By Rebecca Gordon
The US military involvement in Iraq has more or less ended, and the war in Afghanistan is limping to a conclusion. Don’t the problems of torture really belong to the bad old days of an earlier administration? Why bring it up again? Why keep harping on something that is over and done with? Because it’s not over, and it’s not done with.
Torture is still happening. Shortly after his first inauguration in 2009, President Obama issued an executive order forbidding the CIA’s “enhanced interrogation techniques” and closing the CIA’s so-called “black sites.” But the order didn’t end “extraordinary rendition”—the practice of sending prisoners to other countries to be tortured. (This is actually forbidden under the UN Convention against Torture, which the United States signed in 1994.) The president’s order didn’t close the prison at Guantánamo, where to this day, prisoners are held in solitary confinement. Periodic hunger strikes are met with brutal force feeding. Samir Naji al Hasan Moqbel described the experience in a New York Times op-ed in April 2013:
I will never forget the first time they passed the feeding tube up my nose. I can’t describe how painful it is to be force-fed this way. As it was thrust in, it made me feel like throwing up. I wanted to vomit, but I couldn’t. There was agony in my chest, throat and stomach. I had never experienced such pain before.
Nor did Obama’s order address the abusive interrogation practices of the Joint Special Operations Command (JSOC) which operates with considerably less oversight than the CIA. Jeremy Scahill has ably documented JSOC’s reign of terror in Iraq in Dirty Wars: The World Is a Battlefield. At JSOC’s Battlefield Interrogation Facility at Camp NAMA (which reportedly stood for “Nasty-Ass Military Area”) the motto—prominently displayed on posters around the camp—was “No blood, no foul.”
Torture also continues daily, hidden in plain sight, in US prisons. It is no accident that the Army reservists responsible for the outrages at Abu Ghraib worked as prison guards in civilian life. As Spec. Charles A. Graner wrote in an email about his work at Abu Ghraib, “The Christian in me says it’s wrong, but the corrections officer in me says, ‘I love to make a grown man piss himself.’” Solitary confinement and the ever-present threat of rape are just two forms of institutionalized torture suffered by the people who make up the world’s largest prison population. In fact, the latter is so common that on TV police procedurals like Law & Order, it is the staple threat interrogators use to prevent a “perp” from “lawyering up.”
We still don’t have a full, official accounting. As yet we have no official government accounting of how the United States has used torture in the “war on terror.” This is partly because so many different agencies, clandestine and otherwise, have been involved in one way or another. The Senate Intelligence Committee has written a 6,000-page report just on the CIA’s involvement, which has never been made public, although recent days have seen moves in this direction. Nor has the Committee been able to shake loose the CIA’s own report on its interrogation program. Most of what we do know is the result of leaks, and the dogged work of dedicated journalists and human rights lawyers. But we have nothing official, on the level, say, of the 1975 Church Committee report on the CIA’s activities in the Vietnam War.
Frustrated because both Congress and the Obama administration seemed unwilling to demand a full accounting, the Constitution Project convened a blue-ribbon bipartisan committee, which produced its own damning report. Members included former DEA head Asa Hutchinson, former FBI chief William Sessions, and former US Ambassador to the United Nations Thomas Pickering. The report reached two important conclusions: (1) “[I]t is indisputable that the United States engaged in the practice of torture,” and (2) “[T]he nation’s highest officials bear some responsibility for allowing and contributing to the spread of torture.”
No high-level officials have been held accountable for US torture. Only enlisted soldiers like Charles Graner and Lynndie England have done jail time for prisoner abuse in the “war on terror.” None of the “highest officials” mentioned in the Detainee Task Force report (people like Donald Rumsfeld, Dick Cheney, and George W. Bush) have faced any consequences for their part in a program of institutionalized state torture. Early in his first administration, President Obama argued that “nothing will be gained by spending our time and energy laying blame for the past,” but this is not true. Laying blame for the past (and the present) is a precondition for preventing torture in the future, because it would represent a public repudiation of the practice. What “will be gained” is the possibility of developing a public consensus that the United States should not practice torture any longer. Such a consensus about torture does not exist today.
Tolerating torture corrupts the moral character of the nation. We tend to think of torture as a set of isolated actions—things desperate people do under desperate circumstances. But institutionalized state torture is not an action. It is an ongoing, socially-embedded practice. It requires an infrastructure and training. It has its own history, traditions, and rituals of initiation. And—importantly—it creates particular ethical habits in those who practice it, and in any democratic nation that allows it.
Since the brutal attacks of 9/11/2001, people in this country have been encouraged to be afraid. Knowing that our government has been forced to torture people in order to keep us safe confirms the belief that each of us must be in terrible danger—a danger from which only that same government can protect us. We have been encouraged to accept any cruelty done to others as the price of our personal survival. There is a word for the moral attitude that sets personal safety as its highest value: cowardice. If as a nation we do not act to end torture, if we do not demand a full accounting from and full accountability for those responsible, we ourselves are responsible. And we risk becoming a nation of cowards.
Rebecca Gordon received her B.A. from Reed College and her M.Div. and Ph.D. in Ethics and Social Theory from Graduate Theological Union. She teaches in the Department of Philosophy and for the Leo T. McCarthy Center for Public Service and the Common Good at the University of San Francisco. She is the author of Letters From Nicaragua, Cruel and Usual: How Welfare “Reform” Punishes Poor People, and Mainstreaming Torture: Ethical Approaches in the Post-9/11 United States.
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By Geoffrey S. Corn
Eleven years ago this month the US-led military coalition crossed the ‘line of departure’ from Kuwait into Iraq. The full spectrum dominance of these forces produced a rapid victory over the Iraqi armed forces. Unfortunately, winning the peace turned out to be far more complex than winning the war (although for the Americans who bore the burden of securing that initial victory there was certainly nothing ‘easy’ about it). Not long after defeating organized enemy resistance, coalition forces began the long process of occupation, counter-insurgency, and return to full Iraqi sovereignty. Each phase of this overall effort seemed to produce never-ending operational and tactical challenges, all of which were mirrored by associated legal challenges.
The Iraq campaign was not, however, conducted in a strategic vacuum. Instead, it was part of a broader US effort to disrupt and disable al Qaeda, the transnational terrorist organization responsible for the devastating September 11th attacks. But while perhaps strategically linked to this broader effort, Iraq was – at least for the most part – an operationally distinct effort, at least at the initial stage prior to the rise of al Qaeda Iraq. What is more significant is that unlike the so-called ‘war on terror’, Iraq was much more of a ‘conventional’ fight, generating legal issues that had been contemplated and addressed in international humanitarian law. Coalition forces followed well-established rules related to conduct of hostilities, belligerent occupation, and detainee capture, status, and treatment.
This last category of operational and tactical challenges – dealing with captives and detainees – unfortunately generated what might legitimately be characterized as the My Lai of the Iraq war: the detainee abuse incident at Abu Ghraib. This incident created a media firestorm and generated unquantifiable levels of criticism of US efforts. Much worse was the negative strategic impact, with the Abu Ghraib abuse incident is perhaps the most significant strategic debacle of the war, and provided a major stimulant to the then nascent Iraqi insurgency.
Why Abu Ghraib happened was and will continue to be debated for years to come. While the abuse of al Qaeda detainees captured and held outside Iraq was without question responsive to legal opinions and resulting policy decisions emanating from the highest levels of the US government, these policies never explicitly extended to Iraq. It does seem clear, however, is that the prohibitory effect of the law of war, and the Geneva Conventions more specifically, had been diluted for the US soldiers entrusted with the responsibility to manage and control this detention facility. This dilution ultimately contributed to gross abuses of detainees within the control of the United States and at the complete mercy of their captors. Abuse of power over such individuals should, and must always, engender outrage and condemnation, not merely because of the blatant violation of fundamental humanitarian protections, but because such misconduct is a derogation of the most basic notions of soldier professionalism.
There are important lessons to learn from this incident. These range from the strategic debacles that often flow from violations of the law of armed conflict, to the true meaning of ‘responsible command’ – training, supervising, and correcting subordinates to ensure compliance with all commands, including respecting legal obligations. However, there is another lesson to be drawn from this unfortunate episode: the danger of dehumanization.
Secretary of Defense Donald H. Rumsfeld takes a tour of the Abu Ghraib Detention Center in Abu Ghraib, Iraq, on May 13, 2004. Rumsfeld and Chairman of the Joint Chiefs of Staff Gen. Richard B. Myers are in Iraq to visit the troops in Baghdad and Abu Ghraib. DoD photo by Tech. Sgt. Jerry Morrison Jr., U.S. Air Force. Public domain via defense.gov.
Every US soldier assigned to the Abu Ghraib prison, like every other US service-member who entered the Iraq theater of operations, was instructed to comply with the Geneva Conventions. It was part of their pre-deployment training; it was incorporated into Rules of Engagement cards; it was incorporated into command directives and orders. However, during this same time the United States was prosecuting another conflict against al Qaeda. Unlike the rules applicable to detainees at Abu Ghraib who were subject to the protections of the Fourth Geneva Convention, the conflict against al Qaeda involved no analogous emphasis on Geneva compliance. Instead, leaders at the highest level of US civilian and military organizations repeatedly emphasized that this enemy was composed of, ‘unlawful’ combatants — individuals who had no legitimate claim on the humanitarian protections of the laws and customs of war. Unlike a ‘legitimate’ enemy, this enemy could be subjected to detention and treatment conditions inconsistent with the most basic principle of humane treatment. In short, US forces were applying a genuine double-standard: detainees — whether military or civilian — considered ‘legitimate’ received the benefit of the law; those considered ‘illegitimate’ did not.
Encouraging soldiers to view certain enemies as unworthy of the most basic principles of humanity is a recipe for disaster. War involves an inherent need to dehumanize your opponent, an unfortunate necessity to enable soldiers to engage in the even more unfortunate necessity of killing on demand. Most moral beings are naturally averse to killing, and when doing so is not triggered by the survival instinct in response to an imminent threat, that aversion must be overcome. Dehumanization of the enemy serves this purpose.
But these same warriors must be capable of flicking the proverbial humanity switch, restoring the enemy to a status of human being at the moment the enemy is subdued. This is an even more complex task. Asking a soldier to show human mercy to an enemy, who, only moments prior was just trying to kill him, or perhaps just killed his best friend, is an immense leadership challenge. That challenge is facilitated by bright-line rules of war, rules that aid the warrior in navigating this moral abyss.
Diluting the clarity of these bright line rules is, therefore, terribly dangerous. These rules dictate to soldiers and their leaders that engaging in hostilities is, in the ultimate analysis, not ‘personal’, but instead an obligation imposed by the State or the non-state group. Thus, in a very real sense, the soldier is not acting in an individual capacity, but as the agent of the military organization ordering the soldier to participate in hostilities. In this capacity, the soldier is restrained from allowing the natural human instincts of vengeance and retribution to undermine the objectives of the organization writ large. The principle of humanity, when extended to captured opponents, implements this core tenet of organized hostilities; the struggle cannot be treated as personal.
There is a lesson that transcends the reminder that detainee abuse incidents produce profound strategic and tactical negative consequences. That lesson is that preservation and reinforcement of the bright line rules of humanity in warfare demand that distinctions between ‘categories’ of captured opponents must not be intended or perceived as a justification for treatment inconsistent with this core principle. When this occurs, the dilution may and often will very quickly infect the treatment of individuals granted a more protective status. This is precisely what happened when the United States authorized abusive treatment of unlawful combatants. Although none of the detainees in Iraq fell into that category, the broader message signaled by senior US (mainly civilian) leaders was clear: some captives are unworthy of the full protection of the law of armed conflict. Did this contribute to the inhumane treatment inflicted upon Iraqi detainees? It seems almost self-evident that the answer is yes. What beyond any doubt is that this could not have helped reinforce commitment to the legal obligations that so clearly applied to these victims.
Telford Taylor wrote several decades ago that war does not provide a license to kill; it imposes a duty to kill. But that duty is imposed by the State, and it is subordination to the interests of the State that defines warrior professionalism and permeates the restrictions imposed on warriors by the law of armed conflict. These restrictions serve both military and humanitarian interests, by protecting individuals from gratuitous violence and by facilitating mission accomplishment through the mitigation of resentment and disdain among opponents and potentially hostile civilian populations. But it is easy to understand why these restrictions may frequently be perceived as counter-intuitive for individuals engaged in mortal combat who must, in order to overcome the human aversion to killing, dehumanize their opponents. The States and military leaders who demand this conduct from men and women must, therefore, be vigilant in reinforcing these bright lines and avoid the temptation to extend the dehumanization that is an unfortunate necessity of pre-submission encounters with the enemy to their post-submission treatment. If this is a lesson learned from the Abu Ghraib debacle, then some good will ultimately be derived from that sad incident.
Geoffrey S. Corn is Presidential Research Professor of Law, South Texas College of Law; Lieutenant Colonel (Retired), U.S. Army Judge Advocate General’s Corps. Prior to joining the faculty at South Texas, Professor Corn served in a variety of military assignments, including as the Army’s senior law of war advisor, supervisory defense counsel for the Western United States, Chief of International Law for U.S. Army Europe, and as a tactical intelligence officer in Panama. He is the co-author of The War on Terror and the Laws of War: A Military Perspective with Michael Lewis, Eric Jensen, Victor Hansen, Richard Jackson, and James Schoettler.
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