Torture in the 21st Century

Torture in the 21st Century

Introduction to Torture in the 21st Century

After the September 11 terrorist attacks on the United States in 2001, the administration of President George W. Bush declared a “war on terrorism.” In October 2001 the United States invaded Afghanistan to topple the Taliban government that had given sanctuary to al-Qaeda, the terrorist organization that claimed responsibility for the September 11 attacks.

In January 2002 a memo written by White House counsel Alberto R. Gonzales urged Bush to declare the war in Afghanistan exempt from the provisions of the Geneva Conventions. The memo advised Bush that the need to obtain information quickly to prevent a terrorist attack “renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.” This was an unprecedented position. Gonzales and Department of Justice lawyers devised strategies to insulate Bush administration officials from criminal liability under the federal War Crimes Act. Noting that the act applies to “U.S. officials,” the memo argued that exempting Taliban and al-Qaeda fighters from the Geneva Conventions “substantially reduces the threat of domestic criminal prosecution under the War Crimes Act.”

Then, in August 2002, lawyers with the Office of Legal Counsel of the U.S. Department of Justice issued a memo that proposed a definition of torture narrower than the one the United States agreed to be bound by when it ratified the Convention Against Torture. The memo said that “for an act to constitute torture … it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” In April 2003 a memo approved by the Defense Department’s general counsel William J. Haynes II adopted this definition of torture.

However, Bush administration officials denied that the president ever considered a narrower definition; Bush issued a directive ordering that people detained in the war on terrorism be treated “humanely”.

Nevertheless, following the U.S. invasion of Afghanistan in 2001 and of Iraq in 2003, prisoners held by U.S. forces in Afghanistan, Guantánamo Bay, Cuba, and Iraq were treated in a manner that violated the convention’s definition of torture. In Afghanistan an official investigation into the treatment of detainees concluded that as many as 23 detainees may have died due to abuse during interrogations. A U.S. military policeman and a private contractor employed by the CIA were charged in the beating deaths of three Afghan men. U.S. citizen John Walker Lindh, who was captured on the battlefield in Afghanistan, was stripped, gagged, strapped to a board naked, and displayed to the press. U.S. officials interrogated him while he was suffering pain from a bullet left lodged in his leg for three weeks before they would remove it. Lindh, initially charged with terrorist crimes that carried the death penalty, was permitted to plead guilty to lesser charges, and was sentenced to 20 years in prison, on the condition that he make a statement that he suffered “no deliberate mistreatment” while in custody.

At Guantánamo Bay, a report by the International Committee of the Red Cross, which was leaked to the New York Times and other newspapers in November 2004, found that the U.S. military used physical and psychological methods “tantamount to torture” against terrorist suspects. The report specified “humiliating acts, solitary confinement, temperature extremes, use of forced positions.” Some doctors and medical workers participated in planning for interrogations by furnishing patients’ confidential medical records to interrogators, in what the report called “a flagrant violation of medical ethics.” The report concluded, “The construction of such a system, whose stated purpose is the production of intelligence, cannot be considered other than an intentional system of cruel, unusual and degrading treatment and a form of torture.” The U.S. government rejected the Red Cross report, and the Department of Defense said the detention facility at Guantánamo was “humane.” In 2006, however, a report by the United Nations Commission on Human Rights concluded that the camp should be closed because of the use of torture. The U.S. government rejected this report, as well, saying it was not based on an actual visit to Guantánamo.

In Iraq, according to several official reports, U.S. military personnel and private military contractors employed rape, techniques of sexual humiliation and degradation, unmuzzled dogs to bite and severely injure prisoners, sodomy with foreign objects, and the beating of prisoners to death. A report by U.S. Army Major General George R. Fay listed 24 serious incidents of physical and sexual abuse. These methods were used to secure information from prisoners, as well as for intimidation, coercion, discrimination, and amusement.

Much of the torture and degrading treatment occurred at Abu Ghraib prison outside Baghd_d and was documented in photographs. The photographs showed the use of sexually humiliating and degrading techniques, such as forcing naked men to assume poses of oral sex and anal intercourse. Forcing prisoners to be naked for long periods of time was also routine.

Medical records kept by U.S. Army doctors documented some of the abuse, which raised the question of whether the physicians and other medical personnel were complicit in the abuse and had failed to report it to higher authorities. An article in the British medical journal, The Lancet, charged that in some cases U.S. Army doctors had falsified medical records to cover up torture. The U.S. Department of Defense denied the charges.

The Bush administration admitted engaging in the practice of rendition, which involves sending, or rendering, prisoners to other countries for interrogation. Rendering a prisoner to another country knowing that the prisoner might be tortured violates well-established principles of international law. The British ambassador to Uzbekistan, Craig Murray, has charged that the United States sent terrorist suspects to Uzbekistan to be interrogated by torture. The Bush administration denied that it was complicit in torture.

In December 2004 the U.S. Justice Department publicly issued a legal opinion that declared torture “abhorrent.” The opinion formally renounced the views put forward in earlier opinions that came from within the Justice Department’s Office of Legal Counsel. Specifically, it rejected an August 2002 opinion written by Justice Department attorney John Yoo that redefined torture as “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” The 2004 opinion was written by Jack Goldsmith, the new head of the Office of Legal Counsel, and reportedly resulted from a strong dissent by a number of Justice Department attorneys to the policies of the Bush administration.

But in February 2005, when Alberto Gonzales became attorney general, the new head of the Office of Legal Counsel secretly issued an opinion that undermined Goldsmith’s position. For the first time the Justice Department explicitly permitted interrogators to use head slapping, waterboarding (simulated drowning), and exposure to cold and loud noise in “combination.” The memo was issued over the reported objections of then deputy attorney general James Comey and was written by the new head of the Office of Legal Counsel, Steven G. Bradbury. Later in the year the Justice Department issued another secret opinion formally declaring that such interrogation tactics did not constitute “cruel, inhuman, or degrading treatment.” Therefore, such tactics would not violate the Detainee Treatment Act, legislation that Congress was considering at the time. The existence of the secret memos was not known until Octo
ber 2007 when they were revealed by the New York Times, based on disclosures by former and current government officials. The Bush administration acknowledged the memos but refused to release them, and President Bush once again asserted that “this country does not torture.”

Democrats in Congress demanded the release of the memos, and Senator Edward Kennedy of Massachusetts introduced new legislation that would explicitly outlaw such interrogation techniques by all U.S. government interrogators. The use of waterboarding, exposure to cold and loud noise, and other harsh interrogation techniques was banned under the Detainee Treatment Act of 2005. However, the ban applied only to military interrogators, leaving the CIA exempt from the act. Kennedy’s legislation was intended to close this loophole.

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Guide to Torture in the 21st Century


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