Not asking, not telling

Not since the disastrous French colonial war in Algeria has a democratic country been engaged in a deep internal debate about torture—or, "enhanced interrogation techniques," to use the clinical euphemism that's currently in vogue. The first Guantanamo detainees have been in military custody for over five years, with yet another suicide in recent weeks, and the crimes at Abu Ghraib were revealed early in the Iraq war, yet the debate in the U.S. continues.

Unfortunately, and to our national shame, it's an exaggeration to say that there's a "debate" at all: there's little evidence of any controversy outside the Beltway, raising profound questions about the state of U.S. political culture these days. If I had to guess, I'd say that the general attitude on the subject may be summarized by a phrase from an altogether different controversy: "don't ask, don't tell." The Administration, it would seem, is tacitly authorized to take whatever action George Bush deems suitable to protect the country (as noted in earlier posts here and here).

To the extent that there has been any debate at all, there's ample evidence that it was most intense within the Pentagon, between the civilian and military leaderships:

Speaking publicly for the first time, senior U.S. law enforcement investigators say they waged a long but futile battle inside the Pentagon to stop coercive and degrading treatment of detainees by intelligence interrogators at Guantanamo Bay, Cuba.

Their account indicates that the struggle over U.S. interrogation techniques began much earlier than previously known, with separate teams of law enforcement and intelligence interrogators battling over the best way to accomplish two missions: prevent future attacks and punish the terrorists.

In extensive interviews with MSNBC.com, former leaders of the Defense Department’s Criminal Investigation Task Force said they repeatedly warned senior Pentagon officials beginning in early 2002 that the harsh interrogation techniques used by a separate intelligence team would not produce reliable information, could constitute war crimes, and would embarrass the nation when they became public knowledge.

The investigators say their warnings began almost from the moment their agents got involved at the Guantanamo prison camp, in January 2002. When they could not prevent the harsh interrogations and humiliation of detainees at Guantanamo, they say, they tried in 2003 to stop the spread of those tactics to Iraq, where abuses at Abu Ghraib prison triggered worldwide outrage with the publishing of graphic photos in April 2004.

[...]

It was two years before the photos emerged from Abu Ghraib, the Pentagon cops said, when they began arguing that coercive or abusive interrogations would not serve war-fighting or justice.

Despite this internal debate, the techniques of torture had already been studied in depth for decades by the Pentagon—but only to teach soldiers how to resist torture, not to practice it:

"Many of the controversial interrogation tactics used against terror suspects in Iraq, Afghanistan and Guantanamo were modeled on techniques the U.S. feared that the Communists themselves might use against captured American troops during the Cold War, according to a little-noticed, highly classified Pentagon report released several days ago. Originally developed as training for elite special forces at Fort Bragg under the "Survival, Evasion, Resistance and Escape" program, otherwise known as SERE, tactics such as sleep deprivation, isolation, sexual humiliation, nudity, exposure to extremes of cold and stress positions were part of a carefully monitored survival training program for personnel at risk of capture by Soviet or Chinese forces, all carried out under the supervision of military psychologists. (1)

So the techniques of presumed communist torturers were assimilated by the U.S. military and eventually re-emerged in the protocols for treatment of detainees in Iraq and Guantanamo. Contrary to the conventional wisdom that untrained and understaffed U.S. guards improvised techniques, perhaps inspired by Jack Bauer and other government operatives in shows like "24:"

The report, completed last August but only declassified and made public on May 18, suggests that the abusive techniques stemmed from a much more formal process than the Defense Department has previously acknowledged. By 2002 the Pentagon was looking for an interrogation paradigm to use on what it had designated as "unlawful combatants" captured in the "war on terror." These individuals, many taken prisoner in Afghanistan, were initially brought to the U.S. detention facility at Guantanamo, although others were subsequently hidden away in CIA secret prisons or turned over to U.S.-allied governments known to practice torture. That same year, the commander of the detention facility at Guantanamo began using the abusive "counter resistance" techniques adopted from SERE on prisoners at the base, and according to the Pentagon report SERE military psychologists were on hand to help.

The use of some "enhanced interrogation techniques" has apparently, for now, been limited:

In response to fallout over the well-documented cases of prisoner abuse — which included prolonged isolation, sensory deprivation (visual and auditory), forced removal of clothing, exploiting prisoners phobias (notably fear of dogs), and threats against family members — the Pentagon began scaling back the use of SERE tactics in 2002 and eventually banned them altogether. The Army Field Manual, which serves as a primary guide for U.S. military interrogation, now specifically rules out the use of a variety of SERE-founded techniques including water-boarding, a form of simulated drowning, as well as the use of dogs.

But critics remain concerned that the Pentagon's clean-up has not gone far enough. In the letter to Secretary Gates, dated May 31, 2007, the non-profit Physicians for Human Rights cites an appendix of the current Army Field Manual that "explicitly permits what amounts to isolation, along with sleep and sensory deprivation." The letter, signed by retired Army General Stephen Xenakis, a psychiatrist and former senior medical commander, and Leonard Rubenstein, the organization's executive director, also points out that the current Field Manual remains "silent on a number of other SERE-based methods (including sensory overload and deprivation) creating ambiguity and doubt over their place in interrogation doctrine."

If the latest Republican presidential debate is any indication, the more restrictive policy on torture could be short-lived. The candidates, notably excepting John McCain in a rare moment of lucidity, fell over themselves to prove who could be toughest on future detainees. The current policies are ambiguous at best:

Even assuming that Pentagon reforms have succeeded in cleaning up the worst excesses of U.S. interrogations, a number of experts have grave doubts that current policies are either workable or effective. Members of the Intelligence Science Board, many of whom serve as consultants to the Pentagon, have recently argued that U.S. interrogation policy involves a grab-bag of outmoded techniques, many dating from the 1950s, that ignore lessons learned from law enforcement and lack cultural sensitivity to Arab and other foreign prisoners. The kind of insensitivity, critics might now add, that we once assumed only our worst enemies would show their foreign prisoners. (2)

The de facto standard for the treatment of detainees was best revealed by George Bush in his memorandum of February 7, 2002. He declared that the U.S. would treat unlawful combatants "humanely and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva" [my emphasis]. As events have demonstrated, the final authority on "military necessity" is George Bush and no one else.

NOTES

(1) SERE techniques were designed to "replicate harsh conditions that the Service member might encounter if they are held by forces that do not abide by the Geneva Conventions." [Quoted from page 23 of the 131-page secret report (2006) by the Defense Department's Inspector General, of which a heavily-redacted copy is available online. Its purpose was to evaluate the DoD's investigations into detainee abuse.]

(2) There's a succinct definition of torture, along with a statement of the moral and policy reasons not to practice it, on page 4 of the DoD report.

PHOTO: Hooded Iraqi prisoner chained to a railing at Abu Ghraib (from Wikipedia Commons).

Saying no to torture

"Treat [British POW's] with humanity, and Let them have to reason to Complain of our Copying the brutal example of the British army in their Treatment of our unfortunate brethren."

—George Washington, in an order to Lt.Col Samuel Blachley Webb during the Revolutionary War.

Washington "often reminded his men that they were an army of liberty and freedom, and that the rights of humanity for which they were fighting should expend even to their enemies."

—Historian David Hackett Fisher in Washington's Crossing (2004)

While the torture "debate" inexplicably continues, this might be a good time to propose a solution that worked quite well during the first 214 years of this country's existence: don't torture, ever. Or abuse, mentally or physically. Apart from the obvious moral issues that shouldn't (but apparently do) require discussion, it's in the manifest self-interest of the U.S. to stop torture, if only for the protection of its own soldiers who might some day be held by foreign governments.

This solution requires no more than a strict application of the Golden Rule: treat prisoners as well as we have a right to expect American prisoners of war and citizens to be treated abroad. Such a rule against torture would apply equally to all prisoners in U.S. custody, of every nationality, whether members of the uniformed armed forces of another country, "detainees," "unlawful combatants," or American citizens.

All persons have an absolute right to be free of torture and abuse, mental and physical. Period. No exceptions and no wiggle room, ever, for any reason.

Unfortunately, endless parsing over the definition of "torture" has been a prominent feature of this absurd and degrading national debate. It should be self-evident that a government has a right to confine persons only when they present a clear and demonstrated danger to others, as determined by lawful processes, whether they're domestic criminals or suspected international terrorists. Those persons should be confined as long as necessary (but no longer), in humane conditions, with adequate shelter, nutrition, medical care, recreation and freedom to observe their religious practices. Prisoners shouldn't be held incommunicado, and they have the right to communicate with family and friends—under supervision, if necessary to protect national security. And they should have a right to legal counsel. Any deviation from these minimal standards quickly becomes a form of abuse or torture.

The moral objections to torture, and the international legal prohibitions on it, are beyond the scope of this posting*. But we needn't look to international law for guidance. American jurisprudence has long recognized that torture and other forms of harsh interrogation can produce very unreliable results and violate both the letter and spirit of the Bill of Rights. This recognition predated the liberal decisions of the Warren court on criminal procedure (primarily made during the sixties) by several decades. So here's a quick stroll down memory lane, with highlights of some major Supreme Court decisions on torture and coerced confessions:

From Chambers v. Florida, 309 U.S. 227** (1940):

"The rack, the thumbscrew, the wheel, solitary confinement, protracted questioning and cross questioning, and other ingenious forms of entrapment of the helpless or unpopular had left their wake of mutilated bodies and shattered minds along the way to the cross, the guillotine, the stake and the hangman's noose. And they who have suffered most from secret and dictatorial proceedings have almost always been the poor, the ignorant, the numerically weak, the friendless, and the powerless."

From Watts v. Indiana, 338 U.S. 49 (1949):

"The requirement of specific charges, their proof beyond a reasonable doubt, the protection of the accused from confessions extorted through whatever form of police pressures, the right to a prompt hearing before a magistrate, the right to assistance of counsel, to be supplied by government when circumstances make it necessary, the duty to advise an accused of his constitutional rights—these are all characteristics of the accusatorial system and manifestations of its demands.

"Protracted, systematic and uncontrolled subjection of an accused to interrogation by the police for the purpose of eliciting disclosures or confessions is subversive of the accusatorial system. It is the inquisitorial system without its safeguards."

Here's Justice Douglas, concurring in Watts v. Indiana:

"Detention without arraignment is a time-honored method for keeping an accused under the exclusive control of the police. They can then operate at their leisure. The accused is wholly at their mercy. He is without the aid of counsel or friends; and he is denied the protection of the magistrate... The procedure breeds coerced confessions. It is the root of the evil. It is the procedure without which the inquisition could not flourish in the country.

And finally Justice Jackson, also concurring in Watts v. Indiana:

"Such treatment not only breaks the will to conceal or lie, but may even break the will to stand by the truth. Nor is it questioned that the same result can sometimes be achieved by threats, promises, or inducements, which torture the mind but put no scar on the body. I suppose no one would doubt that our Constitution and Bill of Rights, grounded in revolt against the arbitrary measures of George III and in the philosophy of the French Revolution, represent the maximum restrictions upon the power of organized society over the individual that are compatible with the maintenance of organized society itself. They were so intended and should be so interpreted." [My emphasis.]

Eleven years later, in Spano v. New York, 360 U.S. 315 (1959), the Supremes stated:

"The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves..."

"Thus, in cases involving involuntary confessions, this Court enforces the strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will. This insistence upon putting the government to the task of proving guilt by means other than inquisition was engendered by historical abuses which are quite familiar."

Ah, but I can hear the legions of parsers already: "These are decisions in criminal cases, where the issue was extracting evidence (like confessions) rather than information, and they involved U.S. citizens subject to ordinary constitutional protections and not suspected terrorists." To which I answer with a loud Bronx cheer. Torture and abusive detentions raise practical and (especially) moral questions that transcend narrow distinctions between citizens and noncitizens, and between criminal prosecutions and intelligence "inquisitions."***

Meanwhile, some 400 "detainees" languish at Guantanamo and others sit in secret CIA prisons in eastern Europe and elsewhere. Some of these prisoners have been in U.S. custody for five years, and some unknown percentage was clearly involved in activities that could be called "terrorist" or in armed opposition to U.S. forces in Afghanistan or elsewhere.

If any of these detainees had any information that was of value in 2001 or 2002, it has long since become obsolete. Terrorist and guerilla organizations have a cellular structure that's designed to limit the damage that would result from the capture or death of members of a given cell, including the leadership. These adjustments happen very quickly, out of necessity. [This beehive structure was clearly demonstrated in Battle of Algiers, the powerful 1966 film by Gillo Pontecorvo that was rediscovered by the Pentagon after September 11th.]

If any of the remaining prisoners represent a continuing danger to the U.S., the government should present evidence of that fact to justify their continued detention. Meanwhile, why do relatively few Americans object to the harsh treatment and extended confinement of these prisoners? Two reasons, I imagine. First, few people are willing to take the risk of releasing any prisoners if one or more of them may commit future terrorist acts. Second, there's a widespread assumption that they must all be guilty of something. If not, why are they being held?

Nonetheless, all persons held by the U.S. government have a due-process right to a hearing with basic protections that include the right to counsel, the right to confront the evidence against them and the right to an impartial magistrate.****If we persist in denying these fundamental rights, we have to ponder some very difficult implications for a self-proclaimed democracy: who are we as a people, and what are we becoming? Right now, despite some encouraging signs in Congress and the courts, the answers to those questions aren't at all clear.

NOTES

*Wikipedia and other online sources have useful information about international legal standards that apply to torture. For example, see Wikipedia's articles on unlawful combatants, the Universal Declaration of Human Rights, torture and the U.N. Convention Against Torture. And also the American Bar Association article mentioned at the top of this posting.

**The citation "309 U.S. 227" refers to volume 309, page 227 of the United States Reports, which contain the full text of the Supreme Court decision. Finding it online is simple: just Google "309 U.S. 227" and you'll find numerous links (of which a few might require free registration).

***Nothing that I say is meant to preclude obtaining evidence or intelligence through noncoercive, voluntary interrogations. Is there a "bright line" that separates noncoercive from coercive questioning? Physical and mental abuse go over that line, including psychological tortures like sleep deprivation, freezing temperatures, various forms of humiliation (such as public nudity), mock execution, sensory deprivation and long-term solitary confinement without human contact (as in the Padilla case). The question is always: is this how we would want a fellow citizen to be treated in another country?

***The fact that some other governments, or terrorist groups, notoriously don't apply similar humanitarian standards in their treatment of American captives is no excuse for our own bad behavior, for all the reasons described by George Washington.

GRAPHIC: Notinourname.net