Source:  The Economist (US), Jan 11, 2003 v366 i8306 pNA.
 
    Title:  Ends, means and barbarity - Torture; The use and abuse of torture.
 

Torture has been outlawed in all circumstances everywhere. But global
terrorism may be leading America to bend the rules

THE reports have been emerging only slowly, but they are chilling. American
intelligence agents have been torturing terrorist suspects, or engaging in
practices pretty close to torture. They have also been handing over suspects
to countries, such as Egypt, whose intelligence agencies have a reputation for
brutality.

Some may shrug at this. More than a year ago, after all, the world was shocked
by pictures of blindfolded and shackled al-Qaeda suspects being "processed" at
the American naval base in Guantanamo Bay, in Cuba. They seemed to show that
America would treat its terrorist prisoners just as nastily as it pleased.

That, however, was a different case. Those photographs were of prisoners under
restraint, during transport, to prevent them attacking their captors. America
had just suffered the world's most horrific terrorist attack, carried out by a
group of determined suicides. Extreme precautions were justified. Since the
arrival of those first inmates at Guantanamo, visits to the base by the
International Committee of the Red Cross and by journalists accord with
American denials that anyone is being tortured there.

Recent reports of the ill-treatment of prisoners held by America, or at
America's behest elsewhere, are another matter. If, in their efforts to defeat
al-Qaeda, American officials are moving towards a policy of using torture on a
systematic basis, or conspiring with other countries to do so by handing over
suspects to them for interrogation in the full knowledge that torture will be
used, this would be a remarkable and ominous reversal of policy.

A cry for clarification

So far, American policy has been to eschew torture in even the most extreme
cases, and to condemn openly its use not only by regimes of which America
disapproves, such as Iraq and North Korea, but of allies as well, such as
Saudi Arabia and Jordan. Senior American figures, from Donald Rumsfeld, the
defence secretary, to Colin Powell, the secretary of state, have insisted that
America is abiding by international agreements banning torture. Lower-level
spokesmen, when asked about interrogation methods, continue to deny absolutely
that America has breached such agreements.

Unfortunately, that is not what American officials directly involved in
interrogating terrorist suspects have been telling reporters. The most
detailed account of these, a long article in the Washington Post at the end of
December, quotes these officials as claiming that prisoners are being
subjected to a range of "stress-and-duress" techniques such as hooding, sleep
deprivation, being held in awkward positions and, in some cases, denied
painkillers for injuries. They are sometimes beaten, too. One official puts it
bluntly: "If you don't violate someone's human rights some of the time, you
probably aren't doing your job."

These interrogations are being conducted, claims the Post, at Bagram air base
outside Kabul, Afghanistan's capital, and on Diego Garcia, an island in the
Indian Ocean which the United States leases from Britain, putting it beyond
the reach of American courts. In addition, officials are quoted as saying that
many prisoners have been transferred to the intelligence services of other
countries--Jordan, Egypt and Morocco are named--well-known for using brutal
methods of interrogation.

Sometimes these transferred prisoners ("extraordinary renditions" in the
euphemism), are sent with lists of specific questions that American
interrogators want answered. Other transfers are made on a "don't ask, don't
tell" basis, with American officials taking no part in directing or overseeing
subsequent interrogations, but happy to receive any information gleaned from
them. According to some officials, fewer than 100 captives have been involved
in such transfers, but thousands have been arrested and held with American
assistance in countries that are known for the brutal treatment of prisoners.

There seems little reason to doubt the veracity of the Post article. The
newspaper's team of reporters claim to have spoken to ten current American
security officials, some of whom have personally witnessed the handling of
prisoners, as well as several former intelligence officials. More important,
though the officials directly involved have spoken anonymously, they seem
intent on sending a message: We are doing these things because we think we
have to, and we want people to know.

After September 11th, similar anxiety was heard from officials at the FBI: in
their desperation to get terrorist suspects to talk, they might, they
admitted, have to use torture. That moment passed. This time, at least some
American officials seem to be seeking absolution for violent interrogation
methods which are illegal but which, reports the Post, they feel are "just and
necessary". "They expressed confidence that the American public would back
their view," says the newspaper.

It would probably be closer to the truth to say that the American public would
rather not know. The reaction to these relevations, grave though they are, has
been remarkably muted. Human-rights groups have issued condemnations, and
other commentators have expressed dismay. But, so far at least, congressmen
have not been demanding investigations.

The argument of necessity

It is tempting to argue that torture is justified in rare cases. In America,
the most notable exponent of this position is Alan Dershowitz, a leading
criminal-defence lawyer, who has argued, in cases of "ticking-bomb" urgency,
for "torture warrants". In practice, however, attempts to use torture
sparingly have quickly led to widespread abuse. The most relevant case is
Israel, where the ticking-bomb rationale has been used to justify the
"physical coercion" of terrorists during interrogations (Israel has always
refused to call it torture). This practice has never been explicitly
legalised, but received something close to legal sanction after a commission
headed by a former Supreme Court justice recommended in 1987 that "moderate
physical pressure" in interrogations should be allowed after psychological
pressure had failed. For years after that, the Israeli Supreme Court declined
to take torture cases. But the abuse of Palestinian prisoners became so
widespread, and so routine, that in 1999 the Supreme Court unanimously ruled
that the coercive methods employed by Shin Bet, the security service, were
illegal. Nevertheless, according to human-rights groups, the regular torture
of Palestinian detainees has continued.

Elsewhere, too, torture that seemed justified in special cases has come to be
applied almost indiscriminately. During Algeria's revolt against France in the
1950s, torture became the primary method of interrogating Algerian prisoners.
It was often accompanied by summary executions of prisoners whether they
talked or not, according to General Paul Aussaresses, who carried out many of
the interrogations and unabashedly described them in a book which caused an
outcry in France. Argentina's junta of 1976-83, facing a real terrorist threat
from leftists and claiming to fight in the name of Christianity, routinely
used torture which led to the execution of thousands of innocent people.

Does torture work in fighting terrorism? In the short term, it obviously can.
After all, Guy Fawkes confessed (see box). Israeli security officials say they
have prevented many terrorist attacks with information gleaned from coercive
interrogations. The French authorities claim to have won the battle of
Algiers, and the Argentinian junta defeated its leftist opponents. But these
victories have come at a cost, and have limits. Harsh Israeli interrogations
have not stopped the suicide bombings, and have left many Palestinians
embittered. France's brutal methods in Algeria divided the French themselves,
and led a few years later to the granting of Algerian independence.
Argentina's military dictators were toppled by popular resentment, and the
country is still struggling to come to terms with the legacy of their
anti-terrorism campaign.

If America does decide to employ torture systematically against al-Qaeda
suspects, it would also have to take wider considerations into account. This
decision would be a stark departure. Torture's prohibition has rapidly become
one of the most universal features of international and domestic law. All the
major human-rights agreements concluded since the second world war contain
absolute bans on torture, with no exceptions. No domestic legal system
officially allows it. Judging solely by the texts of laws and international
agreements, torture is firmly beyond the pale, and torturers are outlaws.

Wrestling with a taboo

And yet torture, of one sort or another, is also widely practised, and as many
people may be being tortured today as at any time in human history. According
to Amnesty International, the torture and ill-treatment of prisoners continue
to be recorded in more than 130 countries, and are widespread or persistent in
70 of those. A stream of reports from Amnesty and other human-rights groups
describe beatings, electric shocks, rape, floggings, suffocation and a
horrific litany of other torments.

Despite this, it would be a mistake to believe that the taboo against torture
is meaningless. In democratic countries it is generally observed, though
overzealous policemen will occasionally lapse. The taboo against torture is
also strongly and deeply supported by western public opinion. If America,
covertly or openly, begins to use torture systematically against al-Qaeda
suspects, there is bound to be a backlash, both at home and abroad. Many of
the subjects might be innocent people, which would be morally repellent--and
would hand a propaganda victory to Islamic extremists.

Another problem will be maintaining co-operation with America's European
allies. Their hands may not be entirely clean either, but European governments
take international treaties seriously and some, such as Britain and Spain,
signed up to the many international prohibitions against torture even while
facing determined domestic terrorists of their own.

Nevertheless, the threat posed by al-Qaeda is hard to exaggerate, and
preventing more attacks is urgent. Intelligence, including information from
suspects, is a primary tool for doing this. If a suspect will not talk, and
does not succumb to the sophisticated psychological techniques of which the
FBI and CBI were once so proud, is there no scope to apply more pressure?

There may be. The definition of torture in international treaties is either so
broad as to rule out even normal interrogation methods widely accepted in
democracies, or vague enough to allow some practices which might seem harsh.
For example, the Convention Against Torture of 1984 states that torture "does
not include pain or suffering arising only from, inherent in or incidental to
lawful sanctions." In the case of potentially dangerous and suicidally
determined terrorist suspects, a lawyer might argue, this allows the stress
involved in some physical restraints, as well as bright lights, prolonged
interrogations, mild sleep deprivation and the withholding of some creature
comforts.

Judges have had few opportunities to draw clear lines about what is, or is
not, allowed under international treaties. One of the most interesting rulings
has been that of the European Court of Human Rights in 1978, concerning the
treatment of suspected IRA prisoners by the British authorities. A majority of
judges found that it was not torture to be made to stand spread-eagled against
a wall for hours, to be hooded, to be deprived of sleep, to be given short
rations or to be subjected to continuous loud noise. They nonetheless found
such practices "inhuman and degrading", and therefore in breach of the
European Convention on Human Rights. What is clearly ruled out is the direct
infliction of physical pain, or the threat of it. "Truth serums", on which
some pin their hopes, have an ambiguous standing under these treaties, but are
in any case deemed ineffective (see box).

One tactic, however, is clearly forbidden in both domestic and international
law: handing over suspects to someone else to torture. This is explicitly
ruled out in the Convention Against Torture. Moreover, no court in any
democratic country, including the United States, would agree to send a
defendant to another country if it were known that he would be tortured there.
America, therefore, seems already to be allowing its frustration to lead it to
bend, and probably break, the law. Hard though the choice is, it would be good
if America stopped.
 
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