The Commonwealth Blog

Torture in U.S. Custody: Why it will happen again if we don’t address it now

Nov 20, 2013 @ 11:53 AM by mbaig

By: Mehroz Baig

“Perhaps the most important or notable finding of this panel is that it is indisputable that the United States engaged in the practice of torture.” That’s the finding after a two-year investigation by a high-level panel that examined detainee treatment by the United States during the war on terror, in a report published earlier this year by The Constitution Project’s Task Force on Detainee Treatment. The report states that there was systematic use of torture and in many cases, it did not result in any useful information.  The report also identifies the maneuvering that allowed torture to happen — the legalities of war, as noted in the Geneva Conventions, have already been outlined; definitions of conduct that is allowed and conduct that is illegal in international law have been hammered out. What has happened over the past 13 years, however, is the fudging of boundaries and the redefining of terms that allowed government officials to distinguish between abuse and torture, drawing a very fine line between what constitutes legal torture and what doesn’t. The report concludes that torture took place widely, that it was in fact illegal, and that it violated our ethical duties. 

In the aftermath of the September 11 attacks, there was uncertainty about the best way to proceed and the repercussions of any action by the U.S. on policy, military, and legal fronts. This was also new terrain — there wasn’t a clear, territorial enemy, but rather one classified as a non-state actor, and not much precedence for an attack against the United States on U.S. soil. The new circumstances allowed officials to create a plan of action on policy, tactics, and the U.S. approach toward its enemy. Rules were created, bent, and broken and in some cases, to avoid a broken rule, a new classification was invented to circumvent current law.

The report clearly states, 

“The most important element may have been to declare that the Geneva Conventions, a venerable instrument for ensuring humane treatment in time of war, did not apply to Al-Qaeda and Taliban captives in Afghanistan or Guantánamo. The administration never specified what rules would apply instead.”

Other actions, such as classifying detainees as “enemy combatants,” allowed for military proceedings to overtake civilian proceedings. “By defining Guantanamo detainees as enemy combatants, the Bush administration cleared the way for some to be tried in newly created offshore military commissions rather than in civilian courts,” reported The Wall Street Journal. The creation of the military commissions was found to be unconstitutional in 2006 but military commissions were reinstated when Congress passed the Military Commissions Act. This was followed by a ruling giving the military commissions power to choose if each detainee classified as an “unlawful enemy combatant.” If so, he was not accorded any rights that a prisoner of war, under the Geneva Conventions, would receive. The Obama administration dropped the term “enemy combatant” in 2009, in a symbolic gesture to distance itself from the Bush administration — the Department of Justice under President Obama continued to argue for indefinite detention of Guantánamo inmates. 

The report goes on to address the complicity of medical professionals in creating interrogation techniques that amounted to torture and not reporting any abuse. “After September 11, 2001, military psychologists and physicians were instructed that they were relieved of the obligation to comply with nonmilitary ethical principles, and in some cases their military roles were redefined as non-health-professional combatants.” The report notes that established professional conduct for medical professionals includes refraining from abusive conduct, participating in interrogations, or providing medical information to interrogators. Yet the policy and reclassification of doctors and psychologists as “non-health-professional combatants” allowed them to circumvent their ethical duties on paper through a very conservative adherence to the letter of the ethical standards.

Policy changes also took place elsewhere within the U.S. apparatus against terrorism. As the report points out, changes were made in the Army Field Manual that allowed previously negated interrogation techniques: 

“For over 50 years, the Army Field Manual has been an invaluable document guiding American soldiers away from abusing prisoners, with its clear prohibitions on cruel, inhuman or degrading treatment and torture. However, the 2006 version deleted language that explicitly prohibited the use of sleep deprivation and stress positions, and its Appendix M authorizes an interrogation technique called “separation,” which could inflict significant physical and mental anguish on a detainee.”   

The problem with these changes is that they did not happen in isolated incidents but in a cohesive manner that shields the government from accountability. There is evidence that torture occurred and yet when a victim of torture seeks justice, the judiciary cannot help him. The report is explicit in noting that the Convention Against Torture, to which the U.S. is a party, requires that nations have a legal system that allows victims of torture redress. However, “the United States has not complied with this requirement,” the report’s authors note, adding, “in large part because of the government’s repeated, successful invocation of the state-secrets privilege in lawsuits brought by torture victims.” The argument has been that the government cannot defend itself in such cases without revealing state secrets pertaining to national security, so the cases are dismissed.    

“It’s a travesty that we’ve applied classification to [torture],” said Ambassador Thomas Pickering, one of the members of The Constitution Project’s Task Force, at a Commonwealth Club program in October. He added that the minimum requirement we face as a nation is to ensure that torture doesn’t happen again. He counts torture as “a serious and disturbing problem in our national history.” 

However, it’s a slow move away from some of the terrible and illegal actions the U.S. government took, and continues to take, in its quest to hunt down terrorists. Even today, Guantánamo — a prison that has housed 779 suspected terrorists, including 15 children, one as young as 13 years old — remains open. Ambassador Pickering said, “I hope Guantánamo is closed shortly,” but added, “I don’t think it will happen.”

In her article, “The Tortured Body, the Photograph, and the U.S. War on Terror,” Julie Gerk Hernandez, a professor at the University of Cincinnati examined the violence that took place at Abu Ghraib, arguing that the torture that took place in Afghanistan is part of a “historical continuum of racialized violence.” She compared the photographs from Abu Ghraib to photos of lynchings in the post-Civil War years. “In both cases,” she says, “a group of people records — as a source of enjoyment, pride, and righteousness — another person’s experience of mind-numbing pain or the aftermath of such an experience (death), which individuals of the group inflict.” She further goes on to say in reference to one of the photos from Abu Ghraib, “What this picture suggests is that the sexual violence at Abu Ghraib stems from the same racialized hatred and fear that made lynching possible.”   

If Hernandez is correct, the torture, ethical, and moral abuses are not simply part of an unprecedented situational context. And as such, they could easily happen again, given the right combination of zealousness, anger, hatred, and a defined “other” as the enemy. We’re not doing ourselves any favors if we don’t address this issue head-on and try to amend some of the mistakes we’ve made. Much of that involves transparency about what happened and accountability for it. Accountability comes in many forms, including allowing justice for victims of torture through recognition of what they’ve endured and compensation. But if we don’t take an introspective look at the policies and actions we’ve taken in the name of national security, actions that grossly violate our fundamental values, then we are leaving the door open for this to happen again. Public outrage on some of these issues has been short-lived, and we may face the same situation or worse yet again, if we decide not to look back.