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In the Penal Colony | The Nation

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In the Penal Colony

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Almost immediately after the first US forces hit the ground in Afghanistan in October 2001, questions arose about whether prisoners would be tortured for information and what would constitute humane treatment. Public debate heated up with the publication in January 2002 of trophy-shot photos of the first group of hooded, bound and contorted prisoners being transported from Afghanistan and inside the Guantánamo prison. Defending their treatment at a Pentagon press conference on January 12, Gen. Richard Myers, chairman of the Joint Chiefs of Staff, characterized the detainees as people who "would gnaw through hydraulic lines at the back of a C-17 to bring it down."

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Lisa Hajjar
Lisa Hajjar, who teaches in the Law and Society Program at the University of California, Santa Barbara, is the author...

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Human rights organizations have coordinated an investigation into torture and an extensive defense of detainees, organizing lawyers who represent clients from nonprofits to oil and gas companies. But the issue of torture needs to transcend the legal world.

Through the end of 2002, public information about interrogation tactics remained scant, and debates about torture were largely academic. Even supposedly "liberal" commentators, invoking the hypothetical ticking bomb scenario, railed against the absolute and universal prohibition of torture as immoral and dangerous. Harvard law professor Alan Dershowitz made a distinctive contribution to public debate by proposing that American judges issue "torture warrants," thus bringing torture "within the law." He also offered a tactical suggestion: sterilized needles under the fingernails. As he told Salon: "I want maximal pain, minimum lethality."

Dershowitz and other proponents of "torture lite" were not suggesting that the American government should forsake the principle that torture is illegal, but rather that the principle could be suspended in the GWOT on the grounds that torture is a lesser evil than terror, and that terrorists have no right not to be tortured. This echoed the rhetoric and policy that "unlawful combatants" were undeserving of inclusion in the universe of human beings covered by international and domestic laws that categorically prohibit torture. Human Rights Watch executive director Kenneth Roth and other critics of coercive interrogations argued that torture is an illegal, desperate and patently unreliable means of obtaining accurate information vital to national security, and that opening the door to it is a dangerous slippery slope.

Interestingly, the example of Israel was invoked by lesser evilers and slippery slopers alike. The latter pointed to the fact that torturing tens of thousands of Palestinians over the past few decades had neither ameliorated the conflict nor enhanced Israeli security; rather it had heightened Israeli insecurity and degraded the legal system. According to Yael Stein, a researcher at the Israeli human rights organization B'Tselem, "Israel's experience shows you can't stop the slippery slope: they tortured almost all the Palestinians they could.... The moment you start, you can't stop." Lesser evilers, including Dershowitz, argued that Israel had preserved its democratic character by legally regulating torture (euphemistically termed "moderate measure of physical pressure") and that its security services had averted many "ticking bombs." The 1999 Israeli High Court decision that prohibited the routine use of "pressure" but left open the possibility of using it in exceptional circumstances played both ways in the American debate on torture. An excellent cross-section of academic analyses of torture, as well as the text of the 1999 Israeli court decision, is presented in Sanford Levinson's Torture: A Collection, whose seventeen contributors include Dershowitz, Elaine Scarry, Judge Richard Posner and Michael Walzer.

Public knowledge of US interrogation practices was transformed by a December 26, 2002, article by Dana Priest and Barton Gellman in the Washington Post. Officials revealed that US security agents were utilizing "stress and duress" tactics in the interrogation of people captured in Afghanistan and elsewhere, and that detainees who could not be broken by such methods might be given mind-altering drugs or "rendered" to foreign governments with well-established records of torture, like Egypt and Morocco. According to Priest and Gellman, "While the US government publicly denounces the use of torture, each of the current national security officials interviewed for this article defended the use of violence against captives as just and necessary. They expressed confidence that the American public would back their view."

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