Despite what would appear to be fairly explicit bans on its use in the UN Convention against Torture, days after 9/11 the Bush administration began to endorse and undertake policies that would essentially circumvent the US's international legal obligations and allow the use of torture in the War on Terror. These policies would successfully authorise use of 'alternative interrogation techniques', indefinite detention, use of secret CIA 'black sites', and 'extraordinary rendition' facilitating abusive interrogations. Torture has now been somewhat legitimised and normalised within the US popular and political discourse, and there is circumstantial evidence that suggests the use of torture by the US and its allies in the War on Terror has been widespread and systematic. This blog post will first turn to how the Bush administration encouraged the creation of a domestic and international legal environment permissive to the use of torture, and will then examine the CIA and US military torture programs specifically.
Creation of a permissive legal environment
As previously mentioned, just days after 9/11 the Bush administration set to work on navigating around international and domestic law to ensure they could use torture in the War on Terror. Legal memoranda was drafted by politically appointed administration lawyers that sought to provide cover for policies on detention and interrogation. This is a form of what Foucault calls 'governmentality', which is a mode of power concerning the control, maintenance, production, and regulation of persons, and the circulation of goods, which operates through bureaucratic institutions and other unelected sources in order to produce specific policy aims. Judith Butler claims that in the War on Terror this governmentality both deploys and suspends law as a tactic in the name of the sovereignty of the nation, which in turn resurrected an old, pre-modern state form of sovereign political power that is 'lawless and prerogatory'. These legal memos were intended to ensure the Geneva Convention would not fully apply to al Qaeda and Taliban members, and to reduce the threat of domestic criminal prosecutions of interrogators and those who authorised the torture. In doing this the Bush administration even received help from the American Psychological Association (APA) in creating legal and ethical justifications for the use of certain interrogation techniques.
Another way in which they sought to circumvent their legal obligations was through the 2002 American Service Members Protection Act. Also known as the 'Hague Invasion Act', this authorised the US military to use force against the International Criminal Court (ICC) in order to 'liberate' any US or allied-country citizen held there, even if convicted of torture. This was a blatant attempt to intimidate countries signing the ongoing ICC treaty, and free the US and it's operatives of international laws.In general there were two key US legal strategies that were used in the campaign for illegal detention and interrogation. First, lawyers argued that the President's authority was uninhibited by international law, while interrogators who used torture could not be violating any domestic or international ban as long as it was an act of national self-defence. The second argument was centred on what actually constituted torture. Lawyers offered a very narrow definition, claiming that "physical pain amounting to torture must be equivalent to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death", whilst mental torture only included acts that resulted in "significant psychological harm of significant duration, e.g. lasting for months or even years."
Despite the scaling back of the program in 2004 - following the Abu Ghraib scandal and a critical CIA inspector general report - new legal memoranda supporting the CIA program and techniques allowed for an expansion of the overall program in 2005.
CIA Program
On September 17th 2001, President Bush signed a directive authorising the CIA to kill, capture, detain, and interrogate suspected al Qaeda linked terrorists, which was soon followed by a brief on September 26th on rendition operations.
One aspect of the CIA program was the use of secret detention 'black sites'. Though there is little information on them, we know the US established secret detention facilities for interrogation and transfer in Afghanistan, Guantanamo, Iraq, Lithuania, Morocco, Pakistan, Poland, Romania, and Thailand. Below is a map of the the 'spider web' of of detention sites and transfers utilised in the CIA program. According to Human Rights Watch in their 2011 report, they were the site of some of the worst human rights violations of the War on Terror. It is easy to see how they would have been effective in creating the asymmetry of power David Sussman says is required for torture, as they would have facilitated a complete asymmetry of information also. This aspect of the CIA interrogation and detention program was closed by Obama in January 2009.
The 2011 Human Rights Watch report also describes many of the techniques used in the CIA's interrogation program, including:
- Waterboarding - where water is poured over a cloth over the detainees mouth and nose in order to simulate drowning (video below)
- Stress positions - prolonged periods of standing in deliberated uncomfortable positions, during which toilet access was often denied
- Beatings
- Prolonged nudity for several weeks to several months
- Sleep deprivation
- Exposure to cold via cold cells and interrogation rooms
- Threats of ill-treatment to the detainee and their family
- Mock execution
- Smoke inhalation to provoke vomiting
A December 2014 Senate Intelligence Committee report on CIA torture also found a raft of even more extreme techniques were used, such as painful restraints, punitive 'anal feeding' and 'anal rehydration', and forcing detainees with broken legs to stand shackled against a wall.
'Extraordinary rendition' was also used in the CIA program, with the CIA handing over detainees to third countries, such as Syria and Egypt, in order to facilitate abusive interrogations. These countries were often notorious for torturing their security detainees, such as with Jordan. These countries would then indeed engage in even more brutal treatment that the US, including techniques such as:
- Electric shocks
- Suspension from hooks on the wall
- Ramming with a electric cattle prod
- Being forced to stand on tiptoes in a water-filled room
- Beatings
- Rape threats
- Genital Abuse
Similar methods to the CIA's interrogation program soon found their way in to the US military. In late November 2002 Defence Secretary Donald Rumsfeld approved a list of recommended techniques, which included:
- Stress positions
- Isolation facilities
- Placing hoods over detainees heads
- Deprivation of light and auditory stimuli
- Forced grooming
- Removal of clothing
- Using the detainee's individual phobias to induce stress
Conclusion
Despite legal memoranda suggesting otherwise, the US' use of 'alternative interrogation techniques' do constitute torture, and are highly illegal and immoral. They violate the basic principle of noncombatant immunity, whilst the information they provide is often unreliable. Moreover, the issue of slippage with torture is clearly observable in the War on Terror, as its use has become normalised and more extensive.
Furthermore, no one will be held accountable for these Human Rights violations. In fact, the only man connected to the CIA program that is in jail was prosecuted for whistleblowing, not his treatment of detainees. After the release of the 2014 Senate report Obama said such techniques were "troubling...contrary to our values" and were not subject to proper accountability. Despite this the Justice Department is not going to reopen any investigations or pursue any legal action against the CIA or their operatives. The Bush administration was clearly successful in navigating around their domestic and international legal obligations.
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