(Promoted from the diaries by Steven D. This is a great primer on the legal, ethical and practical issues regarding torture.)

When I was much younger, I attended what was considered a very good public high school in the United States.  Yet like many schools around the world, much of what I was taught had very little to do with practical knowledge.

In a humble attempt to shine a light on what my former teachers missed, I present to you a new series I call Basic Learning.  Many of you who read these articles may be far more well-versed on these topics than I, and I apologize if my discourses offend you.  Furthermore, I am as much a purveyor of knowledge as I am still a student seeking it, and therefore remain prone to the fallacies of the non-expert.

Today’s Basic Learning: Torture

On the surface of things it would seem that there’s nothing mysterious or unknown about torture.  It’s something barbaric and horrible and inhumane and most people strongly oppose it.  However with recent events involving the U.S. gov’t’s application of harsh interrogation techniques, it’s worth a more in-depth look.  If you know anyone who might be even slightly supportive of torture, this is the article they need to read.
First of all, what is torture?  Piercing someone with hot pincers, like they did in medieval Europe, certainly is.  But what about “water boarding”?  Sleep deprivation?  Blasting loud music at people? Etc?

The International Rehabilitation Council for Torture Victims (IRCT), based in Denmark, defines it thusly:

Torture is the intentional infliction of severe pain or suffering for a specific purpose. The aim of torture is not to kill the victim, but to break down the victim’s personality. It is often used to punish, obtain information or a confession or take revenge on a person or create terror and fear within a population.

I’d say that this definition is the best one I’ve seen and we’ll discuss it more below.

The treaty known as the Convention Against Torture And Other Cruel, Inhuman or Degrading Treatment or Punishment defines it thusly:

The term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

The United States has ratified this treaty, yet it has added what are called reservations.  One of them is that the U.S. declares that it will not abide by Article 30, Section 1 of the treaty which reads:

Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from thc date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.

In simpler terms, this means that the United States will be the sole judge over whether or not it tortures people and it will not allow any independent body to interfere in that right.

Why Is Torture Wrong?

This may seem like a silly question.  Many people oppose it because it is inhumane to deliberately inflict suffering against another person and that it debases the persons doing the torture.  However torture goes far beyond the actual period of infliction of physical or psychological pain.  The effects of torture are long-lasting and not just to the individual who was tortured.  From the IRCT again:

The consequences of torture reach far beyond immediate pain. Many victims suffer from post-traumatic stress disorder (PTSD), which includes symptoms such as flashbacks (or intrusive thoughts), severe anxiety, insomnia, nightmares, depression and memory lapses.

Torture victims often feel guilt and shame, triggered by the humiliation they have endured. Many feel that they have betrayed themselves or their friends and family.

Victims of torture do not suffer alone. In many cases, the victims’ families and friends are also affected. The broader society may also be indirectly affected. The use of torture sends a strong warning to those within a political, social, or religious opposition.

Rehabilitation for torture victims is often a very lengthy and delicate process.  Non-profit groups like the Medical Foundation For the Care of Victims of Torture in the UK offer therapeutic care to torture victims that lasts for years.

As the IRCT states, it’s not just the tortured person who suffers but their entire family, including their children.  Many victims of torture flee their country of origin to escape further persecution and to find a safe asylum for their long road to recovery.

Isn’t Torture Illegal?

Surprisingly, there are currently legal exceptions for torture.  I am speaking only of the United States here – countries like Britain (also signatories to the treaty) are also bound by European Union treaties and other international obligations which prohibit torture.

To begin with, the UN Convention against Torture contains the phrasing “severe pain or suffering”, which means that pain or suffering that is not judged to be “severe” is not covered.  A person who is denied sleep may not be judged to be suffering in a “severe” way.  There are no clear American statutes dealing with what is or is not “severe” suffering.

The 8th Amendment to the U.S. Constitution prohibits “cruel and unusual” punishment and there is a host of case law interpreting this.  Many of these domestic laws do address what form of punishment is considered “cruel” which would be analogous to “severe pain or suffering” although these largely deal with physical pain and not psychological pain.

Furthermore, the UN Convention against Torture only deals with people acting in, or with the consent or acquiescence, of a person acting in an official capacity.  This would cover American soldiers such as Lynndie England, who was convicted for her role in “inflicting abuse” on prisoners in Abu Ghraib, Iraq.  It’s noteworthy that she was never convicted on torture, only on “maltreating prisoners”.

It’s worth remembering however that many people who worked inside that prison were employees of private contractors, often non-American (and non-Iraqi) nationals.  If they participated in torturing detainees, the line between “with the consent or acquiescence” of a person in an official American capacity would be greatly blurred and difficult to prove.

Indeed, reporter Seymour Hersh said in his book Chain of Command:

“An attorney involved in the case told me in July 2004 that one of the witness statements he had read described the rape of a boy by a foreign contract employee who served as an interpreter at Abu Ghraib,”

Furthermore, the UN Convention against Torture, in Article 16, says that the treaty is only in effect in “territories under the jurisdiction” of the signatory country.  This would appear to provide a legal loophole by which prisoners could be tortured in other countries, such as Afghanistan, Pakistan, the base at Diego Garcia and Guantanamo Bay.  The U.S. government, while it has de facto jurisdiction over the base at Guantanamo Bay, has often argued in front of courts that Gitmo is not under its legal jurisdiction and therefore many U.S. laws are not applicable.  For more on Gitmo, see this, including the following paragraph:

The particular legal status of Guantanamo Bay was a factor in the choice of Guantanamo as a detention center. Because sovereignty of Guantanamo Bay ultimately resides with Cuba, the U.S. government argued unsuccessfully that people detained at Guantanamo were legally outside of the U.S. and did not have the Constitutional rights that they would have if they were held on U.S. territory (see Cuban American Bar Ass’n, Inc. v. Christopher, 43 F.3d 1412 (11th Cir. 1995)).

Other practices, known as “extraordinary rendition”, in which a prisoner is flown to a third country (like Uzbekistan or Romania) would also defeat the clause concerning territorial jurisdiction.

That being said, The UN convention against Torture, in Article 2, Section 2, states:

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.

However due to a combination of Article 16, which says the treaty only deals with territories under its own jurisdiction, and the reservation to Article 30, only the United States government can decide when it is commiting torture in violation of this treaty, there are many loopholes in which torture is not prohibited.

The United States is also a signatory to the Geneva Conventions (GC), a collection of four treaties dealing with legal conduct during a war.  There are two kinds of groups of people specifically mentioned in the GC – traditional combatants (wearing uniforms, fighting for a sovereign nation) and non-combatants (civilians).  The GC has specific measures on how to deal with captured people of either group and clearly prohibits:

“violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.”

The Bush administration however has declared that people captured in Afghanistan and elsewhere fall in neither category and instead are “illegal combatants”.  I’ve covered how lawyers such as Alberto Gonzalez and John Yoo used long and circuitous logic to arrive at this definition here.

In short, if someone is determined to be outside the definitions enshrined in the Geneva Conventions, then the Geneva Conventions and their protections do not apply to those people.  I personally disagree with this legal conclusion but that is what the U.S. government has currently decided is valid and, since they are not subject to arbitration or oversight by any third party, anything the U.S. government says is valid goes.

That being said, the Third Geneva Convention Article 5 states:

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4 [Prisoners of War], such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

In other words, if someone is captured and it is not certain that they are “Prisoners of War” (as determined by the GC), then they should be treated like POW’s until a tribunal determines they aren’t.  And that means they can’t be tortured etc. until that classification has been made.

The Supreme Court, in Hamdi v. Bush stated that “prisoners are presumed to have POW status until a tribunal determines otherwise”, which would outlaw torture.  However the Bush administration argued that the President himself is a “competent tribunal” and has ruled they are not POW’s, and are illegal combatants, and therefore GC prohibitions against torture do not apply.

That being said, U.S. military regulations (190-8 Section 1-6) state that a tribunal must be held anyway.  38 detainees appeared before a military tribunal and all of them were determined to have been innocent civilians.

These tribunals only began in July 2004, nearly three years after some people had been held in centers such as Guantanamo Bay.  This seems to be a clear violation of the GC but again, as only the U.S. gov’t can determine violations, there is no outside impetus to comply with the Geneva Conventions in any timely manner.  It’s worth noting here that on January 31, 2005 a judge ruled that these tribunals were unconstitutional and that the prisoners had all of the rights granted by the Constitution.  The legality of these tribunals and the detainees’ imprisonment is still being adjudicated.

There is numerous documentation and evidence that torture has been occurring on detainees held in both Guantanamo Bay and in facilities in Iraq under American control, both from independent organizations like Amnesty International and the Red Cross as well as U.S. government reports.  Whether or not this is illegal by violation of either the UN Convention on Torture or the Geneva Conventions is still being hashed out in the courts.

Isn’t Torture Necessary?

Some people say it is, from LA Times columnist David Gelernter to Vice President Dick Cheney.  The justification for torture is that it might be “necessary to prevent a terrorist attack”.

The theory is that using torture against someone (presumably a terrorist) will extract vital information that will save lives and therefore justify the use of torture.  The problem was this theory is that it is completely false.

I have interrogated hundreds of people, not terrorists but murderers and kidnappers and child molesters.  And I can tell you from personal experience that threats, violence or even intimidation does not yield good results.  On the contrary, building up a “rapport” with the person, in a sense being their “friend”, gets much better results.  More confessions and more divulgance of accurate, true information.

The military’s own rules prohibit torture precisely because it yields inaccurate and incorrect information.  In short, people who are being tortured will say whatever they think their torturer wants to hear rather than what is factually true.  Anyone who wishes to protect confidential information will already be prepared to disclose false and misleading information in order to protect it.  The rules state, in part:

Experience indicates that the use of force is not necessary to gain the cooperation of sources for interrogation. Therefore, the use of force is a poor technique, as it yields unreliable results, may damage subsequent collection efforts, and can induce the source to say whatever he thinks the interrogator wants to hear.

An extensive discussion of different (non-torture) interrogation tactics used by the U.S. military can be found here.  You will note that that in previous wars, simple techniques such as the direct approach (just asking for the information) were effective on 85%-95% of those being interrogated.

Using torture is probably the least effective method conceivable at eliciting accurate information.  From here:

As one who has interviewed admitted torturers and scores of their victims, I can say unequivocally that “intelligence” gained through physical and psychological abuse is almost always wrong. The reason is obvious. As one Liberian prisoner who had been forced to lie down in a bed of red ants for more than an hour told me, “I would have said anything to get out of that pit of bugs.”

Moreover, in the course of trying to obtain information through torture, authorities invariably end up manhandling innocent people. This causes tremendous resentment in the communities from which those innocent come, as Hoffman acknowledges in the case of Algerian Muslims. But those are the very communities whose citizens are potential sources of exactly the kind of data that can help stop the violence in the first place.

PBS did an excellent investigation into the “Torture Question”, including reviewing Britain’s past use of what they called “Highly Coercive Interrogation” techniques in Northern Ireland in 1971, that were tantamount to torture.  The nation of Ireland later sued Britain for this action:

The actual utility of coercive interrogation was addressed at some length in the course of the Ireland v. United Kingdom case. The British government sought to argue that it had been necessary to introduce such techniques to combat a rise in terrorist violence. The government claimed that two (but please note only two) of the interrogations addressed by the court had resulted in a considerable quantity of actionable intelligence, including the identification of 700 active Republican terrorists and the discovery of individual responsibility for about 85 previously unexplained criminal incidents. However, other well-informed sources are more skeptical. Former British intelligence officer Frank Steele told the journalist Peter Taylor: “As for the special interrogation techniques, they were damned stupid as well as morally wrong … in practical terms, the additional usable intelligence they produced was, I understand, minimal.” Certainly the last quarter of 1971, the period during which these techniques were most employed, was marked by mounting, not decreasing violence, a fairly obvious yardstick by which to measure their efficacy.

Via the CS Monitor:

But many experts think treatment so severe as to be inhumane can be useless or counterproductive. “Even milder torture … can result in false confessions, that is, information that is flat-out inaccurate,” says Steven Welsh of the Center for Defense Information in Washington.

Senator John McCain, himself a former POW who was tortured:

History shows — and I know a little about this — that mistreatment of prisoners and torture is not productive. It’s not productive. You don’t get information that’s usable from people under torture, because they just tell you what you want to hear.

Cicero, the famous Roman poet, said torture “forces even the innocent to lie”.

From Donald P. Gregg, appearing in the New York Times:

I learned from my experiences in Vietnam from 1970 to 1972 that by treating prisoners humanely we frequently (though not always) gained valuable intelligence from them. This was particularly true of battered prisoners who had held out against prolonged South Vietnamese torture, but responded to being treated with compassion by Americans.

Via the Washington Post:

Meet, for example, retired Air Force Col. John Rothrock, who, as a young captain, headed a combat interrogation team in Vietnam. More than once he was faced with a ticking time-bomb scenario: a captured Vietcong guerrilla who knew of plans to kill Americans. What was done in such cases was “not nice,” he says. “But we did not physically abuse them.” Rothrock used psychology, the shock of capture and of the unexpected. Once, he let a prisoner see a wounded comrade die. Yet — as he remembers saying to the “desperate and honorable officers” who wanted him to move faster — “if I take a Bunsen burner to the guy’s genitals, he’s going to tell you just about anything,” which would be pointless. Rothrock, who is no squishy liberal, says that he doesn’t know “any professional intelligence officers of my generation who would think this is a good idea.”

And on and on.  Let me repeat this once again: torture does not elicit accurate information from those being tortured.  There are far more effective interrogation techniques available.  If the purpose of interrogation is to elicit critically important information, torture is one of the least effective methods available.

If Torture Doesn’t Elicit Accurate Information, Why Do People Do It?

Torture has plenty of useful applications.  Eliciting accurate intelligence from prisoners is however not one of them.

In medieval Europe, torture was regularly used to extract confessions.  Some of these were confessions for “secular” crimes such as thievery, others were confessions to heresy or acts considered unlawful by the reigning religious institutional authority.  The Spanish Inquisition’s use of torture to extract confessions of heresy against the Catholic Church is probably the best known example of this.

Torture is used for similar purposes in American-allied countries like Turkey, Egypt and Saudi Arabia today.  A crime is committed.  A person is apprehended and tortured until he or she confesses.  The person is then punished (up to and including being executed).  The case is therefore “resolved”.  A brief application of logic however shows that the purpose of the confession is not to “solve the crime” but simply to resolve the case.  It gives the government the appearance of maintaining law and order.

Remember the IRCT’s explanation of torture from earlier in this article?

Victims of torture do not suffer alone. In many cases, the victims’ families and friends are also affected. The broader society may also be indirectly affected. The use of torture sends a strong warning to those within a political, social, or religious opposition.

Torture is very effective in intimidating anyone considered to be “political, social or religious opposition”.  A single person tortured who is released will go home to his or her family and his experiences will frighten and warn all those who know him, presumably those who are of the same “opposition” mentality as the torture victim.

Despite what politicians and columnists say, the real purpose of the torture at Abu Ghraib and elsewhere in Iraq was to intimidate and “warn” the family and associates of the torture victims.  The problem is that this does not, in the long run, suppress or even dampen an opposition movement but infuse it with additional hatred and resolve to resist.

Mark Danner, who wrote a book called “Torture and Truth” said in Mother Jones:

One of the remarkable things about this whole affair [Abu Ghraib torture scandal] is that it’s been spectacular propaganda damage to the United States. It supplied a brand image for American repression: I’m talking about the hooded-man image, which now is recognizable all over the Middle East and the Islamic world as a symbol of the United States and the horrors it inflicts on Muslims. Osama bin Laden, had he gone to Madison Avenue and asked for an advertising image for jihad — even the best firm couldn’t have come up with anything better than those images.

Indeed as the linked PBS report above states, torture and physical intimidation in Northern Ireland led to an escalation of attacks, not a reduction.

France authorized the use of torture in the 1950’s to maintain its control over Algeria, which ended up being a tremendous failure.  Shawn McHale, an Associate Professor of History and Int’l Affairs at George Washington University:

France won key battles by torturing suspects for intelligence. But the bigger lesson is that it lost the war. The fact that French military leaders resorted to the extensive use of torture shows that they had lost the support of the populace at large.

More on France and the use of torture in Algeria as an unsuccessful method of controlling that colony can be found at the link.

Salon magazine had an excellent two-part article on how torture provided short-term intelligence but long-term failure in Algeria, which you can find here.  Some experts even argue that the French actually gleaned little to no valuable intelligence using torture, even in the short-term.

Torture, harsh interrogations, mass arrests and other heavy-handed techniques serve only to intimidate a population – not build bridges of understanding and cooperation.  A nation (or coalition of nations) wishing to peacefully administer or occupy another nation must have the “hearts and minds” or cooperation of the majority of the people for there to be peace and stability.  It is simply impossible to elicit cooperation and sympathy amongst an occupied people when torture is used.

Iraqi authorities regularly use torture and physical abuse to extract “confessions”.  Again, this has nothing to do with any desire to “solve the case” but simply to maintain the appearance of law and order while simultaneously intimidating and cowing the population at large.

Torture is applied by dictatorships in an attempt to control and intimidate a hostile population through fear.  It does not put an end to opposition movements and/or “insurgents”, it simply fuels their desire to overthrow their oppressors.  There has never been an incident in recorded history where torture resulted in a stable and cooperative populace.

Summary

  • Torture may or may not be legal when conducted by or on behalf of or with the consent of the United States in some circumstances

  • Some legislators and public persons want the laws to be changed to make this authorization to torture more explicit

  • The results of torture can last a lifetime and affect not just the primary victim but his family and loved ones and indeed the entire community

  • Torture breeds emnity and resentment towards those who conduct the torture – NOT a willingness to cooperate

  • Torture is possibly the least effective interrogation method of them all and results in incorrect, false and misleading information

  • Torture is inhumane and debases the torturer as much as it does the victim of torture

  • The use of torture does not do anything to suppress opposition or “insurgent” movements but instead has the opposite effect

  • Torture is the hallmark of dictatorships and is counterproductive to building a democratic, free society

And now you know…

This is cross-posted from Flogging the Simian

Peace