“The Red Cross Torture Report: What It Means.” by Mark Danner. The New York Review of Books. April 30, 2009.
An Annotation
Torture is one of the most controversial issues facing the US today. Amid two wars and concerns of unresolved government accountability, the release of the “Torture Memos” has forced Americans, and the international community, to re-examine the role of torture in national security and the war on terror.
“Torture, is a critical issue in the present of our politics. Torture is at the heart of the deadly politics of national security.”
The issue of torture demands that Americans assess the costs of torture, and specifically raises important questions over presidential authority and executive privilege in regards to national security. In other words, what are the costs we are willing to endure in the name of safety and protection—presuming these nefarious methods do indeed improve security at all?
“Torture’s powerful symbolic role, like many ugly, shameful facts, is left unacknowledged and undiscussed. But that doesn’t make it any less real. On the contrary.”
Although politically laden, the issue of torture has revealed violations and abuses of international human rights laws and norms, particularly the Geneva Conventions and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, both of which explicitly regulate the treatment of prisoners. Furthermore, the “Torture Memos,” along with images from detention facilities at Abu Ghraib and Guantanamo, necessitate the reconciliation and re-establishment of our standing within the international community. No longer can America be complacent in committing grave human rights violations and abuses, the time for accountability and responsibility has presented itself in re-affirming essential human rights values and standards that begin by seeking justice at home.
These issues and others are considered in this month’s Roundtable.
Monday, June 1, 2009
Editor's Introduction - June 2009
Response to Mark Danner’s “The Red Cross’ Torture Report: What it Means”
by Charli Carpenter, University of Massachusetts-Amherst
“Torture probably does work occasionally. But so what? The whole point of the anti-torture regime is to stay the Inquisitor’s hand even when it’s in our interest to torture.”
Danner’s NY Review of Books treatise on torture calls our attention to many significant issues, but in his key argument he is critically wrong.
“The central unanswered question [is]: What was gained?...We have not so far managed, despite all the investigations, to produce a bipartisan, broadly credible, and politically decisive effort, and pronounce authoritatively on whether or not these activities accomplished anything at all in their states and still asserted purpose: to protect the security interests of the country. Investigating what kind of intelligence torture actually yielded is not a popular task: those who oppose torture do not like to admit that it might, in any way, have “worked”; those who support its use don’t like to admit it might not have. Some judgment must be made, based on the most credible of information compiled and analyzed and weighed by the most credible of bodies, about what these policies actually accomplished: how they advanced the interests of the country, if indeed they did advance them, and how they hurt them. The only way to defuse the political volatility of torture and to remove it from the center of the “politics of fear” is to replace its lingering mystique, owed mostly to secrecy, with authoritative and convinced information about how it was really used and what it really achieved.”
There are so many reasons why this position is untenable I don’t know where to begin. (You could write an entire blog post just on the idea of “authoritative and convincing information.” Whose authority? Convincing to whom? In social science, there is never an authoritative, decisive consensus about any cause and effect relationship—things as simple as whether democracy correlates with peace constitute a basis for scholars on both sides to make lifelong careers refuting one’s evidence; what makes Danner think a consensus on the effectiveness of torture is going to emerge from any bipartisan process?)
But I want to focus on the bigger flaw in this argument: the idea that the effectiveness of torture should matter to the question of whether to try and punish its perpetrators. As I’ve argued elsewhere recently:
“Torture probably does work occasionally. But so what? The whole point of the anti-torture regime is to stay the Inquisitor’s hand even when it’s in our interest to torture. If we only refused to torture when/if there was no conflict with our self-interest, the rule would be unnecessary. Torture is wrong because it’s wrong, not because it’s never effective. The more we get grace the discussion of torture’s effectiveness with our attention, the more we legitimate the idea that effectiveness matters.”
When it comes to trying and punishing perpetrators of torture, to say nothing of whether to repeat such a policy in the future, it doesn’t.
Charli Carpenter is an Assistant Professor of Political Science at University of Massachusetts-Amherst. Her teaching and research interests include national security ethics, the laws of war, transnational advocacy networks, gender and political violence, war crimes, comparative genocide studies, humanitarian affairs and the role of information technology in human security. She is the author of Innocent Women and Children: Gender, Norms and the Protection of Civilians, and the editor of Born of War: Protecting Children of Sexual Violence Survivors in Conflict Zone. Dr. Carpenter blogs about international politics at Duck of Minerva and about asymmetric warfare at Complex Terrain Lab.
Torture—And Our Broader Understanding of Human Rights
by Mark Gibney, University of North Carolina-Asheville
"...the Bush administration’s approach to human rights was not nearly as far out of the mainstream as it might otherwise appear. They worked under the premise that a state’s human rights obligations are territorial in nature. Unfortunately, this has come to be the dominant approach to human rights."
Like most other human rights scholars, I am appalled at the idea that those people in the Bush White House who designed the administration’s policy on torture (but calling it something else) will in all likelihood go unpunished. In my view, the law is clear on this matter: those who directed and/or carried out torture must be held accountable for their actions. However, rather than focusing on the issue of accountability, I will use the issue of torture to make a broader point about how we have come to conceptualize the extent and scope of a state’s human rights obligations.
While the Bush administration was responsible for carrying out torture, they were generally quite careful about where this took place. Thus, when President Bush would (repeatedly) say that the United States “does not torture,” perhaps what he really meant to say is that “the United States does not torture—within the territorial boundaries of the United States.” And with the exception of the period immediately following September 11 when hundreds of Muslim men were rounded up and disappeared (at least for some period of time) and many of these individuals were tortured, by and large this seems to be true.
This, of course, does not mean that the United States did not torture at Guantanamo Bay, Cuba, or at Abu Ghraib, or at Bagram Air Base in Afghanistan. This also does not mean that the US was not the moving force behind a series of extraordinary renditions where individuals would be kidnapped in one country and flown to some other state where they would be tortured. And to add a second layer of insurance against having any kind of responsibility for these acts, these individuals would be tortured by foreign nationals and not American service personnel.
The Bush administration operated under the premise that the prohibition against torture only applied within the territorial boundaries of the United States. It is for this reason more than any other that less than a handful of “enemy combatants” have been detained on American soil. It is also the reason why no extraordinary rendition flights ever ended in the United States. And finally, it is also the reason why Maher Arar, the Syrian-Canadian national who was stopped at Kennedy Airport in New York during a changeover, was almost immediately flown out of the United States—first to Italy, then to Jordan, and then driven to Syria, where he was subjected to months of endless torture (by Syrian personnel).
I believe that most people can see right through this ruse and would conclude that torture is torture—and that a state would be equally responsible whether it tortured a person within its territorial boundaries, outside its territorial boundaries, or whether it simply engaged another country (like Syria) to carry out torture for it.
I certainly share this view. However, what is easily lost in all this discussion about what is (or is not) torture is the extent to which the Bush administration’s approach to human rights was not nearly as far out of the mainstream as it might otherwise appear. They worked under the premise that a state’s human rights obligations are territorial in nature. Unfortunately, this has come to be the dominant approach to human rights.
Thus, in its Sale decision involving the forcible return of Haitian boatpeople, the US Supreme Court held that the prohibition against sending a person back to a country where her life or freedom would be threatened (nonrefoulement) only applied after a person arrived on US soil. According to the Supreme Court at least, American obligations under international and domestic refugee law differed substantially depending on whether a person was within the territorial boundaries of the United States—or just a few, cruel feet away. Like the Bush administration, the Court believed that in terms of a country’s human rights obligations, territory matters.
But it is not simply the United States that takes a territorial approach to human rights. In a study of Sweden, Paul Hunt, the former UN Special Rapporteur on the Right to Health, asked government officials whether as a state party to the International Covenant on Economic, Social and Cultural Rights (ICESCR), Sweden has a legal obligation to provide foreign aid. The answer was no. The rationale, once again, is that Sweden’s human rights obligations do not extend outside the country’s territorial borders.
I will close by asking this question. In what way is the US Supreme Court’s interpretation of refugee law, or Sweden’s understanding of the ICESCR, really any different from the Bush administration’s approach to torture? In each instance a (purportedly) universal human right has come to be limited by territorial considerations.
Mark Gibney is the Belk Distinguished Professor at the University of North Carolina-Asheville. His most recent book publications include International Human Rights Law: Returning to Universal Principles (Rowman & Littlefield, 2008) and the edited volume The Age of Apology: Facing Up to the Past (University of Pennsylvania Press, 2007). He also has two forthcoming books. The first (with Sabine Carey and Steve Poe) is The Politics of Human Rights (Cambridge) and the second is an edited volume (with Sigrun Skogly) Human Rights and Extraterritorial Obligations (University of Pennsylvania Press).
The Moral High Ground in an Age of Vulnerability
by Tyler Moselle, Harvard University
"The torture policy relies on centralized power, secrecy, and fear. The 'no torture' policy relies on openness, diplomacy, and concerted intelligence."
Mark Danner’s New York Review of Books piece on torture in conjunction with John Nichols’ comment on the Bush administration, outline moral, legal and political problems related to the global war on terrorism and the ascendancy of the American imperial presidency. Most people seem to be repulsed by the idea of torture but are not morally committed enough or fully dedicated to prevent it from being employed to defend their way of life. Torture is a policy decision predicated on fear, self-defense, and vulnerability in an age of globalized insurgency: one way to respond is to take the moral high ground and repudiate the use of torture thereby affirming the sanctity of life and civilized values.
First, we do not know the extent to which torture was effective in defending against terrorist activities from 2001-2008, nor how many times it was truly utilized since most of the information is classified.
Second, for those who do have access to classified information such as President Obama and former Vice President Dick Cheney, they both disagree with each other when viewing the same data. This means a fundamental bias filters the objective attempt to analyze the effectiveness of torture as a tool to protect national security. Therefore, we must conclude that normative and subjective views color our effort to defend the practice of torture and are thus biased and must remain primarily political views.
Third, torture was only one manifestation of the global war on terrorism. Other manifestations included decreased legal constraints on American executive authority, coerced alliances of the willing, and expanded defense spending budgets to name a few. Torture was the gateway drug to the world of American Empire.
If we agree with the three previous assertions then we must simply choose how we expect our politics to be animated by our subjective values and worldviews: do we support a highly centralized executive branch that can carry out torture, twist legal definitions of executive power, carry out a global war on non-state actors and state actors, coerce allies into accepting our unilateral view of international affairs, and who may in their spirited defense, prevent some individuals from harming us, our interests, and our allies? Or do we support an executive branch that repudiates the use of torture and attempts to find alternative methods to solve national security dilemmas and who in the process, may give more leeway to individuals and groups who could potentially harm us? Do we risk our morality in the name of killing or capturing the 1% or do we rely on the 99% to sustain us when we refrain from “taking the gloves off?”
The torture policy relies on centralized power, secrecy, and fear. The “no torture” policy relies on openness, diplomacy, and concerted intelligence. The torture policy could be connected to a Hobbesian worldview of absolute power in the Leviathan to prevent anarchy in a state of nature. The “no torture” policy could be connected to a Kantian worldview of the categorical imperative where no individual’s life should be worth so little as to be used as the means for an end.
Yet, there is a time for everything. In a democratic country, we have the luxury of electing leaders for a certain time and calling. Perhaps at one time, we as Americans wanted the Bush Administration to protect us so intensely that we were willing to cross moral and legal boundaries. Perhaps at our current juncture, we are more relieved from the grip of fear and terror that we are pleased to have a no torture President who can clear our names of the guilt we should rightly be associated with for our previous Administration’s actions. That is the cathartic nature of democratic systems: we can act evil then repent in the next election.
There is of course a more serious moral problem we must confront when considering torture: why should we allow the ken of State authority to overshadow the question of torture as if we were the disciples of Carl Schmitt? The moral abstraction of torture means we are violating the sovereignty of one individual for the security of the rest but why do we stop at only terrorist-like activity? Why do we automatically assume that the State has the authority to act this way in one arena but not others? Why should the State not be willing to torture a scientist for example to obey its will for some other cause that may save the lives of thousands of fellow citizens? Why has torture been framed within the pre-emptive terrorist label?
State authority and torture have a long history that could be illuminated using civil liberties legal theory to explain how individual protections and rights were created to guard against tyrannical State power. When we are permissive about State torture, we empower State authority to violate the sovereignty of the individual thereby eroding basic safeguards that can be traced back to the brightest hallmarks in western political development.
The work of Danner and Nichols should elicit a rich debate about torture policies in America: we are a long way off from solving the basic dilemmas that haunt our moral identity and domestic and foreign policy as a result of the Bush Administration’s legacy.
Tyler Moselle is a Research Associate at Harvard Kennedy School’s Carr Center for Human Rights Policy.
Let Us Not Become the Evil We Deplore
by Rebecca Otis, University of Denver
“Where torture and interrogation policies supported by the Bush Administration has become the context for the War on Terror, it becomes necessary that we hold ourselves to task, no less in the same way that we hold our enemies."
On 14 September 2001, Representative Barbara Lee (CA-D) voted against the House bill that granted President Bush the authority to use force in response to the terrorist attacks on the World Trade Center and Pentagon. As the sole person to vote against the bill (by a margin of 420-1), Lee was roundly vilified as a “traitor,” a “coward, and even a “communist.” Later that day, as the only voice of dissent on the House floor, Lee delivered a speech to justify her position. Famously, she said to the elected representatives of our country, “As we act, let us not become the evil that we deplore.” Lee’s words foreshadowed the next seven years of George W. Bush’s Presidency. Today, this sentiment regarding evil no longer seem traitorous to American interests in light of the imperial hubris that fed the Bush Administration’s re-continuation of the War on Terror. Now, as we are situated in the veritable “morning after” period of the Bush Presidency, we are still faced with the same threat of terror in a world that increasingly lacks trust in and support of American interests. Where torture and interrogation policies supported by the Bush Administration has become the context for the War on Terror, it becomes necessary that we hold ourselves to task, no less in the same way that we hold our enemies.
Indeed, this month’s centerpiece articles on torture are a testament to Lee’s words. In timely accordance with the ongoing debate on torture, the recent White House release of torture memos has roundly elicited shock, indignation and even surprise by the American public and its lawmakers. Meanwhile, House Speaker Nancy Pelosi has transparently denied knowledge of CIA interrogation techniques that were brought forth in accordance to the evolving policies of torture and interrogation designed by former Vice President Dick Cheney. In light of these issues, a few questions arise: First, have we simply not been paying attention to Dick Cheney all of these years? Second, is it possible that we have become so consumed by the threat of evil beyond us that we have failed to discern the imminent evil within us? And finally, have we, as a country, exhausted by the mounting casualties of our own in a war that seems to have no end, finally come to realize the oxymoron of acting with such grave indifference to the respect of human rights in the very name of this ideal?
The articles reviewed this month highlight these questions and more. For example, with high regard for the word “evil,” Cheney wrote in February:
“When we get people who are more concerned about reading the rights to an Al Qaeda terrorist than we are with protecting the United States against people who are absolutely committed to doing anything they can to kill Americans, then I worry…These are evil people. And we’re not going to win this fight by turning the other cheek…”
Cheney has defended the use of “enhanced interrogation techniques,” including water boarding, as a crucial and effective way to extract information from “high-value detainees.” Cheney defends this position by way of indicating that it has been key to avoiding a major-casualty attack in on the United States.
Adding fire to this debate, Noam Chomsky has recently addressed this fact in his recent article in The Nation. Looking to US history, Chomsky’s mention of the evolution of torture policies since the Ford Administrations is worth noting. Significantly, Chomsky adds that occasionally “what we stand for” as a nation lies in contradiction to “what we do” in pursuit of our values most dear. Chomsky asks us to move beyond the historical amnesia that threatens our moral and intellectual integrity at this time in order to see that the torture policies enacted by the Bush Administration come as a disturbing continuation of a long-standing approach in US foreign affairs.
This month, while President Obama seeks to shut down the Guantanamo facilities while simultaneously refusing the release of photographs taken of tortured victims in Guantanamo and elsewhere, the central claim in doing so is to protect US interests and our soldiers still abroad. Rightly or wrongly, US accountability is what will continue to be central to this debate. Further, Barbara Lee’s words in 2001 still ring through the dark twists and turns taken in the continuing War on Terror. Similar to the articulation of President Obama’s stance on transparency and accountability, this month’s articles shed light on the intricacies of torture and the policies that have brought us to where we are today.
Rebecca Otis (ABD Ph.D., University of Denver), Women's Studies and International Relations, Hobart & William Smith Colleges. Her research interests include human rights, feminist methodologies, and Islamization in the Middle East. Her research on Palestinian women in the second intifada has taken her to Jerusalem, Israel, where she is currently a Visiting Research Fellow at the Rothberg International School at the Hebrew University. She explores human rights and gender from an interdisciplinary perspective, and can regularly be found teaching English to women and girls in a Palestinian refugee camp in the West Bank.
Righting Past, Present and Future Wrongs
by Rhona Smith, Northumbria University
Three legal issues are raised by the centerpiece of this month’s Roundtable: Does the legal definition of torture include “enhanced interrogation techniques”? What are the legal responsibilities of a State when torture is committed by its agents? and What should the State do now to prevent future violations of human rights? In other words, one must characterize the actions of the past, ameliorate the damage in the present, and prevent a recurrence in the future.
Many of the interrogation techniques deployed during the so-called “war on terror” are not disputed. The techniques are detailed extensively and analysed in Danner’s reviews of the situation and of the report of the International Committee of the Red Cross report in the The New York Review of Books. Are these techniques tantamount to torture? The Red Cross, many commentators and politicians seem to think so and now President Obama has banned such methods. International human rights treaties are normally regarded as “living instruments,” subject to refinement as they mature. The United Nations 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” (Article 1, UN Convention Against Torture). Jurisprudence in the United Nations Treaty Bodies and the European Court of Human Rights have increasingly included interrogation techniques in torture, albeit earlier European decisions such as Ireland v UK concluded that interrogation treatments fell within inhuman and degrading treatment, just below the severity threshold for torture. That case is now thirty years old and times have changed, though of course the International Covenant on Civil and Political Rights includes these categories in its prohibition on torture (Article 7). There is thus clear evidence for supporting a contention that the mental stress and physical endurance regimes imposed on the detainees constitutes torture in international human rights. Is torture ever justified? This argument was revisited by Alan Dershowitz expounding his “ticking bomb” theory, but in strict legal terms, the prohibition on torture is absolute, and it is a non-derogable right.
“In Torture We Trust” no more. Having established that torture may have occurred, as Danner notes, “it is not what we did but what we are doing.” As President Obama stated, “[i]nstead of strategically applying our power and our principles, too often we set those principles aside as luxuries that we could no longer afford. And during this season of fear, too many of us—Democrats and Republicans, politicians, journalists, and citizens—fell silent.” Accountability is now key. Later in his speech on May 21, Obama acknowledged this: “there are ongoing inquiries by the Congress into matters like enhanced interrogation techniques. The Department of Justice and our courts can work through and punish any violations of our laws or miscarriages of justice…The United States is a nation of laws.” International human rights law imposes a positive obligation on States to achieve the prohibition on torture. Thus the State must go beyond mere passive prohibition of torture to seek out and prosecute perpetrators, actively discharging this positive obligation. Accountability under international human rights should first and foremost lie with the State, here the United States of America, though proceedings can be instituted in other jurisdictions, eg Spain or Germany, as torture is a “universal crime” and any State can have jurisdiction over perpetrators. A number of people have been prosecuted for abuse of detainees in Iraq and the matter is not only under investigation in Congress, but also in the United Kingdom. Furthermore evidence is being assimilated by a number of public and private bodies (eg. The Centre for Torture Accountability). The wheels of justice grind slowly.
So to the future. As Keith Olbermann states “ It is good to say ‘we won’t do it again.’ It is not, however...enough.” A positive obligation to prevent abuse of detainees means that the United States of America must comply with President Obama’s Executive Order ensuring the Army Field Manual complies with the Geneva Conventions. Appropriate training must be undertaken by all those involved with detainees, and appropriate chains of responsibility must operate to pre-empt potential abuse. No one should be above the law in a country championing the rule of law.
The old adage rings true—it is not enough to say sorry, the apology must be sincere. In law, torture at the hands of the State must be acknowledged, remedied and its recurrence prevented.
Rhona K.M. Smith is Professor of International Human Rights at Northumbria University, Newcastle, UK. She is also the Raoul Wallenberg Institute of Human Rights and Humanitarian Law (RWI) Visiting Professor in Human Rights at Peking University Law School, Beijing University, PR China. She has authored various texts on International Human Rights Law and worked on human rights education capacity building projects particularly in China and Indonesia through RWI and the Norwegian Centre for Human Rights. She has taught human rights at universities in Canada, China, England and Scotland.
Looking Forward, Backward, or Just Away?
by Chandra Lekha Sriram, University of East London
“If countries from Argentina to South Africa have endured commissions of inquiry and even prosecutions of former abusers...there is no reason to think that the more robust legal and political institutions of the United States could not."
The declassification and leaking of the so-called “torture memos” only supplements much which was already publicly well-known, but has offered a fresh opportunity to frankly debate American values, in particular its commitment to the rule of law, its own constitution, and international human rights and humanitarian law obligations to which it has committed itself, and which the Supreme Court has confirmed are part of domestic law. It is a shame, therefore, that the debate has been so stunted, diverted by the red herring of Dick Cheney’s rantings, and the apparent willingness of a segment of the population to accept, first, without evidence, that torture and other illegal activities have actually generated valuable intelligence that has thwarted potential attacks, and, second, that the rule of law and our core values can simply be suspended when they appear to be inconvenient. This includes, apparently, not only international legal obligations, but obligations under the Constitution, and clear guidance formally embedded in military training through the documents such as the US Army Field Manual dealing with human intelligence gathering.
Most critically, what Cheney’s diversionary tactics have enabled is a near-complete avoidance of a genuine discussion of the need for accountability in favor of a speculative debate about the effectiveness of torture, which characterizes advocates of accountability for past torture, or even proscription of future torture, as overly legalistic liberals.
Even President Barack Obama has, shamefully, been cowed by these tactics, promising to look forward rather than backward and “let the past be the past” even while taking important steps to close the detention facility in Guantanamo and to promise that a range of tactics, such as waterboarding, would henceforth be proscribed. This, however, will not suffice. Well-meaning though Obama’s future-oriented rhetoric might be, it is probably woefully familiar to citizens of countries emerging from abusive regimes and internal conflicts, from Chile to Mozambique, whose governments instruct them to forgive and forget, for the purposes of reconciliation, when what is really meant is that victims will be denied truth or other measures of justice, for the protection of those most culpable, or the stability of the government. In the US, we too have undergone a political transition, but an ordinary electoral one, so there is little need for concern that accountability may be destabilizing, and therefore little need for amnesties. There may well be a necessity for this enforced amnesia in some instances, but we should call it what it is. And there is certainly no justification regardless for the withholding of photos and other items which may document crimes, as Obama has suggested he might do to avoid inflaming anti-Americanism.
Furthermore, there are at least two critical distinctions that ought to be made. First, the majority of those tortured or otherwise abused have been foreign nationals, so it is at best hypocrisy for we, the citizens of the torturing country, to decide that their harms should be overlooked for our own sakes. Second, one of the more reasonably, non-cynical, rationales, for amnesties has been to enable the reconstruction of a destabilized post-conflict state. The United States is a fully institutionalized, functional democracy, with independent courts, as the Bush Administration learned the hard way with a series of US Supreme Court decisions rejecting executive overreaching and flat violations of domestic and international law in cases such as Rasul v. Bush, Hamdan v. Rumsfeld, and Boumediene v. Bush. If countries from Argentina to South Africa have endured commissions of inquiry and even prosecutions of former abusers, albeit with significant destabilization in Argentina, there is no reason to think that the more robust legal and political institutions of the United States could not.
Yet with rare exceptions, the discussion about accountability seems to have stopped short, as though we are afraid of seriously considering retributive or other measures. The proposal by Senator Patrick Leahy for the creation of a truth commission has been treated as something akin to comical by some in the media, and not just Fox News. And the American Civil Liberties Union seems to stand virtually alone in seriously suggesting that investigations which could lead to prosecutions should be undertaken. This may derive from the legacy of the Bush Administration’s poisonous attitude to any law, not just international law, which constrained its behavior. However, more worryingly, the specious quasi-legal reasoning continues in the current Administration, most worryingly perpetuated in part by our president, a legal scholar.
This is most evident in the narratives suggesting not only that we should simply look the other way in the face of serious violations of law, an argument not worthy of a former professor of law, but also that the two categories of persons who appear to be most obviously culpable could not be. Specifically, there has been a dismissal of the idea that individuals who followed the dubious advice of the torture memos could not be to blame, either because they didn’t know they were breaking the law, or because they were “just following orders.” However, as already noted, military training includes clear guidance, through the US Army Field Manual and other processes, as to what is permissible and what is impermissible behavior. Individuals who engaged in torture ought in theory to have recognized that the guidance they were being given by superiors presumably conversant with the memos (there is no evidence to suggest that lower-level individuals came into contact with the memos directly) was inconsistent with their training, or for that matter common sense. Unless we are to assume that said individuals so lack autonomous moral compasses that they could not have recognized abuses for what they were, we must assume they might have questioned those orders; this appears to have been rare. However, as is well known, the “just following orders” defense was not acceptable before the Nuremberg Tribunal, nor has it been since. Similarly, it has been suggested that those who drafted the memos, or those who created the regime of abusive interrogation that relied upon those memos, could not be responsible for what they wrought because they were not physically present at, nor did they directly inflict, torture, yet that seems implausible as well. Those higher up the chain of command who created the regime, and issued explicit or implicit instructions to torture, would bear command responsibility, another principle well embedded in judgments at Nuremberg and since. It may be possible to attribute at a minimum a type of accomplice responsibility to those who drafted the memos, even if they were not part of the chain of command. There has been some discussion of impeachment, and the removal from office of individuals responsible for such legal violations would be an appropriate response whether or not prosecutions are pursued.
None of this is to state determinatively that guilt would be proven in all cases, or even, perhaps, that many prosecutions should take place. It is to say that we need to have a serious national debate, not about whether torture “works,” but whether we remain a nation of laws, not men, and what consequences should follow when serious crimes are committed. But that debate seems to have been stopped before it ever had a chance to start.
Chandra Lekha Sriram is Professor of Human Rights in the University of East London School of Law and founder and director of the Centre on Human Rights in Conflict. She is author and co-editor of various books and journal articles on international relations, international law, human rights and conflict prevention and peace-building, including most recently a monograph Peace as governance: Power-sharing, armed groups, and contemporary peace negotiations (2008); a textbook (co-authored with Olga Martin-Ortega and Johanna Herman) War, conflict, and human rights: Theory and practice (2009); (co-edited with John King, Julie Mertus, Olga Martin-Ortega, and Johanna Herman) Surviving field research: Working in violent and difficult situations (2009); and (co-edited with Suren Pillay) Peace vs justice? The dilemma of transitional justice in Africa (2009).
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