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.
By: Mehroz Baig
Even though 87 percent of all U.S. counties lack an abortion provider according to 2008 data, actions to restrict the access of abortion services continue steadily. In 2013 so far, state legislatures have introduced 321 anti-choice measures and enacted 46 of them, according to internal research by NARAL Pro-Choice America Foundation. NARAL defines anti-choice broadly, including any measure that hinders a woman’s ability to exercise her reproductive rights.
In a panel discussion at The Commonwealth Club of California that addressed reproductive rights, Lisa Lindelef, a pro-choice activist and board member of NARAL Pro-Choice America Foundation, noted that the abortion conversation has moved to the state level. Lindelef added that the landmark Roe v. Wade decision from 1973 that seemed to enshrine a woman’s right to choose isn’t being attacked directly. Instead, the restrictions being enacted are attacking the infrastructure around access to legal abortion services. “What they are doing is chipping away incrementally around it,” she said. She noted that adding constraints like decreasing how early a woman can have a legal abortion, requiring ultrasounds, waiting periods, and counseling before gaining access to abortion services are all ways of undermining the right that Roe v. Wade outlined, without directly attacking that decision.
Last week, a federal judge ruled that the Texas law aimed at abortion clinics is unconstitutional. This is the same law that Texas Democratic state legislator Wendy Davis, who is now running for governor, filibustered against in June. The Texas attorney general filed an emergency appeal, and a federal appeals court reinstated most of the restrictions until the case is heard in January 2014.
Accessing abortion services has become restricted in some areas of the country. This interactive map from the The Daily Beast details how accessible clinics are and the restrictions imposed on women seeking abortions by geography.
Lindelef was joined by two other panelists: Fran Moreland Johns, author of Perilous Times: An Inside Look at Abortion Before – And After – Roe v. Wade, and Scotty McLennan, dean for religious life at Stanford University. Shanelle Matthews, communications strategist for ACLU Northern California, moderated the panel.
Fran Johns agreed with Lindelef about the possibility that current legislation could put Roe v. Wade in jeopardy. She added, “I would like never to see abortion happen again. But that’s not going to happen.” Johns’ book examines back-alley abortions before Roe v. Wade and looks at the difficulty women face in accessing abortion services today. “What we want is for abortion to be safe, legal, and rare,” added Lindelef.
Some areas of the country have been fairly progressive in their approach to ensuring that women have access to all reproductive services, including contraception and abortion. San Francisco even went a step further in 2011 by implementing an ordinance against crisis pregnancy centers (CPCs), to prevent false advertising. CPCs often advertise themselves as counseling centers that provide women with information on pregnancy and abortion services. However, according to pro-choice advocates, they tend to have an anti-abortion stance and generally counsel women against accessing abortion services.
While similar laws in New York and Baltimore were struck down, San Francisco’s ordinance focused on false advertising and has been upheld. That has made San Francisco’s ordinance the first successful one of its kind in the nation. The ordinance was enacted to ensure that CPCs advertise accurate information about the services they provide, making it a consumer protection issue, argued the authors of the ordinance, Supervisor Malia Cohen and City Attorney Dennis Herrera.
Geography plays a role in the restrictions that are enacted. The Daily Beast’s analysis noted, “Often, the states with the fewest clinics also have more restrictions.” In those cases, not only are women physically unable to access abortion, but there are added restrictions — such as wait times and requirements of ultrasounds or in-person counseling — that make it more burdensome for them to do so. That is all in addition to the social pressures that accompany the issue. “I’ve spoken with women, especially very young women, who felt so intimidated or frightened by the protestors that they were worried about, or felt they could not do it,” said Fran Johns in an email. She’s referring to protests held by activists outside abortion clinics to dissuade women from getting abortions, a tactic now being exported outside the U.S.
Johns added, “It’s not so much an urban/rural issue as a state-by-state issue. But the saddest stories I heard were from women in rural or small-town areas who did not have the money, time, and resources to access a safe abortion.” Again, state legislation plays a big role in allowing women access to safe services. The New York Times reported in September that in the last three years, 54 clinics in 27 states have closed. And an interactive map from The Washington Post shows which states have introduced and enacted restrictions on abortions this year. According to this article, restrictive abortion legislation has been introduced in 32 states and enacted in nine states.
Decisions on these laws differ from state to state: though a judge in Ohio upheld that state’s law requiring doctors to follow FDA protocol in medical abortions, a similar regulation was deemed unconstitutional in Oklahoma and may be heard in front of the U.S. Supreme Court. As the article notes, “Supporters of the law say such procedures protect women. But the Oklahoma court concluded that it effectively bans medication abortions, which are used early in pregnancies, because doctors over the past decade have found the FDA protocol to be excessive or outdated.”
The legislative wrangling at the state level leaves women behind who need abortion for any number of reasons. Cases such as those of the Davises from Oklahoma, profiled in an MSNBC report, will continue. According to the article,
Earlier that month, at home in Oklahoma City, the Davises were told that the boy she was carrying had a severe brain malformation known as holoprosencephaly. It is rare, though possible, for such a fetus to survive to birth, but doctors told them that he would not reach his first birthday. “He would never walk, lift his head,” Jessica, 23, recalled in an interview…The lack of options sent them to Dallas, where protesters outside the clinic tried to hand Jessica a pair of baby socks. She told them to go to hell. She left the clinic with a death certificate, which she and Eric had asked for, and a footprint of the son they named Mark Gordon Scott Davis.
The funeral homes Jessica called for a “proper burial” laughed at her, or hung up “because I mentioned the word ‘termination,’” she said. The funeral homes told her she had an abortion. “I don’t look at it like that,” Jessica said. “I’m showing my son mercy.’
For those who cannot afford to go elsewhere for the procedure, the outcomes are less well known. One study conducted recently of women who wanted an abortion but were turned away shows increased negative consequences in their health and economic stability. However, this area can use more research, not only on the consequences of being turned away from an abortion for women, but also for the children who are subsequently born.
“It’s never an easy decision,” said Fran Johns, who herself had to obtain a secret and illegal abortion after being assaulted at her job, before Roe v. Wade made abortions legal.
And Lindelef cautioned, “Making this illegal is not going to make it go away. It will probably make it more frequent and less safe.”