Public Policy and the Problem of Torture
BY JAMES P. PFIFFNER
President George W. Bush proclaimed the official position of the United States on torture on June 26, 2003, the United Nations International Day in Support of Victims of Torture. “Freedom from torture is an inalienable human right,” he said. “The United States is committed to the worldwide elimination of torture, and we are leading this fight by example. I call on all governments…[to help] in prohibiting, investigating, and prosecuting all acts of torture…in all its forms.”
Yet by this time, the president had already made policy changes and operational decisions that set the conditions leading to the abuse, torture, and deaths of detainees by American personnel at Abu Ghraib and other detention centers. Although there was no single policy on torture, the policies that led to torture were developed through a series of legal memoranda, policy changes, and operational decisions spanning several years. Detention center torture involved more than the arbitrary actions of a few sadistic and ill-trained guards; it was the result of loosened restraints on interrogation techniques in order to increase actionable intelligence.
TORTURE, INHUMANE TREATMENT OF PRISONERS
After U.S. forces invaded Iraq and defeated Saddam Hussein’s military forces, the notorious prison at Abu Ghraib, which had been the center of Saddam’s torture and killing, was converted into an American detention center for prisoners. The International Committee of the Red Cross visited 14 U.S. detention sites in Iraq between March and November 2003, catalogued a wide range of abuses by U.S. and coalition forces, and objected to violations of the Geneva Conventions (which officially applied to Iraq) on treatment of those captured. After photographic evidence of prisoner abuse was reported in January 2004, Army Maj. Gen. Antonio M. Taguba investigated the military police (MP) activities at Abu Ghraib. He concluded that “numerous incidents of sadistic, blatant, and wonton criminal abuses were inflicted on several detainees. This systemic and illegal abuse of detainees was intentionally perpetrated by several members of the military police guard force.” The official investigations of Army Maj. Gen. George Fay and Army Lt. Gen. Anthony Jones also documented numerous instances of abuse by military police and military intelligence personnel. As late as May 2004, FBI officials in Guantanamo requested Washington’s guidance regarding what constituted abuse.
Blanket condemnations of torture are often countered with the compelling “ticking time bomb” scenario, in which a hypothetical captive knows where a time bomb has been hidden and refuses to divulge the information. The argument asserts that torture would be necessary and justified to save many innocent lives. Notice the chain of premises upon which this scenario stands. There must be a planned attack (the bomb is still ticking); the captive must have information about the planned attack; torture must be the only way to obtain this information; the captive must be persuaded to divulge the information; the information must be accurate; and if information is obtained, there must be time and means to prevent the attack.
If any one of these premises is absent, torture will not solve the problem. The further removed a situation is from the ticking bomb scenario, the less torture is justified, even if one posits the need to save innocent lives. The ticking bomb did not apply in Abu Ghraib because detainees were Iraqis—insurgents, ordinary criminals, and innocent civilians—without knowledge of future al Qaeda attacks planned against the United States.
CONDITIONS FOR TORTURE
The Bush administration developed several sets of legal analyses that loosened the bounds traditionally set on the treatment of prisoners. On January 25, 2002, Counsel to the President Alberto Gonzales wrote a memo recommending that the Geneva Convention III on Treat of Prisoners of War (GPW) should not apply to al Qaeda and Taliban prisoners because the war on terrorism was “a new kind of war.” Secretary of State Colin Powell countered that reversing “over a century of policy…undermine[s] the protections of the law of war for our troops…[and] will undermine public support among critical allies…” Despite Powell’s memo, President Bush signed a memorandum on February 7, 2002, that stated:
“Pursuant to my authority as commander in chief…I …determine that none of the provisions of Geneva apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world because, among other reasons, al Qaeda is not a High Contracting Party to Geneva.”
This allowed military intelligence to use aggressive interrogation techniques in Guantanamo that were later transferred to the Abu Ghraib prison in the fall of 2003.
The Geneva Conventions forbid inflicting physical or mental torture to secure information of any kind from prisoners of war. Nevertheless, the infamous 2002 memo (withdrawn on December 30, 2004) by Assistant Attorney General Jay S. Bybee narrowed the definition of torture and elevated the threshold of “severe pain” that would amount to torture to such a level that many heinous acts committed by Saddam Hussein’s government could no longer be categorized as torture.
According to the memo, for the U.S. anti-torture law to apply, the torturer must have the “specific intent to inflict severe pain,” and it must be his “precise objective.” Essentially, one could inflict torturous pain, but not be guilty of torture if, for example, the main objective was to extract information. This reasoning borders on sophistry.
In addition to the legal and policy changes, several key operations changes allowed the Abu Ghraib abuses to occur: special interrogation techniques were allowed and used at Guantanamo; the techniques and procedures at Guantanamo were transferred to Afghanistan; and the techniques and personnel were transferred from Afghanistan to Abu Ghraib. In the summer of 2003, General Geoffrey D. Miller visited Abu Ghraib intending to “Gitmo-ize” the facility by actively involving
MPs in intelligence collection by “setting the conditions” for interrogation by military intelligence (MI) troops; MI was officially given control of Abu Ghraib on November 19, 2003, and it was during the October to December period that the Abu Ghraib abuses were photographed.
LINKS IN THE CHAIN
Although it is impossible to specify a firm chain of causation, a series of actions set the conditions for and allowed the abuse and torture at Abu Ghraib. There is no claim here that higher policy makers intended their actions to lead to the more severe abuses, but the following actions contributed to the conditions under which abuse and torture occurred at Abu Ghraib:
- President Bush decided the Geneva Conventions did not apply to al Qaeda.
- Assistant Attorney General Jay Bybee defined torture narrowly, and argued that the commander-in-chief power negated public law against torture.
- Secretary of Defense Donald Rumsfeld expanded the range of permissible interrogation techniques.
- Under Secretary of Defense for Intelligence Stephen Cambone sent General Geoffrey Miller to change interrogation policy at Abu Ghraib.
- Miller decided MI priorities would prevail over MP control.
- General Janis Karpinski did not ensure proper MP training.
- General Ricardo Sanchez expanded the range of interrogation techniques allowed at Abu Ghraib.
- Colonel Thomas Pappas ran Abu Ghraib with an emphasis on extracting actionable intelligence.
- Members of the 205th Military Intelligence directed MPs to “set the conditions” for interrogations.
- Members of the 372nd Military Police Company committed the abusive acts that were photographed.
While the most direct culpability belongs at the lowest levels—the Nuremberg trials established that “just following orders” is insufficient exculpation—leadership responsibility is highest at the top levels. Leaders are responsible for the likely consequences of their official actions.
In the end, the most compelling arguments against torture are moral and practical rather than legal. Torture brutalizes and dehumanizes its victims, but it also brutalizes and dehumanizes those who torture their fellow human beings. A strong argument can be made that torture is never justified; even in the ticking time bomb scenario, success is uncertain and the dangers are multiple.
The main problem is that the slope from the theoretical ticking bomb to routine tactical torture is very slippery, as evidenced by Abu Ghraib as well as the French experience in Algeria. The consequences of formally adopting torture in official policy, even in very narrow circumstances, are simply too dangerous. Once torture is justified, it is difficult to distinguish the ticking bomb scenario from the pressing need for “actionable intelligence” in tactical situations. If there is a genuine ticking bomb scenario, a jury or military court could make an ad-hoc decision not to punish the perpetrators of torture.
It is an open question about how the broad framing of the conflict in Iraq may have affected the willingness of U.S. soldiers to torture detainees. Asserting that the occupation of Iraq is part of the global war on terror and that the United States is acting in conformance with God’s will may very well make it easier to torture those who seem to be against the United States in the struggle; “God’s will” was used to justify the terrors inflicted by the Catholic Church in Spain on Jews as well as other Christians during the Grand Inquisition of the 15th century. The United States should pay heed to Nietzsche’s admonition: “He who fights with monsters should be careful lest he thereby become a monster.”
James P. Pfiffner (pfiffner@gmu.edu) is professor of public policy in the School of Public Policy (http://policy.gmu.edu). This essay is drawn from the article, “Torture and Public Policy” (Public Integrity, Fall 2005) and the paper, “Torture and Public Management: The Ethics of Interrogation,” presented at the conference on Ethics and Integrity of Governance: Leuven, Belgium, June 2-5, 2005. The author would like to thank George Mason colleagues Debra Berghofen, Jason DeChant, Don Kash, Jeremy Mayer, and Ed Turner for their assistance.
