in General Orders No. 100 from 1863). The posture taken by the Bush Administration was clearly a product of reverse engineering for purposes of protecting not the national interests of the United States, but the personal exposure of a group of individuals who decided to foment a policy of torture.
It’s important for our discussion of law and rhetoric to start with an excursion into the grim facts—the reality that the Bush Administration’s torture policies created. Last week The New Yorker published an essay by Philip Gourevitch and Errol Morris entitled “Exposure.” It’s the story of Sabrina Harman. She has not figured as a prominent figure in American public life up to this point, but those who follow the torture issue know her. Harman is one of the key figures “behind the Abu Ghraib photographs.” She was not an actor in those pictures, like Lyndie England or Charles Graner—she was a passive recorder and documenter of what happened.
Harman emerges from this account as a generally appealing figure. We learn that she served for fairly simple reasons, particularly to get the benefits that would allow her to pursue a higher education. She recounts the hardships of life as a soldier at a forward operating base in Iraq which came under frequent attack, and the trauma associated with the death and wounding of colleagues. In a word, Harman sounds like a normal, even thoughtful figure. She is a young woman cast into an intensely hostile and threatening environment with minimal resources, confronted with an ethically disturbing situation. But the most troublesome aspect of her story is that the power and authority of the U.S. Government were being used to propel young soldiers to shameful, abusive and criminal conduct.
Harman’s tale serves to debunk the Bush Administration’s narrative about the introduction and use of torture at Abu Ghraib. Gourevitch and Morris write:
when the photographs of crimes committed against Iraqi prisoners at Abu Ghraib were made public, the blame focussed overwhelmingly on the Military Police officers who were assigned to guard duty in the Military Intelligence cellblock—Tiers 1A and 1B—of the hard site. The low-ranking reservist soldiers who took and appeared in the infamous images were singled out for opprobrium and punishment; they were represented, in government reports, in the press, and before courts-martial, as rogues who acted out of depravity. Yet the abuse of prisoners at Abu Ghraib was de facto United States policy. The authorization of torture and the decriminalization of cruel, inhuman, and degrading treatment of captives in wartime have been among the defining legacies of the current Administration; and the rules of interrogation that produced the abuses documented on the M.I. block in the fall of 2003 were the direct expression of the hostility toward international law and military doctrine that was found in the White House, the Vice-President’s office, and at the highest levels of the Justice and Defense Departments.
The Abu Ghraib rules, promulgated by Lieutenant General Ricardo Sanchez, the commander of ground forces in Iraq, elaborated on the interrogation rules for Guantánamo Bay, which had been issued by Secretary of Defense Donald Rumsfeld; they were designed to create far more license than restriction for interrogators who sought to break prisoners. The M.P.s at Abu Ghraib were enlisted as enforcers of such practices as sleep deprivation, sexual humiliation, sensory disorientation, and the imposition of physical and psychological pain. They never received a standard operating procedure to define what was required and what was allowed, but were repeatedly instructed simply to follow the guidance of Military Intelligence officers. An orthodox standard operating procedure leaves nothing to the imagination, and as Megan Ambuhl settled into her job it occurred to her that the absence of a code was the code at Abu Ghraib. “They couldn’t say that we broke the rules because there were no rules,” she said. And by taking pictures of the prisoners on the M.I. block the M.P.s demonstrated two things: that they never fully accepted what was happening as normal, and that they assumed they had nothing to hide.
By way of orientation, the soldiers of the 372nd who were assigned guard duty at the hard site were given a tour of the place. They saw the ordinary cellblocks for Iraqi criminals and the highly restricted M.I. block, where the most “high value” security detainees were held, during and pending interrogation, in single-occupancy cells. “That’s when I saw the nakedness,” Javal Davis said. “I’m like, ‘Hey, Sarge, why is everyone naked?’ You know—‘Hey, that’s the M.I. That’s what the M.I. does. That’s the M.I. thing. I don’t know.’ ‘Why do these guys have on women’s panties?’ Like—‘It’s to break them.’ ” Davis was wide-eyed. “Guys handcuffed in stress positions, in cells, no lights, no windows. Open the door, turn the light on—‘Oh my God, Allah.’ Click, turn the light off, close the door. It’s like, Whoa, what is that? What the hell is up with all this stuff? Something’s not right here.”
And a bit further into the article, Sergeant Javal Davis, another M.P., describes some of the things that he observed in the secured cellblock where the high-value detainees were held:
“Smells,” Davis said. “Put them in a cell where the toilet is blocked—backed up. It smells like urine and crap. That would drive you nuts.” And you could keep shifting a prisoner’s mealtimes, or simply withhold meals. The prisoners ate the same M.R.E.s that the guards ate, but you could deny them the spoon and all the fixings. “If you got Salisbury steak, they got the Salisbury steak, not the rice that comes with it, not the hot sauce, not the snack, not the juice—the Salisbury steak, and that’s it,” Davis said. “They were starving by the time they’d get ready to get interrogated.” At that point, he said, it would be: “O.K., we’ll give you more food if you talk.”
And you could inflict pain. “You also had stress positions, and you escalated the stress positions,” Davis said. “Hand-cuffs behind their backs, high up, in very uncomfortable positions, or chained down. Then you had the submersion. You put the people in garbage cans, and you’d put ice in it, and water. Or stick them underneath the shower spigot naked. They’d be freezing.” It was a routine, he said: “Open a window while it was, like, forty degrees outside and watch them disappear into themselves . . . before they go into shock.”
Let’s pause for a second to review this. What are these techniques?
Enforced nudity. This technique is adopted for purposes of degrading and humiliating the prisoner, heightening his senses of vulnerability, weakness and shame. Enforced nudity also enhances other techniques, particularly hypothermia.
Starvation. As Davis notes, when the prisoner is entitled to an MRE, he would be given one component only of the MRE. The entire MRE constitutes a reasonable food ration which is properly balanced. Giving only one part of it reflects a decision to starve the prisoner.
Stress Positions. Perhaps the oldest and best established torture technique, widely used by the Inquisition in Europe, was the strapado. Hands would be fastened behind the back and the victim would be hoisted, causing severe stress to joints, frequent dislocation, and severe and sustained pain. The strapado would invariably get its victim to confess to anything, very quickly. During World War II, this same technique was widely adopted and used by the Germans, who called it Pfahlbinden. In the English of the Bush Administration, this technique is called a “stress position,” and it was widely used at Abu Ghraib.
Hypothermia. Shortly after the Bolshevik Revolution, the Soviet secret police pioneered a very simple technique that had the advantage of leaving the victim’s body unbruised or bloodied, but whose physiological effects were equally if not more effective than direct beatings. In its mildest form, the victim was left with thin clothing in a cell with temperatures hovering just above freezing. A day of such treatment was generally enough to produce physical collapse. The Bush Administration, of course, not having the benefits of a Siberian winter, turns to far cruder and more brutal techniques, which Davis describes. The prisoner is stripped naked, dunked in a bath of ice water, and a window is left open to insure exposure.
For President Bush, these techniques are a part of the “Program.” More generally in the American media, you’ll hear these things referred to as “highly coercive techniques.” But they have a proper name, which is “torture.” Their use is a serious crime under international law, and under U.S. law. And that stubborn fact has driven much of the Bush Administration’s bizarre machinations relating to the Convention.
Torture was introduced as a result of conscious decisions taken at the pinnacle of power in Washington. Vice President Cheney was a principal instigator; President Bush was certainly fully informed, and consciously lied about it in dozens of public appearances. Cheney’s chief of staff, David Addington, was the principal legal architect of the torture system, and he was aided and abetted in the process by a number of senior figures in the Justice Department. John Yoo and Jay Bybee are two of the more central figures in the opening phase, but Alice Fisher, Michael Chertoff and Steven Bradbury each also played an essential role. Jim Haynes, now general counsel to Chevron, and then Rumsfeld’s lawyer in the Pentagon, was another. The story of this team and its dark enterprise pursued under the guise of national security remains lamentably underdeveloped.
That is about to change. A number of the details and connections are about to be illuminated. Next month, Palgrave Macmillan will bring out Philippe Sands’s new book, The Torture Team, which will connect the dots and show how this group engaged in a joint enterprise for the purpose of introducing a regime of torture in American detention facilities. The first teaser for the Sands book will appear on the cover of the next issue of Vanity Fair.
I believe that much of the Bush Administration response to the exposure of the use of torture must be understood in these terms. It cannot be understood as the formulation of policy in normal terms. As the project was originally explored, in a memorandum he sent to President Bush on January 25, 2002, then-White House counsel Alberto Gonzales–another key member of the torture team–advised of a severe risk. Prosecutors might bring criminal charges against members of the administration who were introducing these policies, he warned. Gonzales advised a series of steps designed to shield the conspirators and to hinder a future prosecution of the crimes which were then being planned and shortly were perpetrated.
When photographs appeared in the spring of 2004, providing visual evidence of the new techniques, the Administration pursued a policy of conscious deception and cover-up. Its major thrust was to scapegoat the young M.P.s at Abu Ghraib, while obstructing any serious investigation of the conduct of contractors and M.I. personnel who introduced the abuses. Secretary of Defense Rumsfeld, his deputy, Dr. Stephen Cambone, and others in the Pentagon had direct involvement in the introduction of torture techniques in Abu Ghraib. Rumsfeld’s emissary, Major General Geoffrey Miller, was dispatched to Iraq, and Abu Ghraib, to insure that the torture techniques that Rumsfeld had previously approved were put into effect. As the Department of Defense’s own internal review conceded, the use of these techniques in Iraq was a criminal act even under the positions taken by the Bush Administration. Strenuous efforts were therefore taken to cover-up what transpired.
A critical role was played by Rumsfeld’s friend, former Defense Secretary Schlesinger, who peddled a summary of the investigative report. “There was animal house on the night shift,” he said, tracking an analysis which had been offered by right-wing radio host Rush Limbaugh and other Administration apologists. Schlesinger knew from the outset that this account was false. In fact the techniques used were formally sanctioned in papers crafted deep inside the administration. They had produced a firestorm of opposition within the military, especially from the JAG Corps, and had been hammered through with blunt executive force.
Note that even today, seven contractors involved in the most brutal and reprehensible conduct at Abu Ghraib, had their cases passed to the U.S. Attorney’s office for the Eastern District of Virginia—the most politicized U.S. attorney’s office in the country—and now, four years later, nothing has happened. The Justice Department continues to refuse to provide explanations for its inaction. Why? Might it be that a prosecution would disclose the complicity of key figures in the Justice Department in the underlying crimes? That is hardly a far-fetched scenario, since the role of senior Justice Department figures, including the current head of the criminal division, in crafting memoranda designed to authorize torture techniques is now well documented.
All of these efforts reflect the same pattern: cover-up and avoid legal proceedings in which the criminal conduct of Administration actors would come to light.
The Department of State maintained a distanced position on these issues until 2005. At that point, Condoleezza Rice became Secretary of State, bringing with her as legal adviser John Bellinger, previously her lawyer at the National Security Council. Bellinger’s involvement in the fomentation of torture policy remains unclear. He privately protests no involvement, but the emerging facts cast serious doubt on his narrative. For instance, it is now established that Bellinger was directly involved in the decision to subject three detainees to waterboarding, a fact which very clearly has colored his judgment about torture.
Since Bellinger became legal adviser, the State Department has adopted a series of increasingly bizarre positions on torture. Bellinger has aggressively denied the undeniable—as witnessed in an offensive Bellinger undertook with Rice to deny the existence of blacksites in Europe and to recast the extraordinary renditions program. His major contentions in this regard have since been established as false, and his credibility is now negligible. But Bellinger also presented novel interpretations of the Convention Against Torture in Geneva—arguing that it was inapplicable in a wartime setting and raising a host of other highly implausible objections.
Bellinger’s conduct can only be understood as the work of a criminal defense attorney doing his best to craft technical offenses for clients he knows are guilty of the underlying charge. I fully endorse the notion that Bellinger and his co-conspirators should have full access to vigorous criminal defense counsel when the time comes for them to be held to account for their conduct in fomenting torture policies. But I am distressed to see U.S. foreign policy on legal issues formulated with the sort of thinking we associate with mafia dons. If one word were to be picked to describe it, it would be “disgraceful.”
The torture policy of the Bush Administration is a policy of, by and for torturers. It marks a radical departure from prior U.S. policies of honorable compliance with the Convention. We have every right to expect it to end on January 20, 2009.
Remarks delivered at the City University Law Review Symposium “Preventing Torture,” in New York City, March 28, 2008.
