Creating a torture culture.

• Author: Clarke, Alan

Question:

"Mr. President, I wanted to return to the question of torture ... when you say that you want the U.S. to adhere to international and U.S. laws, that's not very comforting. This is a moral question: Is torture ever justified?"

President George W. Bush:

"Maybe I can be more clear. The instructions went out to our people to adhere to law. That ought to comfort you. We're a nation of law. We adhere to laws. We have laws on the books. You might look at those laws, and that might provide comfort for you. And those were the instructions out ... from me to the government." (1)

1. INTRODUCTION

   Americans accept that the United States tortured people in its war against terror and has sent others to places doing worse. (2) Moreover, the United States admits to waterboarding suspects, (3) and a "majority of Americans consider waterboarding a form of torture." (4)

   The persistent skeptic will object that the majority may be wrong. The White House denies the use or sanction of any sort of torture and defends waterboarding saying, "the programs have been reviewed, and the Department of Justice has determined them to be legal." (5) President Bush continues to deny the use of torture saying: "And whatever we have done is legal. That's what I'm saying. It's in the law. We had lawyers look at it and say, 'Mr. President, this is lawful.' That's all I can tell you." (6)

   As late of 2005 the President continued to assert the authority to use waterboarding, claiming it to be lawful. (7) Moreover, President Bush continues to press for a worldwide ban on torture (8)--strong evidence that he sees no hypocrisy in the U.S. position. Similarly, Secretary of State Condoleezza Rice has refused to characterize waterboarding as torture, insisting that "the determination of whether interrogation techniques are consistent with our international obligations and American law are made by the Justice Department." (9) Former Secretary of Defense Donald Rumsfeld also deferred to legal interpretations while contending that the United States has not tortured. (10)

   Attorney General Michael B. Mukasey has said that because the Justice Department approved the program, it will not open a criminal investigation into the practice. (11) Vice President Dick Cheney states unequivocally, "[t]he United States is a country that takes human rights seriously. We do not torture--it's against our laws and against our values." (12) The Department of Justice Office of Legal Counsel (OLC), has conceded that waterboarding is no longer legal under current law (presumably because of the Detainee Treatment Act of 2005 (DTA) (13) and the Military Commissions Act of 2006 (MCA), (14) both of which came after the last publicly known use of waterboarding). The OLC, however, maintains that the President retains the power to authorize waterboarding and other discontinued harsh techniques in special circumstances, "such as when there is a 'belief that an attack might be imminent.'" (15) The administration maintains that the executive branch retains discretion to return to these practices. (16) According to administration views, neither the courts nor the legislature can check or constrain the practice of waterboarding or any other practices that the administration deems necessary in the war on terror (17) and which it has the unilateral power to declare as "not amounting to torture." (18)

   The administration uses a sliding scale to decide if a practice amounts to torture--the more necessary it deems potential information, the less likely the administration is to see a practice as torture. The idea is that a practice will constitute torture only if it shocks the conscience (thus setting or moving the line between torture and the lesser standard of cruel, inhuman, and degrading treatment (CID), (19) based on whether a specific method shocks the conscience). The notion comes from Rochin v. California, (20) a case in which the police pumped a suspect's stomach against his will to recover drugs he had swallowed. The Supreme Court found that such methods of obtaining evidence "shocks the conscience" and is "too close to the rack and the screw" to be permitted under the Constitution. (21) Thus, from Rochin, a rule may be synthesized that, under the Due Process Clause of the Fourteenth Amendment, the state's methods of collecting evidence and enforcing the law might not have shocked the court's conscience had there been a greater need for the evidence. (22)

   According to the calculus suggested by this reading of the "shock the conscience" metaphor, the executive branch's conscience (and presumably the judicial branch's, to the extent it has any role to play under this theory) becomes less and less offended as the need for the information increases. (23) The need for information thus affects (and may even determine) whether a practice legally constitutes torture or its lesser cousin, CID. (24) Torture, in this view, has become partially untethered from its effect on the individual and changes to fit the perceived need; the greater the need, the greater the level of abuse that can be tolerated without calling it "torture." (25) This stridently instrumental view, when combined with unchecked Presidential power to say what torture is, leaves the concept, for all practical purposes, unbounded, providing ample space for the claim "we do not torture." (26)

   Action tells more than words, and here the government remains consistent. Military prosecutors have begun military commissions, (27) seeking the death penalty, (28) for six "high-value" detainees (29) allegedly involved in the events of September 11, 2001. These include self-proclaimed "superterrorist" Kahlid Shaikh Mohammed who was waterboarded, and Mohammed al-Qahtani, so badly abused that he evidenced extreme psychological trauma by talking to nonexistent people and hearing voices. (30) Undoubtedly the admissibility of evidence procured because of harsh interrogations will be an issue before the military commissions. (31) Nonetheless, the government thinks it can defend its position and proceed with these controversial cases. Moreover, the decision to seek the death penalty sharpens the focus on torture and cruel, inhumane, and degrading interrogation practices. Plainly, the administration rejects allegations that it tortures, or has done anything illegal, while vigorously defending the right to use "alternative interrogation" techniques, (32) and seeking the death penalty (33) for persons whose incriminating statements may have resulted from those harsh interrogations.

   The issue is a hot one, prompting domestic (34) and international (35) astonishment at the claimed lawfulness of such practices. Manfred Nowak, who is both a law professor and the UN Special Rapporteur on Torture, said, "I'm not willing any more to discuss these questions with the US government, when they say this [waterboarding] is allowed. It's not allowed." (36)

   The Director of National Intelligence, Mike McConnell has said, "If I had water draining into my nose, oh God, I just can't imagine how painful! Whether it's torture by anybody else's definition, for me, it would be torture." (37) The legality of waterboarding aside, it is undisputed that the United States uses harsh interrogation techniques (38) that many consider torture, even as the government fiercely disputes that characterization. (39)

   Prior to the current Bush administration, American courts and other tribunals consistently branded waterboarding "torture." (40) The United States prosecuted members of the Japanese armed forces after World War II, in part because they used waterboarding as a form of torture. (41) Moreover, its own courts have called waterboarding torture when used by domestic law enforcement. (42) The United States even court-martialed at least one of its own military officers for employing waterboarding during the occupation of the Philippines at the beginning of the twentieth century. (43) Thus, if waterboarding is not torture, it is because the administration has succeeded in altering the definition. (44)

   More importantly, a too narrow focus on waterboarding may distract from other harsh interrogation techniques. Many of these other "alternative interrogation techniques" have equally profound effects on their victims and justly deserve the name "torture." We will detail more of this later. For the present, it suffices to say that some victims of U.S. interrogation practices at Guantanamo have become delusional. (45) During interrogation, one detainee was seen chained hand and foot on the floor in the fetal position, beside a pile of his hair that he had pulled out over the course of the night. (46) According to one of the leading authorities on the subject, "torture lite" victims can suffer "depression, excessive anxiety, posttraumatic stress disorder and sometimes full-blown psychosis." (47) Moreover, these symptoms can persist for twenty or thirty years and are extremely difficult to treat. (48) According to a study of nearly three hundred persons from the former Yugoslavia, the degree of stress reported by those who suffered "clean" torture did not differ from that of those subjected to psychical torture. Both groups showed "equally high levels of post-traumatic stress disorder." (49) "'Clean' methods of interrogation might appear more sanitized and therefore more acceptable than those that leave physical scars. But don't be fooled. They are just as brutal, crude--and pointless--as ever." (50)

   One may reasonably ask why, despite formal legal definitions, (51) techniques that cause such long-lasting anguish are not deemed torture. While waterboarding may be the most obvious example of a practice clearly constituting torture, it is not the sole technique, as torture encompasses a range of physically and mentally debilitating practices. Many of the authorized alternative interrogation techniques are ill-disguised by the euphemisms currently in vogue. (52)

   Finally...