From The Economist, 11-17 January 2003

ENDS, MEANS AND BARBARITY
>
> 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. 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.
>
> 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.