Let’s start with the definition of torture in the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which the United States is a party. Torture, the Convention says, is 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.
The Bush Administration’s rationale for torture rests on a hypothetical argument (crafted most notably by Harvard law professor Alan Dershowitz), a legal argument (crafted primarily by Berkeley law professor John Yoo), and a syllogism.
Does torture work?
I’ll come back to the Dershowitz and Yoo arguments and the syllogism shortly, but I must first to comment on the question, “Does torture work?” because the responses to that question puts the theorizing of Dershowitz, the legal shoehorning of Yoo, and the Bush administration’s enabling syllogism into practical perspective. The torture we’re talking about is real, done by real U.S. agents to real prisoners. In real life situations, practical perspective is always primary, or should be.
I said I’d comment on the question “Does torture work?” not that I’d answer it. That is because the answer always depends on what kind of work the torturer wants the torture to accomplish.
Torture is, for example, a very effective instrument for frightening people. Many residents of Baghdad say they live in far more fear these days than they did during the reign of Saddam Hussein. Little wonder. The New York Times reported on September 28, in a story that has become, with minor variations, all too common, “On Wednesday alone, the bodies of 15 people found in various areas outside Baghdad were delivered to the morgue in Kut, 100 miles southeast of the capital. Most showed signs of torture and had their hands and legs bound; five were beheaded.” American newspapers and television news programs regularly report torture-murders like these, but never provide any details about what the torture consisted of. People in Baghdad are, however, very much aware what the torture consisted of.
Torture and the threat of torture can be used to get people to do things they might not otherwise do. Prisoners in the American south, as late as the 1960s, would be tortured if they did not work fast enough to please the guards. Texas prison guards used what they called “the bat,” a strip of leather about 36″ long attached to an 18″ wooden handle. “When the leather’d leave, the skin would leave with it,” a convict told me. “You could tell the guys what got whipped,” another said. “They couldn’t sit down and they slept on their stomach.”
If the torturer just wants to make someone miserable, then torture also generally works very well. In 1997, New York police tortured Abner Louima because he had, in some vague fashion, offended them. They jammed a nightstick deep into his rectum, doing huge damage. Many of those tortured by Argentina’s and Iraq’s repressive governments weren’t tortured for information, but merely because Argentina’s and Iraq’s officials wanted to do it.
If the purpose of torture is to get someone who does not want to talk to talk, then, on the whole, the answer is also “Yes, torture works.” Inflict sufficient pain and most people will say what you want them to say. The Chicago police department is right now dealing with a huge scandal based on the revelation that scores of Cook County felony convictions, some of them for capital offenses, were based on confessions extracted by police torture. Some of those confessions were true, many were not. The torturers in such situations don’t care about truth; they care only about confessions that will clear cases.
“People say that ‘I can’t be brought,” a Texas safecracker said to me years ago. Brought is Texas criminal slang for ‘forced to do something against your will. “People say that ‘I can’t be brought.’ Well, I was brought and I’m about a half nut anyways when it comes to being stubborn, and I made up my mind that they weren’t going to bring me. And I finally had to. They finally whipped me till I just couldn’t get there anymore. They had me for three weeks. Three weeks. That’s without seeing a lawyer, without using a telephone, without shaving, without anything.” (American police rarely do that anymore, but if you substitute ‘years’ for ‘weeks’, the safecracker’s statement provides a good working description of what has gone on at Guantanamo and the rest of the American global gulag.)
Sometimes the torturers do need accurate information. French torturers in colonial Algeria destroyed the covert FLN independence organization with a relentless torture program. The French tortured; the tortured talked; the French arrested or murdered the people who had been named. After a time, along with the uninvolved who had been named, they got the involved who had been named, and the FLN was destroyed. Similar techniques were used by the most brutal governments in South America against opposition movements. Efficiency isn’t a concern in such torture operations; only bottom lines matter. So what if you kill the people you don’t care about while you are killing the people you want to kill?
For as long as we have records, we have records of individuals and institutions engaging in torture. The Roman historian-gossip columnist Suetonius spins lurid tales about the torture programs of Tiberius Caesar and Caligula Caesar. Many a Catholic saint achieved that sanctified status because they were unlucky enough-or lucky enough, depending on your point of view-to fall into the hands of torturers of particular creativity. Not far from here, French Jesuits had a particularly horrific time of it at the hands of the Native Americans they were attempting to convert. And the Church was no laggard in this technology: the basic instrument of the Inquisition was torture, not the Bible.
A Sumerian myth from early in the third millennium B.C., tells of Geshtinanna, sister of the god Dumuzi, who is consort of the goddess Inanna. Geshtinanna is tortured by the underworld demons, the Galla, to reveal where Dumuzi is hiding. They pour hot pitch into her vulva. She doesn’t tell. But that is a myth and characters in myth tend to have more endurance than people in real life. In real life, torture makes most people talk; not all, but most.
The comic Lenny Bruce had a famous routine called “Would you betray your country.” A guy is brought in to be interrogated saying, “No way I’ll betray my country. No way. Doesn’t matter what you do I’ll never ta Hey, what are they doing to that guy over there, the guy strapped to the table on his belly? Why are they putting a funnel in his ass. What’s that in that ladle? Hot lead? Hot lead? They’re pouring hot lead in his ass? They’re giving him a hot lead enema? Ask me anything. I’ll tell you anything. I’ll tell you about my mother. I’ll make up secrets.”
And there, say many people who have done torture, is the rub: people will indeed make up secrets, they will betray the innocent, they will lie. They will tell you what they don’t know to get you to stop and they will tell you what they do know to get you to stop. Torture produces information, but the information it produces is often not at all reliable, and that is why, say many of those same intelligence agents who have done torture, it is far better to get information in other ways, of which there are many.
Alan Dershowitz’ hypothetical argument for torture, with which he went public in a November 8, 2001 piece in the Los Angeles Times (“Is There a Torturous Road to Justice”) and which got its widest distribution in a Mike Wallace CBS “60 Minutes” interview on September 22, 2002, and which he has repeated many times since, posits a bomb that will kill a huge number of innocent people (it is never “guilty people” in these discussions), which is set to go off very soon, and a person in police custody who knows but won’t tell where that bomb is. In such a situation, Dershowitz argues, torture to learn the ticking bomb’s location is legitimate because it will prevent a greater evil.
Torture always occurs in extreme situations anyway, Dershowitz says, so we should have a way to control it, to license it, as it were. Instead of opposing torture as something against human decency or international law, Dershowitz attempts to normalize it.
His argument isn’t limited to ticking bombs, “Imagine your own child being kidnapped,” he told Mike Wallace, “the kidnapper being there, and mockingly telling you that the child has three hours of oxygen left and refusing to tell you where the child is buried. Is there anybody who wouldn’t use torture to save the life of his child? And if you would, isn’t it a bit selfish to say ‘It’s okay to save my child’s life but it’s not okay to save the life of a thousand strangers?'”
Woof! How can you argue that? You can’t, which is the purpose of reducing arguments to absurdities. They drive you out of the conversation. How can you trump an absurdity with mere logic or reality or practicality or ethics? A mocking kidnapper suffocating your own kid! Who wouldn’t torture that sonofabitch?
Pause a moment. How many times have you ever met that sonofabitch? How many times have you ever heard of anyone ever meeting that sonofabitch? How desperate are you to have national policy based on that sonofabitch no one has ever met or seen or heard of anywhere except in Alan Dershowitz’s hypothetical example?
To prevent abuses, Dershowitz wants judges empowered to issue “torture warrants.” “An application for a torture warrant,” he wrote, “would have to be based on the absolute need to obtain immediate information in order to save lives coupled with probable cause that the suspect had such information and is unwilling to reveal it. The suspect would be given immunity from prosecution based on information elicited by the torture. The warrant would limit the torture to nonlethal means, such as sterile needles being inserted beneath the nails to cause excruciating pain without endangering life.”
The heart of Dershowitz’s argument is that torture is good if it is done by the right people for the right reasons.
But if you don’t know what someone knows until you torture him, how can you know that torture will extract the information you assume exists? And if you are wrong, what then? What if the old woman or the little kid you tortured really knew nothing? What if the person you’re torturing has only incorrect knowledge? What is the effect of torture on you? What are the consequences of coming to enjoy doing it, as so many torturers seem to do? Where does it stop? What are the tradeoffs?
Dershowitz addresses none of these questions.
He is doing something law school professors do all the time: set up an absurd “what if” to get students to consider the implications of a law. But he isn’t doing it to get students to consider the implications of a law; he is doing it to normalize the extreme in a real world situation. Once you normalize the extreme, then all else follows. If you can stick needles under the nails of the guy you think knows where the ticking bomb is, then you can stick needles under anybody’s nails if you’re thinking the right thoughts when you do it.
A year later, Dershowitz escalated the authorization level. He told Wolf Bitzer on March 4, 2003, “If torture is going to be administered as a last resort in the ticking-bomb case, to save enormous numbers of lives, it ought to be done openly, with accountability, with approval by the president of the United States or by a Supreme Court justice.”
He got part of his recommendation: the legislation passed by Congress and signed into law by Bush last week empowers the president to define and authorize torture. But it specifically rejects accountability. Traditionally, the agency of public accountability has been the courts. The bill Congress passed and Bush signed denies individuals who have been or are being tortured the right to bring their cases to the courts, and, in many cases, the right to address the courts about anything at all.
John Yoo was an untenured professor at Berkeley when he became a clerk for Clarence Thomas and squash partner for Antonin Scalia. He returned to Berkeley and got tenure in 1999. He was involved with the American Enterprise Institute and became a friend of now-U.S. United Nations Ambassador John R. Bolton, whose contempt for international law is well known. He testified to the Florida legislature during the 2000 presidential election recount. From 2001 to 2003 he worked for the Justice Department.
“In a series of opinions,” said the Washington Post, “Yoo argued that the Constitution grants the president virtually unhindered discretion in wartime. He said the fight against terrorism, with no fixed battlefield or uniformed enemy, was a new kind of war. Two weeks after Sept. 11, Yoo said in a memo for the White House that the Constitution conferred ‘plenary,’ or absolute, authority to use force abroad, ‘especially in response to grave national emergencies created by sudden, unforeseen attacks on the people and territory of the United States.” Yoo’s Sept. 25, 2001, memo said”the President’s broad constitutional power to use military force to defend the Nation, recognized by the Joint Resolution itself, would allow the President to take whatever actions he deems appropriate to pre-empt or respond to terrorist threats from new quarters.” . He advised the White House that the Geneva Conventions do not apply to al Qaeda or the terrorism fight.”
In a December 2005 Chicago debate, wrote Washington Post reporter Peter Sleven, “Notre Dame professor and international human rights scholar Doug Cassel said, ‘If the President deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?’ ‘No treaty,’ Yoo replied. ‘And also no law by Congress,’ Cassel said, ‘That is what you wrote in the August 2002 memo.’ ‘I think,’ said Yoo, ‘it depends on why the President thinks he needs to do that.'”
John Yoo’s torture argument is legal: not should we do this or when should we do this, as Dershowitz, but rather under what mantle of law can we defend having done it or authorizing others to do it? He concerns himself not with policy but rather with immunity. The two questions Yoo’s briefs answer, whether explicitly or implicitly, are, first, Given the laws on the books and the way the courts interpret those laws, what can we get away with?And second, What laws should we put on the books to legitimize what we’ve already done and want to continue doing?
If you know your 20th century European history, that should resonate. Just about everything the Nazis did was legal, in exactly this fashion. Confiscations of property, restrictions of civil liberties, concentration camps, torture, killings-all legal. Legal, not right or just. The right and the just have no necessary relationship with the legal. Ideally, they coincide perfectly; in real life, they only sometimes do.
In an interview a year ago, Bush repeated the bottom line of John Woo’s memorandums:
“Our country is at war and our government has the obligation to protect the American people. The executive branch has the obligation to protect the American people; the legislative branch has the obligation to protect the American people. And we are aggressively doing that. We are finding terrorists and bringing them to justice. We are gathering information about where the terrorists may be hiding. We are trying to disrupt their plots and plans. Anything we do to that effort, to that end, in this effort, any activity we conduct, is within the law. We do not torture.”
“Anything we do to that effort, to that end, in this effort, any activity we conduct, is within the law. We do not torture.”
The military commissions act signed into law by Bush on October 17th, ratifies that final sentence: torture is what the president says is torture; if the president says a behavior isn’t torture, it isn’t torture.
The syllogism that ties all this together goes something like this:
First premise: “Terrorism is a world-wide enemy who doesn’t play by the rules.”
Second premise: “They hate us because they hate our way of life.”
Conclusion: “Therefore, in order to protect our way of life from terrorism we can’t play by the rules either; everything is permitted.”
It’s a lousy syllogism, I know, but I didn’t come up with it. George W. Bush and Dick Cheney came up with it.
Neither the first nor the second premise has any basis in fact.
People who hate us don’t hate us because of our way of life; they have other reasons, which I won’t start trying to enumerate.
And Terrorism isn’t an enemy; it is a technique in asymmetrical warfare. Until 9/11, the major terrorist attack in the US had been carried out by a kid from one of Buffalo’s suburbs who blew up the Federal building in Oklahoma City because he was angry at the U.S. Department of Justice for something he thought it had done to people he didn’t know. That was Timothy McVeigh, a veteran of the first Gulf War. Anybody can do a terrorist act, just as anybody can pull the trigger of an American- or Czech-made automatic rifle.
America isn’t even the focus of most terrorist acts or events. Most terrorist events and acts over the past decade have to do with nationalism issues, not with US hegemony or the US ‘way of life’, whatever that is.
Vice President Dick Cheney continues to insist, against irrefutable evidence to the contrary, that WMD existed in Iraq and that Iraq was linked to a world-wide terrorist operation. Cheney’s constant reiteration of this lie is a not matter of bull-headedness or stupidity; Dick Cheney isn’t stupid. He and Bush need WMD and the myth of terrorist ties everywhere to justify everything else they have done and plan to do next.
When they filled their prison camp in Guantanamo, nobody was fighting us in Afghanistan. When the filled Abu Ghraib, nobody was fighting us in Iraq. All of that came later. What information about impediments to democracy in Iraq was obtained by torture at Abu Ghraib and Guantanamo or in the many secret prisons-we still do not know how many-the US has maintained in foreign countries?
The assumption of a universal enemy whose name is Terrorism justifies endless war in countless places. It justifies extreme measures. It is Alan Dershowitz’s ticking bomb. For the Bush administration, all terrorists are part of a single terrorist entity, in the same way all members of the SS were part of the Nazi military apparatus. But that analogy doesn’t hold. Terrorism isn’t an entity or an organization or a club or a nation or an army. It is merely a technique weak smaller forces use to strike at strong larger forces.
Larger forces don’t engage in acts of terrorism; they don’t have to. Or, rather, the acts they do are so big they get another name. Larger forces just bomb the shit out of the place, as the British and U.S. did in the firebombings of Dresden and Tokyo, as the U.S. did in its nuclear devastation of Hiroshima and Nagasaki and its carpet bombing of Hanoi, and as the Israelis did only a few months ago in Lebanon.
Robert MacNamara, Lyndon Johnson’s Secretary of Defense for part of the Vietnam War, was one of the American high command officers involved in the firebombing of Tokyo. He told filmmaker Errol Morris that, had the U.S. not won the war, he and his colleagues would have been tried as war criminals, and that he had worried about such post-war charges while the firebombing was going on. As well he should have.
Making it legal
Word about American abuse of prisoners-none of whom has been charged with a military or civil crime-had leaked since soon after the Afghanistan invasion, but it was the Abu Ghraib photos that Diane Christian talked about in this forum on October 4th that blew the lid off. Photos have a specificity words rarely achieve. You can argue words with other words, but with what do you argue an authentic image?
If you are old enough to remember the Vietnam War, you will remember the impact on American opinion of Nick Ut’s photo of the napalmed girl on a dirt road, or Eddie Adams’s photo of the Vietnamese National Police Chief putting a bullet in the head of a prisoner on a Saigon street and the My Lai massacre photos. Those images changed the course of that war.
Not long ago, and largely in response to the Abu Ghraib images, the U.S. Supreme Court told the Bush administration it had to behave in accordance with both U.S. law and the Geneva Conventions. They couldn’t hold prisoners without charge for years in secret prisons. Individuals suspected of ordinary crimes had to be treated in terms of U.S. law. Military prisoners had to be treated in terms of the Geneva Convention.
On September 7 of this year, according to the Washington Post, the Pentagon announced it had “repudiated the harsh interrogation tactics adopted since the Sept. 11, 2001, terrorist attacks, specifically forbidding U.S. troops from using forced nudity, hooding, military dogs and waterboarding to elicit information from detainees captured in ongoing wars. The Defense Department simultaneously embraced international humane treatment standards for all detainees in U.S. military custody, the first time there has been a uniform standard for both enemy prisoners of war and the so-called unlawful combatants linked to al-Qaeda, the Taliban and other terrorist organizations.”
Similar, though not quite as public, concerns and policy changes were voiced within the CIA.
The worries did not come from any bureaucratic desire for clarification. They resulted, rather, from the suggestion that many U.S. activities were viewed elsewhere in the world as war crimes, and that the people who carried them out were as guilty of such war crimes as the people who authorized them.
Bush quickly distanced himself from the new Pentagon policy. A week after the Pentagon statement a reporter asked him, in reference to the Military Commissions legislation, “What do you say to the argument that your proposal is basically seeking support for torture, coerced evidence and secret hearings? And Senator McCain says your plan would put U.S. troops at risk. What do you think about that?”
“This debate is occurring,” Bush said, “because of the Supreme Court’s ruling that said that we must conduct ourselves under the Common Article 3 of the Geneva Convention. And that Common Article 3 says that, you know, There will be no outrages upon human dignity. It’s like — it’s very vague. What does that mean, outrages upon human dignity ? That’s a statement that is wide open to interpretation. And what I’m proposing is that there be clarity in the law so that our professionals will have no doubt that that which they’re doing is legal. You know, it’s a — and so the piece of legislation I sent up there provides our professionals that which is needed to go forward.You see, sometimes you can pick up information on the battlefield, sometimes you can pick it up, you know, through letters, but sometimes you actually have to question the people who know the strategy and plans of the enemy..Now, the court said that you’ve got to live under Article 3 of the Geneva Convention. And the standards are so vague that our professionals won’t be able to carry forward the program, because they don’t want to be tried as war criminals. They don’t want to break the law.Now, this idea that somehow, you know, we’ve got to live under international treaties, you know — and that’s fine; we do. But oftentimes the United States government passes law to clarify obligations under international treaty. And what I’m concerned about is if we don’t do that, that it’s very conceivable our professionals could be held to account based upon court decisions in other countries. And I don’t believe Americans want that.”
To put that more succinctly and lucidly, “The Supreme Court ruled that torture is illegal and the president doesn’t have the authority to authorize it and that US officials have to start behaving in accord with the Geneva Convention, to which the U.S. is a signatory. But I, George W. Bush, believe we need torture to get information. So let’s change the definition of torture and let’s indemnify everyone we authorize to engage in it and let’s keep it all neat by denying those who are tortured access to U.S. courts.”
And that is exactly what Congress did.
Changing who we are
That change in the official U.S. posture toward torture is huge, both for what we are and how we are regarded elsewhere in the world. It is very difficult, for example, for a nation that legalizes torture to take the moral high ground in any international discussion about torture. One of George W. Bush’s justifications for invading Iraq was that Iraqi president Saddam Hussein permitted torture of Iraqi citizens; one of the places Hussein’s agents carried out torture was a prison called Abu Ghraib. An image of a prisoner in Abu Ghraib tortured by Americans, not Saddam Hussein, is the logo for this forum. It is now one of the best recognized images in the world.
How is official U.S. torture to work now? Will the applicant, an officer in the CIA for example, say to someone in the White House, “We think this person knows where a bomb is so we are going to waterboard him and if that doesn’t work we are going to run electricity through his testicles and if that doesn’t work we’re going to drill his teeth without anaesthetic and if that doesn’t work.” Use your own imagination. Will the White House then say “You get the waterboard and testicles but not the teeth?” Or will the decisions be delegated to officers in the field, like some New York cops who told me years ago, “We only kick the shit out of people we know are guilty”? If that’s the plan, how do you vet for field officers who really enjoy that part of the work? Do you trust field officers to determine who is and who isn’t a fit subject for torture?
White House spokesman Tony Snow refuses to say. Details like that, he says, would only make it easier for the enemy to resist.
I began by quoting the definition of torture in Article 1 of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, an international agreement to which the U.S. is signatory. I will close with three other passages from that Convention and with two final questions:
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.
3. An order from a superior officer of a public authority may not be invoked as a justification of torture.
1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
How could the United States have violated or abrogated this international treaty more cynically than it did in the Military Commissions bill George W. Bush signed into law?
And finally, this: Instead of being a nation that has, at the highest levels, an apparatus for the administration of torture, wouldn’t it be better to address the reasons people resort to terrorism in the first place?
BRUCE JACKSON is SUNY Distinguished Professor at University at Buffalo. He edits the web journal BuffaloReport.com. His book The Story is True: The Art and Meaning of Telling Stories will be published in March by Temple University Press.
This essay is adapted from a talk given October 25 in University at Buffalo’s Forum on Torture. For information on the rest of the series, go to http://www.acsu.buffalo.edu/~cgkoebel/tor.htm