Torture, Accountability, and the Future

Alan Jenkins

Article 1 of the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides, in simple terms, that “torture means 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….” The Convention reaffirms the basic principle that intentionally inflicted suffering destroys the dignity of victim, the torturer, and the society that allows it.

Article 2 of the Convention provides that “no exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture,” and that “an order from a superior officer or a public authority may not be invoked as a justification of torture.” In other words, “no torture” means no torture. Ever.

With the release and analysis of Justice Department memos seeking to justify extreme interrogation methods by the CIA, we now know that the techniques included, at least, forced nudity, slamming detainees into walls, 11-day sleep deprivation, dousing detainees with frigid water, putting them in dark, cramped boxes—sometimes with insects to exploit their profound fears. C.I.A. interrogators used waterboarding, the intentional near-drowning of suspects to inspire fear of impending death, 266 times on just two key prisoners over a short period of time.

The methods described in the memos are chilling. They are un-American. And they are unquestionably torture. As a former Justice Department official myself, I read with near disbelief the lengths to which the memos’ authors twisted law and logic to provide cover to ghastly and inhumane practices that would be clearly illegal if perpetrated against animals, much less another human being. Consider one memo’s description of waterboarding:

“In this procedure, the individual is bound securely to an inclined bench, which is approximately four feet by seven feet. The individual’s feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers both the nose and mouth. Once the cloth is saturated and completely covers the mouth and nose, air flow is slightly restricted for 20 to 40 seconds due to the presence of the cloth. This causes an increase in carbon dioxide level in the individual’s blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produces the perception of suffocation and incipient panic,” i.e., the perception of drowning. The individual does not breathe any water into his lungs. During those 20 to 40 seconds, water is continuously applied from a height of twelve to twenty-four inches. After this period, the cloth is lifted, and the individual is allowed to breathe unimpeded for three or four full breaths. The sensation of drowning is immediately relieved by the removal of the cloth. The procedure may then be repeated. The water is usually applied from a canteen cup or small watering can with a spout. You have orally informed us that this procedure triggers an automatic physiological sensation of drowning that the individual cannot control even though he may be aware that he is in fact not drowning. You have also orally informed us that it is likely that this procedure would not last more 20 minutes in anyone application.”

Yet the same memo concludes that this practice—even when combined with others—is not torture because, while it does constitute a threat of imminent death, it does not inflict “prolonged mental harm.” That is so, the memo claims, because the CIA “advised us that the relief is almost immediate when the cloth is removed from the nose and mouth.” “In the absence of prolonged mental harm,” the memo continues, “no severe mental pain or suffering would have been inflicted, and the use of these procedures would not constitute torture.”

Consider it for a moment. You are a prisoner. You are slapped in the face by interrogators. You are grabbed by the face and pushed hard and loudly into walls. You are stripped naked. You are deprived of sleep for 11 days straight. You are placed in a small, dark box. You are deathly afraid of insects, and told that a stinging insect is being placed in the box with you. You are doused in cold water. Your face is covered by a cloth and you are intentionally made to feel that you are drowning, to death. But it is not torture, because you somehow did not experience prolonged mental harm.

I am ashamed. I’m ashamed that someone who shares my profession, who studied the same Constitution that I did, who worked for the same government I did in the same building where I worked, allowed this to happen. Endorsed it. Said that it was not torture. Said that it was consistent with our laws and our beliefs as Americans.

These were not snap decisions made on the battlefield. The CIA knew that these techniques were questionable, and asked the Justice Department for reasoned legal guidance. DOJ attorneys sat safely in their offices on Pennsylvania Avenue and clinically rationalized heinous acts on behalf of the American people. In all of our names.

And let’s be clear. Few would deny that Abu Zubaydah—waterboarded 83 times in August 2002 by C.I.A. officers—and Khalid Shaikh Mohammed—waterboarded 183 times in March 2003—are heinous, murderous villains. Khalid Shaikh Mohammed, in particular, is the self-described planner of the Sept. 11, 2001, terrorist attacks, which killed 3,000 Americans. We reject torture based on our nation’s values, not based on theirs. The “inherent dignity of the human person” that underlies the Convention Against Torture is as much about our dignity as it is about those who endure torture and humiliation at the hands of our agents.

Although the United States government prosecuted some Japanese interrogators at war crimes trials after World War II for waterboarding and other methods described in these memos, President Obama says that C.I.A. officers who used the same methods with the approval of the Justice Department will not be prosecuted, and he has suggested that he opposes congressional proposals for a “truth commission” to examine Bush era interrogation and eavesdropping methods. While remaining mum on whether the memos’ authors might be subject to prosecution, the President said that “nothing will be gained by spending our time and energy laying blame for the past,” according to the New York Times.

That’s correct, but irrelevant. Accountability for possible human rights violations is not about blame, but about justice and preventing future atrocities. Indeed, we are obligated as a nation to fully investigate this conduct and to hold any violators—whatever their station—accountable. Failing to do so could perpetuate a new violation of the Convention Against Torture, which provides that suspected torturers must be investigated and, where the evidence supports it, prosecuted through a fair trial. Each party to the treaty “shall make these offences punishable by appropriate penalties which take into account their grave nature.”

Further, the decision whether to bring potential human rights violators to justice does not belong only to the President. The Senate Intelligence Committee has begun a yearlong, closed-door investigation of the C.I.A. interrogation program, and other congressional inquiries seem certain. Three of the memos’ authors, John C. Yoo, Jay S. Bybee, and Steven G. Bradbury, are the subjects of a pending report by the Justice Department’s ethics office. Some are calling for the impeachment of Bybee, who is now a federal judge. And there will undoubtedly be private lawsuits against the architects, as well as the implementers, of these monstrous techniques.

Facilitating a fair legal vetting of these claims is similarly part of our national human rights obligations; Article 14 of the Torture Convention provides that parties to the treaty “shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible.”

Releasing the torture memos was a just and courageous act on the part of the Obama Administration. In the months to come, the Administration will have to grapple with the full implications of the acts that those memos detail, and the steps necessary to prevent either impunity or future violations. A clear-eyed look back will be crucial to moving forward.

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