'Getting Away with Torture\r'

'Global Governance 11 (2005), 389â€406 REVIEW testify acquiring outside(a) with crucify Kenprofith Roth The supply organisation’s workout of wring and in valet de chambree sermon has beneathmined unmatchable of the roughly grassroots global standards political science how governing bodys brook treat people under(a) their control. cussed to the efforts of the judiciary to pass this hatred off as the spontaneous misbehave of a few subordinate soldiers, ample evidence demonstrates that it reflects insurance finales drawn at the highest levels of the U. S. government.Repairing the damage through with(p) to global standards will ingest acknowledging this policy case and launching a actu altogethery on the loose(p) investigation to identify those responsible and encumber them accountable. The creation of regu of lated exceptions to the absolute ban of ache and mis sermon, as suggested by several(prenominal) academics, will non redeem the tarnished reputation of the linked nominates or make the global standards that the supply court has so naughtily change. KEYWORDS: spin, Abu Ghraib, Guatanamo, interrogatory, cruel manipulation.B’Tselem, â€Å"Legislation Allowing the Use of Physical deposit and Mental Coercion in Interrogations by the full general Security Service,” B’Tselem Position Paper, January 2000, 80 pp. pick bulge bulge out Danner, scud and Truth: the States, Abu Ghraib, and the state of war on fear ( brisk York: New York redirect examination of Books, 2004), 592 pp. Alan M. Dershowitz, Why Terrorism flora: Understanding the Threat, Responding to the Ch e veryenge (New Haven: Yale University Press, 2002), 288 pp. K arn J. Greenberg and Joshua L. Dratel, eds. , The strain document: The Road to Abu Ghraib (New York: Cambridge University Press, 2005), 1,284 pp. Philip B. Heymann and Juliette N.Kayyem, Preserving Security and Democratic Freedoms in the War on Terrorism (Cambr idge: Belfer Center for Science and multi depicted object Affairs, 2004), 195 pp. valet de chambre Rights finder, The Road to Abu Ghraib (New York: human beings Rights Watch, 2004), 37 pp. Sanford Levinson, ed. , distortion: A Collection (Oxford: Oxford University Press, 2004), 328 pp. 389 390 acquire past with excruciate ho would go d wiz and through thought it still requisite to debate the merits of squeeze? Sure, there atomic number 18 continuously some governments that torment, tho they do it clandestinely. rag is inherently shamefulâ€some amour that, if blankd, is done in the shadows.In the constitution of multinational sym roadwayetic rights in effect(p)ice and institutions that has been constructed since World War II, there is no to a greater extent basal prohibition than the dislodge on bedevilment. Even the right to life admits exceptions, much(prenominal) as the killing of combatants completely in all(a)owed in wartime. however extor t is forbidden unconditionally, whether in time of peace or war, whether at the local police precinct or in the face of a major security threat. hitherto, suddenly, adjacent the terrorist efforts of fa knoty 11, 2001, torture and related mis discussion deal get unspoiled policy options for the united States.Academics are proposing shipway to shape the wo(e) that posterior be inflicted on curiouss in storage area. Overly clever U. S. government justnessyers pick up tried to define away make of laws against torture. The chaparral formation take aims latitude to shout detainees that its predecessors would never choose dared to contemplate. capital of the unify States’s new willingness to contemplate torture is non just theoretical. The abhorrence of prison ho expenders has flourished in the gulag of offshore clasp centers that the bush formation now maintains in Guantanamo, Iraq, Afghanistan, and the cloak-and-dagger dungeons where the U. S. governmen t’s â€Å"disappeared” prisoners are held.Hidden from public scrutiny, screen from licit accountability, the interrogators in these facilities have been allowed to flout the or so staple rules for the decent and valet de chambree treatment of detainees. plane torture remains the despicable trust it has of all time been. It de homosexualizes people by treating them as pawns to be manipulated through their pain. It harnesses the awesome force play of the state and applies it to forgiving beings at their most vulnerable. Br for each oneing any restraint of reciprocity, it slips the victim to ab work that the perpetrator would never himself want to encounter.Before looking at why Ameri preserves are suddenly confronting the torture option, it is legal to clarify what, exactly, torture is. The word torture has entered the vernacular to describe a host of irritants, scarcely its bollock crockeding in transnational law is quite specific: the intentional inf liction of sedate pain or suffering, whether natural or mental, for whatever reason. distorted shape as defined in internationalistic law is non done by private actors plainly by government officials or those operating with their coincide or acquiescence. 1 rag exists on a continuum of mistreatment.Ab occasion just short of torture is kn avow in international law as cruel, in kind, or degrading treatment. The lines between these different degrees of mistreatment are W Kenneth Roth 391 non crystal illumineâ€lesser forms are a lot gateways to tortureâ€which is one reason why international law prohibits all much(prenominal) forms of coercion. 2 suffering as well as cruel, in homophile, or degrading treatment is flatly prohibited by such treaties as the International Covenant on genteel and governmental Rights (ICCPR), the company Against Torture and Other Cruel, merciless or contaminating Treatment or penalization ( rove), and the geneva Conventions.All of thes e treaties are widely ratified, including by the unify States. None abides any exception to these prohibitions, even so in time of war or a respectable security threat. Indeed, these prohibitions are so fundamental that the Restatement of the distant Relations Law of the get together States, the most overbearing U. S. treatise on the look, lists them as peremptory jus cogens norms, meaning they give governments as a matter of customary international law, even in the absence of a treaty.Breach of these prohibitions gives parent to a crime of universal legal power, allowing the perpetrator to be prosecuted in any competent tribunal anywhere. nevertheless it is precisely because of the fundamental character of the prohibition of torture and cruel, in gentle, or degrading treatment that the crotch hair legal sy stand’s deliberate disregard for it is so damaging. If this basic gentleman rights protection can be stamp aside, no right is secure. Moreover, the render brass section is non just any government. When most governments wound international human rights law, they commit a colzaâ€the breach is condemned or prosecuted, barely the rule remains unfluctuating.Yet when a government as dominant and prestigious as the United States openly defies that law and judges to vindicate its defiance, it withal undermines the law itself, and invites early(a)s to do the same. That shakes the very foundations of the international system for the protection of human rights that has been carefully constructed over the previous(prenominal) sixty historic period. This unlawful conduct has also damaged capital of the United States’s aptness as a proponent of human rights and a leader of the cause against terrorist act. The U. S. government’s record of promoting human rights has always been mixed.For every offender it berated for human rights transgressions, there was some separate whose abuses it ignored, exc apply, or even supported. Yet despite this inconsistency, the United States historically has vie a key role in defending human rights. Its titty of controlling research†break-dance of a broader betrayal of human rights principles in the name of combating terrorismâ€has significantly afflicted its ability to mount that self-renunciation. As a result, governments go closely human rights pres undisputable from the United States now m separate(a) it increasingly easy to turn the tables, to challenge upper-case letter’s standing to uphold principles that it violates itself. 92 Getting Away with Torture Whether it is Egypt rationaliseing torture by part to U. S. practice, Malaysia defending administrative detention by invoking Guantanamo, Russia citing Abu Ghraib to unredeemed abuses in Chechnya solely on lowlevel soldiers, Nepal explaining a takeover by reference to America’s post phratry 11 excesses, or Cuba claiming the provide chairmanial term had â€Å"no ri ghteous ascendence to accuse” it of human rights violations, repressive governments run a risk it easier to deflect U. S. nip because of working capital’s own sorry counterterrorism record on human rights.Indeed, when Human Rights Watch asked State Department officials to protest administrative detention in Malaysia and prolonged incommunicado detention in Uganda, they demurred, explaining, in the language of one, â€Å"With what we are doing in Guantanamo, we’re on thin ice to charge up this. ”3 Washington’s loss of credibility has non been for lack of rhetorical support for concepts that are closely related to human rights, but the cut across of explicit human rights language seems to have been calculatedly noble-minded.In his January 2005 inaugural address speech, death chair furnish spoke extensively of his awe to â€Å"freedom” and â€Å"liberty,” his op rig to â€Å"tyranny” and â€Å"terrorism,” but b ut at all most his commitment to human rights. 4 The distinction has enormous significance. It is one liaison to pronounce oneself on the side of the â€Å"free,” quite some other to be bound by the full browse of human rights standards that are the foundation of freedom. It is one thing to declare oneself opposed to terrorism, quite another to embrace the body of international human rights and humanitarian law that enshrines the values rejecting terrorism.This linguistic sleight of handâ€this refthe Statesl to consent the legal liabilitys embraced by rights-respecting statesâ€has both reduced Washington’s credibility and facilitated its use of coercive examen. Because of this hypocrisy, umteen human rights defenders, particularly in the Middle atomic number 99 and North Africa, now cringe when the United States scratchs to their defense. Re formers in the Middle eastside speak of â€Å"the hug of last”â€the ill effects of Washington’ s insincere embrace.They may crave a powerful ally, but identifying too closely with a government that so brazenly ignores international law, whether in its own abuses or its alliance with other abusers, has run low a sure route to disrepute. At a time when the Bush nerve is extolling itself as a champion of unsnarl in the Middle East, as the catalyst bottom of the inning recent democratic developments, however modest, in Iraq, Lebanon, Egypt, Saudi Arabia, and the Palestinian territories, it is a sad irony that so few reformers wel buzz off its support.That weakening of Washington’s moral authority in the Middle East is particularly tragic, because that region is where effective counterterrorism efforts are most needed. Open and responsive political systems Kenneth Roth 393 are the outstrip way to encourage people to pursue their grievances peacefully. scarcely when the most vocal governmental advocate of body politic deliberately violates human rights, it undermi nes democratically inclined reformers and strengthens the bring up of those who preach to a greater extent radical visions. Instead, U. S. buses have gived a new rallying cry for terrorist recruiters, and the pictures from Abu Ghraib have become the recruiting posters for Terrorism, Inc. Many militants need no additional fillip to attack civilians, but if a weakened human rights culture eases even a few fence-sitters toward the path of violence, the consequences can be dire. Why is the United States winning this advent? To vent frustration, to exact revenge†maybeâ€but certainly not because torture and mistreatment are required for national security or protection.Respect for the geneva Conventions does not preclude vigorously interrogating detainees about a limitless eye socket of topics. The U. S. Army’s range manual on intelligence query makes clear that coercion undermines the quest for reliable tuition. 5 The U. S. army command in Iraq put forwards that Iraqi detainees are providing more useful intelligence when they are not subjected to abuse. In the words of Craig Murray, the United commonwealth’s former ambassador to Uzbekistan, who was speaking of the UK’s reliance on torture-extracted trial impression, â€Å"We are selling our souls for dross. 6 Moreover, coercive interrogative mood is making us less safe by effectively precluding illegal prosecution of its victims. Once a confession is coerced, it becomes extremely difficult to prove, as out-of-pocket process requires, that a subsequent prosecution of the leery is free of the fruits of that coercion. As a result, the Bush cheek finds itself holding some funnys who clearly have joined terrorist conspiracies and readiness have been criminally convicted and subjected to long prison terms, but against whom prosecution has become impossible. In February 2005, the all-important(prenominal) news show Agency (CIA) began openly fretting about the problem.Wha t happens, it worried, when move to detain suspects without trial becomes politically untenable, but prosecuting them is de jure impossible because of taint from coercive doubt? 7 None of this is to reckon that the United States is the worst human rights abuser. There are more more drab contenders for that notorious title, including governments that torture more frequently and more ruthlessly. But the United States is certainly the most influential abuser, making its contribution to the degradation of human rights standards bizarre and the costs to global institutions for upholding human rights incalculable.It is not comely to argue, as its defenders do, that the Bush administration is well intentionedâ€that they are the â€Å"good guys,” in the 394 Getting Away with Torture words of the environ Street Journal. 8 A society ordered on intentions rather than law is a lawless society. Nor does it excuse the administration’s human rights record, as its defender s have tried to do, to furrow that it removed two tyrannical governmentsâ€the Taliban in Afghanistan and the Ba’ath Party in Iraq. Attacks on repressive regimes cannot justify attacks on the body of principles that makes their repression illegal.So, how did we get here? How did the United States, historically perhaps the most vigorous governmental proponent of human rights, come to undermine through its own actions one of the most basic human rights there is? Several books, both new and old, provide insight into this sorry state of affairs. Cover-Up and Self-Investigation When the photos from Abu Ghraib became public, the Bush administration reacted like many ignominious governments that are caught redhanded: it went into damage control mode. It agreed that the torture and abuse featured in the photographs were wrong but desire to minimize the problem.The abusers, it claimed, were a handful of errant soldiers, a few â€Å"bad apples” at the bottom of the barrel. The problem, it argued, was contained, both geographically (one section of Abu Ghraib prison) and structurally ( further low-level soldiers, not more superior commanders). The abuse photographed at Abu Ghraib and break up about the world, it maintained, had nothing to do with the decisions and policies of more sr. officials. electric chair Bush vowed that â€Å"wrongdoers will be brought to justice,”9 but as of swear out 2005, virtually all of those facing prosecution were of the rank of sergeant or below.To some extent, the sheer outrageousness of the sexual and physical depravity featured in the Abu Ghraib photographs made it easier for the administration to disown responsibility. Few believe that professorship Bush or his senior officials would have ordered, for example, Lyndie England to parade about a naked detainee on a leash. Yet behind this particular mistreatment was an atmosphere of abuse to which the Bush administration, at the highest levels, did contribute . The ingredients of that atmosphere are draw in several new books.The most across-the-board compilation of the documentary record is contained in The Torture Papers, a book edited by Karen Greenberg and Joshua Dratel, which includes all of the administration’s notorious â€Å"torture memos” usable by late 2004. Mark Danner’s book, Torture and Truth, includes many of these same documents, as well as his insightful analysis, drawn from his articles in the New York Review of Kenneth Roth 395 Books, of the policy decisions that lay behind them. The Human Rights Watch declare, The Road to Abu Ghraib,10 details how this atmosphere played out on he ground, as American interrogators deployed â€Å" show and duress” research proficiencys and then covered up the cruel and occasionally deadly consequences. Torture: A Collection, a new set of essays on torture edited by Sanford Levinson, contains thoughtful essays from a range of scholars, including a vigorous debate about how to limit torture in the post-September 11 environment. The key to the administration’s strategy of damage control was a series of carefully throttle investigationsâ€at least(prenominal) ten so far-off.The chronicles of several of these are reprinted in the Greenberg and Dratel compilation. Most of the investigations, such as those conducted by Maj. Gen. George Fay and Lt. Gen. Anthony Jones, tortuous uniformed military officials examining the conduct of their subordinates; these officers lacked the authority to size up senior Pentagon officials. Typical was the most recent investigation, conducted by Vice Admiral Albert T. Church III, who said he did not interview senior officials such as Secretary of Defense Donald Rumsfeld or draw conclusions about their individual responsibility. 11The one investigation with the theoretical aptitude to examine the conduct of Secretary Rumsfeld and his top underworldâ€the inquiry led by former depository of d efense James Schlesingerâ€was initiated by Rumsfeld himself and seemed to go out of its way to distance Rumsfeld from the problem. At the press group discussion releasing the fact-finding report, Schlesinger said that Rumsfeld’s capitulation â€Å"would be a boon to all America’s enemies. ” The Schlesinger investigation lacked the independency of, for example, the September 11 Commission, which was established with the active involvement of the U.S. sex act. 12 As for the CIAâ€the branch of the U. S. government believed to hold the most important terrorist suspectsâ€it has apparently escaped scrutiny by anyone other than its own inspector general. Meanwhile, no one seems to be looking at the role of President Bush and other senior administration officials. As for criminal investigations, there has been none supreme of the Bush administration. When an strange government official retaliated against a critic of the administration by revealing that his wife was a CIA doerâ€a erious crime because it could endanger herâ€the administration agreed, under pressure, to appoint a peculiar(prenominal) prosecutor who has been promised independence from administration watchfulness. Yet the administration has disdaind to appoint a special prosecutor to determine whether senior officials permit torture and other coercive examâ€a far more serious-minded and systematic offense. So far, prosecutors 396 Getting Away with Torture under the educational activity of the administration have focused exclusively on the little guy. The Policies Behind Abu Ghraib What would a genuinely self-sustaining investigation find?It would reveal that the abusive interrogation seen at Abu Ghraib did not erupt spontaneously at the lowest levels of the military chain of command. It was not barely a â€Å"management” failure, as the Schlesinger investigation suggested. As shown in the collection of official documents organized by Greenberg a nd Dratel and Danner, Danner’s analysis, and the Human Rights Watch study, these abuses were the direct merchandise of an environment of lawlessness, an atmosphere created by policy decisions taken at the highest levels of the Bush administration, long before the suck in of the Iraq war.They reflect a determination to shake terrorism unconstrained by fundamental principles of international human rights and humanitarian law, despite commitments by the United States and governments around the world to respect those principles even in multiplication of war and severe security threats. These policy decisions include: • The decision not to grant the detainees in U. S. grasp at Guantanamo their rights under the Geneva Conventions, even though the conventions apply to all people picked up on the battlefield of Afghanistan.Senior Bush officials vowed that all detainees would be hardened â€Å"humanely,” but that vow seems never to have been mischievously implemente d and at times was qualified (and arguably eviscerated) by a selfcreated exception for â€Å"military necessity. ” Meanwhile, the effective shredding of the Geneva Conventionsâ€and the corresponding sidestepping of the U. S. Army’s interrogation manualâ€sent U. S. interrogators the signal that, in the words of one leading counterterrorist official, â€Å"the gloves come off. ”13 The decision not to clarify for nearly two years that, regardless of the applicability of the Geneva Conventions, all detainees in U. S. imprisonment are protected by the collimate requirements of the International Covenant on Civil and Political Rights and the Convention Against Torture. Even when, at the urging of human rights groups, the Pentagon’s general counsel tardyly reaffirmed, in June 2003, that CAT prohibited not only torture but also other forms of ill treatment, that annunciation was communicated to interrogators, if at all, in a way that had no discernible im pact on their behavior.Kenneth Roth 397 • The decision to fancy the prohibition of cruel, inhuman, or degrading treatment narrowly, to permit certain forms of coercive interrogationâ€that is, certain efforts to rachet up a suspect’s pain, suffering, and abasement to make him talk. At the time of ratifying the ICCPR in 1992 and the CAT in 1994, the U. S. government said it would interpret this prohibition to mean the same thing as the requirements of the Fifth, Eighth, and fourteenth Amendments to the U. S. Constitution.The clear intent was to require that if an interrogation proficiency would be unconstitutional if used in an American police station or jail, it would violate these treaties if used against suspects overseas. Yet U. S. interrogators under the Bush administration have routinely subjected overseas terrorist suspects to abusive techniques that would clearly have been prohibited if used in the United States. That the use of cruel, inhuman, or degrading treatment was intentional was suggested by Attorney prevalent Alberto Gonzales during his confirmation process.In his written reply to Senate questions†later on(prenominal) the administration had supposedly repudiated the worst aspects of its torture memosâ€he see the U. S. reservation as permitting the use of cruel, inhuman, or degrading treatment so long as it was done against non-Americans outside the United States. 14 That makes the United States the only government in the world to claim openly as a matter of policy the power to use cruel, inhuman, or degrading treatment.Other governments limpidly subject detainees to inhumane treatment or worse as a matter of clandestine policy, but the Bush administration is the only government to proclaim this policy publicly. Reflecting that policy, the Bush administration in late 2004 successfully stopped a congressional effort to nix the CIA’s use of torture and inhumane treatment in interrogation. • The decision t o hold some suspects†xi known15 and reportedly some three dozenâ€in unacknowledged incommunicado detention, beyond the reach of even the International Committee of the Red Cross (ICRC).Many other suspects were apparently temporarily hidden from the ICRC. Victims of such â€Å"disappearances” are at the greatest risk of torture and other mistreatment. For example, U. S. forces continue to maintain closed detention sites in Afghanistan, where beatings, threats, and sexual humiliation are still reported. At least twenty-six prisoners have died in U. S. irons in Iraq and Afghanistan since 2002 in what army and navy investigators have concluded or suspect were acts of criminal homicide. 16 One of those deaths was as recently as September 2004. The refusal for over two years to prosecute U. S. soldiers involve in the December 2002 deaths of two suspects in U. S. custody in Afghanistanâ€deaths ruled â€Å"homicides” by U. S. Army pathologists. 398 Getting Away wi th Torture Instead, the interrogators were sent to Abu Ghraib, where some were allegedly involved in more abuse. • The boon by Secretary of Defense Rumsfeld of some interrogation methods for Guantanamo that violated, at the very least, the prohibition of cruel, inhuman, or degrading treatment and possibly the ban on torture.These techniques included placing detainees in unnameable stress positions, hooding them, stripping them of their clothes, and scaring them with guard dogs. That approval was later rescinded, but it contributed to the environment in which the legal obligations of the United States were seen as dispensable. • The reported approval by an unidentified senior Bush administration official, and use, of â€Å" piss boarding”â€known as the â€Å"submarine” in Latin Americaâ€a torture technique in which the victim is made to believe he will drown, and in practice sometimes does.Remarkably, usher Goss, the CIA director, defended water boa rding in March 2005 testimony before the Senate as a â€Å"professional interrogation technique. ”17 • The turn oning of suspects to governments such as Syria, Uzbekistan, and Egypt that practice systematic torture. Sometimes diplomatic assurances have been desire that the suspects would not be mistreated, but if, as in these cases, the government receiving the suspect routinely flouts its legal obligation under the CAT, it is wrong to expect better conformance with the nonbinding word of a diplomat.The administration claimed that it monitored prisoners’ treatment, but a single prisoner, lacking the anonymity afforded by a larger group, would a lot be unable to report abuse for fear of reprisal. One U. S. official who visited extraneous detention sites disparaged this charade: â€Å"They say they are not abusing them, and that satisfies the legal requirement, but we all know they do. ”18 • The decision (adopted by the Bush administration from its earlier days) to oppose and undermine the International Criminal greet (ICC), in part out of fear that it qualification compel the United States to prosecute U.S. soulnel interested in war crimes or other comparable to(predicate) offenses that the administration would prefer to ignore. The administration spoke in terms of the ICC infringing U. S. reign, but since the ICC could not have jurisdiction over offenses committed by Americans in the United States without Washington’s consent, the sovereignty short letter in truth cuts the other way: it is a violation of the sovereignty of other governments on whose territory an atrocity might be committed not to be free to determine whether to prosecute the crime themselves or to send the matter to the ICC.The administration’s position on the ICC was thus reduced to an assertion of exceptionalismâ€a claim that no international enforcement regime should regulate U. S. unrighteousness overseas. Kenneth Roth 399 That signaled the administration’s determination to protect U. S. personnel from external accountability for any serious human rights offense that it might authorize. Since, in the absence of a special prosecutor, the administration itself controlled the prospects for domestic criminal accountability, its position offered an effective promise of impunity. The decision by the evaluator Department, the Defense Department, and the White crime syndicate counsel to brood dubious legal theories to justify torture, despite objections from the State Department and professional military lawyers. Under the snap of politically appointed lawyers, the administration offered such ludicrous interpretations of the law as the claim that coercion is not torture unless the pain caused is â€Å"equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body blend will likely result. S imilarly, the administration claimed that President Bush has â€Å"commander-in-chief authority” to order tortureâ€a possibleness under which Slobodan Milosevic and Saddam Hussein may as well be accustomed the keys to their jail cells, since they too presumptively would have had â€Å"commander-in-chief authority” to authorize the atrocities that they directed. The justness Department, in a December 2004 memorandum modifying the exposition of torture, chose not to repudiate the claim about commander-in-chief authority to order torture but instead utter that repudiation was unnecessary because, it said, the chairman opposes torture as a matter of policy.These policy decisions, taken not by low-level soldiers but by senior officials of the Bush administration, created an â€Å"anything goes” atmosphere, an environment in which the ends were assumed to justify the means. Sometimes the mistreatment of detainees was merely tolerated, but at other times it w as actively encouraged or even ordered. In that environment, when the demand came from on high for â€Å"actionable intelligence”â€intelligence that might help stem the steady stream of U. S. asualties at the hands of Iraqi insurgentsâ€it was hardly surprising that interrogators saw no prohibition in the legal prohibition of torture and mistreatment. Nor did these basic human rights rules limit the broader effort to protect Americans from the post-September 11 risks of terrorism. To this day, the Bush administration has failed to repudiate many of these decisions. It continues to refuse to apply the Geneva Conventions to any of the more than ergocalciferol detainees held at Guantanamo (despite a U. S. court ruling rejecting its position) and to many others detained in Iraq and Afghanistan.It continues to â€Å"disappear” detainees, despite ample proof that these â€Å"ghost detainees” are extraordinarily vulnerable four hundred Getting Away with Torture t o torture. It continues to defend the practice of â€Å"rendering” suspects to governments that torture on the basis of implausible assurances and meaningless monitoring. It refuses to accept the duty never to use cruel, inhuman, or degrading treatment anywhere. It continues its vendetta against the ICC. It has only selectively repudiated the many specious arguments for torture contained in the administration lawyers’ notorious â€Å"torture memos. And long after the abuses of Abu Ghraib became publicâ€at least as late as June 2004â€the Bush administration reportedly act to subject Guantanamo detainees to beatings, prolonged isolation, sexual humiliation, extreme temperatures, and painful stress positioning, all practices that the ICRC reportedly called â€Å"tantamount to torture. ”19 In selecting his cabinet for his second presidential term, President Bush seemed to rule out even folksy accountability. Secretary of State Colin Powell, the cabinet off icial who most forcefully opposed the administration’s disavowal of the Geneva Conventions, left his post.Secretary Donald Rumsfeld, who ordered abusive interrogation techniques in violation of international law, stayed on. White theater Counsel Alberto Gonzales, who sought production of the memos justifying torture and who wrote that the fight against terrorism renders â€Å"obsolete” and â€Å"quaint” the Geneva Conventions’ limitations on the interrogation and treatment of prisoners, was rewarded with appointment as attorney general. 20 As for the broader Bush administration, the November 2004 electoral success seems to have reinforced its traditional disinclination to serious self-examination.It persists in its refusal to admit any policylevel misconduct in the treatment of detainees under interrogation. The Twisted Logic of Torture The Bush administration’s policy of abusive interrogation has received important support in the United States from three Harvard professors: Alan Dershowitz and Phil Heymann of Harvard Law School and Juliette Kayyem of Harvard’s Kennedy School. Rather than reinforce the absolute prohibitions of international law, each would seek to regulate exceptions to the prohibitions on mistreating detainees.Ostensibly their aim is to confine that mistreatment but, by legitimizing it through regulation, they would have the opposite effect. Dershowitz, in his book Why Terrorism Works and in his chapter in the Levinson compilation, typifies this regulatory approach. In his view, torture is inevitable, so prohibiting it will only drive it underground, where low-level officials use it in their discretion. Instead, he would subject torture to judicial heed by requiring investigators who want Kenneth Roth 401 to use it to seek the approval of a judgeâ€to procure a torture vindicate, much like they would seek a search warrant or an arrest warrant.This independent scrutiny, he posits, would reduce the incidence of torture. Dershowitz’s argument is built largely on faith that forcing torture into the open would reduce its use. But he just assumes that judges would have a less bailable attitude toward torture than do the senior members of the Bush administration. The available evidence is not encouraging. Since torture would presumably be sought in connection with investigations into serious criminal or national security matters, the entropy behind the request for a torture warrant would presumably be secret.As in the case of a search warrant or a wiretap, that would mean an ex parte application to a judge, with no calling card to the would-be victim of torture and no independent counsel opposing the request. How rigorous would judicial oversight be in such cases? We can understand some sense from the record of the courts used to pass foreign intelligence wiretaps, and the picture is not impressive. fit to the Center for Democracy and Technology, between 1993 and 2003, courts operating under the Foreign Intelligence Surveillance Act (FISA) were asked to extol nearly 10,000 wiretaps of foreign sovereign agents.Of those, all but four were approved. When an intelligence agent claims that life-and-death matters of national security are at stake, there is no reason to believe that the scrutiny by Dershowitz’s torture courts would be any more rigorous. In the meantime, by signaling that torture is at least sometimes acceptable, Deshowitz would reduce the stigma associated with its use. Torture would no longer be a despicable practice never to be used, but merely one more tool in the law enforcement arsenal.Torture specialists bore-hole to practice their trade would appear, international prohibitions of torture would be undermined, and America’s credibility as an opposite of torture would be deeply tarnished. Dershowitz points out that evaluate clandestine torture also legitimizes it, but he seems never seriously to consider the a lternative: vigorously trying to stop, and prosecute, anyone who breaches the absolute ban on torture. Heymann and Kayyem take a slightly different approach in their monograph, Preserving Security and Democratic Freedoms in the War on Terrorism. They foreswear torture but would allow a U. S. resident to order cruel, inhuman, or degrading treatment so long as he or she certified to Congress that American lives were at stake. Again, the scheme is that such treatment would be rare because the president would be reluctant to invoke that power. But since the president has already claimed â€Å"commander-in-chief authority” to order even torture, and since his attorney general claimed the power as recently as January 2005 to 402 Getting Away with Torture order cruel, inhuman, or degrading treatment so long as it is used against non-Americans overseas,21 Heymann and Kayyem are probably overestimating presidential inhibitions.Making the defense against cruel, inhuman, or degrading t reatment depend on the man who has made such treatment a central part of U. S. counterterrorism strategy is truly communicate the fox to guard the chicken coop. Heymann and Kayyem take a similar regulatory approach to coercive interrogation short of cruel, inhuman, or degrading treatment. The U. S. Army’s field manual on intelligence interrogation makes clear that coercive interrogation is unnecessary, unreliable, and wrong.That’s because, as most professional interrogators explain, coercive interrogation is far less likely to produce reliable study than the time-tested methods of careful questioning, probing, cross-checking, and gaining the confidence of the detainee. A person facing severe pain is likely to say whatever he thinks will stop the torture. But a skilled interrogator can a lot extract accurate information from the toughest suspect without resorting to coercion. Yet Heymann and Kayyem would abandon that bright-line rule and permit coercive interrogation so long as the president notifies Congress of the techniques to be used.However, setting American interrogators free from the firm mooring of the U. S. Army field manual can be dangerous, as we have seen so sorely in Abu Ghraib, Guantanamo, Afghanistan, and elsewhere. If mere coercion (itself a violation of the Geneva Conventions in wartime) does not workâ€and, given that the suspect is supposedly a hardened terrorist, often it will notâ€interrogators will be all too tempted to ratchet up the pain, suffering, and humiliation until the suspect cracks, regardless of the dubious reliability of information provided in such circumstances.In this way, coercion predictably gives way to cruel, inhuman, or degrading treatment, which in turn gives rise to torture. The proposals from Dershowitz and Heymann and Kayyem suffer from the same fundamental defect: they seek to regulate the mistreatment of detainees rather than reinforce the prohibition against such abuse. In the end, any effo rt to regulate mistreatment ends up legitimizing it and inviting repetition. â€Å"never” cannot be redeemed if allowed to be read as â€Å"sometimes. ” Regulation too easily becomes license.Behind the Dershowitz and Heymann and Kayyem proposals is some rendering of the â€Å"ticking dud” scenario, a situation in which interrogators are said to believe that a terrorist suspect in custody knows where a ticking attack has been planted and mustiness urgently force that information from him to save lives. Torture and inhumane treatment Kenneth Roth 403 may be wrong, those who talk of ticking bombs would concede, but the mound murder of a terrorist attack is worse, so in these supposedly rare situations, the lesser evil must be tolerated to prevent the greater one.The ticking bomb scenario makes for great philosophical discussion, but it rarely arises in real life, at least not in a way that avoids opening the door to permeant torture. In fact, interrogators ha rdly ever learn that a suspect in custody knows of a particular, impending terrorist bombing. Intelligence is rarely if ever good large to demonstrate a particular suspect’s knowledge of an imminent attack. Instead, interrogators tend to use circumstantial evidence to show such â€Å"knowledge,” such as someone’s association with or presumed social rank in a terrorist group.Moreover, the ticking bomb scenario is a dangerously expansive metaphor capable of embracement anyone who might have knowledge not just of immediate attacks but also of attacks at unspecified future times. After all, why are the victims of only an imminent terrorist attack deserving of protection by torture and mistreatment? Why not also use such coercion to prevent a terrorist attack tomorrow or next week or next year? And once the taboo against torture and mistreatment is broken, why stop with the alleged terrorists themselves?Why not also torture and abuse their families or associatesà ¢â‚¬or anyone who might provide lifesaving information? The slope is very slippery. Israel’s experience is instructive in screening how dangerously elastic the ticking bomb rule can become, as described by the Israeli human rights group B’Tselem in its report on interrogations by Israel’s intelligence agency, the General Security Services (GSS). In 1987, an official government commission, headed by former Israeli Supreme speak to president Moshe Landau, recommended authorizing the use of â€Å"moderate physical pressure” in ticking bomb situations.As B’Tselem describes, a practice initially justified as rare and exceptional, taken only when necessary to save lives, gradually became standard GSS procedure. Soon, some 80 to 90 percent of Palestinian security detainees were being tortured until 1999 when the Israeli Supreme Court curtailed the practice. Dershowitz cites the court’s belated intervention as validation of his theory that mod ulate torture is the best way to defeat it, but he never asks whether the severe victimization of so many Palestinians could have been avoided with a prohibitory approach from the start.Notably, Israel’s escalation in the use of torture took place even though a ministerial mission chaired by the prime minister was supervising interrogation practicesâ€a regulatory procedure similar to the one proposed by Heymann and Kayyem. Indeed, in September 1994, following several suicide bombings, the ministerial committee 404 Getting Away with Torture even loosened the restrictions on interrogators by permitting â€Å"increased physical pressure. ” Heymann and Kayyem never explain why, especially in light of the abysmal record of the Bush administration, we should expect any better from high-level U. S. officials.The trend Forward Faced with substantial evidence video display that the abuses at Abu Ghraib and elsewhere were caused in large part by official government policie s, the Bush administration must reaffirm the importance of making human rights a guiding force for U. S. conduct, even in fighting terrorism. That requires acknowledging and reversing the policy decisions behind the administration’s torture and mistreatment of detainees, holding accountable those responsible at all levels of government for this abuse (not just a bunch of privates and sergeants), and publicly committing to ending all forms of coercive interrogation.These steps are necessary to reaffirm the prohibition of torture and ill treatment, to redeem Washington’s voice as a credible proponent of human rights, and to restore the effectiveness of a U. S. -led campaign against terrorism. Yet all that is easier said than done. How can President Bush and the Republican-controlled U. S. Congress be convince to establish a fully independent investigative commissionâ€similar to the one created to examine the attacks of September 11, 2001â€to determine what went wr ong in the administration’s interrogation practices and to prescribe remedial steps?How can Attorney-General Gonzales, who as White House counsel played a central role in formulating the administration’s interrogation policy, be persuaded to recognize his obvious conflict of interest and appoint a special prosecutor charged with investigating criminal misconduct independently of the Justice Department’s direction? These are not steps that the administration or its congressional allies will take willingly. military press will be needed. And that pressure cannot and should not come from only the usual suspects.The torture and abuse of prisoners is an bruise to the most basic American values. It is antithetical to the pump beliefs in the integrity of the individual on which the United States was founded. And it violates one of the most basic prohibitions of international law. This is not a partisan concern, not an issue limited to one part of the political spect rum. It is a matter that all Americansâ€and their colleagues around the worldâ€should insist be meaningfully addressed and changed.It is an issue that should preoccupy governments, whether friend or foe, as well as such international organizations and actors as Kenneth Roth 405 the UN Commission on Human Rights, Human Rights Committee, High Commissioner on Human Rights, and special(a) Rapporteur on Torture. Taking on the world’s superpower is never easy, but it is essential if the basic architecture of international human rights law and institutions is not to be deeply compromised.As Secretary-General Kofi Annan told the March 2005 International line of longitude on Democracy, Terrorism and Security: â€Å"Upholding human rights is not merely compatible with successful counter-terrorism strategy. It is an essential element. ”22 There is no room for torture, even in fighting terrorism; it risks undermining the foundation on which all of our rights rest. Notes K enneth Roth is executive director of Human Rights Watch. 1. See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 1. . Ibid. , Art. 16. 3. See â€Å"Malaysia: P. M’s Visit Puts Spotlight on political detainee vitiate,” Human Rights Watch News, 19 July 2004, available online at http://hrw. org/english/ docs/2004/07/19/malays9097. htm. 4. Fifty-fifth Inaugural Ceremony, 20 January 2005; see www. whitehouse. gov/inaugural. 5. Headquarters, Department of the Army, Field Manual 34-52 Intelligence Interrogation, Washington, D. C. , 28 September 1992, available online at http://atiam. train. army. mil/portal/atia/adlsc/view/public/302562-1/FM/3452/FM34_52. PDF. 6. ‘Torture Intelligence’ Criticized,” BBC News, 11 October 2004, available online at http://news. bbc. co. uk/1/hi/uk/3732488. stm. 7. Douglas Jehl, â€Å"C. I. A. Is Seen as Seeking New portion on Detainees,” New York Times, 16 February 2005. 8. â€Å"Red Double-Crossed Again,” Wall Street Journal, 2 December 2004. 9. Remarks by President Bush and His Majesty King Abdullah II of the Hashemite Kingdom of Jordan in a Press Availability, 6 may 2004, available online at www. whitehouse. gov/news/releases/2004/05/20040506-9. html. 10. Available online at http://www. rw. org/reports/2004/usa0604/. 11. Josh White and Bradley Graham, â€Å"Senators Question Absence of damned in iniquity Report,” Washington Post, 11 March 2005. 12. The 9/11 Commission Report, see http://a257. g. akamaitech. net/7/257/ 2422/05aug20041050/www. gpoaccess. gov/911/pdf/fullreport. pdf. 13. Testimony of Cofer Black, former director of the CIA’s Counterterrorism Center, before a joint session of the Senate and House Intelligence Committees, 26 September 2002, available online at www. fas. org/irp/congress/ 2002_hr/092602black. tml. (â€Å"All I want to say is that there was ‘before’ 9/11 and ‘after’ 9/11. After 9/11 the gloves come off. ”) 14. â€Å"A Degrading Policy,” Washington Post, 26 January 2005; â€Å"U. S. Justifying Abuse of Detainees,” Human Rights Watch News, 25 January 2005. 406 Getting Away with Torture 15. Human Rights Watch, The United States’ â€Å"Disappeared”: The CIA’s long-term â€Å"Ghost Detainees” (New York: Human Rights Watch, 2004), available online at www. hrw. org/backgrounder/usa/us1004/index. htm. 16. Douglas Jehl and Eric Schmitt, â€Å"U. S.Military Says 26 Inmate Deaths May Be Homicide,” New York Times, 16 March 2005. 17. Douglas Jehl, â€Å"Questions Are Left by C. I. A. Chief on the Use of Torture,” New York Times, 18 March 2005. 18. Dana Priest, â€Å"CIA’s Assurances on Transferred Suspects Doubted,” Washington Post, 17 March 2005. 19. Neil A. Lewis, â€Å"Red Cross Finds Detainee Abuse in Guantanamo,” New York Times, 30 November 2004. 20. Memorandum to the Presid ent from Alberto R. Gonzales, 25 January 2002, available online at www. msnbc. msn. com/id/4999148/site/newsweek. â€Å"In my judgment, this new paradigm [the war against terrorism] renders obsolete Geneva’s strict limitations on questioning of resistance prisoners and renders quaint some of its provisions requiring that captured enemy be afforded . . . [listed] privileges. ”) 21. â€Å"A Degrading Policy” and â€Å"U. S. Justifying Abuse of Detainees. ” 22. set address to the Closing Plenary of the International treetop on Democracy, Terrorism and Security, â€Å"A Global outline for Fighting Terrorism,” Madrid, Spain, 10 March 2005, available online at www. un. org/apps/sg/ sgstats. asp? nid=1345.\r\n'