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Remembering Abu Ghraib (1): Torture Everywhere and the Accountability Gap

[This is the first of a two-part post on the tenth anniversary of the Abu Ghraib scandal. I’ve broken it in half for easier reading.]

No exceptional circumstances 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.

— Article 2, clause 2 of the Convention Against Torture, ratified by the United States, October 21, 1994

Ten years ago today, CBS’s 60 Minutes aired a segment about Abu Ghraib, and two days later Seymour Hersh posted a detailed report on The New Yorker website. The story took off. It was not exactly a journalistic scoop: the AP’s Charles Hanley had published a story about abuses at Iraqi prison camps including Abu Ghraib almost six months earlier, and in January 2004 the U.S. Command in Baghdad issued a brief press release about an investigation of prisoner abuse, which most media outlets ignored. Salon correspondent Jen Banbury reported on Abu Ghraib abuses almost two months before the 60 Minutes episode, and two weeks later, the Coalition Provisional Authority itself announced that “six military personnel have been charged with criminal offenses to include conspiracy, dereliction of duty, cruelty and maltreatment, assault, and indecent acts with another.” None of these revelations seemed to make a dent in U.S. public opinion. The furor after the 60 Minutes episode unmistakably shows the difference television makes – but it also shows the remarkable indifference of most Americans, and their media informants, to “routine” abuse stories.

The tenth anniversary of the Abu Ghraib scandal should remind us of the overwhelming fact that torture was everywhere in the War on Terror, not only in the CIA’s secret prisons. Today, when the “torture debate” focuses exclusively on the Senate Intelligence Committee’s report on the CIA, this seems like an important reminder: torture was everywhere. It was in Bagram, where at least two Afghan civilians were tortured to death. In Fallujah, members of the storied 82nd Airborne stacked prisoners in pyramids, doused them with cold water and left them exposed through the night, and smashed a prisoner’s leg with a baseball bat. In Guantánamo, one prisoner was subjected to 48 days of intensive sleep deprivation, along with humiliations that included being forced to perform dog tricks, threats with a military working dog, naked searches in front of female soldiers, and being dressed in a bra and thong.

Those last four humiliation tactics also appear in the infamous Abu Ghraib photos (here, photos 7, 9, 12, and 18). That was almost surely no coincidence. Army General Geoffrey Miller, the Guantánamo commandant, was dispatched to Iraq with instructions to “Gitmoize” Abu Ghraib, and apparently the Guantánamo techniques migrated with him and his staff. Of course the Abu Ghraib abuses were unauthorized – and they were part of a larger pattern of Mad Max behavior by Abu Ghraib guards. Plainly, the prisoner abuses were not what the U.S. military wanted. Tom Ricks reports a conversation in Iraq between Maj. Gen. James Mattis and a young lance corporal on the day the Abu Ghraib scandal broke. When Mattis asked what the troops were so intently watching on cable news, the corporal responded, “Some assholes have just lost the war for us.” (Fiasco, p. 290).

But the fact that Abu Ghraib was unauthorized misses the point. When the instructions everywhere are to take the gloves off, torture metastasizes. Eric Fair, a contract interrogator in Fallujah, recollects:

I watched as detainees were forced to stand naked all night, shivering in their cold cells and pleading with their captors for help. Others were subjected to long periods of isolation in pitch-black rooms. Food and sleep deprivation were common, along with a variety of physical abuse, including punching and kicking. Aggressive, and in many ways abusive, techniques were used daily in Iraq, all in the name of acquiring the intelligence necessary to bring an end to the insurgency.

Why were we so indifferent to torture, which Dana Priest and Barton Gelman reported on as early as December 2002? According to news stories, within days of 9/11 Americans were talking about torturing terrorists. That should come as no surprise. We were frightened and angry. We wanted to protect ourselves and we also yearned for revenge. Fighting a fanatical, cruel, and lawless enemy, we concluded that tougher is better. We dismissed anti-torture principles with ticking bomb fantasies and the vengeful response that our prisoners were “the worst of the worst” and had it coming. Self-protection and punitive fury danced together in happy harmony. The two motivations converged on torture.

As the years of “tougher is better” stretched toward a decade, our pre-9/11 ideas of right and wrong adjusted accordingly. The economic crisis displaced war and torture as issues worthy of attention; with millions out of work, the torture of a few “terrorists” seemed kind of trivial. (The fact that it was more than a few and they weren’t all terrorists dropped out of the national conversation.) At the same time, all the focus was on waterboarding, as if none of the other forms of torture mattered. Most importantly, the partisan and unapologetic advocacy of torture by the former administration made opposition to torture seem like a partisan position rather than moral and legal bedrock. Little by little, being mildly pro-torture came to seem to many of us like the moderate, sensible, and nonpartisan position.

I think this gradual normalization and numbing is the best explanation of why, despite bipartisan professions of shock after Abu Ghraib, public support for torture crept steadily upward in the past decade, from 46% in 2005 who agreed that torturing suspected terrorists should be done often or sometimes (as opposed to rarely or never), to 53% in 2011. This change in public opinion is doubly remarkable because pro-torture sentiment increased during a period when torture was no longer being used.

Torture is and remains a serious crime, and  Congress prohibited all other cruel, inhuman, and degrading treatment in 2005. Somehow, those awkward legal facts are never mentioned in the torture debate. It is as if when we talk about torture the law of the land does not exist. That, too, should come as small surprise, because in a realist sense it truly is as if the law of the land does not exist. Apart from the prosecution of a few low-level perpetrators at Abu Ghraib and a contract interrogator, there has been no legal accountability for torture. Famously, President Obama preferred a policy of “looking forward rather than backward,” which means letting bygones be bygones. With no stomach for accountability in the new administration, it seemed only natural for we the people to conclude that torture is nothing that needs to be accounted for—from which it is only a short step to thinking that support for torture is a mere policy preference, rather than what it actually is: support for a serious federal felony.

It’s not that Obama did nothing. In his first days in office he prohibited torture and rescinded all of the Bush administration’s legal memos on detention and interrogation. In 2009, Obama and Eric Holder courageously released the torture memos, and Holder appointed a special prosecutor to investigate torture cases. In a few speeches, the president deliberately used the hitherto-taboo T-word instead of the Bush administration’s Newspeak “enhanced interrogation techniques.” Obama has left no doubt that he opposes torture, and has tried to ensure that the prohibition of torture is welded firmly into the law.

But none of the investigations resulted in prosecutions. It’s not that they resulted in exonerations, and Attorney General Holder never said they did. Had the evidence pointed to actual innocence, Holder surely would have said so. Pointedly, he said only that there was not enough admissible evidence to convict anyone. Perhaps that is because victim testimony was unobtainable, or perhaps prosecutor John Durham made immunity promises to obtain testimony. More probably, Durham realized that the defense would wish to introduce evidence of secret government agreements with private contractors and with foreign governments, which the administration treats as state secrets.

Criminal prosecutions were probably a bad idea in any event. The torture memos did their work well in providing legal cover that would have made it nearly impossible to prove criminal mens rea. If you have a DOJ memo saying that the pain and suffering you are inflicting does not legally count  as “severe,” it becomes virtually impossible to prove you intended to inflict severe pain or suffering – the legal threshold for torture prosecution. Furthermore, criminal prosecutions would always run the danger of populist patriotic acquittals by jurors with no stomach to convict interrogators whose defense would have been that they were trying to keep us all safe. If that happened, the only precedent criminal cases would set is the wrong one. The fact that former president Bush and vice-president Cheney unapologetically admitted that they authorized the interrogations would in any event have made it awkward to prosecute low-level interrogators without going up the chain of command. I have no doubt that President Obama never considered for even a second prosecuting his predecessors.

What other forms of accountability might there have been? One was the firing or demotion of officials on the torture team. But there have been no reports that CIA officials involved in the torture program have suffered career consequences – apart from a few promotions of those involved in one of the CIA’s most egregious blunders, the rendition of a German citizen, Khalid el-Masri, in a case of mistaken identity. Apparently, even internal punishment of CIA miscreants is politically impossible.

Yet some form of accountability is essential. A new administration takes over the sovereign debts of its predecessors, and that includes sovereign moral debts. It is not only the administration that owes this debt. If accountability for torture is politically impossible, that is because public sentiment makes it impossible. The administration’s debt is all our debt. (I flesh out these arguments about sovereign moral debt in the final chapter of my forthcoming book Torture, Power, and Law.)

I want to suggest a different form of accountability – one that was easily available to President Obama at little or no political cost. If he was politically unable to denounce, fire, or prosecute the torture team, he could at least have taken every available opportunity to praise and reward the many people who  stood up against official torture during the Bush administration, some of them at personal cost. (Let me note that Jameel Jaffer and Larry Siems made a similar suggestion three years ago.) If punishing or shaming the torturers is “negative accountability,” this is a proposal for positive accountability. Accounts have credits and debits, and giving credit where it is due would be one powerful way to reinforce the message that moral clear-headedness was not only possible but real. A few well-chosen Presidential Medals of Freedom would make it clear that the praiseworthy course was resistance, not acquiescence.

As Hannah Arendt wrote, in times of moral confusion “most people will comply but some people will not.” She adds: “Humanly speaking, no more is required, and no more can reasonably be asked, for this planet to remain a fit place for human habitation.”

I will continue in the follow-up post with reminders of a few of those who did not comply.

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About the Author

is University Professor in Law and Philosophy at Georgetown.