Like making jokes or copulating without regard to season, torturing is one of those activities that distinguish human beings from other animals. Inflicted both on our congeners and on other species, it marks us out, in the words of the King of Brobdingnag, as a pernicious race of little odious vermin. Even Richard Rorty, the self-styled postmodernist liberal, felt able to pronounce that cruelty was ‘the worst thing we do’.
Torture has posed a problem for philosophers. Simple utilitarianism has notorious difficulties in explaining why torture or other such abuse is bad in principle. The felicific calculus may well favour lynching an innocent man, if a crazed mob is gagging for it: indeed, the utilitarian grounds for pandering to the crowd strengthen as its bloodlust grows more fierce. Nor does it get us very far to be told that torture is wrong, as some contractualists argue, because reasonable people would reject it as a basis for action. No doubt they would, on the whole. But surely reasonable people reject torture because they think it is bad, not because they think that because people like them think it is bad, those same people would reject it.
Along with other distinctively human pastimes like recreational killing, torture also poses awkward problems for philosophical naturalism. For naturalists like Aristotle, if a thing manifests descriptive properties characteristic of that thing – such as having a certain shape, size or colour – it follows that the thing has evaluative properties too. So if a torturer proves adept at extracting information or confessions from his victims via the deft application of thumbscrew and fescue, it presumably follows for naturalists that he is a good torturer. But this suggests that ‘good’ is significantly different from truly naturalistic terms such as ‘yellow’. If something is a yellow car, it follows that that thing is a car and that it is yellow; but it doesn’t follow that if someone is a good torturer, then he is a torturer and he is good. Naturalists respond that the latter inference fails because the basis for applying ‘good’, unlike ‘yellow’, depends on the term it qualifies. In order to say that something is good, you first need to know what sort of thing it is. So the predicative use of ‘good’ assumes that there is a certain kind of thing to which goodness is attributed, and the truth-value of this may vary, depending on whether ‘good’ qualifies ‘torturer’ or ‘human being’.
However, this move proves to be the equivalent of destroying the village in order to save it. Putting together the two thoughts, that torture is peculiarly bad and distinctively human, leads to an unpalatable conclusion. To be good at torturing is the mark of a bad person. In other words, to do something distinctively human is to display the mark of a bad person. This is unwelcome news for the naturalist project of trying to elaborate an account of the human good, or the good human, from an initially value-free description of what it is to be human. Latter-day revivers of naturalism, such as sociobiologists who analyse the human good in terms of survival value, either have to treat torture as anomalous, as a trait without survival value; or regard it as something which has survival value, and thus give it the all-clear.
None of this necessarily dooms naturalism. What it dooms is the belief that being good at being human could never mean being good at being bad. In this respect Machiavelli was a faithful Aristotelian: the virtuous man could display prowess in diversions like massacre or assassination. Indeed, delighting in the afflictions of one’s fellow-creatures has a venerable pedigree. In Genealogy of Morals, Nietzsche recalls Aquinas’s promise that the blessed will get the chance to watch the agonies of the damned in hell, ut beatitudo illis magis complaceat. One should not regard this as some Thomist aberration. The prospect of torture for the unredeemed, or for the blessed-in-waiting, was depicted by Bosch or Zurbarán with orgasmic sadism. As Philip Gourevitch and Errol Morris note in Standard Operating Procedure, Christian iconography places at its centre an implement of torture and, in the stigmata, offers an all too human scourge with which to flay flesh raw. Of course, millions of Christians and infidels have proved unable to stay the pleasure until they reach the hereafter. The yen for torture extends also to the mild pastures of academe. The 20th-century utilitarian Richard Hare was prepared to say, of torturing cats, that there was at least this much in its favour: some people find it fun.
Death by a Thousand Cuts recounts the history of lingchi, the method used to execute certain categories of criminal in pre-revolutionary China until the punishment was abolished in 1905. Like the Thousand-Year Reich, the chiliadal claims of lingchi turn out to be exaggerated. The convicted felon in line for it could expect a few dozen gashes at most. One such was Wang Weiqin, a photograph of whose execution in 1904, taken by soldiers attached to the French Legation after the suppression of the Boxer Rebellion, is reproduced in the book. The hapless Wang is shown lashed to a pole, wearing an incongruous frou-frou, his muscles already oozing visibly from the blade. Worse was to follow, though the coup de grâce – a dagger in the heart – came fairly soon afterwards.
But in a global contest for cruellest, most inhuman or degrading punishment, lingchi would probably miss out on the medals. The practice fell prey to hyperbolical sinophobic fantasies during the 19th century. Indeed, by then the sadomasochistic vein in depictions of the yellow peril had already been circulating in Europe for a couple of centuries: steamy Dutch engravings from the 17th century depict naked Oriental women roasting on spits. Occidental propaganda seems to have gathered pace during the Opium Wars and gained a further fillip in the post-Boxer period, throwing up such cultural tephra as Fu Manchu, and the ‘Chinese’ burn beloved of primary school playgrounds. But, as the authors point out, lingchi is not obviously grislier than familiar European practices such as the thumbscrew, the fustuarium, breaking on the wheel, garrotting, the rack, racial lynch mobs, autos-da-fé, or the early modern English spectator sport of hanging, drawing and quartering. Meanwhile, away from the public gaze, 20th-century Europeans came up with planned famine, human vivisection and the use of Zyklon B as a human pesticide.
Nature has distributed the talent for cruelty and torture generously among the population. Getting in touch with one’s inner sadist can trigger discomfort, even a negative self-image. So people seek to lessen their unease either by handing on the blame to the clay-footed – lives of Himmler tend to inverted hagiography, even while noting the SS chief’s ordinariness (‘Heinrich came from a solid bourgeois Bavarian family. He liked children, and kept chickens’) – or by giving it a deus ex machina quality. Those who diagnose torture as a pathology of ‘the system’ make it akin to an alien visitation. The investigations of Stanley Milgram and Philip Zimbardo suggest that this is either false or raises the question of who runs the system. Indeed, Zimbardo, the designer of the 1971 Stanford prison experiment, when undergraduates enacted roles as prisoners and guards in a mock jail, took a close interest in the Iraq prison abuses when they came to light in 2004. At Stanford, guards and their clients seem to have adapted seamlessly to life in a state correctional facility, and it is no great surprise to learn that during the Saddam era, Abu Ghraib had been designed on an architectural blueprint pioneered by US campus universities. Lane McCotter, recruited from a career running penitentiaries to relaunch the jail under US proprietorship, ‘got kind of excited’ when he realised that Abu Ghraib had been built to American specifications.
Gourevitch and Morris chronicle the anomie which marked life in the prison. The cultural stereotyping of prisoners was a routine aspect of personnel training, with particular stress on Arabs’ reputed fear of dogs. Prisoners were frequently kept naked – what Private Lynndie England and others called ‘standard operating procedure’ (SOP). Children as young as ten years old were incarcerated: one of the tactics for nailing suspects was to kidnap their children and hold them hostage until their fathers turned themselves in. Abu Ghraib was situated in a war zone, contrary to international law; detainees were routinely burned with cigarettes as an interrogation technique.
As the authors emphasise, from the invaders’ standpoint one moustachioed Iraqi looked much like another, so a lot of non-insurgents found themselves bounced off the street by military intelligence and consigned to Abu Ghraib. Many were merely unlucky; some seem to have been deranged. One such amused his captors by using his head as a battering-ram, by persistent coprophagy, and by flinging his excrement at people. The prisoner’s conduct proved so random that the guards could devise no strategy for questioning him, which fuelled suspicion that his antic disposition was indeed calculated. With ‘Shitboy’ and nearly all the other Iraqis held in Abu Ghraib, the authors adopt the nicknames coined by their captors. In part this is because many inmates were nameless ‘ghost’ prisoners, held in the jail but not documented, in order to evade Red Cross inspection, though fully docketed prisoners also are referred to only by soubriquet. The one named prisoner is Manadel al-Jamadi. Al-Jamadi impassively endured increasingly brutal abuse for more than an hour, including a revival of the Inquisition’s strappado, where the prisoner is suspended from the wrists after having his hands tied behind his back. His interrogators were by turns annoyed, impressed and baffled by his stoicism in the face of the abuse. Eventually, they pulled up the hood on his head and realised that he was dead. When word got round, the body was packed with ice. Thirty hours later it was put on a gurney and tubes inserted in its arm to make it look as if al-Jamadi was receiving medical treatment.
In the UK and elsewhere outside the US, the impression has taken hold, which the Abu Ghraib photos and Guantánamo have done nothing to dispel, that these things were a USP of the Bush regime. Not really. Take, for comparison, the death of the hotel receptionist Baha Mousa in British custody in 2003. Mousa’s father, Daoud Mousa, a colonel in the Basra police, was taken to identify his son’s body. ‘When they took the cover off his body I could see his nose was broken badly,’ he said. ‘There was blood coming from his nose and his mouth. The skin on his wrists had been torn off. The skin on his forehead was torn away and beneath his eyes there was no skin either.’ The post-mortem identified 93 injuries. Blair probably lied to Parliament in denying any earlier knowledge of the Abu Ghraib abuses when the scandal broke in May 2004, since the Foreign Office minister Bill Rammell had been briefed by the Red Cross about them in March; on his return to London, as the then foreign secretary Jack Straw admitted in a statement to the Commons that June, Rammell had briefed senior figures in the FCO. Then there was the government’s admission that it had made Diego Garcia available as a pit stop for extraordinary rendition flights after denials ‘in good faith’ that this was happening. The government of Sweden was held by the UN in 2006 to have been complicit in torture after surrendering two asylum-seekers, Mohammed al-Zari and Ahmed Agiza, to CIA custody in 2001. And so on.
The Abu Ghraib photos serve to bring these cold facts about torture and abuse to – as one might say – life. Gourevitch and Morris stress that in the brouhaha surrounding the prison photos, blame fell onto the understrappers in the photos rather than the brass-hats who ordered or winked at them. In one photo Sabrina Harman, an MP at Abu Ghraib, gives a thumbs-up over al-Jamadi’s corpse. Here, and in a forum with Gourevitch and Carne Ross in New York last May, Morris points out that when the abuses came to light, judicial retribution targeted Harman, who in the end was sentenced to six months, rather than the CIA operative responsible for al-Jamadi’s death. He adds that she wished to become a forensic photographer; indeed, Harman had already amassed a portfolio of amateur snuff photography, including still and video footage of the mummified head of her pet kitten. Morris quotes an Iraqi who described Harman as ‘one of the good ones’. The book humanises her, with frequent excerpts from her letters home. And indeed Harman, who would hand out sweets and toys to the local children before she was posted to Abu Ghraib, comes across as a warm and likeable figure. Then you look at the photos again.
At times the authors’ concern to do right by the small fry betrays a disconcertingly US-centric distribution of concerns. They stress that the camera, if not downright mendacious, often proves economical with the reality. ‘Photographs cannot tell stories. They can only provide evidence of stories, and evidence is mute.’ In the notorious ‘dog-leash’ shots, as Gourevitch and Morris tell us, Private England is not actually pulling the leash fastened round the neck of the Iraqi prisoner ‘Gus’: the strap is slack, since England is half-heartedly posing for the cameraman, her then lover Charles Graner, so that he would have ‘a souvenir’. ‘The picture isn’t about Gus being dominated by England,’ commented one reviewer of the book. ‘It’s about England being dominated by Graner.’
One can do a few riffs on the phallocentricity of the signifier, the will-o’-th’-wisp polysemia of images etc. But these media-studies twirls take you only so far: the Abu Ghraib pictures don’t show an Iraqi tugging, however apathetically, one end of a leash, with a naked and prostrate American on the other. England may not have been thrilled about being in the photo, even before it became globally notorious. But what about ‘Gus’? How consoled would he be to learn that the picture shows the domination not of him, but of his dominatrix? Is he still in custody, indeed still alive? For the authors, the scandal of Abu Ghraib is mediately about the Iraqis, none of whom is interviewed in the book. It is immediately about the lower cadres who find themselves shanghaied by their superiors. The ‘rotten apples’ theory has offered a timeless get-out for top brass caught presiding over jobbery and worse, by handing the blame down the chain of command. Gourevitch and Morris espouse an inverted variant of this – a ‘dead fish theory’, as it might be called – whereby putrefaction progresses from the head downwards. But ‘head’ here needs qualification: it must include mere NCOs like Corporal Graner, as chronic a case of institutional fin-rot as one could hope for (Graner got ten years for his part in the scandal). If the abuse really was systemic – as the phrase ‘standard operating procedure’ suggests – then nobody was responsible, other than those who devised the system. In fact, the ‘dog pile’ photos of naked Iraqis would have to count, even on the most punctilious reading of the SOP, as abuse beyond the call of duty.
Like Harman, Graner was a keen amateur photojournalist. At one point he shows an MP colleague, Joseph Darby, a picture of an inmate, naked apart from a bag over his head, sitting in a puddle. Graner tells Darby: ‘The Christian in me knows it’s wrong, but the corrections officer in me can’t help but love to make a grown man piss himself.’ However ‘systemic’ the abuse at Abu Ghraib, real individuals like Graner, on their own initiative, habitually brutalised the inmates. As far as that goes, despite the authors’ caveats, the photographic record conveys a kernel of truth. Someone who doubts that might ask themselves how their view of the pictures would change if it turned out that they were faked.
Standard Operating Procedure also chronicles the importation into Abu Ghraib of the relaxed standards on prisoner status which Donald Rumsfeld had already approved for Guantánamo (or ‘Gitmo’). The laxer standards allowed 18 interrogation techniques, including hooding, sensory and sleep deprivation, forced ‘grooming’, use of water, and ‘mild, non-injurious physical contact’. In fact, the rules were laxer in Abu Ghraib, since Rumsfeld had insisted that stress interrogation should be practised on POWs only on his personal say-so – and there were no POWs at Abu Ghraib, where the chunky book of Gitmo rules was downsized to a single sheet.
The Bush administration’s shucking of the legal restraints on prisoner interrogation in the Geneva Conventions and elsewhere is the main theme of Philippe Sands’s Torture Team. The book examines the signing into US law of a memo setting aside Common Article 3 of the Geneva Conventions (CA3), which prohibits cruel or inhuman treatment of POWs. As in Standard Operating Procedure, the tale Sands tells is of foot-soldiers dumped on from on high. Doubly so, in fact, since the people in Cuba were ostensibly charged with deciding whether to set aside CA3 when the matter was already a fait accompli, and those in Washington who had decided to bin it then pinned responsibility for doing so on Guantánamo. Sands lays out a detailed exposé of the legal advice which led Bush to announce in February 2002 that Geneva didn’t cover either Gitmo’s al-Qaida or its Taliban detainees. He does a good job of showing how senior figures in the Justice Department’s Office of Legal Counsel (OLC) ran rings around the bemused operatives at Gitmo. Staff judge advocate Diane Beaver, legal adviser to the Gitmo commanding officer Michael Dunlavey, was asked in October 2002 to draft an opinion on the legality of laxer rules on interrogation. As Sands shows, Beaver was unaware that Jay Bybee and John Yoo, senior figures in the OLC, had already written a 50-page memo advising that harsher techniques could be used. However, in evidence given to the Senate Judiciary Committee, William Haynes, general counsel in the Department of Defense, studiously avoided admitting to having known of the OLC opinions before he asked Rumsfeld to sign off on a memo of 27 November 2002 approving a stricter interrogation regime. Instead, that memo mentioned only ‘the commander of Joint Task Force 170’, i.e. Dunlavey. Nor was Dunlavey alone in being wrong-footed. The FBI seems to have been bypassed. Protests by State Department lawyers against the change in policy fell on deaf ears. On the evidence of his interview with Sands, General Myers, the chair of the Joint Chiefs of Staff, thought the US government had ruled that CA3 did cover al-Qaida and the Taliban.
In the phrase often used by administration insiders, after 9/11 ‘the gloves were off.’ At times the rhetoric suggested that the 2001 attacks had sprung a Carl Schmittian state of exception on the US, with George W. Bush as the unlikely apotheosis of Marshal Hindenburg. Indeed, when he signed the Detainee Treatment Act in 2006, which incorporated an amendment initiated by John McCain outlawing the cruel, inhuman and degrading treatment of suspects in US government custody, Bush declared that he would interpret the act in a way ‘which will assist in achieving the shared objective . . . of protecting the American people from further terrorist attacks’. But on the whole, considerable effort was devoted to making the advice on torture fit the law; or, as Sands suggests, conversely: law was stretched or lopped to fit the Procrustean bed of policy.
Sometimes the surgery ran into complications. For instance, Article 2.2 of the Convention against Torture, to which the US is signatory, states: ‘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.’ By the standards of legal covenants, this seems pretty plain. But the waters muddy when attention turns to the definition of ‘torture’. A reservation entered by the US to the Convention specifies that torture is to be understood as set out in the US Constitution. Sands argues that a second memo signed by Yoo wrongly advised Bush’s counsel Alberto Gonzales that the reservation meant that the US could legally set a higher threshold for physical and mental torture and remain in compliance. But, as Yoo’s memo to Gonzales points out, it’s not clear that any of the provisions of the Vienna Convention (to which, anyway, the US is not party) limiting the scope for treaty parties to enter reservations apply. Sands remarks that the US ‘could not change the international legal obligation’ (his emphasis); but that still leaves room to specify more closely what kinds of act the obligation proscribes.
The main bone of contention, however, concerns the legal obligations arising from the US ratification of CA3. The wording of the article is unclear, partly because of an ambiguity. It states that ‘in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions,’ and then sets out minimum levels of treatment, including non-humiliation, non-violence and so on. What does ‘not’ negate here? Should the article be taken to mean that the minimum provisions apply to those conflicts which are not international, but do occur in the territory of one or more of the contracting parties – perhaps the most natural reading – or those which are neither international, nor occur in such a territory? This issue at least was amplified in 1977 by Protocol II to the 1949 Conventions, which identifies CA3’s remit as conflicts ‘which take place in the territory’ of a signatory ‘between its armed forces and dissident armed forces or other organised armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol’.
The administration judged that, as fighters not answerable to a sovereign state, the al-Qaida prisoners were unprotected by the Conventions, while the Taliban could not claim their protection, because they wore no uniform or insignia. As the date of the protocol indicates, its chief aim at the time was to extend the coverage of CA3 to armed groups like ETA and the IRA, then engaged in violent action against Convention signatories. Doug Feith, who as under-secretary of defense for policy pitched the change in interrogation policy in a memo to Bush in 2002, had impugned the protocol, while serving in the Reagan administration, in a National Interest article in 1985. It relies on a principle that Feith stressed in his interview with Sands – namely, reciprocity. Protocol II makes clear that the provisions apply to armed groups locally powerful enough to be held accountable for meeting the POW safeguards while also benefiting from them. As Feith pointed out, albeit self-servingly, in a riposte to Sands’s book during a statement to a House judiciary sub-committee last July, one could argue that if Geneva is extended to all fighters, the incentives, which depend on reciprocity, break down. Or, as General Hill, responsible for Guantánamo as commander of the US Southern Command, laconically put it: ‘They behead us.’ In general, one might object that abandoning reciprocity gives the other side no reason not to get its retaliation in first. But al-Qaida had already done that.
Anyway, the policy has now been declared illegal in a majority decision by the Supreme Court. In its ruling in Hamdan v. Rumsfeld, 548 US 557 (2006), a case brought by Osama bin Laden’s erstwhile chauffeur Salim Ahmed Hamdan, who had challenged the administration’s insistence that he be tried in a military tribunal, the Court found not ‘persuasive’ the reasoning of the DC Circuit, which had ruled that Geneva was inapplicable to the plaintiff. The Circuit had ruled that CA3 did not apply to the Guantánamo inmates because the war against al-Qaida was international in character. The Supreme Court then issued a certiorari writ to hear the case. Overturning the ruling, Supreme Court Justice Stevens, for the majority, cites Jeremy Bentham’s Introduction to the Principles of Morals and Legislation to show that the phrase ‘conflict not of an international character’ must be taken literally: that is, as a conflict not waged between nation-states – in which case, of course, CA3 protects Hamdan and other al-Qaida inmates. The fact that CA2 deals specifically with nation-states such as the High Contracting Parties is held by the Supreme Court majority, followed by Sands, to license inferring that CA3 must deal with conflicts between all parties other than those legally defined as sovereign states.
But it could as well be argued that the presumptive aim of Protocol II was to regulate military actions between signatories and domestic armed insurgents. The situation envisaged by the protocol is one in which a state faces military activity on its sovereign territory, for example by insurrectionary forces. But if so the al-Qaida and Taliban detainees at Guantánamo were not covered by it: they had been abstracted from foreign jurisdictions – Hamdan himself, a Yemeni, was taken prisoner in Afghanistan. Some of the detainees were indeed picked up in the US – indubitably within the ‘territory’ of one of CA3’s signatories – but it is not clear that these individuals were detained as part of an armed conflict ‘occurring in [that] territory’. As far as that goes, the principal theatre of conflict in the ‘global war on terror’ was Afghanistan. Of course, the 9/11 attacks took place on US soil, but even in the case of those arrested in the US, it could be argued that the principal theatre of any armed conflict was overseas.
Sands argues that the rules reflected in CA3 are ‘a minimum’ that apply ‘to everyone, in all conflicts’. This formulation echoes that of the US Army Law of War Handbook, though as I’ve suggested, it goes beyond what CA3 seems to say. There is the further point that customary international law is widely taken to outlaw torture, though non-torture seems to lack jus cogens standing. Agreement on the existence of such a law is easier to come by than agreement on what it says. Then we come up against the fact that the law rests on compliance, the need for which lies precisely in the fact that it is regularly broken.
None of this means that it was really a good idea to use the 18 interrogation techniques approved in the annexes to the Haynes memo on Guantánamo inmates. But the texts really are ambiguous. It would be naive to think that these equivocations are purely a result of drafting bungles. As studies of the 1998 Belfast Agreement, for example, have shown, systematic ambiguity is the point – or the unavoidable by-blow of the fact that such agreements result from horse-trading between interest groups. The problems start when lawyers or academics try to take designedly plastic texts literally. They become particularly sharp when ‘law’ is invested with talismanic qualities which, it is thought, can immunise us from our own depravity. Sands rues the fact that the law was fitted to the policy. But law is not an organic whole for politicians and bad lawyers to mangle. No doubt the mangling is real enough. But law is a shape-shifting congeries of norms, precedents, opinions, opinions about opinions, claims to authority, and – when reasoning fails to deliver a decisive outcome – power-broking, for example by vote, as in the Supreme Court’s verdict on Hamdan.
In other words, it’s all a bit like politics. Faith in the ‘majesty’ of the law as transcending or trumping the grubbiness of politics looks like what it is: a reversion to charismatic authority. That is why those, like Ronald Dworkin, who like to supplement or supplant democracy with judicial decisionism, think that there must always be a ‘right answer’ to questions of law. The right answer turns out to mean identifying the rights that right-thinking judges think we should have. Alan Dershowitz’s notorious case for introducing ‘torture warrants’ can be seen in the same light. Much of the criticism of Dershowitz – whose case rested on the claim that if torture was going to happen anyway in the US, then it should be brought within due process – has amounted to negating the antecedent. Critics would have done better to focus on negating the consequent: that if matters have already reached the point where torture is a fact, it is ingenuous to think that due process will do much to curb it. In their different ways, both Torture Team and Standard Operating Procedure give good reason to doubt that.
Should we just chuck in the towel, then, and declare open season on terror suspects? No. Is it better to have laws which forbid the torture of detainees, rather than not? Yes. Does having such laws make it less likely in general that suspects will be tortured? Probably. As far as this goes, the liberal Rechtsstaat offers a marked improvement on virtually all historically existing regimes. That, again, lies behind Dershowitz’s modest proposal to bring torture under due process. One may recoil at the proposal as a form of institutionalised depravity, or say with Augustine that an unjust law – like the 1935 Nuremberg laws – is no law at all. Of course we want good laws rather than bad ones, just as sponsors of the US anti-miscegenation laws in the early 20th century thought that leaving such matters unlegislated was ‘subversive of social peace’ and ‘destructive of moral supremacy’. In fact, the holy grail, for the coiners of law, is access to the unexpurgated moral intuitions of people like me. Without that – and I have only so many hours in the day – we have, on the one side, the skittish play of paratext on text; and on the other side, a Lex set so far above Rex as to constitute a will beyond power.