[Ppnews] Normalizing Torture
Political Prisoner News
ppnews at freedomarchives.org
Mon Oct 30 12:13:06 EST 2006
October 30, 2006
Since Americans Are Good People, Whatever We Do It Can't Be Called "Torture"
By BRUCE JACKSON
Let's start with the definition of torture in the 1984 Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, to which the United States is a party. Torture, the
Convention says, is 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 Bush Administration's rationale for torture rests on a
hypothetical argument (crafted most notably by Harvard law professor
Alan Dershowitz), a legal argument (crafted primarily by Berkeley law
professor John Yoo), and a syllogism.
Does torture work?
I'll come back to the Dershowitz and Yoo arguments and the syllogism
shortly, but I must first to comment on the question, "Does torture
work?" because the responses to that question puts the theorizing of
Dershowitz, the legal shoehorning of Yoo, and the Bush
administration's enabling syllogism into practical perspective. The
torture we're talking about is real, done by real U.S. agents to real
prisoners. In real life situations, practical perspective is always
primary, or should be.
I said I'd comment on the question "Does torture work?" not that I'd
answer it. That is because the answer always depends on what kind of
work the torturer wants the torture to accomplish.
Torture is, for example, a very effective instrument for frightening
people. Many residents of Baghdad say they live in far more fear
these days than they did during the reign of Saddam Hussein. Little
wonder. The New York Times reported on September 28, in a story that
has become, with minor variations, all too common, "On Wednesday
alone, the bodies of 15 people found in various areas outside Baghdad
were delivered to the morgue in Kut, 100 miles southeast of the
capital. Most showed signs of torture and had their hands and legs
bound; five were beheaded." American newspapers and television news
programs regularly report torture-murders like these, but never
provide any details about what the torture consisted of. People in
Baghdad are, however, very much aware what the torture consisted of.
Torture and the threat of torture can be used to get people to do
things they might not otherwise do. Prisoners in the American south,
as late as the 1960s, would be tortured if they did not work fast
enough to please the guards. Texas prison guards used what they
called "the bat," a strip of leather about 36" long attached to an
18" wooden handle. "When the leather'd leave, the skin would leave
with it," a convict told me. "You could tell the guys what got
whipped," another said. "They couldn't sit down and they slept on
If the torturer just wants to make someone miserable, then torture
also generally works very well. In 1997, New York police tortured
Abner Louima because he had, in some vague fashion, offended them.
They jammed a nightstick deep into his rectum, doing huge damage.
Many of those tortured by Argentina's and Iraq's repressive
governments weren't tortured for information, but merely because
Argentina's and Iraq's officials wanted to do it.
If the purpose of torture is to get someone who does not want to talk
to talk, then, on the whole, the answer is also "Yes, torture works."
Inflict sufficient pain and most people will say what you want them
to say. The Chicago police department is right now dealing with a
huge scandal based on the revelation that scores of Cook County
felony convictions, some of them for capital offenses, were based on
confessions extracted by police torture. Some of those confessions
were true, many were not. The torturers in such situations don't care
about truth; they care only about confessions that will clear cases.
"People say that 'I can't be brought," a Texas safecracker said to me
years ago. Brought is Texas criminal slang for 'forced to do
something against your will. "People say that 'I can't be brought.'
Well, I was brought and I'm about a half nut anyways when it comes to
being stubborn, and I made up my mind that they weren't going to
bring me. And I finally had to. They finally whipped me till I just
couldn't get there anymore. They had me for three weeks. Three weeks.
That's without seeing a lawyer, without using a telephone, without
shaving, without anything." (American police rarely do that anymore,
but if you substitute 'years' for 'weeks', the safecracker's
statement provides a good working description of what has gone on at
Guantanamo and the rest of the American global gulag.)
Sometimes the torturers do need accurate information. French
torturers in colonial Algeria destroyed the covert FLN independence
organization with a relentless torture program. The French tortured;
the tortured talked; the French arrested or murdered the people who
had been named. After a time, along with the uninvolved who had been
named, they got the involved who had been named, and the FLN was
destroyed. Similar techniques were used by the most brutal
governments in South America against opposition movements. Efficiency
isn't a concern in such torture operations; only bottom lines matter.
So what if you kill the people you don't care about while you are
killing the people you want to kill?
For as long as we have records, we have records of individuals and
institutions engaging in torture. The Roman historian-gossip
columnist Suetonius spins lurid tales about the torture programs of
Tiberius Caesar and Caligula Caesar. Many a Catholic saint achieved
that sanctified status because they were unlucky enough-or lucky
enough, depending on your point of view-to fall into the hands of
torturers of particular creativity. Not far from here, French Jesuits
had a particularly horrific time of it at the hands of the Native
Americans they were attempting to convert. And the Church was no
laggard in this technology: the basic instrument of the Inquisition
was torture, not the Bible.
A Sumerian myth from early in the third millennium B.C., tells of
Geshtinanna, sister of the god Dumuzi, who is consort of the goddess
Inanna. Geshtinanna is tortured by the underworld demons, the Galla,
to reveal where Dumuzi is hiding. They pour hot pitch into her vulva.
She doesn't tell. But that is a myth and characters in myth tend to
have more endurance than people in real life. In real life, torture
makes most people talk; not all, but most.
The comic Lenny Bruce had a famous routine called "Would you betray
your country." A guy is brought in to be interrogated saying, "No way
I'll betray my country. No way. Doesn't matter what you do I'll never
ta Hey, what are they doing to that guy over there, the guy strapped
to the table on his belly? Why are they putting a funnel in his ass.
What's that in that ladle? Hot lead? Hot lead? They're pouring hot
lead in his ass? They're giving him a hot lead enema? Ask me
anything. I'll tell you anything. I'll tell you about my mother. I'll
make up secrets."
And there, say many people who have done torture, is the rub: people
will indeed make up secrets, they will betray the innocent, they will
lie. They will tell you what they don't know to get you to stop and
they will tell you what they do know to get you to stop. Torture
produces information, but the information it produces is often not at
all reliable, and that is why, say many of those same intelligence
agents who have done torture, it is far better to get information in
other ways, of which there are many.
Alan Dershowitz' hypothetical argument for torture, with which he
went public in a November 8, 2001 piece in the Los Angeles Times ("Is
There a Torturous Road to Justice") and which got its widest
distribution in a Mike Wallace CBS "60 Minutes" interview on
September 22, 2002, and which he has repeated many times since,
posits a bomb that will kill a huge number of innocent people (it is
never "guilty people" in these discussions), which is set to go off
very soon, and a person in police custody who knows but won't tell
where that bomb is. In such a situation, Dershowitz argues, torture
to learn the ticking bomb's location is legitimate because it will
prevent a greater evil.
Torture always occurs in extreme situations anyway, Dershowitz says,
so we should have a way to control it, to license it, as it were.
Instead of opposing torture as something against human decency or
international law, Dershowitz attempts to normalize it.
His argument isn't limited to ticking bombs, "Imagine your own child
being kidnapped," he told Mike Wallace, "the kidnapper being there,
and mockingly telling you that the child has three hours of oxygen
left and refusing to tell you where the child is buried. Is there
anybody who wouldn't use torture to save the life of his child? And
if you would, isn't it a bit selfish to say 'It's okay to save my
child's life but it's not okay to save the life of a thousand strangers?'"
Woof! How can you argue that? You can't, which is the purpose of
reducing arguments to absurdities. They drive you out of the
conversation. How can you trump an absurdity with mere logic or
reality or practicality or ethics? A mocking kidnapper suffocating
your own kid! Who wouldn't torture that sonofabitch?
Pause a moment. How many times have you ever met that sonofabitch?
How many times have you ever heard of anyone ever meeting that
sonofabitch? How desperate are you to have national policy based on
that sonofabitch no one has ever met or seen or heard of anywhere
except in Alan Dershowitz's hypothetical example?
To prevent abuses, Dershowitz wants judges empowered to issue
"torture warrants." "An application for a torture warrant," he wrote,
"would have to be based on the absolute need to obtain immediate
information in order to save lives coupled with probable cause that
the suspect had such information and is unwilling to reveal it. The
suspect would be given immunity from prosecution based on information
elicited by the torture. The warrant would limit the torture to
nonlethal means, such as sterile needles being inserted beneath the
nails to cause excruciating pain without endangering life."
The heart of Dershowitz's argument is that torture is good if it is
done by the right people for the right reasons.
But if you don't know what someone knows until you torture him, how
can you know that torture will extract the information you assume
exists? And if you are wrong, what then? What if the old woman or the
little kid you tortured really knew nothing? What if the person
you're torturing has only incorrect knowledge? What is the effect of
torture on you? What are the consequences of coming to enjoy doing
it, as so many torturers seem to do? Where does it stop? What are the
Dershowitz addresses none of these questions.
He is doing something law school professors do all the time: set up
an absurd "what if" to get students to consider the implications of a
law. But he isn't doing it to get students to consider the
implications of a law; he is doing it to normalize the extreme in a
real world situation. Once you normalize the extreme, then all else
follows. If you can stick needles under the nails of the guy you
think knows where the ticking bomb is, then you can stick needles
under anybody's nails if you're thinking the right thoughts when you do it.
A year later, Dershowitz escalated the authorization level. He told
Wolf Bitzer on March 4, 2003, "If torture is going to be administered
as a last resort in the ticking-bomb case, to save enormous numbers
of lives, it ought to be done openly, with accountability, with
approval by the president of the United States or by a Supreme Court justice."
He got part of his recommendation: the legislation passed by Congress
and signed into law by Bush last week empowers the president to
define and authorize torture. But it specifically rejects
accountability. Traditionally, the agency of public accountability
has been the courts. The bill Congress passed and Bush signed denies
individuals who have been or are being tortured the right to bring
their cases to the courts, and, in many cases, the right to address
the courts about anything at all.
John Yoo was an untenured professor at Berkeley when he became a
clerk for Clarence Thomas and squash partner for Antonin Scalia. He
returned to Berkeley and got tenure in 1999. He was involved with the
American Enterprise Institute and became a friend of now-U.S. United
Nations Ambassador John R. Bolton, whose contempt for international
law is well known. He testified to the Florida legislature during the
2000 presidential election recount. From 2001 to 2003 he worked for
the Justice Department.
"In a series of opinions," said the Washington Post, "Yoo argued that
the Constitution grants the president virtually unhindered discretion
in wartime. He said the fight against terrorism, with no fixed
battlefield or uniformed enemy, was a new kind of war. Two weeks
after Sept. 11, Yoo said in a memo for the White House that the
Constitution conferred 'plenary,' or absolute, authority to use force
abroad, 'especially in response to grave national emergencies created
by sudden, unforeseen attacks on the people and territory of the
United States." Yoo's Sept. 25, 2001, memo said"the President's broad
constitutional power to use military force to defend the Nation,
recognized by the Joint Resolution itself, would allow the President
to take whatever actions he deems appropriate to pre-empt or respond
to terrorist threats from new quarters." . He advised the White House
that the Geneva Conventions do not apply to al Qaeda or the terrorism fight."
In a December 2005 Chicago debate, wrote Washington Post reporter
Peter Sleven, "Notre Dame professor and international human rights
scholar Doug Cassel said, 'If the President deems that he's got to
torture somebody, including by crushing the testicles of the person's
child, there is no law that can stop him?' 'No treaty,' Yoo replied.
'And also no law by Congress,' Cassel said, 'That is what you wrote
in the August 2002 memo.' 'I think,' said Yoo, 'it depends on why the
President thinks he needs to do that.'"
John Yoo's torture argument is legal: not should we do this or when
should we do this, as Dershowitz, but rather under what mantle of law
can we defend having done it or authorizing others to do it? He
concerns himself not with policy but rather with immunity. The two
questions Yoo's briefs answer, whether explicitly or implicitly, are,
first, Given the laws on the books and the way the courts interpret
those laws, what can we get away with?And second, What laws should we
put on the books to legitimize what we've already done and want to
If you know your 20th century European history, that should resonate.
Just about everything the Nazis did was legal, in exactly this
fashion. Confiscations of property, restrictions of civil liberties,
concentration camps, torture, killings-all legal. Legal, not right or
just. The right and the just have no necessary relationship with the
legal. Ideally, they coincide perfectly; in real life, they only sometimes do.
In an interview a year ago, Bush repeated the bottom line of John
"Our country is at war and our government has the obligation to
protect the American people. The executive branch has the obligation
to protect the American people; the legislative branch has the
obligation to protect the American people. And we are aggressively
doing that. We are finding terrorists and bringing them to justice.
We are gathering information about where the terrorists may be
hiding. We are trying to disrupt their plots and plans. Anything we
do to that effort, to that end, in this effort, any activity we
conduct, is within the law. We do not torture."
"Anything we do to that effort, to that end, in this effort, any
activity we conduct, is within the law. We do not torture."
The military commissions act signed into law by Bush on October 17th,
ratifies that final sentence: torture is what the president says is
torture; if the president says a behavior isn't torture, it isn't torture.
The syllogism that ties all this together goes something like this:
First premise: "Terrorism is a world-wide enemy who doesn't play by
Second premise: "They hate us because they hate our way of life."
Conclusion: "Therefore, in order to protect our way of life from
terrorism we can't play by the rules either; everything is permitted."
It's a lousy syllogism, I know, but I didn't come up with it. George
W. Bush and Dick Cheney came up with it.
Neither the first nor the second premise has any basis in fact.
People who hate us don't hate us because of our way of life; they
have other reasons, which I won't start trying to enumerate.
And Terrorism isn't an enemy; it is a technique in asymmetrical
warfare. Until 9/11, the major terrorist attack in the US had been
carried out by a kid from one of Buffalo's suburbs who blew up the
Federal building in Oklahoma City because he was angry at the U.S.
Department of Justice for something he thought it had done to people
he didn't know. That was Timothy McVeigh, a veteran of the first Gulf
War. Anybody can do a terrorist act, just as anybody can pull the
trigger of an American- or Czech-made automatic rifle.
America isn't even the focus of most terrorist acts or events. Most
terrorist events and acts over the past decade have to do with
nationalism issues, not with US hegemony or the US 'way of life',
whatever that is.
Vice President Dick Cheney continues to insist, against irrefutable
evidence to the contrary, that WMD existed in Iraq and that Iraq was
linked to a world-wide terrorist operation. Cheney's constant
reiteration of this lie is a not matter of bull-headedness or
stupidity; Dick Cheney isn't stupid. He and Bush need WMD and the
myth of terrorist ties everywhere to justify everything else they
have done and plan to do next.
When they filled their prison camp in Guantanamo, nobody was fighting
us in Afghanistan. When the filled Abu Ghraib, nobody was fighting us
in Iraq. All of that came later. What information about impediments
to democracy in Iraq was obtained by torture at Abu Ghraib and
Guantanamo or in the many secret prisons-we still do not know how
many-the US has maintained in foreign countries?
The assumption of a universal enemy whose name is Terrorism justifies
endless war in countless places. It justifies extreme measures. It is
Alan Dershowitz's ticking bomb. For the Bush administration, all
terrorists are part of a single terrorist entity, in the same way all
members of the SS were part of the Nazi military apparatus. But that
analogy doesn't hold. Terrorism isn't an entity or an organization or
a club or a nation or an army. It is merely a technique weak smaller
forces use to strike at strong larger forces.
Larger forces don't engage in acts of terrorism; they don't have to.
Or, rather, the acts they do are so big they get another name. Larger
forces just bomb the shit out of the place, as the British and U.S.
did in the firebombings of Dresden and Tokyo, as the U.S. did in its
nuclear devastation of Hiroshima and Nagasaki and its carpet bombing
of Hanoi, and as the Israelis did only a few months ago in Lebanon.
Robert MacNamara, Lyndon Johnson's Secretary of Defense for part of
the Vietnam War, was one of the American high command officers
involved in the firebombing of Tokyo. He told filmmaker Errol Morris
that, had the U.S. not won the war, he and his colleagues would have
been tried as war criminals, and that he had worried about such
post-war charges while the firebombing was going on. As well he should have.
Making it legal
Word about American abuse of prisoners-none of whom has been charged
with a military or civil crime-had leaked since soon after the
Afghanistan invasion, but it was the Abu Ghraib photos that Diane
Christian talked about in this forum on October 4th that blew the lid
off. Photos have a specificity words rarely achieve. You can argue
words with other words, but with what do you argue an authentic image?
If you are old enough to remember the Vietnam War, you will remember
the impact on American opinion of Nick Ut's photo of the napalmed
girl on a dirt road, or Eddie Adams's photo of the Vietnamese
National Police Chief putting a bullet in the head of a prisoner on a
Saigon street and the My Lai massacre photos. Those images changed
the course of that war.
Not long ago, and largely in response to the Abu Ghraib images, the
U.S. Supreme Court told the Bush administration it had to behave in
accordance with both U.S. law and the Geneva Conventions. They
couldn't hold prisoners without charge for years in secret prisons.
Individuals suspected of ordinary crimes had to be treated in terms
of U.S. law. Military prisoners had to be treated in terms of the
On September 7 of this year, according to the Washington Post, the
Pentagon announced it had "repudiated the harsh interrogation tactics
adopted since the Sept. 11, 2001, terrorist attacks, specifically
forbidding U.S. troops from using forced nudity, hooding, military
dogs and waterboarding to elicit information from detainees captured
in ongoing wars. The Defense Department simultaneously embraced
international humane treatment standards for all detainees in U.S.
military custody, the first time there has been a uniform standard
for both enemy prisoners of war and the so-called unlawful combatants
linked to al-Qaeda, the Taliban and other terrorist organizations."
Similar, though not quite as public, concerns and policy changes were
voiced within the CIA.
The worries did not come from any bureaucratic desire for
clarification. They resulted, rather, from the suggestion that many
U.S. activities were viewed elsewhere in the world as war crimes, and
that the people who carried them out were as guilty of such war
crimes as the people who authorized them.
Bush quickly distanced himself from the new Pentagon policy. A week
after the Pentagon statement a reporter asked him, in reference to
the Military Commissions legislation, "What do you say to the
argument that your proposal is basically seeking support for torture,
coerced evidence and secret hearings? And Senator McCain says your
plan would put U.S. troops at risk. What do you think about that?"
"This debate is occurring," Bush said, "because of the Supreme
Court's ruling that said that we must conduct ourselves under the
Common Article 3 of the Geneva Convention. And that Common Article 3
says that, you know, There will be no outrages upon human dignity.
It's like -- it's very vague. What does that mean, outrages upon
human dignity ? That's a statement that is wide open to
interpretation. And what I'm proposing is that there be clarity in
the law so that our professionals will have no doubt that that which
they're doing is legal. You know, it's a -- and so the piece of
legislation I sent up there provides our professionals that which is
needed to go forward.You see, sometimes you can pick up information
on the battlefield, sometimes you can pick it up, you know, through
letters, but sometimes you actually have to question the people who
know the strategy and plans of the enemy..Now, the court said that
you've got to live under Article 3 of the Geneva Convention. And the
standards are so vague that our professionals won't be able to carry
forward the program, because they don't want to be tried as war
criminals. They don't want to break the law.Now, this idea that
somehow, you know, we've got to live under international treaties,
you know -- and that's fine; we do. But oftentimes the United States
government passes law to clarify obligations under international
treaty. And what I'm concerned about is if we don't do that, that
it's very conceivable our professionals could be held to account
based upon court decisions in other countries. And I don't believe
Americans want that."
To put that more succinctly and lucidly, "The Supreme Court ruled
that torture is illegal and the president doesn't have the authority
to authorize it and that US officials have to start behaving in
accord with the Geneva Convention, to which the U.S. is a signatory.
But I, George W. Bush, believe we need torture to get information. So
let's change the definition of torture and let's indemnify everyone
we authorize to engage in it and let's keep it all neat by denying
those who are tortured access to U.S. courts."
And that is exactly what Congress did.
Changing who we are
That change in the official U.S. posture toward torture is huge, both
for what we are and how we are regarded elsewhere in the world. It is
very difficult, for example, for a nation that legalizes torture to
take the moral high ground in any international discussion about
torture. One of George W. Bush's justifications for invading Iraq was
that Iraqi president Saddam Hussein permitted torture of Iraqi
citizens; one of the places Hussein's agents carried out torture was
a prison called Abu Ghraib. An image of a prisoner in Abu Ghraib
tortured by Americans, not Saddam Hussein, is the logo for this
forum. It is now one of the best recognized images in the world.
How is official U.S. torture to work now? Will the applicant, an
officer in the CIA for example, say to someone in the White House,
"We think this person knows where a bomb is so we are going to
waterboard him and if that doesn't work we are going to run
electricity through his testicles and if that doesn't work we're
going to drill his teeth without anaesthetic and if that doesn't
work." Use your own imagination. Will the White House then say "You
get the waterboard and testicles but not the teeth?" Or will the
decisions be delegated to officers in the field, like some New York
cops who told me years ago, "We only kick the shit out of people we
know are guilty"? If that's the plan, how do you vet for field
officers who really enjoy that part of the work? Do you trust field
officers to determine who is and who isn't a fit subject for torture?
White House spokesman Tony Snow refuses to say. Details like that, he
says, would only make it easier for the enemy to resist.
I began by quoting the definition of torture in Article 1 of the 1984
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, an international agreement to which the U.S.
is signatory. I will close with three other passages from that
Convention and with two final questions:
2. No exceptional circumstances whatsoever, whether a state of war or
a threat of war, internal political instability or any other public
emergency, may be invoked as a justification for torture.
3. An order from a superior officer of a public authority may not be
invoked as a justification of torture.
1. No State Party shall expel, return ("refouler") or extradite a
person to another State where there are substantial grounds for
believing that he would be in danger of being subjected to torture.
How could the United States have violated or abrogated this
international treaty more cynically than it did in the Military
Commissions bill George W. Bush signed into law?
And finally, this: Instead of being a nation that has, at the highest
levels, an apparatus for the administration of torture, wouldn't it
be better to address the reasons people resort to terrorism in the
Bruce Jackson is SUNY Distinguished Professor at University at
Buffalo. He edits the web journal
<http://www.BuffaloReport.com/>BuffaloReport.com. His book The Story
is True: The Art and Meaning of Telling Stories will be published in
March by Temple University Press.
This essay is adapted from a talk given October 25 in University at
Buffalo's Forum on Torture. For information on the rest of the
series, go to
The Freedom Archives
522 Valencia Street
San Francisco, CA 94110
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