Strange Bedfellows

Photo by Ron Haviv/VII

In April 2004, vivid photographs of
American military and intelligence personnel torturing Iraqi
detainees at the Abu Ghraib prison facility were leaked to the
press. Instantly iconic, the images became political rallying flags
for terrorist recruitment throughout the Arab world, and within the
United States they inspired shock and disgust.

Yet for all their brutal immediacy — or perhaps because of
it — the Abu Ghraib photographs occupied only an isolated place in
the American discussion of torture. Today, despite documented
evidence of other American-ordered torture, Abu Ghraib is not just
the signal scandal of the Bush administration’s extraordinary
interrogation practices, but the only scandal. Journalist Mark
Danner, who wrote what is now — and will likely remain — the
authoritative account of Abu Ghraib in his book Torture and Truth:
America, Abu Ghraib, and the War on Terror, described this curious
fact in a recent essay:

After a momentary outcry, and a dozen or more
investigations — none of which confronted the responsibility of
those who made the policies and those who gave the orders — the
question of torture receded, metamorphosing from shocking
revelation to ongoing story. Newspaper reporters went on
investigating Abu Ghraib, Guantánamo, Bagram; published a
proliferating series of horrific accounts. Torture endured but it
had slipped from our world of images. Torture had survived its
exposure.

Beginning with a lecture by Danner this evening, UCSB will offer
a six-month series of symposia and lectures meant to grapple with
the questions that torture and indefinite detention pose for the
United States. Open to the public, the series will give us a chance
to reflect on the exceptional liberty the Bush administration has
claimed in its commission to fight the war on terror. And it will
give us the opportunity to examine whether the threat posed by
Islamic terrorism warrants “work[ing] through the dark side,” as
Vice President Dick Cheney put it five years ago when explaining on
national television how the administration planned to stop
terrorist acts.

Underlying the series, Torture and the Future: Perspectives from
the Humanities, will be the extensive documentary record, amassed
by journalists, human rights agencies, and government
investigations, of what, apparently, Cheney’s “dark side” has
entailed. That record is far from complete, but it reveals that
since September 2001, the United States government has held
thousands of men and boys rounded up during the war on terror,
without criminal charge and without bail, at various prisons,
military bases, and detention camps around the world. The detainees
have not been allowed to make telephone calls, write letters, or
contact embassies, have not, except in a few cases, been furnished
with legal representation, and have in many cases been subjected to
methods of interrogation that appear to legally constitute
systematic torture.

Initiated by UCSB Professor Elisabeth Weber, the series will
consider the foundational ideals embedded in the U.S. Constitution
and Bill of Rights, and how these ideals have weathered other
perceived national security crises. And it will seek to imagine how
history will judge the Bush administration’s extraordinary measures
in the war on terror. And, indeed, how we should judge them
now.

Fighting Ideology with Ideology

Mark Danner Describes the Advent of Torture as U.S.
Policy

A longtime staff writer at the New
Yorker, Mark Danner is the recipient of numerous journalism
awards. He has reported on war from South America, the Balkans, and
the Middle East, and for the last three years has written in the
New York Review of Books a number of widely read and influential
essays on torture, the Bush administration, the war on terror, and
the Iraq War (these essays have been compiled into two
books — The Secret Way to War, about the Downing Street
memo, and Torture and Truth). Our telephone interview with
Danner has been edited to fit limited space. Danner will appear at
UCSB’s Campbell Hall at 8 p.m. this evening. Admission is free to
the public.

You’ve used a striking sentence in a number of your
essays, something to the effect of: “The U.S. government, since
9/11, has been transformed from a country that officially prohibits
and condemns torture to one that practices it.” What does that
mean? What it means is that after the attacks of 9/11, the
highest officials of the Bush administration decided one of the
things that had to change — in the changed world of the war on
terror — was the traditional American approach to interrogation.
There were various public acknowledgments of this, beginning with
the decision not to extend Geneva Convention protections to
prisoners taken in Afghanistan. Another artifact of it is the
category “unlawful enemy combatants” that was created.

What followed from these decisions were
changes in what was permitted in interrogations, changes that led
to, among other things, some of the abuses that were very well
publicized in what came to be known as the Abu Ghraib scandal.
These changes included the widespread use of waterboarding — which
is the use of water to create the impression that a prisoner is
drowning — the use of temperature manipulation, striking the
prisoner, stress positions, sensory deprivation, and many other
techniques that up to then had been prohibited, in particular by
the U.S. military.

The Bush administration has responded to critics of its
interrogation and detention practices by arguing that the war on
terror is extraordinary, so that with torture, for example,
traditional codes of conduct don’t apply. Well, I think
members of the administration do believe that. But that isn’t in
fact the argument they’ve made publicly. The argument they’ve made
publicly is they don’t torture, and that the photographs from Abu
Ghraib, for example, were of the actions of a few bad apples and
don’t represent what is being done in interrogations of prisoners
generally.

But they have argued that legally the president isn’t
subject to traditional interpretations of international and
American law on torture and due process. You’re quite
right. From the beginning, members of the administration have
looked at laws that seem rather forthright — the Geneva Convention
Against Torture is one of them — and used lawyers to extract from
those documents an almost absurdly, almost comically narrow reading
of what they mean.

The Department of Justice documents really made the argument in
a couple ways. The first was essentially that Congress cannot limit
the president’s powers related to war. The second was somewhat
contradictory because they said, “Okay, we’re committed not to
torture. Fine. What is torture?” They essentially redefined it to
say that for something to be torture it must cause pain equivalent
to major organ failure or death. So basically they were saying,
“Well, on the one hand, Congress cannot limit the president’s war
powers, which encompass interrogations. But on the other hand, the
law prohibits torture, and we’re not doing torture because torture
actually has to do with activities that cause very, very large
degrees of pain.” But of course you can do a lot to somebody that
almost anyone would acknowledge is torture without necessarily
going beyond the level of pain that’s caused by major organ
failure.

The first part of this argument is strikingly broad. The
implication seems to be essentially that the president is
constitutionally unconstrained by the law. These people …
believe in what they call a unitary executive. Essentially, it
means there are certain powers on which the judiciary and Congress
cannot tread. And one area where that is the case is in the
president’s war-making powers. John Yoo, who was one of the central
architects of the administration’s legal case … was at a public
event recently and someone said, “So you’re saying that if the
president wanted to order a child tortured in front of his parents
in order to coerce his parents to give up information, there’s
nothing Congress and the Judiciary can do about it?” He responded:
“No, there’s nothing they can do about it.” He really believes the
president is unchallengeable in these areas. And, you know, I
don’t. And a lot of other people don’t. Most people don’t.

In June 2004, the Supreme Court decided Hamdan v.
RumsfeldHamdan v.
Rumsfeld, which was a challenge to the administration’s
definition of “enemy combatants” and its withholding of various
prisoners’ rights. At the time, many observers took the decision to
mean, if not necessarily the demise of Guantánamo, at least the
reinstatement to some degree of due process rights. But now we have
the Military Commissions Act (MCA), which was legislated by
Congress in September 2006. How is the MCA related to ? The Hamdan v. Rumsfeld decision essentially
said, your assumption that you can say the Geneva Conventions don’t
apply [to prisoners captured in the war on terror] is wrong. The
Geneva Conventions do apply. Period. The decision presented the
administration with a very difficult problem, a problem having to
do with the military commissions [proposed to try the prisoners],
and a problem having to do with the consequences for people in the
administration who acted in good faith in developing and applying
this alternative set of procedures. If the Geneva Conventions do
apply, those people may be subject to some kind of prosecution
under the War Crimes Act.

The MCA was a response to all that, with the intent to nullify
the effect of Hamdan. … It basically portrayed the decision as a
usurping of the powers of the president and a usurping of the
powers of Congress. There were these very highly publicized
negotiations [with senators John McCain, Lindsey Graham, and John
Warner], the result of which was really not terribly significant,
frankly. That is, the law had in it a nod to the Geneva
Conventions, but then let the president decide whether something
was a violation of the Geneva Conventions. It put the power in his
hands.

Will the MCA stand up under the new Congress?
Senator Patrick Leahy of Vermont, who is the incoming chairman of
the Judiciary Committee, has declared his intention to revisit that
law. My impression is there is a general recognition that this law
was a disgrace. For reasons including not only the ones we’ve
talked about, but also the stripping of habeas corpus, the placing
in the president’s hands the power to declare virtually anyone an
unlawful enemy combatant, the removal from the federal courts of
oversight — not just habeas but other kinds of oversight … you can
go down a list. I think there’s a general recognition this law is
one of the great disgraces of American legal history.

Having said that, it’s very difficult to calculate what the
politics are going to be. The reason the MCA became law to begin
with is out of Democrats’ fear the president would use their
opposition to the law as a way to brand them as soft on the war on
terror going into the November midterms. So most of the Democrats
hung back. Most of them voted against it, but they didn’t make an
issue of it. They didn’t filibuster it, for example, as they could
have done and should have done, I think.

The fact that it was politically expedient for Democrats
not to filibuster a bill like the MCA raises an interesting issue
about how torture has caught the American imagination — or how it
hasn’t. And why it hasn’t. That’s a critical issue, and
it’s something Americans have to come to grips with. It’s the
question: Why is it that the president can get political mileage
out of supporting a bill that essentially legalizes torture?

There are a lot of pop-culture markers that [help explain] this.
One I often refer to is the Fox television program 24, which is
enormously popular. I think it’s in the top 10 programs watched.
And it is a program that has as a very important part of its
narrative — it’s really in almost every episode — an episode of
torture, usually committed by the hero. Torture in it is used
essentially to signify the determination of the government to
protect the population. I think anybody who wants to talk about
torture has to come to grips with the fact that, you know, here we
are. Americans seem to watch this show and approve of this
behavior.

I think in some ways it is a response to fear. There is the
notion that this kind of untrammeled government power is what is
needed to protect people, and that is something that is in some way
reassuring to people.

What if someone has information that can only be
extracted by torture and that information will save lives? Would
one be morally remiss not to torture that person? That is
a prevalent argument — the so-called ticking bomb scenario, which
is: What if you capture somebody, there’s a nuclear bomb in New
York City, he knows where it is, you know he knows, so wouldn’t it
be morally reprehensible not to torture him if that’s what’s
necessary? You hear that a lot. But it’s a fraud, that argument,
because that’s not how torture is used. You should always wonder
when you’re looking at a case that’s actually happening — and
torture is a case that’s actually happening — when the argument
that’s always made about it is a hypothetical one.

Torture is used on suspects who are suspected to have some kind
of knowledge, but it’s very unusual to actually know what knowledge
they have. For example: You pick up somebody, you think they’re
part of the Al Qaeda hierarchy, you thereby assume they know
things, and you interrogate them using these [harsh] techniques.
And what they usually give you is not plans for attacks — although
that has happened, not immediate [plans] but eventual [plans] — but
what they usually give you is names of other people. So one of the
problems with this whole ticking bomb argument is that it’s quite
unreal. It doesn’t have much relation to what’s actually
happening.

How has American torture affected the political
component of the war on terror? One of the ironies of
what’s happened since 9/11 is the Bush administration was so keen
to declare this war [on terror] an utterly new phenomenon with new
rules, but in making many of these new rules, it ignored the damage
these activities would have on the U.S. reputation, and the way
they would undermine the president’s chosen response, which is, as
he puts it again and again: You can’t fight an ideology without an
ideology. President Bush believes only democracy can fight the
overarching cause of jihadism that motivates the enemy in the war
on terror. In fact, the use of torture really constitutes a kind of
affirmation of the whole philosophy of jihadism because it shows
the United States as the oppressor — as the oppressor of Muslims,
as the ruthless underminer of Muslim dignity and Arab manhood — and
all the other things embodied, for example, in that famous
photograph from Abu Ghraib of Lynndie England holding the leash
tied to the throat of the naked prisoner lying on the floor, his
face contorted in agony. So there’s not only what it does to the
tortured and the torturer, it’s what it does to the underlying
cause of putting the U.S. forward as the democratic solution,
rather than as the oppressor, which is the characterization the
jihadists depend on.

4•1•1
Mark Danner speaks on Into the Light of Day: Torture, Human
Rights, and the War on Terror. Tonight, Thursday,
January 18 at 8 p.m. UCSB’s Campbell Hall, free.

How the Symposia on Torture Began

It was the Military Commissions Act that finally spurred
Elisabeth Weber to take action. “The [MCA] gave President Bush the
right to define torture,” Weber said recently. “Torture now means
something different in almost every country in the world than it
does in the United States.” Weber is a professor of comparative
German literature at UCSB. The object of her anger is a
congressional bill advocated by the Bush administration and signed
into law in mid October. Introduced by Republican members of
Congress, the Military Commissions Act allows the president to
identify, imprison, and interrogate anyone he feels threatens the
United States, without traditional court review. And it allows him
to decide the meaning and application of the Geneva Conventions,
which stipulate laws and protocol for international conflicts,
including the treatment and detention of prisoners.

“The Military Commissions Act and the ‘torture memos’ [memos
prepared by the Department of Justice to legally define the Bush
administration’s approach to interrogation] send a message to the
whole society that it is okay to torture. I felt I had to say
something to my students.” Most of Weber’s students “didn’t have a
clue” what the Military Commissions Act was. But once they
understood, she said, “they were horrified.”

To broaden the discussion, Weber and 12 of her colleagues at
UCSB decided to organize a broad inquiry into U.S. government
torture, which they called Torture and the Future: Perspectives
from the Humanities. The series will last through June. So far,
eight events are planned, as well as a film series; to view the
events and learn more about the series, visit
www.complit.ucsb.edu/projects/tortureandthefuture/index.html.