Greenberg on Why U.S. Military Lawyers Opposed Torture

by Guest Editor Tom Engelhardt

Extraordinary renditions, torture, abuse, humiliation, detention without charge or end, an obsession with protecting American officials (and military men) from future foreign or domestic criminal charges for their acts -- these are the cornerstones of foreign policy under George Bush, and they have produced horror stories galore. His is a presidency that has made the beautiful speech about the spreading of freedom and human rights just the sunny-side up version of the infliction of pain, the double standard, and the detention center.

There is, not surprisingly, no accurate count of those held by this administration without charge or recourse. Perhaps 15,000 prisoners are at present incarcerated by the American military in Iraq; 505 in Guantanamo; untold numbers are shuttled in and out of various forward military bases and detention centers in Afghanistan (which has become something like a giant Central Asian Guantanamo for detainees from all over the world); scores of "ghost detainees" are in ghost prisons at unknown places around the globe (including, possibly, on U.S. Navy warships, on the American-controlled island of Diego Garcia, and in the prisons of various allies, especially those known to have a propensity for using torture themselves); and a few are in military brigs here in the U.S. Of this large group of detainees, most without rights of any sort, many beyond the reach of the world or of anyone who has ever known or cared for them, significant numbers are -- as has been seen in case after case -- innocent men (or women, or, in some cases, children) who were simply swept up in the hysteria of the Bush administration's "war on terror" and the actual wars and occupations that followed.

To take but one example, at Camp Bucca in Iraq, where prisoners are kept by the U.S. military for a year on average, Steve Fainaru and Anthony Shadid of the Washington Post reported the following:

"Many of the freed detainees express bewilderment at why they were held; even the U.S. commander who oversees Bucca, Col. Austin Schmidt, 55, of Fairfax, estimated that one in four prisoners ‘perhaps were just snagged in a dragnet-type operation' or were victims of personal vendettas. ‘This is like Chicago in the '30s: You don't like somebody, you drop a dime on them,' Schmidt said. ‘And by the time the Iraqi court system figures it out, they go home. But it takes a while.'"

Others have offered far higher estimates of the numbers of such detainees; but whatever the number, multiplied globally, it adds up to a lot of angry, resentful people (and families and friends and associates). Alienating the world has, however, been something of a sub-specialty of the Bush administration. Almost alone among those they did not alienate were, until recently, a bare majority of the American people -- all they needed to do what they wanted to do. With that support, they have been unfazed not just by moral arguments against the use of torture and detention without end, but by practical arguments against them as well. As Karen J. Greenberg, co-editor of The Torture Papers, indicates below, we now know that such arguments were made quite forcefully by a range of military lawyers back in 2003 when the details of administration torture policies were just being hammered out. These lawyers pointed out (though to no purpose at the time) that torture is a surefire way, in the long run, to create the very atmosphere within which terrorist groups can recruit and thrive. {mosgoogle right}

Some thought has, at least, been given to the tortured in the last couple of years; little, however, has been given to the torturers. It is often argued, for instance, that torture produces unreliable information for all the obvious reasons; mostly because sooner or later people will say what's necessary to make it stop. No one ever mentions that torturers are unlikely themselves to be reliable or that their sense of the world and its boundaries is simply not to be trusted. After all, one of the hallmarks of torture is that it takes not just the tortured but the torturer beyond all normal bounds and into another psychic universe where perverse fantasies of every sort are likely to run wild. The very position of interrogator in a situation where a prisoner is without rights and in a detention without end is likely to lead to mirror-fantasies of power beyond all bounds.

Here, for instance, is a description offered by Benyam Mohammed, an Ethiopian who was kidnapped in a CIA extraordinary-rendition operation, passed through the prisons of Pakistan, Morocco, and our Afghan detention centers (and claimed he was tortured in all three places) before landing in Guantanamo. According to his lawyer, "he is being held without charges. Mohammed's remarks to the lawyer do not allege physical torture there. But he said one interrogator, who said his name was Matthew, screamed in his ear: ‘I am GOD here! I can do whatever I want with you. Don't think you're safe here.'"

Though the threat was undoubtedly made to terrify the prisoner, it also reflects a potential psychological reality for anyone under such boundary-less conditions. But who would trust a man who believes himself in any sense to be God to offer reliable or well considered information? Who would want a corps of such disturbed human beings, trained in the ghost world of our mini-gulag abroad, to return home -– as they certainly will?

The hallmarks of the Bush administration have been lack of accountability, lack of responsibility, lack of shame, and an urge for destruction. Unfortunately, when it comes to torture, pundits and public alike, largely through fear and the feeling of being in a new and unknown situation after September 11, 2001, have generally gone along for the ride. Tom

The Achilles Heel of Torture
What the JAG Memos Tell us
Karen J. Greenberg

Last month, Americans were given a new and persuasive reason for objecting to the use of torture as a tool in administration policy; namely, its potentially harmful impact on any viable counterterrorism strategy that values information as essential in combating Islamic fundamentalist terror. This strategic concern was raised in a set of memos released by the government in its latest "dump" of documents into the public arena.

Since the spring of 2004, the government has been making public previously classified documents nearly weekly, often in response to Freedom of Information Act law suits (though the numbers of newly classified documents are increasing at a rate that more than nullifies any sense of transparency such releases might suggest). Many of these memos have been about torture -- whether to use it; how to use it; and, most of all, how to protect government agents and agencies against prosecution for using it. Among these documents have been memos from the Judge Advocate General's Corps (or JAG), written by military lawyers from the Army, Air Force, Navy, and Marines, and these constitute a welcome oasis of sanity in a desert of compliance with the government's decision to use torture as a weapon in its "war on terror."

First brought to public attention in Senate debate on July 25, 2005, these JAG memos have seen the light thanks to a request from Republican Senator Lindsey Graham. They were written in February 2003 as recommendations to a Pentagon working group on "interrogation policy." Collectively, they express a clear opposition to the use of the sorts of harsh interrogation techniques that White House lawyers had not only recommended but declared legally viable. Indeed, by August of 2002, lawyers for the administration had infamously suggested, as a basis for reducing legal culpability for the mistreatment of detainees, that the definition of torture itself be narrowed to include only ""[p]hysical pain …equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."