international relations, terror, torture, war

Terrorism and Human Rights (42): The Torture Memos

The Torture Memos is a term that refers to several legal memoranda drafted by John YooJay S. Bybee and others. The purpose of these documents was to advise President Bush and the CIA on the use of so-called enhanced interrogation techniques. In particular, the documents claimed that

  • acts widely regarded as torture might be legally permissible under an expansive interpretation of presidential authority during the “War on Terror
  • federal laws against torture, assault, maiming and “cruel and unusual punishment’ do not apply to the overseas interrogation of terror suspects
  • the Geneva Conventions or the Torture Convention do not apply to unlawful enemy combatants.

I’ll show you just a couple of memos, and although this may seem long and tedious at first sight, I recommend that you have a look at them. They are real eye-openers and proof of how far even one of the most democratic governments on earth can go when faced with a crisis. Also, please don’t think this is of historical concern only. Most of the people who have been subjected to the torture regime described in the memos are still in captivity.

The primary torture memo is this one (the highlights are mine):

john yoo torture memo

It’s written by Jay Bybee and addressed to Alberto Gonzales, then counsel to the president, and it’s infamous for defining torture in such a way that only the gravest acts of torture can be labelled as such.
Abu Zubaydah

Abu Zubaydah

Another torture memo describes the specific case of Abu Zubaydah. Zubaydah is still in US custody in Guantanamo Bay today. And he has been for more than 10 years, four-and-a-half of them in the CIA secret prison network.

President George W. Bush originally bragged about his capture [in 2002], as the CIA thought he was a high-ranking member of al-Qaeda. They transferred him among prisons in various countries as part of their extraordinary rendition program. During interrogation in the Bush administration years, Zubaydah was water-boarded 83 times and subjected to numerous other enhanced interrogation techniques including forced nudity, sleep deprivation, confinement in small dark boxes, deprivation of solid food, stress positions, and physical assaults. These have been prohibited by the Obama administration. Videotapes of some of Zubaydah’s interrogations are amongst those destroyed by the CIA in 2005. (source)

Below is a print of parts of the memo that authorized his “enhanced interrogation” (again, the highlights are mine). There was much administration opposition to releasing this memo to the public, and the first release was almost completely redacted. By now, the U.S. government has admitted that Abu Zubaydah wasn’t even a member of al Qaeda, let alone a high value detainee who could provide important information and prevent terrorist attacks. It’s worth reading these three pages in full:

Zubaydah torture memo 1 Zubaydah torture memo 2 Zubaydah torture memo 3

Torture memo, August 1 2002, by the Office of Legal Counsel, Jay Bybee and his assistant John Yoo, addressed to CIA acting General Counsel John A. Rizzo. The purpose of the memo was to describe and authorize specific enhanced interrogation techniques to be used on Abu Zubaydah.

Here’s another, more general memo, approved by then-Secretary of Defense Rumsfeld, covering interrogation and “counter-resistance techniques” at Guantanamo:

Rumsfeld's note "I stand for 8-10 hours a day, why is standing limited to 4 hours" has become notorious.

Rumsfeld’s note “I stand for 8-10 hours a day, why is standing limited to 4 hours” has become notorious.

By the way, the term “enhanced interrogation techniques” is a clear euphemism for torture. Of special interest is the similarity with a well-known Gestapo euphemism: the Gestapo spoke of “Verschärfte Vernehmung”, German for “enhanced interrogation”. Here is a clipping from an English translation of a Gestapo document that describes techniques very similar to those validated by the Bush Torture Memos:

translation of mueller memo

(source)

Here’s another memo, written by Alberto Gonzales (White House Counsel at the time) for President Bush, arguing that captured al-Qaida and Taliban members are not prisoners of war and hence cannot profit from the protections offered by the Geneva Conventions (again, my highlights).

Gonzales memo

Among other things, the Geneva Conventions aim to protect prisoners of war against “outrages upon personal dignity” and “inhuman treatment”.

And finally, here’s a damning December 2004 CIA background paper, providing

a detailed official account of the CIA’s detention, interrogation and rendition programs – from a detainee’s initial apprehension, to his transfer to a CIA “black site,” to his interrogation – and describes the use of abusive interrogation techniques including forced nudity, sleep deprivation, dietary manipulation and stress positions. (source)

December 2004 CIA background paper

More posts in this series are here.

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torture

Terrorism and Human Rights (32): What is Torture?

property torture

(source)

This question has to be answered, and not just because answering it is intellectually satisfying. Those who engage or want to engage in torture are constantly trying to redefine the word downwards. Nobody wants to be a torturer, but many want to use force during interrogations. because they think they have to, because they believe it helps, or simply because they’re insane and evil.

Hence, if one can manage to exclude certain forms of interrogation from the concept of “torture” by way of some definitional acrobatics, those forms become somewhat more acceptable. An example is the infamous torture definition proposed by John Yoo and the Justice Department (who, I believe, belong to the “we have to” camp):

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. For purely mental pain or suffering to amount to torture (under U.S. law), it must result in significant psychological harm of significant duration, e.g., lasting for months or even years. (source)

1912 illustration of an inmate in an American ...

1912 illustration of an inmate in an American prison receiving "the paddle", a form of torture used for punishment. This was illegal at the time.

On the other hand, we don’t want the concept to cover too much. There are some cases in which the deliberate infliction of pain is justified and shouldn’t be called torture. Sadomasochistic relationships between consenting adults should not be prohibited. And some forms of criminal punishment cause pain – typically mental pain – and yet are commonly accepted. Likewise, we wouldn’t want to outlaw all types of war, no matter how intensely we yearn for peace.

So, let’s propose the following definition, based loosely on the Stanford Encyclopedia of Philosophy lemma on torture: torture is

  • the intentional and non-accidental infliction of severe physical – and in some cases mental – pain or suffering (mental suffering can be a mock execution for example)
  • by one person on another, non-consenting and defenseless person who may or may not be guilty of a crime (the torturer may or may not be a government official or someone employed by a government official)
  • while assuming complete control over the victim’s body and autonomy
  • with the purpose of:
  • extracting information (forward-looking)
  • extracting a confession (backward-looking)
  • punishing the victim
  • degrading the victim
  • coercing the victim to act in a certain way or believe certain things
  • terrorizing, intimidating, pacifying or oppressing the victim, or
  • terrorizing, intimidating, pacifying or oppressing the wider society.

This definition is compatible with, although somewhat wider than, the definition offered in the United Nations Convention Against Torture:

Torture is any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a male or female 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. (source)

This UN definition has the advantage of explicitly including second-order torture, namely torturing a person – for example a relative – in order to get a confession, information etc. from another person.

the rack

Both these definitions exclude, correctly I believe, acts of self-defense, masochism or other types of consensual violence, as well as violent acts between combatants and “collateral damage” (accidental injuries to civilians) in the course of war. However, it’s not because these actions are excluded from the definition of torture, that they are necessarily morally right.

More on torture here.

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