Critical Thinking at Work
    Austhink is a critical thinking research, training and consulting group specializing in complex reasoning and argumentation. 

 Austhink Home
 

CAPONE OR MALONE?

Terrorism and the Uses of Coercive Interrogation

Paul Monk

Muslims everywhere [should] dismember [the Americans] nation, tear them apart, ruin their economy, provoke their corporations, destroy their embassies, attack their interests, sink their ships&shoot down their planes [and] kill them on land, at sea and in the air. Kill them wherever you find them.

- Omar Abdel Rahman, New York based Islamic cleric (1996)[i]

By its terms, Geneva applies to conflicts involving High Contracting Parties, which can only be States. However, the war against terrorism ushers in a new paradigm, one in which groups with broad international reach commit horrific acts against innocent civilians, sometimes with the direct support of States. Our Nation recognizes that this new paradigm ushered in not by us but by terrorists requires new thinking in the law of war, but thinking that should nevertheless be consistent with the principles of Geneva.

-          George W. Bush (February 2002)[ii]

Human Rights Watch, the ICRC, Amnesty International, and the other self-professed guardians of humanitarianism, need to come back to earth to the real world in which torture means what the Nazis and the Japanese did in their concentration and POW camps in World War II&

-          Heather MacDonald (February 2005)[iii]

 

Ever since 9/11, the greatest challenge for us all has been how to keep a sense of proportion and maintain a capacity for dispassionate judgement. Through the aftermath of the attacks themselves, the war in Afghanistan, the debate over weapons of mass destruction and Iraq, the war there and its aftermath, the pressure on our sense and judgement has been relentless. The Torture Papers: The Road to Abu Ghraib, just published by Cambridge University Press, epitomises these pressures and why we must cope with them. It goes to the heart of our common concerns about human rights. It confronts us with a greater than usual imperative to exercise sense and judgement - and define where we stand.

Michael Ratner, President of the US Centre for Constitutional Rights, is quoted on the dust jacket as stating, The Torture Papers may well be the most important and damning set of documents exposing US government lawlessness ever published&Each page tells the story of US leaders consciously willing to ignore the fundamental protections that guarantee all of us our humanity. I fear for our future. Read these pages and weep for our country, the rule of law and the victims of torture everywhere. I think Ratner is in error. I think the book highlights not lawlessness in the US government, but the acute attention paid by the administration to the legal implications of attempting to suppress the most unconventional and truly lawless enemy it has ever confronted.

The Torture Papers consists of three kinds of documents: memorandums drafted and circulated within the American government in the wake of 9/11; reports on the abuses in Iraq and supplementary testimonies and letters. The government memorandums take up the first 380 pages of the book. They date from September 25,  2001, to March 19, 2004. They tell the story that Ratner describes as damning. The second set of documents consists of seven reports, supplemented by various sworn statements and letters. These seven reports consist of a report by the Red Cross and four official American inquiries into the abuses in Iraq, which address what happened in great detail, along with two reports by committees of lawyers, which argue on more general lines that there should be an absolute prohibition on torture of any kind under all circumstances. The inverted commas are an indication of what is actually at stake here.

The government memorandums make fascinating reading for two reasons. First, because they address a vitally important subject in great detail, making closely reasoned arguments. Second, because the editors of the book, like Ratner and others, see these memorandums as the conscious preparation, by policy makers who do not like our system of justice, of a warrant for three pernicious purposes&(1) the desire to place the detainees beyond the reach of any court or law; (2) the desire to abrogate the Geneva Convention with respect to the treatment of persons seized in the context of armed hostilities; and (3) the desire to absolve those implementing the policies of any liability for war crimes under US and international law. The consequence, in the words of editor Joshua Dratel, was the rampant abuse of detainees first in Afghanistan, then at Guantanamo Bay, and later in Iraq.[iv]

I think Dratels reading of the documents is seriously overwrought. There are cases, of course, where such pernicious planning is done with both evil intent and grievous consequence. Perhaps the most notorious is the Wannsee protocol, of January 20, 1942, in which Reinhard Heydrich laid out the blueprint for the Nazi genocide of Europes Jews.[v] Another case is that of the voluminous archival evidence of Lenins and Stalins complicity in the creation of a system of terror and forced labour in the Soviet Union, which led to the slaughter of millions between 1917 and 1953.[vi] If your reaction to these comparisons is a reflex incredulity, along the lines of Come on, no ones suggesting that the US government has behaved like Nazis or Stalinists, you have a sense of proportion.

Dratel, however, does not seem to see such parallels as overdrawn. He draws just such a comparison himself, writing: like the Nazis punctilious legalisation of their final solution, the memos reproduced here reveal a carefully orchestrated legal rationale, but one without valid legal or moral foundation&[vii] He likens them, also, to the other legally instituted but forever discredited stains upon US legal history: the internment of Japanese during World War II, the treatment of native Americans and slavery.[viii] Somewhat surprisingly, he does not refer to the public hounding of real or suspected communists in America after the Bolshevik Revolution and in the first decade of the Cold War, though these would surely have been better parallels to what he is dealing with than the treatment of native Americans or slavery. The internment of the Japanese is another matter, itself the subject of much misunderstanding and confused thinking.[ix]

But there is a better mental model than any of these for thinking about what The Torture Papers reveal. It might be called the Dirty Harry syndrome, after Harry Callahan (Clint Eastwood), in Don Siegels famous 1971 film about crime and law in San Francisco. It is the frustrated desire to be able to get hold of the al Qaeda terrorists, hold a .44 Magnum in their faces and ask Feel lucky, do you, punk?[x] On any reasonable reading of the evidence, this was the mentality that gripped much of America in the aftermath of 9/11. Whether it led to unacceptable consequences is the debate we should have, but we need to begin by keeping it in clear moral perspective and not confusing it with such things as Nazi genocide or the history of slavery.

The Dirty Harry syndrome is nicely captured by an exchange between Chicago cop Jimmy Malone (Sean Connery) and Federal agent Eliot Ness (Kevin Costner) in Brian de Palmas excellent 1987 film, The Untouchables. Ness has been assigned the task, in thoroughly corrupt and violence-ridden Chicago, of going after the kingpin of organised crime, Al Capone, who runs his crime empire with utter contempt for the law, using ruthless violence against all who stand in his way. Ness quickly discovers that his guileless assumption that he could count on the police force and the letter of the law to ensnare the gangster is naïve and risks leaving him and his family and colleagues exposed to violence without any serious hope of achieving his aim. He is set straight by the disillusioned and hard-edged Malone.[xi]

Malone: You said you wanted to know how to get Capone. Do you really want to get him? Do you see what Im saying? What are you prepared to do?

Ness: Everything within the law.

Malone: And then what are you prepared to do? If you open up the ball on these people, Mr. Ness, you must be prepared to go all the way, because they wont give up the fight until one of you is dead.

Ness: I want to get Capone. I dont know how to get him.

Malone: You want to get Capone? Heres how you get him. He pulls a knife, you pull a gun. He sends one of yours to the hospital, you send one of his to the morgue. Thats the Chicago way. Now, do you want to do that? Are you ready to do that? Im making you a deal. Do you want that deal?

Ness: I have sworn to put this man away, with any and all legal means at my disposal and I will do so.

Read in this perspective, the memorandums in The Torture Papers are not damning at all, simply illuminating. They proceeded from three premises: that the US faced a national security crisis of a novel and extremely dangerous nature;[xii] that the President has the constitutional authority, in such circumstances, to take extraordinary measures for the public safety;[xiii] and that existing conventions on the treatment of prisoners would directly inhibit the effective interrogation and secure detention of those involved, by their own account, in seeking to inflict the maximum possible harm on the US without regard to any of the laws of war.

These premises, not any darker or more pernicious agenda clearly shaped the reasoning set out in the memoranda. The third of them is, surely, the only one that is at all controversial. It was, however, demonstrably grounded on two credible arguments: that the Geneva Convention protections do not apply to those who choose to operate as al Qaeda and its allies had done; and that the protections of US domestic law not only do not, legally, apply to foreign terrorists, but would obstruct the urgent need to apprehend and suppress them by military means. However uncomfortable one might feel with some of the implications of such reasoning, especially in the light of abuses that subsequently occurred, they surely do not constitute specious reasoning, but practical reasoning in time of war.

            These are not self-evident claims and they are, of course, the subject of passionate dispute, but the editors of The Torture Papers do not at any point so much as entertain the possibility that this is what was going on. Instead, they draw the worst imaginable conclusions about the intentions of the drafters of the memoranda and offer lurid comparisons that distract from the argument in hand rather than clarifying it. The single most important claim here is that the Geneva Convention does not apply to terrorists. Unless you actually read the text of the Geneva Convention, you might be misled into believing that the US Justice Department was engaging in tendentious reasoning in offering this advice to the White House. It was not. The convention is quite explicit in this regard.

            The third Geneva Convention, on the treatment of prisoners of war is the key bone of contention. The whole set of conventions are framed as an agreement between high contracting parties, which means states governed by stable and responsible authorities, to abide by certain civilised rules in times of war, in order to minimize cruelty and inhumanity to both combatants and civilians of those high contracting parties. The third convention stipulates, consistent with the fourth Hague Convention of 1907, that combatants, if they are to expect protection as POWs, must fulfil four conditions: be commanded by responsible individuals, wear identifiable insignia, carry arms openly and themselves obey the laws of war. Unarguably, al Qaeda did not and does not fulfil any of these conditions. There cannot, therefore, be any serious claim that its jihadists, when captured, are entitled to the protections of the third Geneva Convention. There is nothing pernicious in this legal argument. It is clear and straightforward.[xiv]

            The charge that Bush Administration personnel were working with pernicious purposes could only be sustained if, in the light of the above reasoning and its various corollaries, they had declared that America would, without qualification, disregard the customary and legal standards of treatment for prisoners in its war against terrorism. They did no such thing. There are three key memorandums in this regard, one signed by President Bush, on  February 7, 2002; one signed by Secretary of Defence Donald Rumsfeld, on  January 15, 2003; and a very long one, dated April 4, 2003, which is the Working Group Report on Detainee Interrogations in the Global War on Terrorism. They make clear that the administration sought only the legal scope to conduct coercive interrogation of terrorists during the national emergency triggered by 9/11.

This did not involve anything like a wholesale repudiation of the Geneva Convention. The President wrote, Of course, our values as a Nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. Our Nation has been and will continue to be a strong supporter of Geneva and its principles. As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.[xv]

            Rumsfelds memorandum was addressed to the Commander of Southern Command, who had responsibility for Guantanamo Bay. He stipulated that any use of coercive interrogation techniques should be based on individual cases, authorised explicitly by him and that any requests for such authorisation should include a thorough justification for the employment of those techniques and a detailed plan for the use of such techniques. He added, In all interrogations, you should continue the humane treatment of detainees, regardless of the type of interrogation technique employed.[xvi] No smoking gun here.

The Working Group Report provides a detailed account of the techniques in question[xvii] and carefully differentiates among them in terms of their utility and their lawfulness. At no point does it indicate or imply that there is a warrant for the assault, injury or killing of detainees. Quite the contrary. This is thrown into high relief by considering the full range of techniques in question. None of them constitutes what most of us would customarily think of as torture: insertion of sharp objects under finger nails, of alien objects into bodily orifices, application of electrodes to the genitals, beatings, rape, racking and the like. They are overwhelmingly of a psychological nature, but include at the upper end of the range such things as hooding, isolation, sleep deprivation, slapping and removal of clothing. These were the things the Bush administration was concerned to have in its arsenal for interrogating terrorists. These are what The Torture Papers are about. What we usually think of as torture was never either contemplated or given licence. Nor were the grosser forms of abuse that occurred at Abu Ghraib.

            It is those abuses, rather than the memorandums, which should give us pause; but here, too, what the documents show is strikingly different from what we are being asked to believe by the critics of the Bush administration. This is evident even from a simple reading of the February 2004 Red Cross (ICRC) Report on the treatment of prisoners in Iraq, which brought the Abu Ghraib abuses to international attention.[xviii] Its key finding was: In most cases, the allegations of ill treatment referred to acts that occurred prior to the internment of persons deprived of their liberty in regular internment facilities&When persons deprived of their liberty were transferred to regular internment facilities, such as those administered by the military police, where the behaviour of guards was strictly supervised, ill-treatment of the type described in this report usually ceased.[xix] Nota bene: the abuses were irregularities, not official policy.

This needs to be emphasised and the report itself underscores it: The ICRC assessed the treatment of persons deprived of their liberty in regular internment facilities by the CF personnel as respectful, with a few individual exceptions due to individual personalities or occasional loss of control on the part of the guards. Abusive behaviour by guards, when reported to their officers, was usually quickly reprimanded and disciplined by superiors.[xx] In other words, the sub-title of The Torture Papers The Road to Abu Ghraib is itself seriously misleading. The memorandums do not give any warrant to the abuses that occurred there and even the Red Cross does not allege that those abuses were the consequence of official licence.

The March 2004 Taguba Report, on the 800th Military Police Brigade, which guarded prisoners in Iraq,[xxi] the July 2004 Mikolashek Report, by the Inspector General of the Department of the Army, into detainee operations[xxii]; the August 2004 Schlesinger Report, by the Independent Panel to Review Detention Operations[xxiii]; and the August 2004 Fay-Jones Report, by Lieutenant General Anthony Jones and Major General George Fay, into the performance of the 205th Military Intelligence Brigade at Abu Ghraib[xxiv], bear this out. They specify abuses, identify culprits, describe in detail the circumstances in which the abuses occurred, clearly delineate between what was done and what was authorised and call for detailed corrective measures to prevent a recurrence of such abuses. They nowhere and in no way take cover behind some presumed warrant for the use of torture by American military or intelligence officers or civilian contractors.

What, then, are we to conclude in this matter, at least on the basis of the documents in The Torture Papers? That the war on terrorism is being waged by evil people with criminal intent? No. The papers do not support any such allegation. That those people have used coercive methods in an effort to break the resistance of terrorists and other lawless opponents in this grim struggle? Yes. That those methods constitute torture as most of us would normally understand that term? No. That the specific abuses at Abu Ghraib and the small number of killings that have occurred in the detention centres operated by the American military were authorised or intended by the architects of this coercive interrogation policy? No. There is no evidence in these papers that that was so and clear evidence that those things have been reprehended and punished.[xxv]

If, in the light of what has happened over the past few years, we are to decide where we stand, we need to be clear that it is the use of limited coercive interrogation in time of military emergency and not the wholesale use of torture as that word is normally understood that is at issue[xxvi]. This is where the debate should be centred. The challenge then becomes setting guidelines and procedures of governance which ensure, as far as possible, that emergency measures do not become arbitrary measures, that strong measures do not become atrocious measures and that the innocent do not become confused with the guilty. This last remains a matter of acute concern, as the long-running debate about the detention of suspects at Guantanamo Bay demonstrates. There are no neat, comfortable answers here, only an acute need for cool heads and ethical responsibility.[xxvii]

In dealing with ruthless enemies who, by their own account, hold our rules and conventions of restraint in contempt, we face all but intractable dilemmas. Two recent books by individuals of impeccable moral and intellectual standing highlight these dilemmas: Alan Dershowitzs Why Terrorism Works[xxviii] and Michael Ignatieffs The Lesser Evil[xxix]. They differ precisely on whether torture of any description should be used against terrorists. Dershowitz provides a carefully reasoned defence of a closely circumscribed version of the Dirty Harry syndrome; Ignatieff says we should never soil our hands, because torture is both morally depraved and a contradiction of the values our civilisation stands for. Being responsible does not mean reacting viscerally one way or the other, but acknowledging how deep the dilemma is here particularly for those charged with the defence of the realm against terrorism.[xxx]

One American professional, using the pseudonym Chris Mackey, writing in 2004, expressed revulsion for what had happened at Abu Ghraib[xxxi] and went to great lengths to describe how American interrogators were trained to use psychological methods only, based on a Cold War paradigm[xxxii]. Once in Afghanistan, they found that Islamist prisoners had been extensively trained in how to resist such methods and assured by their terrorist masters that the Americans could not and would not apply any more coercive methods. Consequently, interrogation was often fruitless[xxxiii]. He concludes, in evident moral uncertainty, that the old adage that harsh treatment of prisoners only produces bad intelligence is not particularly persuasive[xxxiv]. Therefore, as a matter of practical reality, the question of how far to go doesnt have an easy answer and, in the wake of September 11, the calculation is more complicated. The price for erring too far in either direction may be paid in blood.[xxxv]

New York lawyer Andrew McCarthy reflected recently on the question of whether we, in the liberal democracies, have any obligation to extend the right of free speech to those who openly advocate terrorism. Those who insist that coercive interrogation, however limited, constitutes torture and that captured terrorists should be accorded full protection under the Geneva Convention, also tend to insist that terrorist propaganda should not be proscribed or punished in any way[xxxvi]. McCarthys reasoning is not dissimilar in nature to that of the drafters of the memorandums in The Torture Papers: one would think such steps [proscription and punishment] would be straightforward, but they are not. He concludes that the advocacy of terrorism in this day and age is entitled to no First Amendment protection.[xxxvii]

He no more has a pernicious purpose in making this argument than did Abraham Lincoln in suspending the writ of habeas corpus in 1861 and interning thousands of suspected rebels and subversives for the sake of the Union. Nor, I suggest, did the Bush administrations legal counsels, when they argued that al Qaeda and the Taliban were not entitled to the protections of the Geneva Convention. McCarthy is urging that we must give priority to defending ourselves and our freedoms, with as much restraint as we can, against those whose actions and words put them outside any rational claim to our trust or respect.

Rights are a two way street: they require a mutual commitment to standards and rules. Where one side totally violates such rules, it is asking the unreasonable and, at the end of the day, the impossible, of the other side to observe them in every particular and at lethal risk to themselves. It is like expecting a heavy weight boxer to stick to the Marquis of Queensbury Rules when his opponent pulls out a knife and threatens both him and the referee with it. Since it is we, not our Islamist enemies, who wish to maintain both freedom and human rights, we clearly should do all we can to follow the rules ourselves. But we confound ourselves if, out of purity of heart, we refuse to take even limited steps to deny to terrorists the rights and protections that they hold in contempt. You are Eliot Ness, in The Untouchables. What is your choice: to suffer Capone or work with Malone?


 

[i] Quoted by Andrew C. McCarthy, Free Speech For Terrorists?, Commentary, March 2005, pp. 27-36, on p. 27. McCarthy, a senior fellow at the Foundation for the Defence of Democracies, led the prosecution of Omar Abdel Rahman, the so-called blind sheikh, in 1995, on charges of terrorism, of which he was found guilty and for which he was sentenced to life imprisonment.

[ii] Karen J. Greenberg and Joshua L. Dratel (eds) The Torture Papers: The Road to Abu Ghraib, Cambridge University Press, 2005, (hereafter TP) p. 134: Memorandum signed by President George W. Bush, Subject: Humane Treatment of al Qaeda and Taliban Detainees, February 7 2002.

[iii] Heather MacDonald The Right Questioning: How to Interrogate Terrorists, The Review, February 2005, pp. 24-27, from p. 27. MacDonald is John M. Olin Fellow at the Manhattan Institute. She is the author of Are Cops Racist? and The Burden of Bad Ideas.

[iv] Joshua L. Dratel The Legal Narrative, TP, p. xxi.

[v] Mark Roseman The Villa, the Lake, the Meeting: Wannsee and the Final Solution, Penguin, 2003, 152 pp. See also Christopher R. Browning The Origins of the Final Solution: The Evolution of Nazi Jewish Policy, September 1939 March 1942, especially Ch 9 The Final Solution From Conception to Implementation, October 1941 - March 1942, pp. 374-423.

[vi] Anne Applebaum GULAG: A History of the Soviet Camps, Allen Lane, 2003, 610 pp. See also, Oleg V. Khlevniuk The History of the Gulag: From Collectivization to the Great Terror, Yale University Press, New Haven and London, 2004, 418 pp.

[vii] TP p. xxii.

[viii] TP p. xxiii.

[ix] Michelle Malkin In Defense of Internment: The Case for Racial Profiling in World War II and the War on Terror, Regnery Publishing, Washington D.C., 2004, 376 pp. Malkins critique of the conventional wisdom on the internment of Japanese nationals and Japanese Americans after Pearl Harbor is trenchant and enlightening. The book is well worth a read in the present climate.

[x] The line is a free rendition of words uttered by Callahan in two scenes of the movie, one near the beginning, with wry humour, the other near the end, with considerable bitterness. The actual words in the first of these scenes are: I know what youre thinking. Did he fire six shots, or only five? Well, to tell you the truth, in all this excitement, I kind of lost track myself. But being this is a .44 Magnum, the most powerful handgun in the world and would blow your head clean off, youve got to ask yourself one question, Do I feel lucky? Well, do you, punk? The words used in the later scene are a slight variation on these. The scenes are #4 and #29 on the DVD version of the film, although the scene index identifies the later scene as #21.  The DVD also includes two documentaries about the making and meaning of Dirty Harry, which provide an interesting indirect commentary on my use of the film as a mental model for what the Bush Administration has attempted to do in dealing with terrorism.

[xi] De Palmas film is, of course, a Hollywood drama, not a documentary, and it is not altogether accurate in terms of what happened in Chicago between 1928 and 1932, when Capone was finally tried and imprisoned. The film was based on the best-selling 1950s book, The Untouchables, by Ness himself and the sports writer Oscar Fraley. The actual events were more complex and Capone less dominant in Chicago than the film implies. For a more strictly accurate account of the campaign to get Capone, see Thomas Repetto American Mafia: A History of Its Rise to Power, Henry Holt and Co., New York, 2004, Chapter 7 The Get Capone Drive: Print the Legend, pp. 111-131.

[xii] TP pp. 25-28, Military Order of November 13 2001, Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism.

[xiii] TP pp. 3-24 Memorandum of Opinion for Timothy Flanigan, the Deputy Counsel to the President, from John C. Yoo, Deputy Assistant Attorney General, September 25 2001, The Presidents Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them.

[xiv] TP pp. 38-79 Memorandum for William J. Haynes II, General Counsel, Department of Defense, from John Yoo, Deputy Assistant Attorney General, and Robert J. Delahunty, Special Counsel, Application of Treaties and Laws to al Qaeda and Taliban Detainees, especially pp. 48-50 II: Application of WCA and Associated Treaties to al Qaeda.

[xv] TP p. 135.

[xvi] TP p. 239.

[xvii] TP pp. 286-359.

[xviii] TP pp. 383-404.

[xix] TP p. 387.

[xx] TP p. 397.

[xxi] TP pp. 405-465.

[xxii] TP pp. 631-907.

[xxiii] TP pp. 908-975.

[xxiv] TP pp. 987-1131.

[xxv] Seymour Hershs Chain of Command: The Road From 9/11 to Abu Ghraib, Allen Lane, Penguin, 2004, 394 pp., is a polemic against virtually every aspect of the Bush Administrations handling of international affairs over the past four years. There is plenty to criticise, but he does not address the questions of what could or should have been done to crush al Qaeda, try to turn the poisonous nest of Middle Eastern politics on its head, bring about an end game with Saddam Hussein and by-pass the hopeless geopolitical and moral swamp of the United Nations if not roughly what the Bush Administration has done in those four years.

[xxvi] Those inclined to condemn George W. Bush and his colleagues as criminal or delinquent for imprisoning thousands of suspected terrorists without giving them benefit of civil, criminal or international law, might do well to recall that Abraham Lincoln suspended the writ of habeas corpus early in the American Civil War and detained thousands of suspected rebels and subversives in order to protect the Union. As Michelle Malkin writes: In the post-September 11 world, the belief that civil liberties must never be compromised has become a dangerous bugaboo. But in times of crisis, civil rights often yield to security in order to ensure the nations survival. What is legal and what is necessary to preserve the Republic sometimes diverge. During the Civil War, Abraham Lincoln suspended habeas corpus, which enabled him to detain thousands of rebels and suspected subversives without access to judges. In defying a supreme court order to restore habeas corpus, Lincoln refused to let the government itself go to pieces for the sake of a single law. As for civil liberties, Lincoln noted that the Constitution is not in its application in all respects to be the same, in cases of Rebellion or invasion, involving the public safety, as it is in times of profound peace and public security. In Defense of Internment: The Case for Racial Profiling in World War II and the War on Terror, Regnery Publishing, Washington D.C., 2004, pp. 163-164. It was the very same Abraham Lincoln who directed Franz Lieber, in 1863, to draw up the first set of war rules that showed any genuine concern for the enemy the Instructions for the Government of Armies of the United States in the Field which remains the first source of modern military law. Geoffrey Robertson Crimes Against Humanity: The Struggle for Global Justice, Allen Lane, Penguin, 1999, p. 159.

[xxvii] The Australian cases of David Hicks and Mamdouh Habib typify this controversy. For a reasoned assessment of the Habib case, see Martin Chulov Habib and the Uncertain Truth The Weekend Australian, Inquirer, February 19-20 2005, p. 21.

[xxviii] Alan M. Dershowitz Why Terrorism Works: Understanding the Threat, Responding to the Challenge, Yale University Press, New Haven and London, 2002, 271 pp.

[xxix] Michael Ignatieff The Lesser Evil: Political Ethics in an Age of Terror, Princeton University Press, 2004, 212 pp.

[xxx] For a thoughtful reflection on the nature and implications of the detention of hundreds of prisoners from many different countries at Guantanamo Bay, see David Rose Guantanamo: The War on Human Rights, New Press, New York and London, 2004, 160 pp. The sub-title is unfortunate, for Guantanamo does not represent a war on human rights, but a controversial step in the war against those who truly are fighting a war against human rights the terrorists who are rightly called Islamofascists. Nonetheless, Rose tells disturbing tales of individuals who do appear to have been swept up in the dragnet and subjected to harsh treatment. He also argues that the intelligence take at Guantanamo has been too meagre to justify the harsh methods of interrogation used.

[xxxi] On the more general problem of abuses of power and the alarming propensity of human beings to follow orders involving the infliction of injury and even death on others, the famous Milgram Obedience Experiments of 1961 remain a benchmark. See Thomas Blass The Man Who Shocked the World: The Life and Legacy of Stanley Milgram, Basic Books, New York, 2004, especially Chapters 5, 6 and 7, pp. 75-130.

[xxxii] Chris Mackey with Greg Miller The Interrogators War: Inside the Secret War Against Al Qaeda, John Murray, London, 2004, Part 1, pp. 17-68, especially Ch 3 Huachuca.

[xxxiii] This was the concern of General James Hill of the U.S. Southern Command, when he sent a memorandum to the Joint Chiefs, dated 25 October 2002, headed Counter-Resistance Techniques. The memo begins: The activities of Joint Task Force 170 have yielded critical intelligence support for forces in combat, combatant commanders, and other intelligence/law enforcement entities prosecuting the War on Terrorism. However, despite our best efforts, some detainees have tenaciously resisted our current interrogation methods. Our respective staff, the Office of the Secretary of Defence, and Joint Task Force 170 have been trying to identify counter-resistant techniques that we can lawfully employ. TP p. 223. It surely takes unreasoning paranoia to see in a memo such as this the damning evidence of pernicious purposes claimed by Michael Ratner and Joshua Dratel.

[xxxiv] There are also several passages in his book that remind one almost of Catch-22 in the picture they paint of American operations in Afghanistan. Two stand out in this regard. The first is an episode in which a Marine Corps Major General visits the interrogation facility at Kandahar and delivers a short speech to the staff there, which Mackey describes as simultaneously confusing, inspiring and unsettling. It went as follows: About two days ago, I went down into the centre of Kandahar. And there I saw two little children flying a kite in an old soccer stadium&The Afghan guide who was driving us told me that under the Taliban flying kites was an offence punishable by death. Can you believe these fuckers!? They would deny a little child the opportunity to fly a kite. That would have been reason enough to come over here and kick these fuckers in the ass. But they did that and a lot worse. And so its important that every one of you understand what it is you are doing here&You are helping us to kill the enemy. Lets not make any mistakes about this. Lets not try to sugarcoat it. You are assisting my marines to kill evil. To bayonet it, to grenade it, to shoot it with machine guns, to cut its eyes out and shit in the sockets. And you can take pride in that. You can take pride in knowing that you had a hand in gouging out the eyes and cutting out the tongue of evil&Let me apologize to the lady soldiers in the room; Im not entirely accustomed to encountering you all during combat operations, and my language sometimes reflects that inexperience. (op. cit. pp. 152-53).

The second is an outburst by one of the best interrogators, in exasperation at the poor inter-agency coordination, the lack of professional skills among too many of the staff and the confusion about how to tackle an often overwhelming task: This place is insane, Mackey. Im telling you, its insane in the membrane. Nobody has any goddamned idea what were doing, and everybody figures the only answer is to redouble our efforts. Mackey commented; I could see in his posture, more clearly than I had until that moment, that interrogation was debilitating work, too, in its own way. The interrogators were swimming in deceit, all day every day, not just the prisoners, but their own. And that took its toll, to engage in cynicism, dishonesty and deception in quantities that would be considered pathological in the real world, day after day after day. (ibid. p. 231).

[xxxv] Ibid. pp. 477 and 472.

[xxxvi] David Horowitz  a lifelong civil rights activist and a founder of the 1960s New Left, has written a stinging polemic accusing the American Left of making common cause with the Islamists out of an enduring and delusional hatred of capitalism and American democratic politics. Unholy Alliance: Radical Islam and the American Left, Regnery Publishing, Washington D.C., 2004, 296 pp.

[xxxvii] Andrew C. McCarthy Freedom of Speech for Terrorist?, Commentary, March 2005, pp. 27-36, quotes from pp. 35 and 36.