- Ever since the gross abuses at Abu Ghraib prison in Iraq
broke into electronic and print media in late 2003, the public has been
exposed to the unfolding horror of American uses of torture. Reflexive
efforts have been made by the Bush administration and apologists to blame
"a few bad apples" for torture at Abu Ghraib and other sites
such as Guantanamo. But those efforts, if anything, have provoked exposure
of extensive uses of torture in US military and intelligence operations,
while bringing to light the egregious patterns of torture and abuse that
are commonplace in the American prison system.
- While Abu Ghraib was generally greeted as a sad departure
from American norms, truth must force us to reflect on how torture has
become a power tool of common, if unproven, utility in American and foreign
practice. What must trouble us even more is the extent to which Americans
accept the pattern as normal, while laws are being bent to accommodate
it. A May 5, 2007 Washington Post article reports the moral decay is spreading
among our troops. More than one in three support torture, while many seem
unconcerned about harm to civilians (http://letters.washingtonpost.com/W4RT02C0AD7B1ED35E97F302153CD0
- The "dirty war" practices of US contractors
such as Blackwater in Iraq (http://www.youtube.com/watchv=nqM4tKPDlR8)
add an immoral and officially sanctioned pattern of corruption to the American
- The historic role of torture
- In the history of humanity, torture has been the most
persistent single instrument of political coercion. Every historic empire
had a place for it. Some cloaked it in the raiment of justice, using the
tools and the practices of torture as exemplary means to enforce law, custom
or mere monarchial preferences. Believed by its most avid practitioners
to be a tool for avoiding change, it often has provoked first the perception,
then the rebellion, and then the fact of desirable change.
- Every empire that practiced torture is gone, including
the Holy Roman Empire. The Catholic Church probably set the course record
with the 350-year run of Inquisitions. Its principal achievement, however,
was the provocation and growth of powerful religious alternatives.
- Saddam Hussein is the only modern torturer to pay for
his crimes by being forcibly overthrown. But even before he had been crudely
tried and brutishly hanged, his conquerors had reinstituted torture in
Iraq on a scale easily as brutal as anything Saddam had practiced.
- US uses of torture
- US applications have included killing Saddam's two sons
as part of an operation that Secretary of Defense Rumsfeld said was "The
task of the commanders on the ground find and capture or kill the senior
leadership from Iraq." That gambit was preceded, even before the invasion,
by an effort to assassinate the head of state-a violation of international
law. With those actions the Bush administration openly embraced assassination,
having already embraced torture as a tool of national policy. That brings
us up to the present and Guantanamo.
- The US prison at Guantanamo now contains upward of 400
"detainees", and it has held more than 650 at times. Of that
number, which has fluctuated since the beginning of the Iraq War, only
a few have been charged and submitted to trial. Such trials are occurring
under the Military Commissions Act. This legislation rules out use of statements
obtained by torture, but if extreme treatment causes the victim to name
a suspect or identify an incriminating document, those data can be used
in court. Under those rules, detainees at Guantanamo have no Miranda rights.
They have been and even now are being tortured. A person tortured may incriminate
himself or third parties by identifying, under harsh interrogation, items
of evidence that then may be used against him.
- With the help of bad information gained by torture, the
United States has turned a short few days of Iraq conquest into more than
four years of bloody occupation. The price of every piece of allegedly
useful information gained by torture is the maiming, death and displacement
of millions of Iraqis and the death and disabling of many thousands of
- The Geneva Conventions
- Some officials argue that harsh treatment of prisoners
is ok because normal protections of the law do not apply to people captured
on the battlefield. The drafters of the Geneva Conventions, indeed virtually
all other governments strongly take exception to such arguments. Respecting
detainees taken even in the undeclared warfare now being conducted by the
United States in Afghanistan and Iraq, Article IV of the 1949 Convention
says that such individuals shall not be subjected to:
- (a) Violence to life and person, in particular murder
of all kinds, mutilation, cruel treatment and torture;
- (b) Taking of hostages;
- (c) Outrages upon personal dignity, in particular, humiliating
and degrading treatment;
- (d) The passing of sentences and the carrying out of
executions without previous judgment pronounced by a regularly constituted
court affording all the judicial guarantees which are recognized as indispensable
by civilized peoples.
- The United States was one of the primary framers of the
Geneva Conventions, and such treaty obligations are part of US law. However,
advocates of the Military Commissions Act and supporters of imprisonments
at Guantanamo argue that the base is outside US territory and the normal
protections of the individual provided by US laws do not apply. Those advocates
argue that neither are the detainees, so-called "unlawful enemy combatants",
covered by the Geneva Conventions. The basic argument is that our laws
do not protect people who fight as individuals or non-state groups against
the United States, even if they are protecting their homes and hearths
against US invasion and occupation. Under those rules, George III could
have joined every colonial rebel to the criminal class.
- US Federal law on torture
- Before going deeper, it would be worthwhile to look at
the provisions of US law. Title 18 of the United States Code is actually
quite clear on what "torture" is. The language of Title 18 on
this matter has neither been repealed nor amended by subsequent legislation.
Definitions read as follows:
- (1) "Torture" means an act committed by a person
acting under the color of law specifically intended to inflict severe physical
or mental pain or suffering (Author's note: other than pain or suffering
incidental to lawful sanctions (stuff such as tight handcuffs, behind the
back, or other restraints, and such like) upon another person within his
custody or physical control;
- (2) "Severe mental pain or suffering" means
the prolonged mental harm caused by or resulting from -
- (A) The intentional infliction or threatened infliction
of severe physical pain or suffering;
- (B) The administration or application, or threatened
administration or application, of mind-altering substances or other procedures
calculated to disrupt profoundly the senses or the personality;
- (C) The threat of imminent death; or
- (D) The threat that another person will be imminently
subjected to death, severe physical pain or suffering, or the administration
or application of mind-altering substances or other procedures calculated
to disrupt profoundly the senses or personality; and
- (3) "United States" includes all areas under
the jurisdiction of the United States---
- In crafting the Title 18 language, the legal drafters
stuck close to ordinary English. It is not difficult for any of us to follow
the foregoing definitions. They are clearly consistent with the letter
and spirit of both the Geneva Conventions and the UN Convention against
torture. Section 2340b of the Code says its rules apply if "the alleged
offender is present in the United States, irrespective of the nationality
of the victim or alleged offender."
- The Bush administration posture
- The Bush administration seeks to escape all of that by
arguing that the detainees are aliens. They are not "legal combatants",
meaning people in the military services of any enemy country. They are
not in US territory; therefore US law does not protect them.
- Let's walk through these three Bush administration objections.
First, the US Constitution does not make a distinction between "aliens"
and "citizens". Consistent with the Declaration of Independence:
"We hold these truths to be self-evident, that all men are created
equal", the Constitution actually deals with the rights of persons.
Second, the Geneva Conventions and the United Nations convention against
torture do not exclude people in the loose category called insurgents from
legal protections. We ratified both, and we are fully subject to them.
The remaining question, therefore, is whether Guantanamo qualifies as a
US " jurisdiction" for purposes of Title 18 of the United States
- The status of Guantanamo
- History says unequivocally that it is a US jurisdiction.
For starters, Guantanamo is listed on the present US Navy website as the
"oldest US Naval Base outside the United States." It was established
under a lease entered into with the Cuban government in 1898, formally
reaffirmed by signatures of the presidents of the United States and Cuba
in 1903. It has been continuously occupied and exclusively managed by the
United States ever since.
- Fidel Castro's government tried to repudiate the lease
and argue that the US occupation is illegal. However, under the norms of
international law, one party to a properly executed international agreement
cannot terminate it by unilateral action. Thus, from the US perspective
the lease still stands.
- Keep focused, therefore, on the fact that the US is occupying
Guantanamo on the basis of an agreement entered into by the President of
the United States. For nearly 110 years the United States flag has flown
over this base, and the personnel responsible for its operations and management
have been not only citizens of the United States, but also military and
civilian personnel of the United States Government. Their every official
act is US business.
- Cuban views of the status of Guantanamo are clearly that
the territory still belongs to Cuba. However, in a public statement issued
on January 11, 2002, the Cuban government of Fidel Castro noted that it
was never consulted in advance on anything that happened in or to Guantanamo,
although, as in the case of the US decision to bring prisoners there from
Afghanistan, Cuba was informed after the fact. In that statement Cuba was
firm in asserting that the area is Cuban territory, but that the Government
of Cuba is denied any jurisdiction over it.
- Guantanamo is under US jurisdiction
- Given that firm assertion by Cuba, there are two ways
to view Guantanamo: The United States has exclusive jurisdiction over it,
and Cuban authorities acquiesce in that exercise of jurisdiction by the
United States until such time as the US withdraws. On that basis, the United
States, through officers commissioned by the President of the United States,
is and has been running Guantanamo for the past century. In line with that
reality, the budget for running the Navy, including explicitly Guantanamo
Naval Base, is annually reviewed and authorized by Congress. The base is
dealt with legislatively as a part of the United States.
- What then is the status of prisoners there?
- Given that background, the only remaining issue seems
to be: Are people who are held against their will, without being formally
charged with any crime, entitled to US constitutional protections when
they are held by US government officials inside a US government jurisdiction
outside the defined territorial limits of the United States?
- The Bush administration has taken a disturbing position
on that question. When one wades through the waffling provided by the Military
Commissions Act, the detainees in Guantanamo, or Abu Ghraib or Diego Garcia,
or on unlabeled US airplanes are simply not "persons" protected
by the Constitution. By virtue of being accused of terrorism, they are
categorically excluded from the class of people who have access to due
- Excluding people from due process
- Traditionally the due process of laws refers to both
how and why laws are enforced; and it makes no distinction between citizens
and aliens. The Bush approach is that neither citizens nor aliens accused
of terrorism are entitled to due process. The crime of terrorism, so the
argument goes, is outside the law; therefore, the person accused of such
an act is not entitled to the normal protections of the law.
- This raises a prickly question of whether there are different
categories of unlawfulness. There are codified differences in the seriousness
of given crimes, as well as widely observed concepts of the appropriateness
of punishments. While consciousness of motives and circumstances of crimes
may at times move both judges and juries to mitigate punishments, there
is no practice of saying that, given the same circumstances, person A (citizen
or alien) has more or less access than person B (citizen or alien) to due
process. Nor, in American law up to now, has there been any practice of
arbitrarily deciding that certain individuals, specifically aliens, will
be excluded from normal considerations of US legal fairness. However, both
the Bush administration and indeed a large slice of the American public
seem to have decided that anyone alleged to have been associated with 9-11
may be denied due process.
- The special role of Guantanamo
- Viewed in this perspective, Guantanamo serves a virtually
unique role in American law. It is not physically part of the United States.
The people being detained there are mostly not American citizens. They
are being held nominally for involvement in or association with people
who allegedly committed the 9-11 attacks on the United States. That fact
inspires little to no sympathy. Nor does the fact that few of them have
yet been charged with any crime. Therefore, given the general lack of public
outcry, obviously the average American opinion is that whatever happens
to such people in such remote places as Guantanamo is of little consequence
for America itself.
- The Military Commissions Act
- What Americans are missing generally is that our laws
are being redefined to fit such unequal treatment of individuals and cases.
The Military Commissions Act is a significant departure from American legal
principles, simply because it seeks to establish two distinct classes of
people: Those who are entitled to due process and those who are not. Moreover,
that distinction is not based on any factually established proof of guilt;
American officials base it merely on the accusation.
- That, unfortunately, characterizes the whole Bush administration
posture on torture. In signing the Military Commissions Act into law, Bush
assured the public that the rights of detainees were fully protected. Supporters
of the Act assert that it is "consistent with" the language of
the Geneva Conventions, even though Attorney General Gonzales has said
those conventions are "quaint". These are blatant falsehoods.
- What does the Military Commissions Act say specifically
about the rights of the accused? A few ideas will suffice. It says (a)
they are not entitled to a speedy trial; (b) they are not privileged to
confront their accuser, (c) more often than not any accusation against
them may be brought into the tribunal as hearsay or may be based on alleged
information so classified that the accuser is unknown, (d) they cannot
claim the protections of the Geneva Conventions, (e) they may not invoke
access to habeas corpus, and (f) the provisions of the Military Commissions
Act may be applied to them ex post facto.
- The Act and Guantanamo violate the Constitution
- The startling truth about the Military Commissions Act
is that it was allowed to become law even though (a) it was approved by
only a simple majority vote of the two houses of Congress, (b) it fundamentally
alters basic legal protections of the Constitution, (c) it therefore amends
the Constitution of the United States without any resort to the prescribed
procedures for amendment, (d) the administration of George W. Bush, with
the help of Congress, has changed the Constitution illegally, (e) and there
has been no public outcry whatsoever.
- The Military Commissions Act and US official refusal
to treat Guantanamo as part of the United States comprise a dual assault
on the normal American protections of law. Outside US jurisdiction and
outside America's courts people are simply treated to a denatured version
of due process. And the Bush administration has taken advantage of the
overblown American fear of terrorism to avoid accountability for violating
- The path the Bush administration is on could hardly please
potential terrorists more. The 9/11 attacks not only shook America's confidence
in itself. They launched American leadership on a path to destroy our democracy
from the inside by corrupting its laws. If our only defense against lawlessness
is to scrap our legal system, then the terrorists already have won. To
avoid that failure, we should repeal the Military Commissions Act and fully
apply the Constitution to all people charged or confined by the US, no
matter where they are. We should treat Guantanamo as part of the United
States and apply letter and spirit of US laws there until we return it
- The writer is the author of the recently published work,
A World Less Safe, now available on Amazon, and he is a regular columnist
on rense.com. He is a retired Senior Foreign Service Officer of the US
Department of State whose immediate pre-retirement positions were as Chairman
of the Department of International Studies of the National War College
and as Deputy Director of the State Office of Counter-Terrorism and Emergency
Planning. He will welcome comment at email@example.com.