I remember that my first response to the reports of abuse and torture at Guantanamo Bay was to accuse the accusers of exaggeration or deliberate deception. I didn’t believe America would ever do those things. I’d also supported George W Bush in 2000, believed it necessary to give the president the benefit of the doubt in wartime, and knew Donald Rumsfeld as a friend.
It struck me as a no-brainer that this stuff was being invented by the far left or was part of Al-Qaeda propaganda. After all, they train captives to lie about this stuff, don’t they? Bottom line: I trusted the president in a time of war to obey the rule of law that we were and are defending. And then I was forced to confront the evidence.
From almost the beginning of the war, it is now indisputable, the Bush administration made a strong and formative decision: in the absence of good intelligence on the Islamist terror threat after 9/11, it would do what no American administration had done before. It would torture detainees to get information.
This decision was and is illegal, and violates America’s treaty obligations, the military code of justice, the United Nations convention against torture, and US law. Although America has allied itself over the decades with some unsavoury regimes around the world and has come close to acquiescing to torture, it has never itself tortured. It has also, in liberating the world from the evils of Nazism and communism, and in crafting the Geneva conventions, done more than any other nation to banish torture from the world. George Washington himself vowed that it would be a defining mark of the new nation that such tactics, used by the British in his day, would be anathema to Americans.
But Bush decided that 9/11 changed all that. Islamists were apparently more dangerous than the Nazis or the Soviets, whom Americans fought and defeated without resorting to torture. The decision to enter what Dick Cheney called “the dark side” was made, moreover, in secret; interrogators who had no idea how to do these things were asked to replicate some of the methods US soldiers had been trained to resist if captured by the Soviets or Vietcong.
Classic torture techniques, such as waterboarding, hypothermia, beatings, excruciating stress positions, days and days of sleep deprivation, and threats to family members (even the children of terror suspects), were approved by Bush and inflicted on an unknown number of terror suspects by American officials, CIA agents and, in the chaos of Iraq, incompetents and sadists at Abu Ghraib. And when the horror came to light, they denied all of it and prosecuted a few grunts at the lowest level. The official reports were barred from investigating fully up the chain of command.
Legally, the White House knew from the start that it was on extremely shaky ground. And so officials told pliant in-house lawyers to concoct memos to make what was illegal legal. Their irritation with the rule of law, and their belief that the president had the constitutional authority to waive it, became a hallmark of their work.
They redefined torture solely as something that would be equivalent to the loss of major organs or leading to imminent death. Everything else was what was first called “coercive interrogation”, subsequently amended to “enhanced interrogation”. These terms were deployed in order for the president to be able to say that he didn’t support “torture”. We were through the looking glass.
After Abu Ghraib, some progress was made in restraining these torture policies. The memo defining torture out of existence was rescinded. The Military Commissions Act was crafted to prevent the military itself from being forced to violate its own code of justice. But the administration clung to its torture policies, and tried every legal manoeuvre to keep it going and keep it secret. Much of this stemmed from the vice-president’s office.
Last week The New York Times revealed more. We now know that long after Abu Ghraib was exposed, the administration issued internal legal memos that asserted the legality of many of the techniques exposed there. The memos not only gave legal cover to waterboarding, hypothermia and beating but allowed them in combination to intensify the effect.
The argument was that stripping a chained detainee naked, pouring water over him while keeping room temperatures cold enough to induce repeated episodes of dangerous hypothermia, was not “cruel, inhuman or degrading”. We have a log of such a technique being used at Guantanamo. The victim had to be rushed to hospital, brought back from death, then submitted once again to “enhanced interrogation”.
George Orwell would have been impressed by the phrase “enhanced interrogation technique”. By relying on it, the White House spokesman last week was able to say with a straight face that the administration strongly opposed torture and that “any procedures they use are tough, safe, necessary and lawful”.
So is “enhanced interrogation” torture? One way to answer this question is to examine history. The phrase has a lineage. Verschärfte Verneh-mung, enhanced or intensified interrogation, was the exact term innovated by the Gestapo to describe what became known as the “third degree”. It left no marks. It included hypothermia, stress positions and long-time sleep deprivation.
The United States prosecuted it as a war crime in Norway in 1948. The victims were not in uniform – they were part of the Norwegian insurgency against the German occupation – and the Nazis argued, just as Cheney has done, that this put them outside base-line protections (subsequently formalised by the Geneva conventions).
The Nazis even argued that “the acts of torture in no case resulted in death. Most of the injuries inflicted were slight and did not result in permanent disablement”. This argument is almost verbatim that made by John Yoo, the Bush administration’s house lawyer, who now sits comfortably at the Washington think tank, the American Enterprise Institute.
The US-run court at the time clearly rejected Cheney’s arguments. Base-line protections against torture applied, the court argued, to all detainees, including those out of uniform. They didn’t qualify for full POW status, but they couldn’t be abused either. The court also relied on the plain meaning of torture as defined under US and international law: “The court found it decisive that the defendants had inflicted serious physical and mental suffering on their victims, and did not find sufficient reason for a mitigation of the punishment . . .”
The definition of torture remains the infliction of “severe mental or physical pain or suffering” with the intent of procuring intelligence. In 1948, in other words, America rejected the semantics of the current president and his aides. The penalty for those who were found guilty was death. This is how far we’ve come. And this fateful, profound decision to change what America stands for was made in secret. The president kept it from Congress and from many parts of his own administration.
Ever since, the United States has been struggling to figure out what to do about this, if anything. So far Congress has been extremely passive, although last week’s leaks about the secret pro-torture memos after Abu Ghraib forced Arlen Specter, a Republican senator, to proclaim that the memos “are more than surprising. I think they are shocking”. Yet the public, by and large, remains indifferent; and all the Republican candidates, bar John McCain and Ron Paul, endorse continuing the use of torture.
One day America will come back– the America that defends human rights, the America that would never torture detainees, the America that leads the world in barring the inhuman and barbaric. But not until this president leaves office. And maybe not even then.
Andrew Sullivan is an author, academic and journalist. He holds a PhD from Harvard in political science, and is a former editor of The New Republic. His 1995 book, Virtually Normal: An Argument About Homosexuality, became one of the best-selling books on gay rights. He has been a regular columnist for The Sunday Times since the 1990s, and also writes for Time and other publications.
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