Book
Review
The
Brutal Truth
The
outrages of Abu Ghraib are
no accident, says
Stephen
Sedley
How
cruelly is a captor allowed to treat a captive before the
pain and fear amount to torture? According to advice given
by US Assistant Attorney-General Jay S Bybee to President's
Counsel Alberto Gonzales in August 2002, it "must be
equivalent in intensity to the pain accompanying serious physical
injury such as organ failure, impairment of bodily function
or even death". With the sanction of such morally and
legally ignoble advice, the US has been interrogating, and
from time to time killing, an unknown number of captives in
Guantánamo, Afghanistan, Iraq and almost certainly
elsewhere.
Meanwhile
the author of the advice had been made a judge of the ninth
circuit federal appeal court, and the presidential counsel
who accepted and adopted it is now the United States attorney
general. The solitary governmental voice apparently raised
against it was that of Colin Powell, who is no longer secretary
of state.
Europe
is not entirely divorced from this process. When Ireland took
the United Kingdom to the European Court of Human Rights over
the treatment of suspects in Northern Ireland in 1978, the
Strasbourg court held that such practices as hooding, sensory
disorientation and sleep disruption in pursuit of information
amounted to inhuman and degrading treatment - which are also
banned by the human rights convention - but not to torture.
Bybee
and his colleagues built on this in seeking to limit the meaning
of torture, for the purposes of the international Convention
Against Torture, to little more than mutilation and murder.
But they also, and inconsistently, developed a theory that
in fighting terrorism the president, as commander-in-chief,
is in any case not bound by either national or international
law. Gonzales, for his part, brought into being the hitherto
unknown category of "unlawful combatant", to whom
the protections of the Geneva Conventions could be denied
because, although a soldier, such a combatant was fighting
for a faction (the Taliban or al-Qaida) and not a state. The
word "unlawful" in this context has no meaning except
to signify that such people will be denied the protection
of the law. The licence it carries has been silently transferred
to Iraq, which on any view is a state. Powell's objections
to the destruction of the work of a century of international
law were brushed aside by Gonzales.
The documents
which have now revealed all this, and very much more, are
collected in each of these solid volumes. They cover largely
the same ground - an assembly of official memoranda and reports,
most of them never intended for publication, prefaced by brief
editorial essays. Although Mark Danner's book is short of
an index, there is little need for more: comment on most of
the documents would look feeble beside the documents themselves.
The official
military reports on the revealed abuses have been published
by the US administration. The rest (including, one assumes,
the report of the International Red Cross, which ordinarily
speaks only to governments) have been leaked; though in some
cases - notably that of the legal memoranda - partial leakage
prompted full disclosure. Nothing much seems to have been
obtained under the Freedom of Information Act.
For Iraqis,
already accustomed to unspeakable things happening to anyone
detained by Saddam's police in Abu Ghraib, little can have
changed. But one of America's leading legal journalists, Anthony
Lewis of the New York Times, in an illuminating introduction
to The Torture Papers, draws out the grim moral that - in
the words of the former national security adviser to George
Bush senior, Donald Gregg - it was the legal memoranda that
"cleared the way for the horrors that have been revealed"
in the US-run detention facilities.
These
books contain extensive evidence that Lewis and Gregg are
right. They include a mass of depositions and reports about
what was going on in the detention facilities. Reading the
detailed and objective findings of investigating officers,
one begins to wonder whether the brutality was not in truth
the rogue activity of a few privates, corporals and paramilitaries,
while the legal sanctioning of torture thousands of miles
away in Washington had more to do with the sophisticated techniques
taught over many decades by the US Special Forces and CIA
to client dictatorships. But it becomes inexorably apparent
that the crude use of fear and pain on detainees was not simply
the localised abuse of absolute power by individuals unfit
to hold it.
Stripping
Iraqi men of their clothing and making them wear women's underwear
for days on end, or setting dogs on them when naked, makes
a precise fit with the official doctrine that anything short
of killing and maiming is a legitimate way of breaking people
down for interrogation. Evidence has crept out of Afghanistan
of the use of similar techniques there. Danner, in one of
his own New York Review of Books articles which introduce
his volume, traces "water-boarding" (repeated near-drowning)
from the French war in Algeria through the dirty war in Argentina
to the interrogation since 9/11 by CIA operatives of "high
value" suspects in locations which have never been disclosed.
Does
even a democracy have nevertheless to countenance such methods
when its back is to the wall? Other democracies have not thought
so: many of their governments have refused to pass illiberal
laws in response to terrorism, and where some have sought
to do so their judiciaries have pointed out that if the reaction
to terrorists is to abandon the rule of law, terrorism will
have achieved an irreversible victory.
The supreme
court of India in 2003 held that India's prevention of terrorism
laws must respect the fundamental human rights recognised
in the constitution. The Israeli supreme court, under its
remarkable president Aharon Barak, has - not too successfully,
it must be said - told the government and army in a series
of judgments that while democracy is fated to fight with one
hand tied behind its back, "none the less, it has the
upper hand. Preserving the rule of law and recognition of
individual liberties ... strengthen its spirit, and this strength
allows it to overcome its difficulties". In this country
the law lords, rejecting the legacy of wartime decisions permitting
arbitrary executive detention, have found detention without
trial a greater evil than the evil it is intended to challenge.
Perhaps
the strongest evidence that the abuse of prisoners in US hands
has been systemic, not aberrant, is the simplest: it is the
fact that those involved felt it was quite safe to be photographed
repeatedly while committing it. Personnel who fear disciplinary
reprisal, or even disapproval, do not usually make a visual
record of their conduct. If it says something for Donald Rumsfeld,
the defence secretary, that he twice tendered his resignation
over the Abu Ghraib disclosures, it says rather more about
the Bush administration that his offer was on both occasions
rejected.
The outcome
of the events tracked in these two books, for which both men
bear responsibility, is a world order of which the icon has
become a hooded figure, its arms outstretched in torment.
The apologists who blame a few bad apples in the barrel might
do well to remember what a few bad apples do: they make the
whole barrel rotten.
Stephen
Sedley is a judge of the court of appeal for England and Wales.
This article was first published in the Guardian.
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