How torture passed under democratic radar…

Andrew Sullivan was in favour of the invasion of Iraq – mostly for civil rights reasons, and in the belief that replacing Sadam and replacing his regime with a democratic state would do more good in the long run than continuing not to act. However, in a review of two books which document acts of torture (reg needed), as well as the incidents of humiliation that have become associated with Abu Ghraib, he believes Bush’s administration is giving many hostages to future fortune.He also demonstrates that when a clear priniciple of law is watered down or subtly compromised, it is likely to give a green light to man’s baser instincts.The compromise is here:

The critical enabling decision was the president’s insistence that prisoners in the war on terror be deemed ”unlawful combatants” rather than prisoners of war. The arguments are theoretically sound ones – members of Al Qaeda and the Taliban are not party to the Geneva Convention and their own conduct violates many of its basic demands. But even at the beginning, President Bush clearly feared the consequences of so broad an exemption for cruel and inhumane treatment. So he also insisted that although prisoners were not legally eligible for humane treatment, they should be granted it anyway. The message sent was: these prisoners are beneath decent treatment, but we should still provide it. That’s a strangely nuanced signal to be giving the military during wartime.

Although he argues that the principle rather than the letter of the law is crucial:

Bush clearly leaned toward toughness. Here’s the precise formulation he used: ”As a matter of policy, 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.” (My italics.)

The shocking bit is not so much that the accounts that prisoners died during torture, but the a priori examination of US statutes, gave rise to this analysis:

The president’s underlings got the mixed message. Bybee [US Attorney General] analyzed the relevant statutes against torture to see exactly how far the military could go in mistreating prisoners without blatant illegality. His answer was surprisingly expansive. He argued that all the applicable statutes and treaty obligations can be read in such a way as to define torture very narrowly. Bybee asserted that the president was within his legal rights to permit his military surrogates to inflict “cruel, inhuman or degrading” treatment on prisoners without violating strictures against torture. For an act of abuse to be considered torture, the abuser must be inflicting pain “of such a high level of intensity that the pain is difficult for the subject to endure.” If the abuser is doing this to get information and not merely for sadistic enjoyment, then “even if the defendant knows that severe pain will result from his actions,” he’s not guilty of torture. Threatening to kill a prisoner is not torture; “the threat must indicate that death is ‘imminent.'” Beating prisoners is not torture either. Bybee argues that a case of kicking an inmate in the stomach with military boots while the prisoner is in a kneeling position does not by itself rise to the level of torture.

The specifics of the torture are in the article for anyone who wants to read them. But Sullivan goes on to make the point that even if you accept that such measures could be acceptable in the relatively isolated and controlled environment of Guantanamo, it was crazy to ask lower order officers to make the distinction between legitimate prisoners of war and this new special category, in which neither national nor international law could intercede.

For Sullivan the key problem is that the US is condoning practices that ultimately undermine its stated objectives of establishing a democracy underwritten by the legitmate rule of law. In effect it is adopting many of the practices of the regime it sought to replace, though the reports account a total of six prisoners to have died during torture compared to estimated thousands who were systematically killed under Sadam.

Towards the end he asks whether the advocates (like himself) of a ruthless war against terrorism may have unwittingly given a green light to these abuses. But he also fingers a problem that exists in any democracy that finds itself in extremis:

American political polarization also contributed. Most of those who made the most fuss about these incidents – like Mark Danner or Seymour Hersh – were dedicated opponents of the war in the first place, and were eager to use this scandal to promote their agendas. Advocates of the war, especially those allied with the administration, kept relatively quiet, or attempted to belittle what had gone on, or made facile arguments that such things always occur in wartime. But it seems to me that those of us who are most committed to the Iraq intervention should be the most vociferous in highlighting these excrescences. Getting rid of this cancer within the system is essential to winning this war.

Just as worryingly, he concludes that even opponents of the Bush administration could not have made it an election issue without costing themselves many votes. The issue has waited until well after electoral danger has passed before emerging:

The fact that American soldiers were guilty of torturing inmates to death barely came up. It went unmentioned in every one of the three presidential debates. John F. Kerry, the “heroic” protester of Vietnam, ducked the issue out of what? Fear? Ignorance? Or a belief that the American public ultimately did not care, that the consequences of seeming to criticize the conduct of troops would be more of an electoral liability than holding a president accountable for enabling the torture of innocents? I fear it was the last of these. Worse, I fear he may have been right.