Excerpt
Table of contents
Acronyms and abbreviations
1. Introduction: What are the main criticisms of the use of torture by the U.S. in its War on Terror?
1.1 Definition of torture
2. Background
2.1 Emergence of ‘enhanced interrogation techniques’
3. Evidence that enhanced interrogation techniques constituted torture
3.1 Cases of torture at Guantánamo
4. Key criticisms of torture
4.1 Refutation of the ticking time bomb scenario
4.2 Torture does not provide useful information
4.3 Torture is counter-productive and may increase terrorism
5. Conclusion
6. Bibliography
ABSTRACT
The U.S.’s War on Terror has generated and continues to engender a great deal of international and domestic condemnation. This essay consequently analyses one of the most controversial and insidious repercussions of the ‘War on Terror’: the U.S.’s use of torture on terrorist suspects. Ultimately, this paper argues that torture as a counterterrorism tactic was an ill-conceived act of desperation that violated human rights, damaged the U.S. government’s integrity and potentially increased terrorism. For this reason, the U.S.’s choice of torture is argued to be the basest of its mistakes in its War on Terror. Thus, this discussion focuses on the emergence of Enhanced Interrogation Techniques, cases of torture at Guantanamo Ba y , the indefensibility of torture and the irreconcilable consequences of state sponsored torture. To substantiate its main arguments, this analysis draws on the International Committee of the Red Cross Report On The Treatment Of Fourteen High Value Detainees In CIA Custody and reports from the Select Senate Committee on Intelligence .
Acronyms and abbreviations
AQAP Al-Qaeda in the Arabian Peninsula
AUMF Authorization for the Use of Military Force
CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
CIA Central Intelligence Agency
DAAG Deputy Assistant Attorney General
D&I Detention and Interrogation
DCI Director of Central Intelligence
DOD Department of Defense
DOJ Department of Justice
EIT Enhanced Interrogation Technique
GITMO Guantánamo Bay
HVD High Value Detainee
ICRC International Committee of the Red Cross
IG (CIA) Inspector General
JTF- GTMO Joint Task Force Guantánamo
MON Memorandum of Notification
NSC National Security Council
OLC Office of Legal Council
SSCI Select Senate Committee on Intelligence
STI Standard Interrogation Technique
TTBS Ticking Time Bomb Scenario
UN United Nations
U.S. United States of America
WMD Weapons of Mass Destruction
9/11 September 11, 2001 (World Trade Center/Pentagon terrorism attacks)
1. Introduction: What are the main criticisms of the use of torture by the U.S. in its War on Terror?
The coordinated acts of terror that took place on the 11th of September 2001 had many direct and devastating consequences. The invasion of Iraq and Afghanistan would follow as the Bush administration’s ferocious response to the attacks. However, September 11, 2001 (9/11) also initiated a series of covert actions that would have disastrous repercussions, many of which remain unsettled. Some of these actions would later be exposed to be deeply disturbing, ineffective and on all accounts illegal. Consequently, this essay analyses one of the most controversial repercussions of the ‘War on Terror’: the U.S.’s use of torture on terrorist suspects. Ultimately, this essay argues that torture was an ill-conceived act of desperation that violated human rights, damaged the U.S. government’s integrity and potentially increased terrorism. For this reason, the United States of America’s (U.S.) choice of torture is argued to be the basest of its mistakes in its War on Terror.
The discussion starts by expounding on the illegality of torture to then provide a thorough definition of the term. Subsequently, the U.S.’s development and use of Enhanced Interrogation Techniques (EIT) is expounded upon to expose the illegality of such methods. Next, the essay examines several cases from one of the U.S.’s most publicised torture locations, Guantánamo Bay (GITMO). The International Committee of the Red Cross’s (ICRC) High Value Detainee (HVD) report of GITMO is used as it provides a detailed testimony of U.S. torture in the War on Terror. Following these verified substantiations, the essay presents some major criticisms that expose the indefensibility, ineffectiveness and damage of torture in the U.S.’s fight against terrorism. Throughout this paper the Central Intelligence Agency (CIA) Inspector General’s (IG), ICRC’s and Select Senate Committee on Intelligence’s (SSCI) reports are constantly referenced and expounded upon. Though these reports are fundamental to this essay’s arguments, the discussion’s conclusion attempts to exceed their reach by appealing to the reader’s innate and now informed understanding of what torture implies.
1.1 Definition of torture
The use of torture is unanimously condemned by international law. The Universal Declaration of Human Rights, the Declaration against torture and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) are United Nations (UN) avowals that have been signed by the U.S. Equally significant is the U.S.’s own Constitution that prohibits cruel and unusual punishment. CAT defines torture as: 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 (Bufacchi & Arrigo, 2006: 356).
Furthermore, article 2.2 of the CAT reiterates the unacceptability of torture, stating that there can exist no exceptional circumstances that can justify torture “whether a state of war or a threat of war, internal political instability or any other public emergency” (Bufacchi & Arrigo, 2006: 356). Additionally, article 3.1 illegalises the outsourcing of torture by stating that “No State shall expel, return or extradite a person to another State where there are grounds for believing that he would be in danger of being subjected to torture” (Bufacchi & Arrigo, 2006: 356). The CAT’s definition of torture is deliberately comprehensive to incorporate the varied and cruel range of specific techniques that inflict physical and psychological pain (Costanzo & Gerrity, 2009: 181).
Despite this clear condemnation, various definitions and methods of torture emerged in the War on Terror in an attempt to circumnavigate the CAT. Defenders of torture have argued that some forms of torture do not violate the CAT’s definition, whereas others argue that torture can be permitted and controlled in extreme cases (Miles, 2016: 8). The Ticking Time Bomb Scenario (TTBS) is one of the most common justifications for torture and will be interrogated later in the discussion. Regardless of these contentions, international law is resolute on torture’s illegality, however the enforcement of these laws is not so stringent. Reports from detention facilities like GITMO expose particular interrogation tactics employed by U.S. officials that frequently involved the degradation of the suspect. Consequently, current torture methods have largely revolved around the desecration of an individual’s religious belongings and practices; physical and psychological pain, sexual abuse and humiliation; subjection to filth, and exploitation of relationships between family members, fellow citizens or combatants (Bufacchi & Arrigo, 2006: 356). Moreover, despite article 3.1 of the CAT, the outsourcing of torture has taken place, with the U.S. and other liberal democracies possessing secret detention facilities in countries that have poor human rights records (Arimatsu, 2005: 16). Consequently, in 2002 Amnesty International reported that over 100 countries had cases of state-sponsored torture or severe abuse (Bufacchi & Arrigo, 2006: 356). Though there are many cases of U.S. torture in its War on Terror, this essay only focuses on several cases from GITMO which are deemed sufficient in revealing the U.S.’s crimes.
2. Background
The U.S. government hastily reacted overtly and covertly to the 9/11 attacks. One of its most evident reactions took place on the 18th of September 2001, when Congress passed the Authorization for the Use of Military Force (AUMF). The AUMF “-authorized the President to use all necessary and appropriate force against those nations, organizations, or persons he determined planned, authorized, committed, or aided the terrorist attacks that occurred on 9/11-” (Miles, 2016: 3). The AUMF lead to the Iraq and Afghanistan invasions as well as other operations that fought and captured terrorists. These set of public actions were key constituents of the War on Terror and to many they were an incorrect and disproportionate response to 9/11 (Aradau & van Munster, 2009: 688).
However, a day prior to the passing of the AUMF, then U.S. President, George W. Bush, signed a covert action Memorandum of Notification (MON) granting the Director of Central Intelligence (DCI) to “-undertake operations designed to capture and detain persons who pose a continuing, serious threat of violence or death to U.S. persons and interests or who are planning terrorist activities” (SSCIb, 2014: 11). Although the CIA was already able to detain criminally charged individuals, the MON provided the CIA with unprecedented power. Through the MON, the CIA was granted a considerable amount of discretion in establishing whom to imprison, as well as the basis and duration of their imprisonment. However, the MON made no indication of interrogations (SSCIb, 2014: 11). Concurrently, the CIA and the Department of Defense (DOD) held discussions with the National Security Council (NSC) over the legal and policy limits of the management and treatment of terrorists. Ultimately, the CIA and DOD independently decided to acquire aggressive techniques that could be lawfully employed to counteract suspect resistance to interrogation (Miles, 2016: 3).
Thus, by early November 2001 the CIA had decided that future detention facilities would have to be on par with U.S. prison standards and that CIA Detention and Interrogation (D&I) operations would meet the requisites of U.S. law. Moreover, particular interrogation techniques would be admissible as long they largely conformed to frequently recognised practices regarded as lawful by U.S. courts. These techniques, referred to as Standard Interrogation Techniques (SIT), are defined by CIA guidelines “as techniques that do not incorporate significant physical or psychological pressure. These techniques include, but are not limited to, all lawful forms of questioning employed by U.S. law enforcement and military interrogation personnel” (Miles, 2016: 1). However, concurrent to these events, the CIA was pressuring the DOD and the U.S. military to host long-term D&I facilities, preferably U.S. military bases outside the jurisdiction of U.S. courts. For this reason, the U.S. naval base situated in Guantánamo Bay, Cuba, was specifically requested to be designated as a long-term detention facility (SSCIb, 2014: 12). These early actions laid the foundation for the use of illegal methods that exceeded the limits of SITs and revealed the CIA’s true intent.
2.1 Emergence of ‘enhanced interrogation techniques’
Between late 2001 and early 2002, the CIA with the Department of Justice’s (DOJ) Office of Legal Council (OLC) asserted that “-a novel application of the necessity defense-” (SSCIa, 2014: 5) may be used “-to avoid prosecution of U.S. officials who tortured to obtain information that saved many lives” (SSCIa, 2014: 5). Additionally, in a 42-page memo written by the Deputy Assistant Attorney General (DAAG), John Yoo, it was asserted the Geneva Convention and the U.S. War Crimes Act did not apply to the Afghanistan conflict. This assertion relied on the argument that Afghanistan was a ‘failed state’ and allowed Yoo to argue that all Al-Qaeda and Taliban operatives would be placed into a new classification called ‘illegal enemy combatants’. This new classification theoretically ousted terrorists from the protection of the Geneva conventions and thus allowed the use of coercive interrogation methods (McCoy, 2006: 113). Simultaneously, the CIA commissioned an independent contractor psychologist[1] and a DOD psychologist[2] to research and write a paper on Al-Qaeda’s resistance to interrogation techniques. Their paper was followed by a list of 10 new violent interrogation techniques to be used if a terrorist suspect did not divulge the necessary information. These techniques would go on to be referred to as EITs. EITs are defined by CIA guidelines as techniques that “incorporate significant physical or psychological pressure beyond standard techniques” (Miles, 2016: 1). Ultimately, in August 2002, due to spurious assertions by U.S. officials like Yoo, the DOJ advised the CIA that EITs would not violate torture prohibitions (CIA, 2004: 4).
However, according to Dr Ruth Blakeley, a leading expert on state terrorism, EITs did violate the terms of the CAT and also encouraged further legal infractions. Accordingly, Blakeley defines EITs as methods of interrogation that entail psychological torment, threats, brutal treatment and the use of force (2011: 7). To substantiate her assessment of the U.S.’s violation of international law, Blakeley cites the conclusion of the IG’s report, whereby EITs were found to be inconsistent with the U.S.’s public position on human rights (Blakeley, 2011: 6). Additionally, when analysing the sequence of events, Blakeley makes two key assertions that reveal the CIA’s consultations with the DOJ’s OLC to be underhand and overreaching. Firstly, Blakeley states that the CIA-DOJ discussions continuously secured retroactive approval for EITs (2011: 7). Secondly, Blakeley argues that the aims of these consultations were to obtain legal protection for CIA operatives (2011: 7). Therefore, the CIA knowingly acted illegally, anticipating the legal repercussion of such acts. Consequently, Blakeley argues that the OLC did not lead the Bush administration’s torture policy, but rather “the tail was wagging the dog; the law was not dictating policy and practice, rather CIA practices were dictating law” (2011: 3).
Therefore, when a senior Al-Qaeda operative, Abu Zubaydah, was captured on March 27th 2002, the CIA saw a possibility to acquire “actionable intelligence on future threats” (CIA, 2004: 12). According to the IG’s special review report, this development accelerated the CIA’s development of its interrogation program (CIA, 2004: 12). At first the CIA began using SITs on Zubaydah (SSCIb, 2014: 4). However, after several weeks the CIA determined that Zubaydah, its first detainee, was withholding imminent information on plans of attack on the U.S. Consequently, EITs were requested and approved (Miles, 2016: 4). EITs would be used on other terrorist suspects, like Zubaydah, who were identified as HVDs and thought to be resisting interrogation. These EITs are detailed in the following section to emphasise their damage and clear violation of the CAT.
3. Evidence that enhanced interrogation techniques constituted torture
For the purposes of this essay, the cases used in the subsequent section are based on the findings of a 2007 report conducted by the ICRC on HDVs held in GITMO. This report provides a verified insight into GITMO and the CIA’s use of EITs. The level of detail used is in this section is intended to refute claims that EITs did not constitute torture. It must be noted that the following atrocities are but a few of the cases that transpired during the CIA’s D&I programme in GITMO. According to the SSCI report, the CIA held at least 119 detainees in its D&I program which lasted from September 17th 2001 to January 22nd 2009 (SSCI b, 2014: 8). Of the 119 detainees, 39 were subjected to EITs[3] (SSCI a, 2014: 2). This in itself is only fraction of what took place in the U.S.’s War on Terror which involved the abuse of thousands of suspects. However, the ICRCS’s documentation of interrogational torture reveals the systematic brutality of EITs and the extent to which the U.S. violated international laws. Therefore, even though some detainees were proven terrorist affiliates, this essay finds that the CAT still applied to their detention.
Therefore, their categorisation as illegal combatants, their experience of EITs and their detention outside the jurisdiction of U.S. courts were political and legal manoeuvres by U.S. authorities to evade domestic and international laws. Despite these efforts the ICRC’s report provides clear evidence that the U.S. government did break international law. Correspondingly, members of the SSCI, including its then chairwomen, Senator Dianne Feinstein, found that on several occasions EITs did constitute torture. Nevertheless, the ICRC report is based on information obtained through private interviews between the ICRC and 14 HVDs held at GITMO (ICRC, 2007: 4). These first hand descriptions provide clear confirmation of the use of torture, by U.S. officials, that conform to the CAT’s definition. Ultimately, the ICRC report found instances of all of the CIA’s 10 EITs, as well as other equally disturbing and abusive forms of mistreatment (ICRC, 2007: 9).
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[1] James Mitchell
[2] John Jessen
[3] Moreover, 26 of the 119 detainees were identified by the SSCI to not meet the criteria of the MON for detention (SSCI, 2014:12a).