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Thursday, January 06, 2005

Testimony of Douglas Johnson, Center of Victims of Torture

From Human Rights First Abu Gonzales blog, a point by point critique by Douglas A. Johnson, Executive Director, Center of Victims of Torture. I've excerpted sections but urge everyone to go to the blog and read it in its entireity, as well as the other testimony. Johnson has done an outstanding job, but he's not the only one.

From Johnson's testimony:
" [...] The Bybee memorandum of August 2002 is particularly egregious and dangerous.  The overall tone of the Bybee memorandum restricts the definition of torture so narrowly that it could be used to justify various forms of torture.  One of the most problematic conclusions of that memo was the notion that  “These statutes suggest that ‘severe pain’ … would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of body functions—in order to constitute torture.”
When I first read this statement, I was reminded of our interactions with Vietnamese reeducation camp survivors recently arrived as refugees to the United States in the early 1990s.  They had been through horrific experiences that any reasonable person would understand to be torture with regard to direct physical coercion, conditions of malnutrition, and intentionally malevolent prison conditions.  Their symptoms were consistent with those of other survivors of torture we had seen from Cuba, Central and South America, Africa and Eastern Europe, and from Cambodia.  Yet we discovered that the Vietnamese word for torture literally meant “dying under torment.”  As they survived and still lived, it stood to reason that in their minds they were not “tortured.”  They didn’t have the concepts within their language to interpret and understand what had happened to them.  Bybee’s definition for torture appears to be “dying under torment.”  If we used this definition, the Center for Victims of Torture wouldn’t have clients at all.
The second extraordinary claim was that torture occurs only when the intent was to cause pain, rather than that pain was intentionally used to gain information or confessions:  “the infliction of such (severe) pain must be the defendant’s precise objective.”[8]   In other words, only when a sadist carried out techniques that lead to organ failure and death can we call it torture ...
This is not only a wrong definition from a legal point of view, it is morally wrong, and it is against American values.  With a definition like this, we can not retrieve the historic leadership role that the United States has played in the global campaign against torture.  We are thankful that the new Justice Administration memorandum of December 2004 recognizes the errors of the earlier memorandum and corrects some of them.[9]  We wish that it had not taken so long to do so.  After the Bybee definition was solicited, accepted, and circulated by Gonzales, hundreds of detainees under U.S. control have suffered from torture and inhumane and degrading treatment.


Among the moral and political errors, the memoranda ignore that torture violates at least three important principles embedded in our Constitution that are such basic American values as to define our very identity.  These values include:
1)         “One is innocent until proven guilty.”  Perhaps this is the bedrock of Americans’ sense of justice.  Its corollary is that one should not be punished until that guilt is established.  But there is nothing more punishing than the strategic but sadistic use of pain to force a confession or to gain information.  Victims of torture—who tell us that they longed for death—would testify that this punishment is even worse than death.  Punishment before guilt is proven must be viewed as anathema to American’s values.
2)         Punishment must fit the crime, but should never descend to barbarity.  Hence, our 8th Amendment to the Constitution prohibits all forms of “cruel and unusual punishments.”  This prohibition together with the privilege against self-incrimination in the 5th Amendment and the prohibition of unlawful searches and seizures in the 4th Amendment, led to the abolition of the “third degree” forms of interrogation by the U.S. Supreme Court in the 1930s, a euphemism for torture routinely applied by police before that time.  The Bybee Memorandum relies on a narrow legalistic interpretation of the 8th amendment as applying only to punishment after conviction and therefore leaves open the possibility of using forms of pain prior to conviction.  While there may be court decisions to support this extremely narrow perception of the 8th Amendment, the Bybee Memorandum’s approach ignores the fundamental and far broader American values which are reflected in the cruel and unusual punishments clause.  Further, the Bybee Memorandum’s approach ignores the first principle and pretends that torture is not an extreme form of punishment, both to the body and the soul of the victim.
3)         The most practical tool against torture is the Fifth Amendment to the U.S. Constitution, which protects the accused from self-incrimination (“nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law”).  Our Founding Fathers did not write this protection to allow mobsters and the corrupt an easy pass to frustrate justice.  They recognized that the restriction puts the burden on the state to prove that a crime has been committed.  They did so in a time when torture was still a basic tactic of autocratic states to intimidate populations in the name of order.  Freedom from torture was one of the key struggles of the 18th Century Enlightenment.  Even today, when human rights experts plan campaigns to end torture, they identify the need to limit the importance of confessions in legal proceedings as the single most important action to be taken.  Abolishing confessions—self-incrimination—takes away the incentive to use torture.
The Fifth Amendment has been much degraded by Hollywood movies and politicians.  That this protection has fallen from popular favor only indicates the degree to which most Americans have felt free from the fear of torture, a freedom that has expanded as our courts have given greater prominence to the Amendment’s protections.
Faulty premises
The assumption behind the memorandum, particularly the Bybee memorandum and the later report by the Working Group on Interrogation is that some form of physical and mental coercion is necessary to get information to protect the American people from terrorism.  These are unproven assumptions based on anecdotes from agencies with little transparency.  But they have been popularized in the American media by endless repetition of what is called the “ticking time bomb” scenario.  A version of this scenario is outlined in the findings of the Israeli Supreme Court, which outlawed the stress and duress type techniques reportedly now in use by American forces.  “A given suspect is arrested by the GSS (General Security Service).   He holds information respecting the location of a bomb that was set and will imminently explode.  There is no way to diffuse the bomb without this information. If the information is obtained, however, the bomb may be diffused.  If the bomb is not diffused, scores will be killed and maimed.  Is a GSS investigator authorized to employ physical means in order to elicit information regarding the location of the bomb in such instances?” [14]  There are variations on this scenario, often emphasizing an increasing number of victims or an ever more imminent blast.
The assumption of the Bybee memorandum is “yes, this is justified.”  The conclusion of the Israeli Supreme Court was that it was not.  I believe that the Court was right.  Based on our experience with torture survivors and understanding the systems in which they have been abused, we believe it is important that these discussions not be shaped by speculation but rather through an understanding of how torture is actually used in the world. 

There are eight broad lessons we have learned from working with torture survivors:
1. Torture does not yield reliable information.  Well trained interrogators, within the military, the FBI, and the police have testified that torture does not work, is unreliable and distracting from the hard work of interrogation. Nearly every client at the Center for Victims of Torture, when subjected to torture, confessed to a crime they did not commit, gave up extraneous information, or supplied names of innocent friends or colleagues to their torturers.  It is a great source of shame for our clients, who tell us they would have said anything their tormentors wanted them to say in order to get the pain to stop.  Such extraneous information distracts, rather than supports, valid investigations.
2. Torture does not yield information quickly.  Although eventually everyone will confess to something, it takes a lot of time.  We know that many militaries and radical groups train their members to resist torture and to pass along false pieces of information during the process.  And we note that those with strong religious beliefs and those with strong political beliefs that help them understand the purposes of torture used against them are most able to resist and to recover from its impact.
3. Torture will not be used only against the guilty.  Inherent in all of the scenario building is the assumption that we know, with great reliability, that we have the appropriate party who possesses knowledge that could save lives.  But our clients are living testimony that once used, torture becomes a fishing expedition to find information.  It perverts the system which, seeking shortcuts to the hard work of investigation, relies increasingly on torture.  The estimate from the Red Cross was that at least 80% of those imprisoned at Abu Ghraib, for example, should never have been arrested, but were there because it was easier to arrest persons than to let them go (people feared letting go a terrorist more than protecting the innocent).  The Israeli Security system claimed to use its stress and duress techniques only where they had the most reliable information about the detainee’s guilt.  Yet human rights monitors estimate that they were used on over 8000 detainees.  It is not credible to believe they had this precise information about so many.[15]
4. Torture has a corrupting effect on the perpetrator.  The relationship between the victim and the torturer is highly intimate, even if one sided.  It is filled with stress for the interrogator, balancing the job with the moral and ethical values of a person with family and friends.  One way this cognitive dissonance is managed is through a group process that dehumanizes the victim.  But still another way is to insure that some sort of confession is obtained to justify to the interrogator and to his superiors that pain and suffering was validly used.[16]
5.  Torture has never been confined to narrow conditions.  Torture has often been justified by reference to a small number of people who know about the “ticking time bomb,” but in practice, it has always been extended to a much wider population.
6. Psychological torture is damaging.  When torture is defined as strictly a physical act, many believe that psychological coercion is okay.  I was surprised when I began working at CVT to find that our clients said it was the psychological forms of torture that were the most debilitating over a long period.  The source of their nightmares, 15 and 20 years later, was the mock executions or hearing others being tortured.  The lack of self-esteem and depression were more related to scenarios of humiliation, consciously structured to demean the victim.  Many within the world treatment movement believe we have seen increasingly sophisticated forms of psychological torture over the past twenty years.
7. Stress and duress techniques are forms of torture.  Many of these techniques were developed during Israel’s struggle against terrorism, and so this example is often cited for effective interrogation techniques falling short of torture.  But the Israeli Supreme Court concluded that they were illegitimate.  Every democratic nation’s court system and international court which has reviewed them has concluded that they are forms of torture.[17]
8. We cannot use torture and still retain the moral high ground.  The arguments we hear are not so different in form and content from those used by the repressive governments of CVT’s clients, and which the U.S. has refused to accept from other nations that have used torture to combat their real or perceived enemies.  Torture is not an effective or efficient producer of reliable information.  But it is effective and efficient at producing fear and rage, both in the individuals tortured and in their broader communities.

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