Friday, 6 May 2011

Torture: Is it really necessary?

In September 1975, I was one of the speakers at the United Nations Fifth Congress on the Prevention of Crime and the Treatment of Offenders held at the U.N Headquarters in Geneva, Switzerland. One of the topics under discussion was the issue of torture. After some soul-searching, I decided not to speak on that particular subject because quite frankly, I wasn’t sure what my thoughts on that subject were at that time.

The delegates at the Fifth Congress approved the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel ,Inhuman or Degrading Treatment or Punishment.

Torture, according to the United Nations Convention Against Torture (an advisory measure of the UN General Assembly) is:
...any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.

I have no idea as to what that last sentence is supposed to mean unless it really refers to prisoners being handcuffed, held in solitary confinement or being given only meager rations etc as a form of punishment.

Torture is prohibited under international law and the domestic laws of most countries in the 21st century. It is considered to be a violation of human rights, and is declared to be unacceptable by Article 5 of the UN Universal Declaration of Human Rights. Signatories of the Third Geneva Convention and Fourth Geneva Convention officially agree not to torture prisoners in armed conflicts. Torture is also prohibited by the United Nations Convention Against Torture, which has been ratified by 147 nations.

And yet, since those covenants were signed by many nations, torture is still be applied to thousands of prisoners around the world. As deeply concerned as I am about torturers tearing out their victim’s tongues, placing their victims in barrels of acid while they are alive and subjecting them to electricity in various parts of their bodies, I am not surprised that is still going on. What I really find disturbing however is that a freedom-loving nation like the United States had repeatedly sent some of their terror suspects to nations that still torture their own prisoners so that the suspects seized by the Americans can be tortured to such a degree that they will confess to whatever the Americans want to learn from them.

The problem with this ‘rendering’ process is that on occasion, they have sent innocent people to these ‘rendering factories’ so to speak. Trying to undo what is done to these innocent people is as futile as trying to un-ring a bell. A Canadian citizen was arrested in the United States and sent by the Americans to Syria to be rendered. The Syrians after rendering him, came to the conclusion that the man was not a terrorist. Why did the man have to suffer torture simply on a hunch of the Americans, a hunch that was obviously in error?

While in Egypt in 1798, Napoleon Bonaparte wrote to Major-General Berthier that the barbarous custom of whipping men suspected of having important secrets to reveal must be abolished. He said that it has always been recognized that this method of interrogation, by putting men to the torture, is useless. The wretches say whatever comes into their heads and whatever they think one wants to believe. Consequently, the Commander-in-Chief forbids the use of a method which is contrary to reason and humanity. During the period of the Inquisition, the pope at that time, put an end to it. He said that had he been subjected to the torture that had been applied to the prisoners, he too would have confessed to being the Devil himself just to stop the torture.

Often victims of torture gave their torturers false information and for this reason, the torture of the victim was of no advantage to whoever needed the information they were seeking.

European states abolished torture from their statutory law in the late 18th and early 19th centuries. Sweden and Prussia were the first to do so in 1722 and 1754 respectively; Denmark abolished torture in 1770, Russia in 1774, Austria in 1776, France in 1780, and the Netherlands in 1798. Bavaria abolished torture in 1806 and W├╝rttemberg in 1809. In Spain the Napoleonic conquest put an end to torture in 1808. Norway abolished it in 1819 and Portugal in 1826. The Swiss cantons abolished torture in the first half of the 19th century. Of course, the Nazis brought it back beginning in 1933 and ending in 1945. The same applies to the Japanese.

The Rome Statute, which established the International Criminal Court (ICC), provides for criminal prosecution of individuals responsible for genocide, war crimes, and crimes against humanity. The statute defines torture as "intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions". Under Article 7 of the statute, torture may be considered a crime against humanity "when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. Article 8 of the statute provides that torture may also, under certain circumstances, be prosecuted as a war crime.

The ICC came into existence on 1 July 2002] and can only prosecute crimes committed on or after that date. The court can generally exercise jurisdiction only in cases where the accused is a national of a state party to the Rome Statute, the alleged crime took place on the territory of a state party, or a situation is referred to the court by the United Nations Security Council. The court is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes. Primary responsibility to investigate and punish crimes is therefore reserved to individual states.

The Third and Fourth Geneva Conventions are the two most relevant for the treatment of the victims of conflicts. Both treaties state in Article 3, in similar wording, that in a non-international armed conflict, "Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms... shall in all circumstances be treated humanely." The treaty also states that there must not be any "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture" or "outrages upon personal dignity, in particular humiliating and degrading treatment".

Now it is here that the issue of torture becomes murky. These two Conventions apply only to persons who are in a non-international armed conflict who have taken no active part in the hostilities. How do we describe what is meant by the phrase; ‘no active part in the hostilities?’ The key word is ‘active’. Does this mean an Afghan insurgent with a rifle in his hand shooting at soldiers is taking an active part in the hostilities?

We have to keep in mind that insurgents are in fact defending their own country against the invasion of soldiers from other countries. Now don’t get me wrong. I want the Taliban out of Afghanistan just as every freedom loving person does. But if we are to adhere to the dictates of the Third and the Fourth Geneva Conventions, then captured Afghan insurgents cannot be tortured. When the Canadian authorities learned that insurgents they had captured and turned over to the Afghan authorities, were being tortured, Canada warned the President of Afghanistan that Canada would not sanction that kind of treatment of the insurgents they captured and turned over to the Afghan authorities. Speaking of Canada, up until that last quarter of the Twentieth Century, some police in Canada were still torturing suspects. Then Parliament passed a law that prohibits torture in Canada. Any official convicted of torturing anyone in Canada can be sentenced to 14 years in prison.

Also, nationals of a State not bound by the Convention are not protected by it, and nationals of a neutral State in the territory of a combatant State, and nationals of a co-belligerent State, cannot claim the protection of GCIV if their home state has normal diplomatic representation in the State that holds them (Article 4), as their diplomatic representatives can take steps to protect them. The requirement to treat persons with "humanity" implies that it is still prohibited to torture individuals not protected by the Convention.

The George W. Bush administration afforded fewer protections, under GCIII, to detainees in the "War on Terror" by codifying the legal status of an "unlawful combatant". If there is a question of whether a person is a lawful combatant, he (or she) must be treated as a POW "until their status has been determined by a competent tribunal" (GCIII Article 5). If the tribunal decides that he is an unlawful combatant, he is not considered a protected person under GCIII. However, if he is a protected person under GCIV he still has some protection under GCIV, and must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention" (GCIV Article 5)

Extraordinary rendition and irregular rendition describe the abduction and extrajudicial transfer of a person from one nation to another. "Torture by proxy" is used by some critics to describe situations in which the United States has transferred suspected terrorists to countries known to practice torture. Many nations are dismayed by this practice. Civilized nations are always shocked at the uncivilized behavior of other civilized nations.

The United States' Central Intelligence Agency (CIA) runs a global abduction and internment operation of suspected terrorists, known as “extraordinary rendition”, which since 2001 has captured an estimated 3,000 people and transported them around the world. Rendered persons have undergone torture by the receiving states, and it has been alleged that this has occurred with the knowledge or acquiescence of the governments of the United States and the United Kingdom. Condoleezza Rice, then United States Secretary of State, said in an April 2006 radio interview that the United States does not transfer people to places where it is known they will be tortured. But that was a lie or alternatively, she was kept in the dark.

In a CIA-run prison somewhere in Eastern European eight years ago, Al Qaeda’s No. 3 and self-professed mastermind of the 9/11 attacks, was interrogated about a valuable nugget of information. What they were really interested in knowing was what their prisoner, Khalid Sheikh Mohammed knew about Abu Ahmed al-Kuwaiti, which was the kunya, or nickname, of a trusted Osama bin Laden courier?

The CIA knew that if they knew who this courier was, and they could locate him, they would follow him directly to bin Laden’s hideout.

For years, the CIA had been searching for Osama bin Laden, the ultimate terrorist who was behind hundreds of terrorist acts around the world including the seven-eleven attacks against the United States. In fact, the United States wanted this terrorist so bad, it even attacked Afghanistan to get him.

Khalid Sheikh Mohammed was a member of bin Laden's al-Qaeda organization, although he lived in Kuwait rather than Afghanistan, while he was heading al-Qaeda's propaganda operations from sometime around 1999.

The 9/11 Commission Report alleges that he was "the principal architect of the 9/11 attacks." He is also alleged to have confessed to a role in many of the most significant terrorist plots over the last twenty years, including the World Trade Center 1993 bombings, the Operation Bojinka plot, an aborted 2002 attack on the U.S. Bank Tower in Los Angeles, the Bali nightclub bombings, the failed bombing of American Airlines Flight 63, the Millennium Plot, and the murder of Daniel Pearl by personally cutting off the reporter's head.

Khalid Sheikh Mohammed was captured in Rawalpindi, Pakistan, on March 1, 2003, by the Pakistani ISI, possibly in a joint action with agents of the American Diplomatic Security Service, and has been in U.S. custody since that time. In September 2006, the U.S. government announced it had moved Mohammed from a secret prison to the facility at the Guantanamo Bay detention camp. The Red Cross, Human Rights Watch and Mohammed have claimed that the harsh treatment and water boarding he received from U.S. authorities amounts to torture. Water boarding as a form of involves water being poured over the face of an immobilized captive, causing the individual to experience the sensation of drowning. Although a variety of specific techniques are used in water boarding, the captive's face is usually covered with cloth or some other thin material, and the subject is immobilized on his/her back. Water is then poured onto the face over the breathing passages, causing an almost immediate gag reflex and creating the sensation to the captive that he or she is drowning. Water boarding can cause extreme pain, damage to lungs, brain damage from oxygen deprivation, other physical injuries including broken bones due to struggling against restraints, lasting psychological damage and, if uninterrupted, death. Further, adverse physical consequences can manifest themselves months after the event, while psychological effects can last for years. The term water board torture appears in press reports as early as 1976.

A 2005 U.S. Justice Department memo released in April 2009 stated that Mohammed had undergone water boarding 183 times in March 2003. Despite being water boarded 183 times in March 2003, Khalid Sheikh Mohammed did not divulge actionable intelligence until at least 2006, and all that time, he withheld the information under torture. KSM revealed it only under the sophisticated non-coercive persuasion favored by professional interrogators. Donald Rumsfeld, the U.S. Defence Secretary agreed that there was no water boarding of Mohammed to get him to give his interrogators the name of bin Laden’s courier.

In March 2007, after four years in captivity, including six months of detention and alleged torture at Guantanamo Bay, Khalid Sheikh Mohammed— as it was claimed by a Combatant Status Review Tribunal Hearing in Guantanamo Bay— confessed to masterminding the September 11 attacks, the Richard Reid shoe bombing attempt to blow up an airliner over the Atlantic Ocean, the Bali nightclub bombing in Indonesia, the 1993 World Trade Center bombing and various foiled attacks. On December 8, 2008, Mohammed and four co-defendants sent a note to the military judge expressing their desire to confess and plead guilty

The results of Mohammed’s interrogation, combined with the years of interviews with other bin Laden confidants detained at Guantanamo Bay, are being heralded as part of an intelligence success story that led the U.S. Navy SEALS team to the Al Qaeda leader in Pakistan on Sunday., May 1, 2011.

The evolving story of what led to bin Laden’s death is breathing new life into the debate about the interrogation of terrorism suspects.

“I would assume that the enhanced interrogation program that we put in place produced some of the results that led to bin Laden’s ultimate capture.” former U.S. vice president Dick Cheney said the next day in an interview with Fox News. If by using the word, ‘enhanced’ he is wrong. It wasn’t the water boarding that got this terrorist to confess.

“We need to keep in place those policies that made it possible for us to succeed in this case,” said Cheney, who famously said after 9/11 that the U.S. must now work through the “dark side.” Cheney was in my opinion, always on the dark side.

U.S. President Barack Obama denounced the practice as “torture” and outlawed its use on his second day in office. Until this week, it appeared the issue was closed.

Republican House Homeland Security Chair Peter King has been the most unequivocal in his championing of the return of the Bush-era practices. He said on Fox, “We obtained that information through water boarding, so for those who say that water boarding doesn’t work, who say it should be stopped and never used again, we got vital information, which directly led us to bin Laden.” He too was wrong.

“Well, that didn’t take long,” wrote New Yorker writer Jane Mayer and author of The Dark Side, on the magazine’s website, reacting to the debate. “It may have taken nearly a decade to find and kill Osama bin Laden, but it took less than 24 hours for torture apologists to claim credit for his downfall.” But wasn’t through torture that the name of the courier was disclosed.

What seems certain about the success of finding bin Laden is that the courier al-Kuwaiti that was disclosed by Mohammed was a vital connection to finding bin Laden and a phone call he made last August was the much-needed break in the U.S. hunt.

What isn’t clear is how the interrogation of Mohammed, also known as KSM, and other detainees helped.

An Associated Press report, quoting unnamed U.S. officials, states that Mohammed confirmed knowing the courier, but downplayed the man’s significance. Relying on interviews with White House and intelligence sources, the New York Times said that it was Mohammed’s vehement denial of ever hearing the courier’s name that made his interrogators suspicious.

An earlier narrative of the interrogation tale said Mohammed had been the one to reveal the courier’s nickname in the first place.

Mohammed was likely one of many U.S. captives who would have known the courier, according to U.S. officials and an analysis of Pentagon documents concerning Guantanamo detainees and recently released by Wikileaks.

Opponents of the CIA’s practices point out that the key information only surfaced in the last four years, after the CIA’s prisons, the so-called “black sites,” had been shut and its prisoners sent to Guantanamo. Interrogations, which continue today at Guantanamo, are subjected to restrictions that do not include techniques used in the early years after 9/11.

Furthermore, it appears the true identity of al-Kuwaiti surfaced thanks to CIA case officers on the ground in Pakistan and Afghanistan.

The exact information trail may never be confirmed, but the renewed debate is indicative of the political posturing taking place following bin Laden’s death and evidence of an intelligence community still divided about the legacy of post-9/11 interrogations.

Democratic Senator Dianne Feinstein, the chairperson of the Senate Select Committee on Intelligence weighed in Tuesday, praising the intelligence work, but rebutting claims the harsh practices in the CIA prisons or Guantanamo were useful.

When pressed by a reporter about claims that bin Laden’s death vindicated the much-maligned interrogation methods Feinstein replied, “No, absolutely not.”

“I happen to know a good deal about how those interrogations were conducted and in my view nothing justifies the kind of procedures that were used.”

If a human being can withstand water boarding 183 times in one month, one is forced to ask this rhetorical question with respect to the use of torture; “Is it really necessary?”

There has to be a better way to obtain information from a terrorist. What it is, I don’t know but sooner or later, there will be a way in which terrorists will divulge their secrets without any government having to resort to physical torture of their suspects.

I appreciate why a great many people would like to see the terrorists who have been captured, tortured because it is a human trait to enjoy the pleasure of seeing someone suffer pain when that person has done us wrong but if we do this, are we any different than the terrorists? I think not. In Iran, torture is conducted quite frequently and even when it comes to condemned criminals being sentenced to death. Several years ago, a rapist who murdered his victim was on the day prior to his public execution, whipped 100 times. Then on the day of his execution, members of the victim’s family were permitted to whip him another 100 times.

When I think about nations torturing human beings, it convinces me that that some of the leaders of these nations like to think of themselves as being a little lower that angels when in fact, they are really just a bit higher than apes.

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