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In the Penal Colony | The Nation

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In the Penal Colony

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The April report, which became the official policy directive for interrogation, raised serious concerns among military lawyers in the office of the Judge Advocate General. As Seymour Hersh writes, in the summer of 2003 several members of the JAG corps met secretly with Scott Horton, then head of the human rights division of the New York City Bar Association, to consult about the legal implications of officially sanctioned torture. Although Horton preserved their confidentiality, he and other lawyers escalated a public campaign to call for transparency and legality in interrogation tactics. The Torture Papers includes a sharp legal analysis of the issues by Horton and others that was submitted in April 2004 to the NYC Bar Association.

About the Author

Lisa Hajjar
Lisa Hajjar, a professor of sociology at the University of California, Santa Barbara, is the Edward Said Chair of...

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Reframing the CIA’s interrogation techniques as a violation of scientific and medical ethics may be the best way to achieve accountability.

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.

By the late summer of 2003, the escalation of bombings, kidnappings and executions in Iraq had made a mockery of the President's claim in May that the mission had been "accomplished." In August the Pentagon sent Guantánamo commander Maj. Gen. Geoffrey Miller and a team to Iraq; their advice on how to "set the conditions" to soften and break prisoners inspired Lt. Gen. Ricardo Sanchez to sign off on a policy to "Gitmo-ize" Iraqi prisons, despite the fact that up to 90 percent of those in custody were picked up in military sweeps or as a result of intra-Iraqi score-settling and had no connection to the resistance, let alone to Al Qaeda. These events set the stage for the Abu Ghraib photos, taken between October and December 2003, and their publication caused the scandal that brought the torture memos to light and propelled the official investigations.

The "migration" of interrogation tactics authorized for Guantánamo and Afghanistan, where the Geneva Conventions putatively do not apply, to Iraq, where they indisputably do, are discussed in Hersh's and Danner's books, and are a key focus of the reports by James Schlesinger, who headed the Independent Panel to Review Defense Department Detention Operations, and Maj. Gen. George Fay, who investigated the 205th Military Intelligence Brigade serving in Abu Ghraib. The latter two are available in The Abu Ghraib Investigations, edited by Steven Strasser.

This documentary record debunks the "bad apple" theory and provides a cautionary tale of the national disgraces that can result when military policy is made under the sway of right-wing extremists who are ignorant about and hostile to international humanitarian law. Even a reluctant critic like Schlesinger chastised Rumsfeld for not entertaining a wider range of legal opinions and a more robust debate regarding the handling and interrogation of prisoners, which might provide some cold comfort for Colin Powell and other internal dissenters who were excluded, after February 2002, from the circles where these disastrous policies were made.

The American torture scandal, to paraphrase Faulkner, is not dead; it's not even past. Every day brings news of additional allegations and revelations. In recent weeks thousands of pages of military and FBI reports and prisoner affidavits about abuses in Afghanistan, Guantánamo and Iraq have become public, thanks to Freedom of Information requests by the American Civil Liberties Union. The Center for Constitutional Rights and other human rights organizations have mounted a multitude of lawsuits in the United States and elsewhere on behalf of victims of torture to challenge the impunity of Rumsfeld and others who should be held accountable for instituting and overseeing these illegal policies.

There is no reason to doubt that torture has been systemic and pervasive, or that authorization can be traced up the chain of command, or that this has seriously damaged not only the immediate victims but also our national institutions and America's image abroad. Yet top officials in the Bush Administration are still doing what torturing regimes do: denying the facts and blaming "rogue" officers. Despite the abundant evidence of torture, Congress refuses to challenge these denial tactics in any meaningful way, for example by refusing to confirm for high office those responsible. What we desperately need is public acknowledgment that torture is always and everywhere a crime, and an official policy that reflects this conviction.

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