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June 18, 2004

TORTURE AND THE AMERICANS

Posted by David Peterson at June 18, 2004 06:53 PM

"It is difficult to argue that there are no circumstances under which torture might be justified," ABC-TV's host of Nightline, Ted Koppel, said Wednesday night during a "Closing Thought" segment of the show. ("Chain of Command," June 16, 2004.---For a copy, see below.)

"The possibility, for example, of preventing the imminent death of thousands of innocents," Koppel went on to elaborate. "But it should be unthinkable for any defender of the US Constitution to argue that there should be no clearly defined rules, no limits, no boundaries, no consequences for anyone who exceeds those boundaries. That is the territory that must be clarified beyond ambiguity. We insist that there will be clear labeling on our foods. Defining torture and when it can be applied in the name of the American public should require know less."

The argument that, at times, it is morally permissible to engage in torture---for example, when the use of torture may prevent the imminent deaths of thousands of innocents---seems so persuasive on the face of that I suggest we don't even go there. Indeed, that we run from it, screaming at the top of our lungs, in the opposite direction. As fast as our legs will carry us.

Still, I have another line of ethical inquiry that I'd like to open with the Americans. It goes like this:

Forget the defenders of the U.S. Constitution, and forget its subverters. Forget, too, about the alleged problematics of defining 'torture' and the sticky semantics thereof.

(Though, I should add, as with 'terrorism' and 'pornography' and a host of other intuitively clear concepts, reasonable and helpful definitions of 'torture' do exist.---One begins by asking the object of the action.)

(More to the point, check out the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984). But then please recognize the fact that although the U.S. Government has both signed (1988) and ratified (1994) this Convention, on June 3, 1994, the Clinton Administration wrote to the UN Secretary-General, informing him that "nothing in this Convention requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States"---a proclamation widely taken to signify that the U.S. Government had effectively immunized from the jurisdiction of the Convention any conduct the U.S. Government wants immunized, thereby tearing the Convention to shreds.)

No. Instead of asking when the Americans can practice torture in the name of an alleged higher good (as in Ted Koppel's Introduction to Ethics example of saving thousands of innocent lives), how about asking this question: When can Americans be tortured in the name of an alleged higher good?

Or: How many U.S. citizens might a collection of individuals be justified in detaining and torturing in order to prevent, say, the Chief Executive from carrying out plans to bomb or invade yet another country?

Or, better yet: If the expressed goal of an action were the higher good of international peace and security, even to free succeeding generations from the scourge of war, how many Americans would a collection of individuals acting to achieve this end be justified in killing?

Come on, now. Let's not be shy about it. Since Americans are such experts at proving their moral bona fides by discussing when it's okay for them to do really rotten things to others, what I want the Americans to explain to the rest of the world is, When is it okay for others to do really rotten things to Americans?

Now there's a whole line of inquiry in the field of ethics worth opening, it seems to me. On Nightline. On the pages of the New York Times. At Ivy League symposia. During a lull in the ballgame. Over breakfast at Denny's after Sunday morning's sermon. At the mall. In bed at night.

FYA (For your archives"): Am depositing here the complete transcript of ABC-TV's Nightline program for June 16, 2004. Since Nightline's host seems to be particularly impressed by questions to the effect, When is it okay for US to torture THEM?, doubtless this transcript is but the first of what will be many more to follow in the weeks and months ahead.


ABC News Transcripts
SHOW: NIGHTLINE (11:35 PM ET) - ABC
June 16, 2004 Wednesday
HEADLINE: NIGHTLINE CHAIN OF COMMAND

PRESIDENT GEORGE W. BUSH, UNITED STATES

And they don't represent America. They represent the actions of a few people.

TED KOPPEL, ABC NEWS

Is the Iraq prison scandal limited to seven rogue soldiers?

SENATOR LINDSEY GRAHAM,

REPUBLICAN, SOUTH CAROLINA

I'll be very disappointed if at the end of the day, the only people that suffer legal consequences are the privates and the sergeants.

TED KOPPEL

Or is it linked to rough treatment of prisoners in Afghanistan and Guantanamo?

KENNETH ROTH, HUMAN RIGHTS WATCH

We would interview people who'd been detained at Bagram or Kandahar military facilities in Afghanistan, who'd complained about quite severe treatment. Essentially, everything that we've seen at Abu Ghraib.

TED KOPPEL

And is it tied to a paper trail of secret memos that seek to justify torture?

SCOTT HORTON,

INTERNATIONAL HUMAN RIGHTS COMMITTEE

It's designed to protect a torturer. And to give a torturer guidance, so to speak, as to how the torturer can practice his art without being prosecuted for a crime.

chain of command

TED KOPPEL

Tonight, "Chain of Command," the links to Abu Ghraib.

graphics: ABC NEWS: Nightline

ANNOUNCER

From ABC News, this is "Nightline." Reporting from Washington, Ted Koppel.

TED KOPPEL

(Off Camera) Almost two years ago, on August 1st, 2002, a detailed, 50-page memorandum went from the office of the legal counsel at the Justice Department to the office of the chief legal counsel at the White House. The first line of the memo makes clear that it was in response to a specific White House request. "You have asked for our office's views," the document begins, "regarding the standards of conduct under the convention against torture and other cruel, inhuman, and degrading treatment or punishment." A little later on, the memo details what it was in particular that the White House wanted clarified. "You have asked us to address only the elements of specific intent and the infliction of severe pain and suffering." At the time, these inquiries and clarifications appear to have been related only the to the interrogation of detainees from the war in Afghanistan. But as we would later learn, US interrogators at Abu Ghraib in Baghdad, were encouraged to Gitmo-ize their techniques. In other words, to follow the harsher procedures being used at Guantanamo. There is no evidence as yet that anyone at the White House knew what was happening at Abu Ghraib, let alone that they authorized it. Still, as far back as two years ago, there was a clear interest at the White House in knowing how much physical pain and psychological pressure could be administered by a US interrogator before that person was in violation of the law. And as you will see, the lawyers at the Department of Justice concluded that there was quite a bit of leeway. Here's "Nightline" correspondent John Donvan.

JOHN DONVAN, ABC NEWS

(Voice Over) It's been a lot to take in, this scandal that burst out from behind the walls of Abu Ghraib prison in April. It's not just about the pictures anymore. In a way, they've flashed by so many times, they're losing their sting. And the easiest question they raised, "who did this," has been answered. Their faces are in the photos, their names in the charge sheets. Seven US soldiers who have faced or are facing military justice. Seven bad apples. That's how the Administration has explained what happened.

DONALD RUMSFELD, SECRETARY OF DEFENSE

This is an exceptional situation. It is not a pattern or a practice.

COLIN POWELL, SECRETARY OF STATE

It's a small number of troops who acted in an illegal, improper manner.

PRESIDENT GEORGE W. BUSH

And they don't represent America. They represent the actions of a few people.

JOHN DONVAN

(Off Camera) But there's something else. Abu Ghraib opened a Pandora's box of questions about prisons and interrogations and discussions near the highest levels of the US government about whether America should torture its enemies and how to find legal cover for doing that. These are questions the "bad apple" theory does not seem to answer.

JOHN DONVAN

(Voice Over) Summer 2003, for US troops who had toppled Saddam so easily, it had suddenly turned into a summer of violence. The roadside bomb made its appearance. And the suicide bomb. The Jordanian embassy was hit. And the UN headquarters, the attack that really hit home in Washington.

PRESIDENT GEORGE W. BUSH

By attempting to spread chaos and fear, terrorists are testing our will.

JOHN DONVAN

(Voice Over) The US saw only one option. Crackdown hard. Night after night, US soldiers raided the homes of suspected Iraqi insurgents. But they also swept up anyone else who might know something because information, intelligence, had become the highest priority. Brothers of suspects were arrested, neighbors, sometimes passersby. Suddenly, Abu Ghraib prison was jammed beyond capacity with some 7,000 detainees. The Red Cross, based on its inspections, estimates up to 90 percent of them knew nothing.

JOHN DONVAN

(Voice Over) This is Major General Geoffrey Miller. In late summer 2003, the Pentagon sent him to Abu Ghraib for about ten days to speed up the process of getting any detainees who might have information, to give it up.

JOHN DONVAN

(Off Camera) General Miller, at that time, was commander of the US military prison and interrogation center at Guantanamo Bay, Cuba, a place that from the Pentagon's point of view was a success story. Because, they say, they were getting good intelligence from men captured by Afghanistan there. Not a lot is known about the methods used at Guantanamo Bay. But the record shows that after Miller visited Abu Ghraib, things there changed.

JOHN DONVAN

(Voice Over) The key change was this, control over certain wings of the prison, known as 1-A, and 1-B, was taken away from Army military police who normally manage prison life and given to military intelligence officers who handle interrogation. 1-A and 1-B are where the photographs were taken. Eventually, Miller would be transferred full time to Iraq and Abu Ghraib. And when the scandal broke, he was leading tours of the prison and declaring that he only recommended military police observe the prisoners on the cell bloc.

MAJOR GENERAL GEOFFREY MILLER, US ARMY

There was no recommendation that the military police be involved, actively involved, in active interrogation.

JOHN DONVAN

(Off Camera) The "bad apple" theory presumes that what we saw in the pictures, the humiliation, the nudity, the use of dogs to terrify prisoners, was against the rules, too harsh. But a flood of other details, some surfacing in just the past few days, suggest that soldiers on the ground in Iraq were being told to get harsh.

JOHN DONVAN

(Voice Over) This week, General Janis Karpinski, who was running the prison at the time and has been reprimanded for what happened on her watch, told BBC Radio that Miller told her this about handling detainees ...

GENERAL JANIS KARPINSKI,

FORMERLY IN CHARGE OF PRISON

He said, "they are like dogs and if you allow them to believe at any point that they're more than a dog, then you've lost control of them."

JOHN DONVAN

(Off Camera) The topic of dogs comes into this another way. The photos for one. But also a front page, "Washington Post" report saying documents show that the use of dogs in interrogation was on a list of items at least temporarily approved by General Ricardo Sanchez, the highest-ranking military commander in Iraq. This method and other aggressive tactics, according to the report, were available for use also at Guantanamo Bay, General Miller's old posting. Meanwhile, several reporters have interviewed military intelligence soldiers who said that MPs were routinely told by military intelligence to go rough with prisoners.

SERGEANT SAMUEL PROVANCE, 302ND MI BATTALION

The interrogators would go down to the cell bloc, tell the MP who was in charge or who was going to be in charge, "okay, this is the sleep pattern we want. This is the diet they're to have." Or, you know, to strip them naked.

JOHN DONVAN

(Off Camera) And only tonight, ABC News has confirmed that in possible violation of the Geneva Conventions, one Iraqi detainee, who the US says belongs to the group Ansar al-Islam and who has been planning attacks on US troops has been kept hidden since October, from Red Cross inspectors. And that the order to do this came directly from Secretary of Defense Donald Rumsfeld, at the request of former CIA director George Tenet.

JOHN DONVAN

(Voice Over) It was all about getting information and what the rules were for that. A matter, it turns out, that was also intensely discussed at the top levels of the US government.

TED KOPPEL

So, does the President have the authority to change the rules on torture? That part of the story when we come back.

graphics: Nightline

ANNOUNCER

This is ABC News "Nightline." Brought to you by ...

commercial break

graphics: Nightline: chain of command

JOHN DONVAN

(Off Camera) In May of last year, the Commander in Chief went to an aircraft carrier to mark what he talked about as a great success in Iraq for the US military. In that very same month, a group of top military lawyers had become so worried about something happening on another front, Afghanistan, that they took this extraordinary step. A group of these attorneys, known as JAGS, left Washington and the Pentagon, and traveled to the civilian world, to New York, and this office building.

JOHN DONVAN

(Off Camera) How many of the lawyers were at this meeting with you?

SCOTT HORTON

Six in the first meeting.

JOHN DONVAN

(Voice Over) Scott Horton, the man the JAGS had some to see, was the chairman of the international human rights committee of the New York Bar Association. They sat in a New York law office. But they discussed something happening 800,000 miles away, the war in Afghanistan, where the military men told Horton, practices that had been in place for years governing interrogation of prisoners were suddenly out the window.

SCOTT HORTON

I mean, they talked about the entire paradigm of conflict being changed. Meaning that, you know, previously there were clear rules that applied. And all the control points were being systematically removed. So, it was creating a situation that was ripe for abuse.

JOHN DONVAN

(Off Camera) Now, we may have a better sense of what was bothering those attorneys. Two government memos. One from the Justice Department, one from the Pentagon, leaked in just the past few days, show a US government trying to figure out how far it can bend the laws prohibiting the torture of prisoners. Something any schoolchild can tell you, we Americans don't believe in. In fact, the US has a law establishing severe penalties for any official involved in torture. They include the death sentence. The US also signed an international treaty that outlaws the use of torture.

JOHN DONVAN

(Voice Over) But the memos challenge the reach of those bans on torture. August 1st, 2002, a memo from the Justice Department says a person charged with torture under the law "could argue that his actions were justified by the executive branch's constitutional authority to protect the nation from attack."

JOHN DONVAN

(Off Camera) The legal arguments in these memos essentially says this, that some of what the US in the past considered torture is now defined as not torture. And that the President is not bound by any law that might limit his power to fight a war.

SCOTT HORTON

The underlying flavor of this document is essentially political. And it's espousing a radical political view, which is of an imperial presidency, a presidency that is not constrained by the law.

JOHN DONVAN

(Voice Over) At the time of the August 1st memo, the war in Afghanistan was continuing. "Newsweek," said the CIA had in custody a top al Qaeda operative who had stopped talking. The memo came about because the CIA asked how far it could go to get him talking again. The leaked memos cover more than 100 pages of dense legal argument that basically set out to answer that question. But lawyers point out that the law bars, "severe pain." But they argue, there's a lot of leeway, still, to hurt somebody. They say severe pain is only "equivalent in intensity to the pain accompanying serious physical injury, impairment of bodily functions, or even death."

SCOTT HORTON

It's an extremely aggressive view. And it's designed to protect a torturer. And to give a torturer guidance, so to speak, as to how the torturer can practice his art without being prosecuted for a crime.

JOHN DONVAN

(Voice Over) The question keeps coming to the President. Has his Administration decided torture can be justified?

PRESIDENT GEORGE W. BUSH

Look, I'm going to say it one more time. If -maybe -maybe I can be more clear. 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.

JOHN DONVAN

(Off Camera) "A nation of law." But what's lawful? As interpreted by the government's lawyers, an American could now use extreme interrogation methods. The average person might call those methods torture. But not according to the lawyers' logic. They said those methods are legal. Torture is not legal. Therefore, those methods cannot be torture. And a President who orders them cannot be breaking the law.

JOHN DONVAN

(Voice Over) In a recent Senate hearing, Attorney General John Ashcroft was in the seat when Senator Ted Kennedy drew a connection between the memos and the pictures.

SENATOR EDWARD KENNEDY,

DEMOCRAT, MASSACHUSETTS

We get the stress test. We get the use of dogs. We get the forced nakedness that we've all seen on these. And we get the hooding. This is what directly results when you have that kind of memoranda out there. And it says that it's all because of executive authority and executive power.

JOHN DONVAN

(Voice Over) Ashcroft wasn't standing for it.

JOHN ASHCROFT, US ATTORNEY GENERAL

First of all, let me completely reject the notion that anything that this President has done or the Justice Department has done has directly resulted in the kinds of atrocities which were cited.

JOHN DONVAN

(Voice Over) But there are worse allegations out there, of detainees being beaten to death. And there are no pictures of that.

commercial break

TED KOPPEL

(Off Camera) There is mounting evidence that the abuse may have resulted in much more than simply the humiliation of detainees. It may have been fatal. Once again, "Nightline" correspondent John Donvan.

JOHN DONVAN

(Voice Over) By all definitions, Iraqi General Abud Hamid Malhoush fit the description of a dedicated enemy of the US military. A member of Saddam's Baath party during the invasion last year, he ran Baghdad's air defenses. Afterward, during the summer of violence, he was suspected of helping organize the resistance to the US occupation.

JOHN DONVAN

(Off Camera) Only after US troops arrested some of his sons, did he turn himself in. Held in western Iraq, three weeks later he was dead. Not shot trying to escape. Smothered to death, during interrogation. We know this only because a "Denver Post" reporter named Myles Moffitt has seen the death report.

MYLES MOFFITT, "DENVER POST"

What happened in that interrogation room is that the counterintelligence agent who was doing the primary questioning shoved him into a sleeping bag with only his feet exposed, rolled him across the floor back and forth while questioning him. Sat on his chest. Covered his mouth through the sleeping bag. And he suffocated and died.

JOHN DONVAN

(Off Camera) In the bag?

MYLES MOFFITT

In the bag. That's what the report indicates.

JOHN DONVAN

(Voice Over) Soon afterward, the military put out a press release saying General Malhoush had died of natural causes. Why the Army issued this misleading statement is one question. Another is whether the treatment that killed the General is part of a pattern.

JOHN DONVAN

(Off Camera) After the Abu Ghraib scandal broke, the US issued a death certificate that said General Malhoush's death during interrogation was a homicide and is under investigation. At the same time, and this was only a few weeks ago, the military suddenly issued death certificates for nearly two dozen detainees who had died in US custody, not just recently, and not just in Iraq, but going as far back as 2002, and Afghanistan.

JOHN DONVAN

(Voice Over) At the interrogation center the US runs at the Bagram air base in Afghanistan, there were deaths in December of 2002, according to Human Rights Watch, which had been hearing many abuse stories in the months before that.

KENNETH ROTH

We had people who were stripped naked, doused with cold water on freezing nights. Who were beaten severely. Indeed, two people were beaten in the legs so severely that they died. And the US military examiner called these deaths homicides.

JOHN DONVAN

(Voice Over) At present, there is a list of at least 37 deaths of detainees in US custody under investigation by the military. They span Afghanistan and Iraq, and a period of at least 17 months. 11 are being investigated as homicides. But no one has been charged with anything. Causes of death include blunt force injury, strangulation, and blows to the torso.

MYLES MOFFITT

Clearly, the military's under a lot of pressure to, you know, go into detail in these cases and figure out if the initial investigations were flawed.

SENATOR JACK REED, DEMOCRAT, RHODE ISLAND

The number of incidents that seem to be occurring with the questions about how people passed away in the custody of the United States, again, raises a serious question we have to address. Where was the training? Where was the leadership? Where was the command? What was the instructions to people? All these things have to be asked. And it's not just retrospectively, it's because ...

JOHN DONVAN

(Off Camera) We're still there.

SENATOR JACK REED

We're still there.

SENATOR LINDSEY GRAHAM

Those photographs embarrass our country, show things that we can't even begin to understand how it happened. But we must find out how it happened.

JOHN DONVAN

(Off Camera) But would it -had been better if they had never had come out?

SENATOR LINDSEY GRAHAM

It would have been better -no, it's good that we know this. It's good that we know we have problems. It's good that the American people know that sometimes we fail. It's good that the world can see that even the great America makes mistakes.

JOHN DONVAN

(Off Camera) Why is that a good thing?

SENATOR LINDSEY GRAHAM

Because it's true. The only thing we have going for us, at the end of the day, is a desire to be a great nation. And this is far away from being a great army or being a great nation.

JOHN DONVAN

(Voice Over) That is an optimistic take on it, that something good can come out of the pictures that set so many people asking so many questions. But only if those questions get real answers. I'm John Donvan, for "Nightline," in Washington.

TED KOPPEL

(Off Camera) When we come back, I'll have a "Closing Thought."

commercial break

TED KOPPEL

(Off Camera) One of these days, here in the United States, another terrorist cell is going to get lucky and we're going to be picking through the rubble again, carrying off our dead and injured. Then, the debate over torture will be essentially over. That is how, after all, in the wake of 9/11, we got detention without trial, an off-shore prison system, and denial of legal counsel for those suspected of terrorism. That's also how we got the Patriot Act for the rest of us. Mind you, all of these may be essential tools in the war against terrorism. But there are better times to conduct a debate on the subject than in the immediate aftermath of a national tragedy. Now, for example, is a better time. It is difficult to argue that there are no circumstances under which torture might be justified. The possibility, for example, of preventing the imminent death of thousands of innocents. But it should be unthinkable for any defender of the US Constitution to argue that there should be no clearly defined rules, no limits, no boundaries, no consequences for anyone who exceeds those boundaries. That is the territory that must be clarified beyond ambiguity. We insist that there will be clear labeling on our foods. Defining torture and when it can be applied in the name of the American public should require know less. Absent any major breaking news, we'll begin that debate on "Nightline" tomorrow.

TED KOPPEL

(Off Camera) That's our report for tonight. I'm Ted Koppel in Washington. For all of us here at ABC News, good night.

Posted by David Peterson at June 18, 2004 06:53 PM | Sustainers: Comment (0 so far)