The Past and the Future

The origins of our current system of treatment for those in military and other detention are bound up in the desires of the players in the current administration. But we could have seen a lot coming before it happened. And we can glean something from the protections they built for themselves, if only in that no one builds so many protections without a prior motive of using them.

The origins of the future system are in place. Our future system of treatment of those in military and other detention is written in the framing of the issues, and that is bound up in the portrayal by the press. We can likewise glean something about the future of U.S. torture by looking at the accepted wisdom, accepted even by those who claim to disagree.

An Interesting List

At a panel a few weeks ago at Stanford University, Anant Raut, Barbara Olshansky, and Mark Falkoff took questions from the audience on an array of subjects related to prisons and prisoners. Ostensibly, the focus was Guantanamo. However, there were other prisons to report on. A whole network of them. And the list of countries they appear in led me to think about why that list, what determined the choices. There is a large network of prisons in Afghanistan. There is a large network of prisons in Iraq. But the other two countries mentioned, and the list was not given as exhaustive, were Morocco and Somalia.

My immediate thought was failed states. In countries in which the central government is weak, it is possible to run any kind of lawless operation one desires. Indeed, the American military operates with impunity in Afghanistan and Iraq, and to some degree in Northwestern Pakistan. Should Pakistan also be on the list, then? There was a prison operated at Kohat in 2001-2002, there. Indications are that the people in charge were the CIA, not the American military. But it is a fair question. Then why Morocco?

Perhaps the prisons are run near perceived threats? At least to the Administration, there was or is a perceived al-Qaeda threat in each of the four countries, and operations out of Morocco have been cited, connections to the Madrid train bombings, principally. But if that were true, then why Morocco and Somalia, rather than Bosnia, a country where our troops already operate, and where at least one of the detainees listed in the Human Rights Watch report on solitary confinement at Guantanamo hales from?

Here's a list that should accomodate all the choices of countries for the U.S. to create prisons for mistreating those it accuses of terrorism:

Afghanistan.....Morocco
Azerbaijan ..... Myanmar
Eritrea ...........Pakistan
India .............Philippines
Indonesia ...... Somalia
Iran ..............Sri Lanka
Iraq ..............Thailand
Israel ............ Turkey
Malaysia

and of course, the United States of America -- at Guantanamo maybe?

Most of these countries have an insurgency of some type going in them, even if small. Many of them have large or segregated Muslim populations. Please, what is the clue? What is the list on which Morocco, Somalia, Iraq and Afghanistan show up?

The above list is the list, minus some small countries and island nations, of those countries which have not ratified the 1977 First Additional Protocol to the Geneva Conventions. That's the protocol that requires that the treatment of captured combatants, whether they are entitled to prisoner of war status or not, follow the entire Third Geneva Convention. If you look up this protocol on, say, Wikipedia, you'll see that it is controversial. Actually, it was intended to close any gaps in the basic dignity of human beings. The only controversy is whether or not a person must earn the right to be treated humanely, earn the right to be treated as human, or not.

It is often remarked that certain features of the current administration's actions have roots in the past. For instance, it is widely written about that Vice President Cheney's desires to expand the powers of the executive branch have their roots in his beliefs formed as Gerald Ford's Chief of Staff, when the Church Committee was putting together regulations to rein in the "imperial presidency" after Richard Nixon and J. Edgar Hoover. His feelings on this subject were well known: He authored most of the minority report of the Iran-Contra committee in which he wrote down his distaste for measures he felt tied the President's hands. Another person related to the committee who would later feature prominently in the views of the current administration was David Addington, who was later Cheney's counsel, and now Chief of Staff, and figures in both the expansion of presidential power and in the current mess over treatment of prisoners and torture.

The Iran-Contra committee was operating and writing around the same time that the subject of ratification of the First Additional Protocol came up. It was not difficult to persuade a president who had endured the Beirut Marine Baracks bombing that terrorists deserved less rights than ordinary human beings, and Douglas Feith was determined that the Palestinian Liberation Organization, which, to be fair, really did hope to legitimize itself by signing the Geneva Conventions, and which was on the list of terrorist organizations, should get less rights as prisoners (Indeed, if you look at the list of nations that have ratified the protocol, Palestine shows up in parentheses because it applied for such recognition, but was turned down because its status as a nation state was controversial) So began a gap in the Geneva Conventions where none had been before.

If you watch old World War II movies on TV, one of the things you might notice is the difference in treatment between the American and British prisoners of war and the Russians. At the time, Germany honored the prisoner of war status of those nations who, like Germany, had signed the 1929 Geneva Protocols, and the Soviet Union had not. So their prisoners got a lower status. And that was the original distinction in 1949: Soldiers from countries which had signed got the full prisoner of war status, soldiers from non signing states got the protections of Article 3. People who did not follow the rules of war with respect to wearing uniforms got more limited protections under the Fourth Geneva Convention which governs the treatment of civilians.

When it became apparent that the language of the Conventions was going to be used to deny prisoners or civilians humane treatment, due to the fact that it did not include a full range of belligerent behavior, the work of preventing that from happening became eventually the 1977 First and Second Additional Protocols. But Douglas Feith, and many others, who believed that humane treatment should be a reward for compliance with the treaty, worked tirelessly against the ratification of the additional protocols. To this day, the United States has signed neither of them. The U.S. has also opted out of subsequent treaties, either because of concerns about "sovereignty" or more probably, because they might imply the fundamental rights that some felt should be earned.

And what does it say, that the U.S. would put its prisons where these protocols are not ratified? It says, quite simply, the same thing that the U.S. was arguing about Guantanamo in the Boumediene v. Bush decision that was just handed down. The prisons are located where the Administration believes them to be beyond the reach of this particular international humanitarian law. The were deliberately located where "harsh treatment" would imply less legal risk to those who planned it. All of which pretty much says one thing: That Antonio Taguba is right. The administration deliberately set up to systematically torture and practice cruel treatment. Its legal opinions, from those written by Yoo and Bybee to later ones written by Goldsmith, Levin, and others, have all been about protecting a regime from prosecution under international law for war crimes or worse.

The past yields a clear trail from the 1980's to the present in the domain of mistreatment of prisoners, of deliberately clearing the way legally for the dehumanization of populations that could be labeled terrorist. And it is clear now, in the vocabulary of those who argue in favor of the treatment at Guantanamo, and in Afghanistan. They complain bitterly that terrorist prisoners should not get the same rights as soldiers, that foreign prisoners should not get the rights as citizens. In essence, that sub-humans should not get the same treatment as human beings.


The Frame of the Man Too Evil for Rights

Looking to the future, the tea leaves were written in an expose that graced the front page of the New York Times on Sunday the 22nd. Scott Shane wrote Inside a 9/11 Mastermind's Interrogation, having interviewed Deuce Martinez, one of the interrogators of Khalid Sheikh Mohammad at a CIA Black Site in Poland. From start to finish, it is a blow to all those who would see torture disappear from the earth. Here another type of person undeserving of any human rights is encountered: Someone who has committed a heinous crime.

A listen to Senator Christopher Dodd's impassioned speech on the Senate Floor Tuesday night in opposition to the FISA amendments should give a clue to what is wrong with Mr. Shane's article. After reminding us of just how many deaths, how many horrible deaths the men in the docket at Nuremburg were responsible for, "45 million dead, 10 million burned," he invokes the memory of his father, who was the number two man to Justice Robert Jackson:

My father, Senator Tom Dodd, was the number two American prosecutor at the famous Nuremberg trials. And I have never, never forgotten the example he set.

As Justice Robert Jackson said in his opening statement at Nuremberg: “That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.”

Mr. President, what is the tribute that Power owes to Reason?

That America stands for a transcendent idea.

The idea that laws should rule, not men.

The idea that the Constitution does not get suspended for vengeance.

The idea that this nation should never tailor its eternal principles to the conflict of the moment, because if we did, we would be walking in the footsteps of the enemies we despised.

True humanity, true adherence to the rule of law, real justice, does not base the rules of the game on what we think of the accused. But that mentality has overtaken the United States in many ways, both a growing movement before September 11, to be seen in the number of incarcerations, the demand for mandatory sentencing, trying children as adults, the whole campaign against furlows conducted by George H.W. Bush in 1988, and after September 11, with the demands that prisoners taken in the "Global War on Terror" should not be given the basic rights guaranteed by our laws and Constitution, nor by the international laws to which we are party. We have, to paraphrase Senator Dodd, suspended the inalienable rights of man for vengeance.


This suspension has been effected in the framing of the press. Indeed, with the exception of the audience of the media outlets and print media, there is no one who truly believes this kind of logic. Humanitarian organizations and human rights watchdogs, like the International Committee of the Red Cross, Amnesty International, Center for Constitutional Rights, Human Rights Watch, or Physicians for Human Rights, have never believed it. They've been out to stop the suspension of human dignity in time of war for a hundred and fifty years. Our forefathers never believed it, General Washington ordered humane treatment for all prisoners, and Abraham Lincoln had the Lieber Code. And the above discussion of the drive to keep us out of the First Additional Protocol, the Yoo memos, the Golden Shield Memo by Jay Bybee, the President's directives denying Geneva Convention protections to "unlawful combatants" from the Taliban or al Qaeda, the move to put prisoners in some legal black hole, what does it mean? It means that these people had to create a legal framework for the notion that protection of human dignity could be suspended. They didn't believe it existed in the United States, either.

That leaves the press. The framing in Mr. Shane's article is eye popping. In it, the interrogator Deuce Martinez is portrayed as the "good cop" to the bad cops, "knuckledraggers" who practiced torture, deprivation techniques and stress positions. The interrogation effort is portrayed as an enormous success, with,

The intelligence riches ultimately gleaned from Mr. Mohammed were reflected in the report of the national 9/11 commission, whose footnotes credit his interrogations 60 times for facts about Al Qaeda and its plotting — while also occasionally noting assertions by him that were “not credible.”

Those managing the interrogation worry that as the number of waterboardings climbs from 60 to 100, they are coming close to crossing the line into torture. Arguments are provided, by the CIA naturally, that the confessions that seemed ludicrous when we first heard them are actually factual. And all the way through, the atmosphere of the article is that such treatment is justified by the need to prevent another attack and, most of all, because Khalid Sheikh Mohammad masterminded the September 11th attacks, which killed 3,000 innocent Americans.

No where in the article is the legality of what these people were doing discussed. It seems assumed, because the prisoner was Khalid Sheikh Mohammad. In fact, under our obligations under the Convention Against Torture, none of the information derived from this interrogation can be used in any proceeding whatsoever. Deuce Martinez is guilty of torture, since his interrogation rests on it, even though he plays the good cop. The psychologists he now works for, Mitchell and Jessen, are at the heart of a fierce controversy within the American Psychological Association over forbidding its members from participating in such interrogations, and they are under investigation by congressional committees for having designed parts of the illegal interrogation regime that originated at Guantanamo.

This is the frame which will perpetuate torture by the United States, in contravention of its principles, in suspension of its laws. The very heart of why we torture is because we have discovered a crisis so desperate, and prisoners so evil, that they supercede any prohibition, even one which prohibits torture regardless of the emergency, and regardless of who the torture victim is or what they have done. It is believed, at some level by the American Press. Defending the human rights of Khalid Sheikh Mohammad is not a way to sell news, and it is not perceived as a way to write news articles.

Someday, if the United States pulls itself back on track, it will look back at this behavior, and not fondly. Senator Dodd mentioned that in his speech, with regards to the provisions in the FISA bill, but he could just as well have said so about the inhumane treatment and torture at U.S. military and CIA prisons around the world. He talked at length about the latter, because he was trying to speak about a pattern of lawlessness. But the Shane article shows a much deeper problem.

Below the pattern of lawlessness is a perception, a very ugly cognitive frame, conceived in vengeance, and dedicated to the proposition that all men are not equal and that there is no treatment too ghastly for some of them.