and the Uses of Coercive Interrogation
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]
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]
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.
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.
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
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
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.
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.
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
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
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.
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
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
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
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]
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
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
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,
[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.
[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
[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
[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.
[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.