Unspeak
Page 19
What is a stress position? Mike Xego, a former political prisoner in South Africa, once demonstrated one for me. He bent down and clasped his hands in front of him as if they were handcuffed, and then, using a rolled-up newspaper, showed me how apartheid-era police officers would pin his elbows behind his knees with a stick, forcing him into a permanent crouch. ‘You’d be passed from one hand to another. Kicked. Tipped over,’ he explained. ‘The blood stops moving. You scream and scream and scream until there is no voice.’10
Another form of ‘stress position’ is that in which a prisoner’s wrists are shackled behind his back, and he is then suspended by them from the ceiling. This form of torture was mechanised by the medieval strappado; nowadays it is often called ‘Palestinian hanging’, owing to its alleged use by the Israeli military on Palestinian prisoners. In November 2003, a man named Manadel al-Jamadi was hung up in this way in a shower room at Abu Ghraib during questioning by the CIA: he died after half an hour. One guard told investigators that he was surprised al-Jamadi’s arms ‘didn’t pop out of their sockets’.11 US soldiers were subsequently photographed alongside al-Jamadi’s corpse, grinning and giving thumbs-up signs.
The phrase ‘stress positions (like standing)’ first implies that all stress positions are merely standing, but even ‘merely standing’ is not as harmless as it may sound: one of the most feared methods of torture in North Korea, according to the US’s own Committee for Human Rights report, is to be made ‘to stand perfectly still for hours at a time’.12 But secondly, the phrase that Rumsfeld signed off on deliberately leaves an undefined range of other actions unspoken, hidden behind the bland euphemism of ‘stress’, as though being strung up from your wrists amounts to no more than a stressful day in the office (a day marked, perhaps, by ‘repetitive administration’). ‘Stress’ is a word like ‘abuse’: it conceals a multitude of sins. In refusing to address the stress word, Rumsfeld turned a blind eye to the reality of what he was sanctioning. An FBI email of May 2004 clarifies the matter, referring to an ‘Executive Order signed by President Bush’ that authorised the use of ‘“stress positions” such as half squats’.13 The US Army’s own set of rules for interrogators, Field Manual No. 34–52 on ‘Intelligence Interrogation’, states: ‘Examples of physical torture include – […] Forcing an individual to stand, sit, or kneel in abnormal positions for prolonged periods of time.’14
Jerald Phifer’s memo also sought, but did not on this occasion obtain, permission for the ‘Use of a wet towel and dripping water to induce the misperception of suffocation.’15 The daintiness of the language here is impressive. Phifer talks of the ‘use’ of a wet towel rather than, as would seem logical, ‘abuse’ – in the sense of misuse – since few would argue that near-suffocation was the correct application for wet towels the world over. Clearly ‘abuse’ is a term for public consumption; between friendly soldiers, calmly discussing the means of inflicting suffering, there is no such thing as ‘abuse’, only strategies that are more or less functional. Wet towels were not the only quotidian objects that interrogators wanted to abuse. A method of beating used at Abu Ghraib involved putting the subject into a sleeping bag and then rolling him around on the floor. A US Army interrogator, defending this practice as ‘appropriate’, explained: ‘[A] sleeping bag is not inherently a weapon.’16 Indeed it is not; nor is a wet towel. Nor is a pencil, though that will hardly be any comfort if I stab you in the eye with it. Just as terrorism seeks to erase the notion of a safe place in its target population by bombing bars and railway stations, the systematic exploitation of towels or sleeping bags to inflict pain erases the notion of a safe object.
Moreover, Phifer’s choice of the word ‘misperception’ in explaining that the wet towel will ‘induce the misperception of suffocation’, rather than simply the ‘perception’ of suffocation, is a subtle example of pre-emptive justification. It’s OK, that little ‘mis-’ says, the subject might think he’s suffocating, but he won’t actually be, so no harm is done. Any distress caused must be the victim’s fault for failing to interpret the situation correctly. In fact, the wet towel, which is placed over the subject’s face, is a variety of what is ordinarily called ‘water torture’. Another species of this torture, given the fun action-sports name ‘water-boarding’, consists of strapping the subject to a horizontal board and then tipping his head into water until he is on the point of drowning, a method reportedly practised by the CIA on alleged Al Qaeda operatives.17 Such techniques induce physical suffering, but also psychological damage. In a Guantánamo memo entitled ‘Legal Review of Aggressive Interrogation Techniques’, Lt. Col. Diane E. Beaver advised that the wet-towel technique would be ‘permissible’, although ‘caution should be exercised’ with it, ‘as foreign courts have already advised about the potential mental harm that this method may cause’.18
As the UN Convention Against Torture makes clear in the phrase ‘severe pain or suffering, whether physical or mental’, what Beaver calls ‘mental harm’ can count as torture even if no physical pain is inflicted. An example of this kind of torture, sometimes called ‘psychological torture’, is mock execution. (After public release of the first batch of Abu Ghraib photographs, the US Army destroyed pictures of soldiers in Afghanistan posing with their guns held to prisoners’ heads.)19 The deliberately made imminent threat of violence or death is in itself torture. The notorious photograph from Abu Ghraib of a hooded man standing on a box with wires attached to his outstretched hands shows a man being tortured: he was told that he would be electrocuted if he stepped off the box. The prosecution in Specialist Sabrina Harman’s court martial for this case stated that the man ‘was trembling, shaking, afraid he was going to be electrocuted’; the defence responded that the episode was ‘a joking type of thing’.20 It is interesting how often the claim of ‘joking’ arises as a defence, as though inflicting suffering for giggles is somehow an extenuating circumstance. It may not be irrelevant that it is the opposite of the ‘just following orders’ defence: in other words, to say that you were torturing for the sick fun of it lets your superiors off the hook.
The fact that such mental suffering in the absence of directly inflicted physical pain is still torture posed a problem for memorandist Jay S. Bybee. He rose to the occasion, however, with the following definition:
For purely mental pain or suffering to amount to torture […] it must result in significant psychological harm of significant duration, e.g., lasting for months or even years.21
Here Bybee pays ingenious homage to Zhou Enlai, the Chinese Prime Minister who, when asked in 1968 for his opinion on the historical impact of the French Revolution, famously replied: ‘It is too soon to tell.’ Likewise, on Bybee’s definition, for months or even years after mental harm has been inflicted on a prisoner, it will still be too soon to tell whether it was actually torture; presumably the further hope is that after a few years the problem will have gone away. The definition thereby effectively pre-empts any accusation of psychological torture at the time it was committed, or for an indefinite period thereafter.
Nonetheless, in a May 2005 report, the group Physicians for Human Rights concluded: ‘[P]sychological torture […] was at the center of the treatment and interrogation of detainees in US custody in Afghanistan, Guantánamo and Iraq since 2002.’22 The level of mental health of Guantánamo prisoners during 2003 may be measured by the fact that in that year, according to a US Army spokesman, ‘there were 350 acts of self-harm’ among the population, including ‘120 “hanging gestures”’.23 Though ‘gestures’ conjures an image of melancholic mime artists, what is meant here is attempted suicide. Another FBI observer recorded the following:
On a couple of occasions, I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food or water. Most times they urinated or defecated on themselves, and had been left there for 18-24 hours or more. On one occasion, the air conditioning had been turned down so far and the temperature was so cold in the room, that the
barefooted detainee was shaking with cold […] On another occasion, the [air conditioner] had been turned off, making the temperature in the unventilated room well over 100 degrees. The detainee was almost unconscious on the floor, with a pile of hair next to him. He had apparently been literally pulling his hair out throughout the night.24
Among other documented practices defined as ‘psychological torture’ by the report writers were sensory deprivation and sleep deprivation. The use of such techniques is corroborated by the previously cited FBI email of May 2004, which after referring bluntly to ‘sleep deprivation’ as one of the techniques used at Guantánamo, acknowledges the usual bureaucratic euphemism for this form of torture with ironical scare quotes, in referring to the phrase ‘sleep “managementv”’25. Of course, ‘management’ usually means the correct handling of affairs, whereas enforced sleep deprivation induces severe cognitive impairment; a truer description would be ‘sleep mismanagement’. If we turn again to the US Army’s interrogation manual, FM 34-52, we find that ‘abnormal sleep deprivation’ is defined, along with mock executions, as ‘mental torture’.26
The FBI agent who wrote the May 2004 email was concerned, too, with the problem of what exactly constituted ‘abuse’. He had been ordered that FBI observers at Guantánamo should report any instances they witnessed of ‘abuse’, and responded thus:
This instruction begs the question of what constitutes ‘abuse.’ We assume this does not include lawful interrogation techniques authorized by Executive Order. We are aware that prior to a revision in policy last week, an Executive Order signed by President Bush authorized the following techniques among others[:] sleep ‘management,’ use of MWDs (military working dogs), ‘stress positions’ such as half squats, ‘environmental manipulation’ such as the use of loud music, sensory deprivation through the use of hoods, etc. We assume the OGC [Office of General Counsel] instruction does not include the reporting of these authorized interrogation techniques, and that the use of these techniques does not constitute ‘abuse’ […] there may be a problem if OGC does not clearly define ‘abuse’ and if OGC does not draw a clear line between conduct that is clearly abusive and conduct that, while seemingly harsh, is permissible under applicable Executive Orders and other laws.27
This agent clearly knows what is going on; and it is understandable for him to attempt to reduce the level of cognitive dissonance by suggesting the interpretive course he elaborates: that, by definition, anything authorised by the President cannot be ‘abuse’. The President, like the Pope or Emperor Hirohito, is morally infallible. Since this memo also reveals that ‘abuse’ had not been ‘clearly define[d]’, moreover, Donald Rumsfeld’s claim that the violence at Abu Ghraib was ‘technically’ ‘abuse’ is shown to be an empty appeal to a non-existent technic.
This brings us to what is arguably the most important function, in propaganda terms, of our terribly useful term of Unspeak, ‘abuse’. Particularly when used as a plural noun, ‘abuses’, it performs the function of claiming that all the many documented examples of torture at US prisons are not to be thought of as collectively authorised, but instead constitute only a series of individual exceptions. The implication is that the administration has an iron rule against torture, and the torture that did in fact occur was the regrettable result of a ‘few bad apples’ disobeying the rules. By definition, ‘abuses’ are those things that are not authorised. This point of view is attractive to some journalists: one was able to write in 2005 that ‘multiple probes and courts martial have found no evidence that the U.S. condones or encourages torture’.28 There are two ways in which it is possible to arrive at such an opinion: either one simply declines to examine the evidence, or one silently accepts the Bybee definition of ‘torture’ as covering only the most egregious imaginable acts. However, the record shows that the US government did authorise a range of acts that its own military establishment defines as torture. In December 2003, another FBI observer referred flatly to what he had witnessed at Guantánamo as ‘torture techniques’ practised by Department of Defense interrogators pretending to be FBI agents.29 If the sanctioning of torture was not the government’s intention, it is difficult to imagine a plausible alternative explanation for the existence of a series of memos that were in such a hurry to redefine the torture word. Difficult, too, to think of an alternative explanation as to why, even by November 2005, Dick Cheney should have been vigorously seeking an exemption from new Senate anti-torture legislation for the CIA, which continued to operate a network of secret prisons for the interrogation of ‘terrorist suspects’ in Eastern Europe and Asia.30
Enemy combatants
Who were the people being tortured? They were ‘like dogs’.31 (And so threatening to attack them with dogs seemed quite appropriate.) They were the raw material for ‘Human Exploitation Teams’.32 (They were ‘human resources’ to be ‘exploited’.) They were ‘enemy combatants’.
Another series of declassified US government memos shows the amount of legal creativity that went into denying suspected members of Al Qaeda or Taliban fighters the protections of the Geneva Convention on the treatment of prisoners of war (GPW). The reason why people held in Guantánamo, Abu Ghraib, and elsewhere were referred to by the administration and a compliant media as ‘detainees’ rather than the normal ‘prisoners’ may indeed specifically have been to avoid associations with the concept of ‘prisoner of war’. Just as the war on terror is not a war when it suits the government, those captured during it are not Pows. Instead a new legal category was dreamed up: that of ‘enemy combatant’. When challenged publically about torture in 2004, George W. Bush responded:
The instructions went out to our people to adhere to law. That ought to comfort you. We’re a nation of law. We adhere to laws. We have laws on the books. You might look at these laws. And that might provide comfort for you. And those were the instructions from me to the government.33
Officers of the government did indeed ‘look at these laws’ that were ‘on the books’ regarding the treatment of prisoners, but the ‘comfort’ they intended to provide in so doing was comfort to politicians: reassurance that in doing what they planned to do they would not be prosecuted for war crimes. According to Alberto Gonzales in his memo of January 2002, one of the reasons why it would be a good idea to decide that Geneva did not apply was that such a determination ‘Substantially reduces the threat of domestic criminal prosecution under the War Crimes Act […] “War crime” for these purposes is defined to include any grave breach of GPW or any violation of common Article 3 thereof (such as “outrages against personal dignity”).’34 Were the government not desirous of committing – or, more likely, already committing – actions that at the very least constituted ‘outrages against personal dignity’ against its prisoners, it is hard to see why this should be worth mentioning. On the debit side, Gonzales conceded, ‘Concluding that the Geneva Convention does not apply may encourage other countries to look for technical “loopholes” in future conflicts to conclude that they are not bound by GPW either.’ Gonzales here acknowledged that what he was himself proposing was a ‘loophole’.
Rather than being a ‘comfort’, then, laws were an irritation to be circumvented whenever possible. That is precisely what the lawyers advised. On 1 February 2002, John Ashcroft wrote: ‘We expect substantial and ongoing legal challenges to follow the Presidential resolution of these issues. These challenges will be resolved more quickly and easily if they are foreclosed from judicial review […] by a Presidential determination that the Geneva Convention III on prisoners of war does not apply.’35 The tiresome workings of the legal system, such as judicial review, were held in contempt by the Attorney General. They just got in the way. The ease with which legal thinkers decide that law is an expendable luxury was subsequently visible in the dissenting opinion of Antonin Scalia in the 2004 case of Rasul v. Bush, when the Supreme Court eventually ruled that the federal courts could hear appeals from people entombed indefinitely in Guantánamo Bay. The location of Guantán
amo had been specifically chosen because the US was able to argue that Cuba had sovereignty there, thus circumventing domestic law about what it was able to do on its own territory. Scalia wrote testily: ‘The Commander in Chief and his subordinates had every reason to expect that the internment of combatants at Guantanamo Bay would not have the consequence of bringing the cumbersome machinery of our domestic courts into military affairs.’36
Ashcroft’s fantasy of resolving issues ‘quickly and easily’, and Scalia’s sneer at the ‘cumbersome machinery’ of the law: the issue is clearly one of expediency rather than of justice. This was reflected in the language of the President’s decision, early on in the ‘war on terror’, that he could imprison suspects without any formal presentation of evidence of their guilt: ‘I find […] that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognised in the trial of criminal cases in the United States district courts.’37 ‘Not practicable’: this does not mean ‘unnecessary’ or ‘not required by law’; it just means inconvenient. Meanwhile, other memos chipped in with suggestions that the President could even explicitly authorise torture if he wanted to, because in a state of war he is simply above the law. As Bybee wrote to Gonzales: ‘Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.’38 There is a certain impatience evident here: tired, perhaps, of all this legal legerdemain, Bybee in the end comes to the happy conclusion that the laws, and the books in which they are written, can simply be thrown out with the garbage. Yale Law School dean Harold Koh called Bybee’s memo ‘the worst piece of legal analysis from the Justice Department he had ever seen’.39
On 7 February 2002, the President officially decided that Geneva would not apply to suspected members of Al Qaeda or the Taliban. Nonetheless, he wrote: ‘The United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.’40 The appeal to ‘military necessity’, of course, instantly undermines the rest of the sentence. The point of principles is that they are governing rules: you cannot decide when to adhere to them and when to ignore them. The UN Convention Against Torture explicitly refuses to recognise any possible ‘necessity’ defence to the crime: ‘[n]o exceptional circumstance whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency may be invoked as a justification of torture’. In the same memorandum, Bush claimed that there are people who ‘are not legally entitled’ to ‘humane treatment’.41 In fact the UN Convention Against Torture leaves no person in the world unprotected from inhumane treatment. Even Jay S. Bybee had felt compelled to point this fact out, though he did his best to divert attention from it by burying it in a footnote: ‘We note that Section 2340A [of the US criminal code] and CAT protect any individual from torture.’42