Torture In Our Time

Lawrence Davidson



Civilizing Steps

The impression of pain, then, may increase to such a degree that, occupying the mind entirely, it will compel the sufferer to use the shortest method of  freeing himself from torment....He will accuse himself of crimes of which he  is innocent so that the very means employed to distinguish the innocent from  the guilty will most effectually destroy all difference between them. 

Cesare Beccaria, On Crimes and Punishments, 1764


At the beginning of the eighteenth-century the open and official use of torture by Europe’s governments was widespread.  It was deemed necessary to affirm guilt through confession in criminal cases (guilt almost always being assumed prior to trial) and to determine the identity of accomplices.  It was also thought to serve as a deterrent to other potential offenders.  Then, Cesare Beccaria, Voltaire, and other Enlightenment figures began to say publicly what some of the torturers might have known for a long time—none of these justifications were consistently true.  Torture did not, in any reliable fashion, bring forth truthful confessions or other trustworthy information, nor did it deter others, in any significant way, from breaking the law.  Using these facts, a small but well-known number of intellectuals were able to exercise influence over selectively progressive rulers in an era of non-democratic government.  Through forceful lobbying and popular writing the Enlightenment philosophers promoted a new set of beliefs—the importance of critical intelligence, the merit of objective evidence, and the value of tolerance and common decency—to government leaders and other important personages who respected their opinions and wanted to be identified with their “enlightened” way of thinking. As a result, states began to abolish the official use of torture.  Prussia did so in 1754, Baden in 1767, Sweden in 1772, France in 1780, Austria in 1781, Tuscany in 1786, and so on.  

Nonetheless, it is doubtful whether these decrees stopped torture by government officials altogether.  Torture had been practiced for a very long time and traditions are hard to put aside.   Also, as we will see, there are other, psychological reasons for its persistence.  It must also have persisted at those times and places deemed exceptional—that is when the rule of law was thought not to apply.  The most common example in this category is when waging war.  It would take another hundred or so years until something like Enlightenment good sense was applied in the form of “rules of war.” 

This second step began in 1859 with the work of Henry Dunant, the man who founded the International Red Cross.  His efforts, and those who kept up his work, have resulted in a series of Geneva Conventions that have crafted internationally applicable laws for how warring parties treat civilians, medical personal, and prisoners of war, among other groups.  Under the Third Geneva Convention, which came into effect in 1950, prisoners of war “must be humanely treated.”  Thus, “prisoners of war must at all times be protected, particularly against acts of violence or intimidation . . . ”  In 1985, a United Nations Convention Against Torture extended this protection to all individuals, stating in Article 2 that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”  In addition, the Convention’s Article 3 states that, “no State or Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”  The United States has signed and ratified the Third Geneva Convention as well as the Convention Against Torture.  It is now in open violation of both of them. 

About Face

The nature of the new war places a high premium on...the ability to quickly obtain information from captured terrorists in order to avoid further atrocities against American civilians.  In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions . . .

White House Counsel Alberto R. Gonzales, Memorandum for the President , January 25, 2002.

Americans were profoundly shocked when the Twin Towers were brought down by hijacked commercial airliners on September 11, 2001.   More deadly than Pearl Harbor, this attack was seen as an unprovoked terrorist assault on a country, the foreign policy of which had only the best intentions for the rest of the world.  That this assessment reflected a widespread ignorance of the real consequences of American foreign policy made no difference to the reaction that now evolved.  Righteous indignation reigned supreme and the shadowy enemy that had launched the attack was portrayed as irrational, fanatical, and unworthy of any humanitarian regard.  This assumption was to be a prime attribute of  “the new war on terror.”

In order to categorize the enemy in a fashion that would allow representatives of the United States military and intelligence services to “quickly obtain information” that might prevent further attack, the administration of President George W. Bush invented the category of “enemy combatants.”  That is, they created a category of prisoners who, they claim, fall outside of the protection of any laws or treaty obligations and therefore can be tortured.  In turn, this policy was and is based on the assumption that such an abusive approach to interrogation is the most effective and efficient way to quickly get intelligence that is accurate and useful.

It has now become apparent that there has always been a segment of society (all societies) who never believed Beccaria’s assertion that torture was not a good way of producing reliable information.  When modern experts such as Darius Rejali tell us (as he does in his recent book, Torture and Democracy), that “the available evidence [against the efficacy of torture] is conclusive” and alludes to the fact that, for 250 years, researchers, criminologists, and psychologists have been pointing this out, the self-styled  “pragmatic” doubters react incredulously. When an ex-intelligence officers such as Colonel John Rothrock, who headed a combat interrogation team in Vietnam, tells the Washington Post that, given the Vietnam experience, “he doesn’t know ‘any professional intelligence officers of my generation who would think this [torture] is a good idea,” the self-proclaimed “realists” refuse to listen.  The evidence against torture appears counter-intuitive and just does not “feel right” to what are essentially a warrior caste and its fellow travelers.  The present administration falls wholeheartedly into this class of skeptics.  Thus, on January 18, 2002 President Bush issued a “finding” to the effect that prisoners suspected of being members of Al Qaeda or the Taliban were to be regarded as “enemy combatants” and therefore beyond the protection of the Third Geneva Convention. Having thus stripped them of any rights, Bush would subsequently (and disingenuously) order that prisoners were to be treated humanely “to the extent . . . consistent with military necessity.”  Everyone down the chain of command now knew that torture was allowed.

President Bush did not dream up this gambit on his own.  He had been convinced of its permissibility by his legal staff.  Bringing discussions to a close that had been on-going since the September 11th attacks, White House Counsel Alberto Gonzales told the president in a memorandum dated January 25, 2002 that the Third Geneva Convention “does not apply to the conflict with Al-Qaeda” or “with respect to the conflict with the Taliban.”  In addition he supplied the president with arguments that could be used to insulate from prosecution American personnel who might be accused of criminal acts such as torture.   Deputy Assistant Attorney General John Yoo and Special Counsel Robert Delahunty later argued the same points, including the assertion that “the Taliban was not a government and Afghanistan was not . . . a functioning State.”  Finally, an additional report prepared in August 2002 by Assistant Attorney General Jay Bybee asserted that the president’s authority under the constitution freed him from all international law, even ratified treaties (which Article VI of the Constitutions makes “the supreme law of the land”), and such statutory law that “interferes with the President’s direction of core matter such as detention and interrogation of enemy combatants.”  Any restrictions were deemed “unconstitutional” because they got in the way of defending the country. 

On January 19th, on the strength of Bush’s presidential findings, Defense Secretary Donald Rumsfeld told the Joint Chiefs to inform members of the military that prisoners suspected of being Al-Qaeda or Taliban were not protected by the Geneva Convention.  President Bush reaffirmed Rumsfeld’s order on February 7, 2002.  This resulted in the preparation of “wish lists” by intelligence units in Afghanistan and Iraq as to what sort of coercive methods they would like cleared for use. Rumsfeld may have used these requests when he drew up a list of permissible interrogation tactics in December of 2002.  Also, Major General Geoffrey Miller, the commander at Guantanamo Bay, where abuse amounting to torture was already routine, was sent to Iraq in September 2003 to share his techniques with interrogators in places like Abu Ghraib.  His job was to “Gitmoize” the process. What did this mean in practice?  As one former military intelligence officer, familiar with Miller’s directives, put it,  “it means treat the detainees like shit until they will sell their mother for a blanket, some food without bugs in it and some sleep.”  The same month Miller showed up in Baghdad, General Ricardo Sanchez, Commander of American troops in Iraq, authorized interrogation techniques tantamount to torture.  These quickly became standard US practice and, according to a Human Rights Watch report; prisoners started dying during interrogation sessions almost immediately thereafter.   (As of February 2005 some 37 prisoners are known to have died in US custody.)  In 2004, in an action that cannot be regarded as unusual for members of the Bush administration, Sanchez swore before Congress that he had never issued these (clearly documented) orders.  Soon there was the full-blown scandal of Abu Ghraib, which only constitutes “the tip of the iceberg of US mistreatment of Muslim prisoners.” 

This mess, involving not only the physical torture of “enemy combatants” and others, but also the an increasingly tortuous tangle of lies and deceptions, is the result of an ideologically   inbred President of the United States (one who prides himself on making decisions “from the gut”) ordering the violation of international and US law by making a “finding” based on dubious opinions and false assumptions rather than hard evidence.  As to the facts of the matter:

             1) No competent body has investigated or rendered a finding on the status of prisoners being taken in Afghanistan, Iraq, and elsewhere.  Were they Al-Qaeda operatives or Taliban or were they not?  In the 1991 Gulf War, where case by case reviews were held of those detained, it was found that 75% were innocent civilians. In the present conflict the International Red Cross estimates that between 70 and 90% of all detainees are innocent civilians.  The Third Geneva Convention explicitly states that if there is any doubt as to the status of a prisoner, he or she must be accorded the protection of the Convention until such status is determined “by a competent tribunal.”

             2) The argument made by Gonzales, Yoo and Delahunty that the Taliban did not function as an established government had little basis in fact. At the time of the American invasion the Taliban regime controlled 90% of Afghanistan, enacted and enforced laws, filled government posts, fielded an organizationally intact army and police force, and sent out diplomatic envoys some of whom had been received by the United States.

             3) The notion that presidential power overrides ratified treaties and statutory law would leave the Founding Fathers turning in their graves.  After all, a principle aim of the constitution is to keep governmental figures acting within the law.  In addition it should be remembered that most of the men who founded the United States worked and thought within the Enlightenment vein.  They sought restraint of the arbitrary exercise of power and, when it came to torture and similar techniques of coercion, they agreed with Thomas Jefferson when he remarked that such practice only served to “support roguery and error all over the earth.”  Overriding the law in order to allow for torture is a manifest betrayal of the civil and political goals of those who risked their lives and fortunes to establish the United States.

            4) As the evidence piles up that Bush, Rumsfeld, Sanchez and others consciously ordered the use of illegal interrogation methods, they become vulnerable to the charge that they have committed war crimes. Unfortunately, the likelihood of anyone coming to Washington, slapping on the handcuffs, and hauling these transgressors off to the Hague seems remote.  Defense Secretary Rumsfeld, showing his characteristic callousness, has dismissed the allegations of human rights organizations as “isolated pockets of international hyperventilation.”  Then again, there happens to be no statute of limitations when it comes to war crimes.

It is questionable if the Bush administration’s policy on torture and abuse has done anything substantial to actually protect either the country or its troops.   It has, however, cast shame on the name of America and, at least for some Americans, has been a real eye-opener.  However, what shock there is, is really a function of the general ignorance of history of American use of torture.  What is new and different about the Bush administration is not that they are willing to violate the law and torture people, but rather that they are willing to do so more or less openly. 

The Concept of “No Touch Torture”

The United States is committed to the world-wide elimination of torture and we are leading this fight by example.

Statement by President George W. Bush, June 26, 2003

At the beginning of Cold War the Central Intelligence Agency decided that there might be something to the claim that traditional forms of torture led to unreliable information.  However, instead of following in the footsteps of the 18th century governments which forbade its official practice, the CIA proceeded to spend fifty years and over a billion dollars trying to figure out new torture methods that might work.  Some of their experiments went awry, the most infamous one being the giving of LSD to unsuspecting subjects.  Other lines of inquiry, however, appeared to show promise.  These included sensory deprivation, forcing subjects to assume stress-inducing positions for long periods, and sexual humiliation.  As a group, they are known to the trade as “no touch” tortures.  Looking at the pictures from Abu Ghraib, it is not hard to recognize CIA research transformed into practice.

This means that Abu Ghraib is no novelty. The CIA and the American military have not only employed various torture techniques throughout the last half of the 20th century, but they also have actively taught others how to do the same.  Americans have instructed the thugs employed by some of the world’s worst, but assuredly anti-communist, dictators.  These included Ferdinand Marcos of the Philippines and the Shah of Iran, the right wing dictators of Guatemala, Nicaragua, Argentina, Chile, etc.  All of these dictatorships got instruction in torture techniques from American instructors working for the US Agency for International Development’s Public Safety Program (a very Orwellian name indeed).  In 1963 the CIA developed a how-to guide to torture known as the “Kubark Counterintelligence Interrogation manual.”  It was initially to be used on captured Soviet operatives.  But then came Viet Nam and by 1967 the Agency was running forty interrogation camps in that country as part of its infamous Phoenix Program.  Thousands of Vietnamese were tortured in these centers.  Just so, the CIA began using its torture methods in Kabul in 2002.  Then came Iraq and the subsequent torture of thousands of Iraqis as well as Afghanis.  It all went smoothly until someone leaked the facts of Abu Ghraib to Seymour Hersh.

The Bush administration’s reaction to the Abu Ghraib scandal was to deny that the photos and stories reflected present or historical American policy.  On the contrary, President Bush was quick to tell Al-hurra TV (the feeble American answer to Al-Jazeera) on May 5, 2004 that the United States was a compassionate country interested in the well-being and freedom of every individual in Iraq and elsewhere.  That meant that, according to Mr. Bush, torture at Abu Ghraib was just the “wrongdoing of a few,” or as the Army’s Inspector General, Paul Mikolashek put it in April of 2004, all cases of abuse are simply “an individual failure to uphold Army values.”  On the other hand, FBI personnel present at many of the interrogations carried on in 2003 and 2004 at Guantanamo Bay filed no less then 26 complaints alleging abuse and mistreatment of detainees, and the International Committee of the Red Cross, which did unannounced inspections of many US interrogation facilities in Afghanistan and Iraq, has documented widespread and consistent interrogation techniques that are “tantamount to torture.”  This practice was (and still is) so widespread and so consistent that one must speak of a policy of torture, which now works itself out in a system of hellish prisons and interrogation centers stretching from Guantanamo Bay in Cuba to Kabul in Afghanistan and Baghdad in Iraq.  This policy has subsequently been confirmed by investigations carried out by Amnesty International and Human Rights Watch.  The past and present pattern of behavior is so manifestly obvious that one must conclude that both the President and the Inspector General were either totally ignorant of decades of CIA and military interrogation practice, as well as the consequences of their own on-going “enemy combatant” policy, or they were lying.  Did President Bush happen to recall his own findings of January 2002 removing the protection of the Third Geneva Convention from the prisoners taken in Afghanistan and Iraq?  What did he think the result would be?

The popular American reaction to Abu Ghraib, led forward with gusto by the Republican Party leadership, has been to minimize its meaning (the few bad apples argument) and, more brazenly, to justify it (as Senator Trent Lott put it, “you don’t get information that will save American lives by withholding pancakes.”)  Nonetheless, in an attempt to minimize the risks of any more politically embarrassing revelations, the government has adopted the (equally illegal) policy of out-sourcing torture.  That is,  shipping those they want interrogated in this fashion to foreign countries that have no domestic public relations problems to worry about.  (In Uzbekistan, one of countries who receive alleged terrorists from the CIA, they may choose to boil you alive.)  In January 2005 Attorney General Alberto Gonzales, in sworn testimony to Congress, denied that such transfers were US policy—an answer described by Michael Ratner of the Center for Constitutional Rights, as “a clear, absolute lie.”  This well documented policy of out-sourcing is a violation of the Convention Against Torture and has been denounced by some Americans as despicable.  However, not by many.  As in the 1970s, when Congress (under an entirely different leadership) investigated CIA and military torture practices in Vietnam and Latin America, the general public, after a bit of tut-tutting, seem little moved.  A USA Today/CNN/Gallop Poll taken on January 7-9, 2005 shows that 39% of Americans were willing to have “terrorists” tortured if they were believed to have knowledge of impending attacks.  That is, of course, what the US military said it was doing at Abu Ghraib. 

The Realpolitik Majority

Those who can make you believe absurdities, can make you commit atrocities

Francois Marie Arouet (Voltaire)

According to Amnesty International, torture and abuse has been recorded in 130 countries (including the United States) in recent years and occurs regularly in 70 of these countries.  It is therefore highly questionable whether there is any less torture in our own age than in 1800.  Just as in the time of the Enlightenment,  the laws and treaties that have attempted to outlaw such practices are a reflection of the efforts of a relatively small number of people who have strongly lobbied to establish rules of civilized behavior.  Today, within an increasingly democratic environment, this heightened standard of behavior is welcomed by the majority when times are peaceful, when citizens are sitting in church, are feeling secure within their homes, or answering poll questions on the phone.  That is, the majority agree in theory.  Yet in practice, particularly in times of real or imagined danger, this civilized standard of behavior is abandoned.

At the level of the intellectuals, we have traded Beccaria and Voltaire for the likes of Alan Dershowitz who argues that torture is sometimes necessary and, in any case, is an inevitable practice.  This, of course, smoothes the way from humane theory to barbaric practice.  According to Dershowitz’s argument torture should be made official via “torture warrants” so as to preserve openness and respect for the law. As illogical as such an argument is, it has a lot of Americans nodding in agreement.  Indeed, torture has become ubiquitous in our “war on terror” and new revelations of its use are frequently reported.  All pretenses have largely been dropped in the public mind and an unspoken acceptance now prevails.   Why is it that most people accept this violation of their own standards of civilized behavior so readily?

It may be that many people, looking beyond their own family circle, have an a priori Hobbesian perception of the world.  They constitute a “Realpolitik majority” who assume that “it is a tough world out there,” that “nice guys finish last,” and as to “playing rough,” well, “c’est la guerre.”   As a consequence of this point of view, when it comes to issues such as “defense,” and even “fighting crime” the assumption of most people is that toughness, the willingness to “do what needs to be done,” necessitates giving government authorities a relatively free hand in policy making. Or, as Bill Clinton once observed, Americans prefer a leader who is “strong and wrong” to one who might be right but seems to be weak.  Like children relying on their parents, many people want a father figure who will “crush those who would hurt us.”

Over the last century, with its two world wars, genocides, numerous proxy wars, the Cold War, the possibility of nuclear annihilation, the conjuring of “weapons of mass destruction” and now the “war on terror,” uncertainty and fearfulness have become the norm.  The authorities and the media fill the world with real, or more often imaginary enemies.  Sometimes they are domestic—racially defined criminals who prey on the upright and affluent.  Sometimes they are foreign—citizens of states that are “evil” or shadowy terrorists who “hate freedom,” a world full of Muslim fanatics, commies, gooks, japs, huns, ad nauseam.  But always most people (and not only Americans) are going to assume the threatening nature of such “others” simply because the informational environment in which they live instructs them to do so.  Allegedly threatening individuals who fall into the hands of the authorities are assumed guilty by virtue of having been seized.

Once in the custody of state officials a prisoner’s fate is not just a function of the prevailing rules, but also a function of the public’s interest in maintaining those rules.  That, in turn, is influenced by the degree of insecurity felt by the citizenry.  Requiring civilized and humane behavior from those charged with our defense makes sense to most people only when they are not in a state of fear.  In other words, if a feeling of threat is high, the enforcement of the rules underlying human rights will be low.  The fact that, after September 11, 2001, polls showed that “only” around 39% of the American population was willing to endorse the torture of suspects known to have life saving information is just the proverbial tip of the iceberg.  Beyond that tip is the willingness of a much larger percentage of people to accept the government’s general assertion that “tough interrogation,” “stress and duress,” and “fear up” techniques (all of which are official euphemisms for torture and abuse) are sometimes necessary to protect the nation.  This is demonstrated repeatedly by that fact that frequent revelations of abuse and torture not only of foreigners alleged to be enemies, but also of those arrested for domestic crimes, fail to engender any long term reaction on the part of the vast majority of citizens.  Indeed, when in July 2005 the Bush administration successfully blocked a Senate vote to “prohibit cruel, degrading or inhumane treatment of prisoners” there was no noticeable public outcry and something less than a hiccup in the press.  It is not that the public “likes what is being done,” it is rather that the majority believes the officially reinforced message that the world (including aspects of their own society) is a dangerous place.  This in turn creates a more or less permanent sense of anxiety, and the result is a standing conviction that “strong but wrong” actions  are, periodically, necessary for the sake of society’s survival.

In addition, we should be honest and admit that racism plays a significant role in the acceptance of torture when it is used against people we do not identify with.  From the 18th through the 20th centuries the evolving rules of conduct that impacted the use of torture were most easily and consistently ignored when practiced against non-Europeans.  This was the case in Europe’s extensive imperial holdings, as well as the abuse of non-white minorities in American jails.  It is now the case with Iraqis, Afghanis, and Arabs in general.

As to those able and willing to commit torture, we must recognize that there has always been a subset of the population who actually like to abuse others and not all of them operate outside the law.  The likelihood of an abuse of power is increased by the fact that those who self-select for police and military careers in which torture may become officially possible are sometimes personalities who find it easy to perform such acts.  Conditions of war and crisis give such men and women license to act out in ways that, under normal circumstances, would be deemed criminal.  The Bush administration, filled as it is with neo-Prussian personalities who certainly see the world in “ends justify means” terms, has been particularly good at funneling such miscreants into Iraq.  Department of Corrections personnel from at least four states who lost their jobs due to a record of abuse have been hired by the Bush administration and sent off to Iraq as “prison advisers.”   On the other hand, scholars who have studied the nature of torturers insist that it is also possible for “ordinary people” to find themselves within an environment that leads them to such action.  So, first you mix ordinary people with those with a penchant for abuse and put them in an environment in which they are told that the “gloves are coming off” so that American lives can be saved.  Then you give them the Pentagon’s “72 point matrix of stress” as a guide to the interrogation of “prisoners with high intelligence value who are not protected by the Geneva Conventions.”   In such a scenario it is not those with the highest ethical standards who will lead the way.  Philip Zimbardo, a Stanford scholar who did research on the willingness of “average” people to inflict pain on others, tells us that, “in my study we put good people into a bad barrel, they came out bad apples.”


In the midst of the Vietnam War, Paul Blackstock wrote an essay on the “Moral Implications of Torture and Exemplary Assassination” for the Carnegie Council On Ethics and International Affairs.  He described the widespread use of torture and assassination by the CIA and Special Forces and said that this policy had created a situation wherein “for the majority of private individuals” the “intolerable has become tolerable.”  He then concluded that, “general acceptance of the rule of law is rightly regarded as a major step forward in the history of Western Civilization.  For the US to scrap this achievement, even for the sake of an elusive ‘victory’ in the rice paddies of Southeast Asia, would be the height of unreason and folly.”  Well, there was no elusive victory in Southeast Asia and now, thirty-five years later, the scene of action has shifted half way around the world.  In just about all other ways, the situation is exactly the same.

Where Blackstock got it wrong was in the assumption that Western Civilization has assimilated a consistent, hypocrisy-proof sense of the rule of law.  It has not.  The application of the rule of law has always been subject to class, racial/ethnic and other sorts of criteria.  In as much as it reflects a demand for humane and civilized behavior, the rule of law functions one way during peace and another during war.  That is, it is context contingent and an important part of that context is the sometimes paranoid and fear filled perceptions of “realpolitik majorities.”

The fact is that people react to their societal environments in both rational and emotional ways and that these environments are subject to warmongering, and the political use of hysteria.   Such manipulation accentuates the emotional and leads to popular support of such policies as the official use of torture and abuse. This realization may be frustrating for those who identify themselves with the Enlightenment’s principles and goals, but progressives too must deal with reality.  While this susceptibility to manipulation may never go away, it can be fought against and contained.  Here we must take encouragement from the Enlightenment philosophers and those who gave us the Geneva Conventions and their like.  It is the obligation of progressives to carry on this struggle by the constant demand that “reason be used to influence the passions.” In other words, a demand for adherence to the very standards that the 18th century philosophers insisted upon: critical thinking, objective evidence, tolerance and common decency.  Indeed, what the world needs is a permanent, on-going Enlightenment movement wherein an increasing number of “philosophers” seek to shape the popular environment of our societies.  Such an undertaking is the benign equivalent of a permanent revolution—a task that never ends.