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What’s Wrong with Torture?

Is torture wrong? What does the Bush administration think? One way to analyze this is to trace ideas wrought by post-9/11 conservative analysts whose views mirror and expand upon those in the administration. An interesting and valuable collection of such analyses is found in a special Spring 2002 issue of “Orbis: A Journal of World Affairs,” titled “The New Protracted Conflict.”[1]

Sam C. Sarkesian, Professor Emeritus of political science at Loyola University, Chicago, author of numerous publications on national security and a retired lieutenant colonel of the U.S. Army, wrote an article in this special issue in which he endorsed the use of a “culture” of special forces.[2] These forces, he noted, are indoctrinated in carrying out “unconventional warfare,” which he defines as “following Sun Tzu’s notions” of “sabotage, terror, and assassination.” The special forces, according to Sarkesian, utilize “the notion that the center of gravity is the political-social milieu of the adversary.” To combine these two statements and what you get is: special forces carry out acts that – in language that the PATRIOT Act uses to define terrorism ­ “appear to be intended to intimidate or coerce a civilian population, to influence the policy of a government by intimidation or coercion, or to affect the conduct of a government by mass destruction, assassination, or kidnapping.”[3] Terrorism by any other name is still terrorism.

Sarkesian claims that “[v]eterans of the early Special Forces era cherish their hard-won legacy and culture of the ‘old’ era, a culture many believe must endure if the Special Forces are to be successful in their primary mission of unconventional warfare.” He continues with a description of these men, quoting from Charles Simpson’s 1983 book, “Inside the Green Berets: The First Thirty Years” — “They are a grizzled, likeable, fantastically experienced bunch of tough old bastards who do not apologize to anyone for the wars they have fought and the things they have had to do.”

Sarkesian also echoes the belief that the “strategic dimension of the U.S. effort beginning in September 2001 was termed a ‘new kind of war,'” which he uses to justify the use of “unconventional warfare.” Since World War II, Special Forces are “taught how to set up clandestine communications, avoid contact with regular enemy unit, combine with the local civilian populace, and engage in night parachute operations.”

Sarkesian sets forth five “critical characteristics of unconventional warfare.” They are asymmetrical, ambiguous, unconventional, protracted, and involve “strategic cultures.” Asymmetrical means that “the doctrine and tactics employed by those engaged in unconventional warfare avoids challenging conventional military systems conventionally.” Ambiguous means that “the battle arena is not necessarily defined in conventional terms or with regard to a specific territory.” Unconventional conflicts “require tactics that aim at disrupting the adversary in its weakest dimensions.” This is where Sarkesian mentions “sabotage, terror, and assassination.” He adds that the organizational structure and tactics “are fluid ­ flexible and adopted to local conditions in which operations occur.” Protracted means, of course, over an extended period of time. As to “strategic culture,” Sarkesian notes that it “differs sharply from the usual ‘American way of war.'” Instead, “the strategic culture of those waging unconventional warfare must allow for moral ambiguity, shifting definitions of friend and foe . . . and objectives that change constantly with the play of politics.”[4]

Sarkesian’s approach — the unconventional warfare approach, the Special Forces approach — is, as he says, morally ambiguous. It is also morally troubling. His approach helps set the stage for human rights and international law violations. His article comes pretty close, without saying so, to being a blanket endorsement of torture. If sabotage, terror, and assassination are okay for us to do to our enemies, torture can hardly be questioned.

A better, less morally troubling approach is that of Bruce Berkowitz, a contributing editor of Orbis journal and a Research Fellow at the Hoover Institution, who also contibuted to the same issue of Orbis as did Sarkesian. Berkowitz writes:

“The executive branch needs a White House-level mechanism that decides whether the United States will take a law enforcement approach to a terrorist threat or an intelligence/law enforcement approach. Current policy assumes that the two approaches can be blended. They usually cannot (although both communities should be able to assist each other). Either the rule of law prevails in an environment, or it does not ­ in which case we need to turn to the rules of war . . . If it appears that other countries will not be cooperative ­ intentionally or not ­ the president should decide to shut down the law enforcement option and proceed with military action supported by intelligence.”[5]

What is important about this view is that, although Berkowitz appears to be proposing almost the same thing as Sarkesian, e.g., a military solution, Berkowitz specifically recognizes “the rules of war.” Sarkesian suggests that we should play by the rules of unconventional warfare, but makes no mention of the law of war, which is that body of international law (including the Geneva Conventions) that has been developed to ensure that even during hostilities between nations each party act within a baseline level of conduct towards each other.

Berkowitz’s distinction, however, is lost on another Orbis contributor, Michael Radu, who is a contributing editor, as well, a Senior Fellow at the Foreign Policy Research Institute, and Director of its Center for the Study of Terrorism and Political Violence. Radu’s view is that “Western Europeans believe that the Geneva Conventions regulating conflicts between states continue to govern even in the new age of global terrorism.”[6] In other words, Radu believes that, despite what Europeans think, the Geneva Conventions do not govern, but rather should be chucked. Radu’s approach, like Sarkesian’s, resembles that of the Bush Administration. Human Rights Watch says that the Administration “seemingly determined that winning the war on terror required that the United States circumvent international law” and “effectively sought to re-write the Geneva Conventions of 1949 to eviscerate many of their most important protections.”[7]

In 1945, it seems, the United States knew better. Provost Marshal General of the United States Army, Maj. Gen. Archer Lerch wrote: “The Geneva Convention, I might emphasize is law. Until that law is changed by competent authority, the War Department is bound to follow it.”[8]

Radu’s views reflect biases similar to those of Bush and his cabinet. Radu declares that the “terrorists exploit all the tolerant, human rights-oriented laws of Europe, and to a lesser extent the United States, to infiltrate, recruit, and raise funds in the West, whose culture they openly seek to destroy.” He even remarks that “proliferation of human rights organizations seeking to make war between states impossible and to impose minimal standards on justice also aids and abets terrorism.”[9] This is an astonishing reversal of morals.

To Radu, the current definition of terrorism which has raised such a furor among civil libertarians “is obvious and simple,” and that “[w]hile this is perhaps not sufficiently obscure for those academics (international law experts in particular) who thrive on complicating the simple, it is perfectly adequate.”[10] However, Radu ignores concerns such as those raised by Deputy Director of the Americas Division of Human Rights Watch, Joanne Mariner, who notes that “the decision to classify a given group as ‘terrorist’ is far from a mechanical one: it involves political calculations as well as a factual assessment of a group’s actions,” and “the designation process is extremely vulnerable to political manipulation.”[11]

Perhaps most biased and revealing of all Radu’s remarks, however, is his view that:

When not openly applauding the September 11 attacks, the European Left “explained” them by blaming the United States’ policies and opposing any U.S. counterattack, in the name of peace, innocent Afghan civilians, or the need to seek the “root causes” of Osama bin Laden’s Islamic fanaticism. In fact, all indications suggest that the “root causes” of terrorism are to be found in the dysfunctional middle classes of the West as well as of Muslim countries.[12]

The tone is dripping with a peculiar pleasure in his disdain and indifference which closely resembles Bush’s tone when he talked about putting persons to death or making war against Iraq. If the practice of dehumanizing others makes good soldiers, the remarks of Radu and Bush would qualify them.

But dehumanizing others is exactly what torture does and it is exactly what is forbidden by international laws against torture. Common Article 3 to the Geneva Conventions prohibits “violence to life and person . . . cruel treatment and torture . . . outrages upon personal dignity, in particular humiliating and degrading treatment.” Contrary to the Administration’s assertions that Geneva does not apply to many of the prisoners, all persons are protected by the “fundamental guarantees” of article 75 of Protocol I of 1977 to the Geneva Conventions. Torture or inhumane treatment of prisoners-of-war or civilians are grave breaches of Geneva and are war crimes under federal U.S. law punishable for up to 20 years or the death penalty if torture resulted in the victim’s death.

Even without the Geneva Conventions, the prohibition on torture is considered a fundamental principle of customary international law that is binding on all states and the widespread or systematic practice of torture constitutes a crime againsthumanity.[13]

Another Orbis analyst, University of Pennsylvania Professor of Law and a Senior Fellow of the Foreign Policy Research Institute, Jacques deLisle, in The Roles of Law in the Fight Against Terrorism,[14] compares the “law (criminal justice, or prosecutorial) paradigm” and the “war paradigm” of fighting terrorism. DeLisle’s essay considers both sides of the issue for both paradigms, resulting in an interesting, thoughtful, and fairly balanced analysis, but the odd effect is that every result seems as good or bad as every other and there is no moral imperative in anything.

DeLisle acknowledges “the corrosive effects on civil liberties” of “the blurring of legal and military frameworks,” but adds that the “much of the civil libertarian critique has been nearly blind to the fact of the war model’s powerful grip and its implications in the context of a fight against terrorism,” and concludes simply that “[w]ars exact sacrifices of many sorts, including some temporary surrenders of some civil liberties,” as if there is no moral or practical difference between a society with full civil liberty protections and one without.

He notes that after 9/11, during which “the prospective means for meting out justice evolved,” “[s]harp disputes arose over the legality, morality, and wisdom of U.S. forces seeking out identified individuals, trial by American military tribunals, prosecution before a special international court or criminal proceedings in the civilian judicial organs of the United States or other states with jurisdiction.” adding that the “emergence of so many divergent means to a relatively clear end revealed a troubling ambivalence in grappling with the choice between a war paradigm and a criminal justice paradigm in responding to a terrorism threat.” The troubling ambivalence, however, seems to arise more from a lack of moral grounding than a rational difficulty in choosing. This is not a “Sophie’s Choice,” where either course is morally unacceptable, or a “Catch-22,” where you have to take a course of action to get where you want to get, but you cannot take that course of action until you are already there. On the contrary, when deLisle presents readers with the choice between the law paradigm and the war paradigm, he is presenting us with a false dilemma. There is, in fact, no dilemma between going to war and bringing charges. There is no genuine dilemma between civil liberties concerns and deciding whether to bring charges or go to war. While deLisle acknowledges that the “war paradigm” and the “law paradigm” are not mutually exclusive, he does not recognize (and perhaps is not aware of) the fact that there are international laws that apply in situations of international, armed conflict (ie. war). DeLisle, rather, implies that the value and meaning of the resolution of this “troubling ambivalence” is no different either way one chooses, that what is important is simply that one does choose.

This reasoning is fundamentally flawed and ignores the rock solid moral bases of international laws. The outcome of deLisle’s reasoning is the erosion and ultimate evisceration of morality. In the extreme situations in which military intelligence, special forces, front-line military engagements, or “front line” prison guards encounter, the laws of war, embodied in the Geneva Conventions, the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the United Nations Charter, provide for minimum morally acceptable conduct. DeLisle’s approach, as balanced and civilized as it appears, would remove those imperatives.

Which brings us back to how our military came to torture prisoners at Abu Ghraib. The dilution of moral imperatives and guidelines is, as a practical matter, an invitation to human rights abuses. Psychologically speaking, of course, the issue is deeper. DeLisle notes that “the current enemy made diabolically effective use of the instruments of the United States’ open, liberal, and liberty-protecting order.” But this is what lawyers like to call a red herring. To the extent that our society is an open, liberty-protecting one, it neither justifies nor compels human rights abuses in response to a terrorist attack. It is no doubt true, as deLisle says, that “the exceptional sense of vulnerability at home and a shadowy enemy . . . magnify . . . the national taste [for war] and the force of consequentialist moral arguments for shifts in law and political practice that produce a stronger government in general and a stronger executive in particular,” but, again, neither a sense of vulnerability nor a tendency to a stronger executive justifies or compels torture. Indeed, many families who lost members on 9/11 have exhorted Bush not to go to war, not to bomb, and to adhere to the rule of law.

In October 2003, Mark Bowden, a national correspondent for The Atlantic Monthly, wrote an in-depth look at The Dark Art of Interrogation.[15] Bowden endorses what Radu calls “the old Leninist ‘dual-track’ approach to the conquest of power: simultaneous use of legal organizations under the pretext of freedom of speech or religion and illegal, underground, and violent structures engaged in terrorism.”[16] Bowden writes:

The Bush Administration has adopted exactly the right posture on the matter. Candor and consistency are not always public virtues. Torture is a crime against humanity, but coercion is an issue that is rightly handled with a wink, or even a touch of hypocrisy; it should be banned but also quietly practiced. Those who protest coercive methods will exaggerate their horrors, which is good: it generates a useful climate of fear. It is wise of the President to reiterate U.S. support for international agreements banning torture, and it is wise for American interrogators to employ whatever coercive methods work. It is also smart not to discuss the matter with anyone.[17]

This appears to be exactly what the Bush Administration did. “We now know that at the highest levels of the Pentagon there was a shocking interest in using torture and a misguided attempt to evade the criminal consequences of doing so,” said Human Rights Watch executive director Kenneth Roth. But, Roth added, “[i]f [the Pentagon’s] legal advice were accepted, dictators worldwide would be handed a ready-made excuse to ignore one of the most basic prohibitions of international human rightslaw.”[18]

U.S. officials will answer that they are not encouraging dictators, they are fighting a “just war” against terrorism, fighting for democracy. Army General John Abizaid, chief of the U.S. Central Command that oversees Iraq, is quoted in Time as saying “Our openness about [the prison abuse] is a lesson about the rule of law” and Bush, who a few years back joked about how much easier it would be if he were a dictator, told Arab interviewers: “A dictator wouldn’t be answering questions about this.”[19] I guess we should be relieved.

Notes

[1] Foreign Policy Research Institute, Orbis: A Journal of World Affairs (The New Protracted Conflict, vol. 46, No. 2, Spring 2002). (“Orbis, Protracted Conflict”)

[2] Sam C. Sarkesian, The U.S. Army Special Forces Then and Now, Orbis, Protracted Conflict 247-58. (“Sarkesian, Special Forces”)

[3] 18 U.S.C. §2331(5) (added by USA PATRIOT Act, Section 802) (defining domestic terrorism) and utilized in 18 U.S.C. §2332b(g)(5) (amended by PATRIOT Act, Section 808 (listing dozens of predicate offenses for the federal crime of terrorism)).

[4] Sarkesian, Special Forces, at 256-57.

[5] Bruce Berkowitz, Intelligence and the War on Terrorism (Foreign Policy Research Institute) Orbis: A Journal of World Affairs (The New Protracted Conflict, vol. 46, No. 2, Spring 2002) 289, 293.

[6] Michael Radu, Terrorism After the Cold War: Trends and Challenges (Foreign Policy Research Institute) Orbis: A Journal of World Affairs (The New Protracted Conflict, vol. 46, No. 2, Spring 2002) 275, 283. (“Radu, Terrorism”)

[7] HRW, Abu Ghraib, at 1.

[8] Maj. Gen. Archer Lerch, The Army Reports on POWS, The American Mercury, May, 1945, pp. 536-547.
Quoted in a July 5, 2004 post to the American Society of International Lawyers (ASIL) forum list serve by the Honorable Evan J. Wallach, US Court of International Trade. Archived at: http://pegc.no-ip.info/. Of Lerch’s comments, Judge Wallach noted: “Although they address the 1929 Geneva convention, I find them distinctly relevant to White House Counsel Alberto Gonzales and John Yoo’s arguments about [the] obsolescence [of the 1949 Geneva Conventions].”

[9] Radu, Terrorism, at 283, 287.

[10] Id. at 275-6. Radu states: “Terrorism is any attack, or threat of attack, against unarmed targets, intended to influence, change, or divert major political decisions.” This is indeed similar to the definition now in the U.S. Code (see footnote 10), as amended by the PATRIOT Act.

[11] Joanne Mariner, The EU, The FARC, The PKK, and the PFLP: Distinguishing Politics From Terror, and Joanne Mariner, Make a List But Check It Twice: Prosecuting Supporters of Terrorist Groups.

[12] Id. at 285.

[13] See Human Rights Watch, Summary of International and U.S. Law Prohibiting Torture and Other Ill-treatment of Persons in Custody

[14] Jacques deLisle, The Roles of Law in the Fight Against Terrorism, Orbis, Protracted War, 301-319.

[15] Mark Bowden, The Dark Art of Interrogation (Atlantic Monthly, October 2003)

[16] Radu, Terrorism, at 284.

[17] Bowden, Interrogation.

[18] Human Rights Watch, Bush Administration Lawyers Greenlight Torture: Memo Suggests Intent to Commit War Crimes (June 7, 2004).

[19] Johanna McGeary, The Scandal’s Growing Stain (Time, May 17, 2004) 34. (Preview only available at http://www.time.com/.)

JENNIFER VAN BERGEN, J.D., is the author of The Twilight of Democracy: The Bush Plan for America, coming out September 1, 2004, Common Courage Press. She is one of the foremost experts on the USA PATRIOT Act and has taught anti-terrorism law at the New School University. This article is an excerpt from the book.