Torture - The Guantanamo
Escape From Accountability

Terrell E. Arnold

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 (
The "dirty war" practices of US contractors such as Blackwater in Iraq ( add an immoral and officially sanctioned pattern of corruption to the American image.
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 American troops.
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 Code.
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 process.
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 Constitution.
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 to Cuba.
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 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



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