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November 23, 2004

Press Contact: Jodi Bart, UT Law Communications, 512-471-7330

Cruel but no longer unusual

by Sanford Levinson
Published November 21, 2004, in the Los Angeles Times Book Review.
Reprinted with the author's permission

*Torture and Truth: America, Abu Ghraib, and the War on Terror, Mark Danner, New York Review Books: 580 pp., $19.95 paper Home Edition.

MARK DANNER'S "Torture and Truth" is two books in one. The first is a collection of five essays originally published in the New York Review of Books. Two of the essays appeared in 2003 and are prescient about the quagmire that has since enveloped U.S. forces in Iraq. Still, only devoted Iraq junkies need to read them. Three more powerful articles written this year on the methods of interrogation used on prisoners at Abu Ghraib (and elsewhere) in the Bush administration's "global war on terrorism" express what has become almost universal dismay and outrage at the treatment revealed by the now-famous photographs (also reprinted in the book).

"What happened at Abu Ghraib, whatever it was, did not depend on the sadistic ingenuity of a few bad apples," writes the prizewinning author of previous books on political violence and war in Haiti and El Salvador. "[P]rocedures that 'violated established interrogation procedures and applicable laws' in fact had their genesis not in Iraq but in interrogation rooms in Afghanistan and Guantanamo Bay, Cuba -- and ultimately in decisions made by high officials in Washington."

Key to Danner's argument is his careful analysis of relevant government documents recently disclosed, often through leaks, that make up the book's second part. Because these are fuller versions of post-Abu Ghraib investigation reports that have appeared elsewhere, the book is essential reading for Americans who want to know how the United States has careened into chaos -- moral, political and organizational -- over its methods of interrogating detainees around the world. Some may prove particularly relevant to the nomination of White House counsel Alberto R. Gonzales to succeed Atty. Gen. John Ashcroft. Gonzales asked for the now-notorious memorandum from the Justice Department (also reprinted here) justifying the president's power to order torture, and he pronounced aspects of the Geneva Convention on treatment of prisoners of war "obsolete" and "quaint."

One cannot understand the post-Abu Ghraib reports outside the context of the earlier memorandum, especially those prepared by the Justice Department's Office of Legal Counsel before the outbreak of hostilities in Iraq but after the invasion of Afghanistan. The first group of seven memoranda explores the reach of the Geneva Convention; especially interesting are significant concerns expressed by the State Department in response to the dismissive arguments by Gonzales. A second set of 14 memoranda, really the emotional heart of the book, considers the question "What is torture?"

An Aug. 2, 2002, memorandum to Gonzales from the Office of Legal Counsel (signed by Jay S. Bybee, who now sits on the 9th Circuit Court of Appeals) offered a hyper-legalistic definition of torture and suggested that the Constitution gives the president the power to order the use of torture even though that is barred by both international law and U.S. congressional statute.

Thus, it advised Gonzales (and therefore the president) that torture means the imposition of "excruciating" pain. And it must be "equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result." What the memorandum calls the "mere infliction of pain or suffering on another," though it may be "inhuman and degrading" (and also prohibited by the United Nations Convention, signed by the United States), is not "torture"; as the "mere" suggests, such treatment is of no concern. To be a bit more fair to the memo's authors, they point out that although Congress has defined "inhuman and degrading" as conduct that would violate the Constitution's prohibition of "cruel and unusual punishment," the federal courts have been unwilling to invoke the constitutional provision to protect prisoners against brutal treatment in U.S. jails.
Indeed, it is noteworthy that several of the military police officers implicated in the Abu Ghraib incidents are prison guards in civilian life. An especially revealing appendix to the Abu Ghraib investigation report, by the commission headed by former Secretary of Defense James Schlesinger, refers to a famous 30-year-old Stanford University social psychology experiment that demonstrated the propensity of students arbitrarily assigned the role of "guards" to engage in remarkably abusive behavior toward their "prisoner" classmates. (The experiment was called off six days into the planned two weeks.) Very tight command and control is necessary to prevent abuse, but that was nonexistent at Abu Ghraib.

It is possible that the Justice Department arguments are legally defensible, if morally repulsive. Congress may deserve a full measure of blame: When it considered ratifying the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment, congressional leaders insisted on a definition of torture that used adjectives like "severe," "prolonged" and "imminent." For example, the "threat of imminent death" is forbidden, as is "the threat that another person [such as a member of the detainee's family] will imminently be subjected to death [or] severe physical pain or suffering.... "
For better and worse, the best law schools teach their students to run with such adjectives when advocating for a client. The legal counsel's memo is, in its way, a model of such advocacy. By defining torture in such an extreme way, the memo empowered President Bush (and others in his administration) to say that what they were authorizing was not really torture, even if most lay persons would define it as such.

The book's last section includes the Schlesinger commission report and the highly critical findings by Army Maj. Gen. Antonio M. Taguba, which were written before the infamous Abu Ghraib photos were leaked to the public. Danner properly criticizes the Schlesinger report for failing to hold the Pentagon's civilian leadership responsible for Abu Ghraib and other similar breaches of law and morality, but anyone who reads that report should finish with increased confidence in the professional military. The so-called Jones/Fay report, named for two army generals appointed to conduct their own independent investigation and also included here, conveys barely concealed rage over the management of the interrogation phase of the war, which was troubled by inconsistent messages from Washington, an inadequate number of trained military personnel, the vulnerability of Abu Ghraib to insurgent attack, the outsourcing of interrogation to civilian contractors and the CIA's indifference to law, among other factors.

During their presidential campaigns, neither Bush nor Sen. John F. Kerry, for quite different reasons, wished to confront the awful truth contained in these materials. One can only hope that these reports are not treated as "last year's news." Even though written far less felicitously, they are every bit as important as the 9/11 Commission's report.


Sanford Levinson, a professor at the University of Texas at Austin, is the author of "Constitutional Faith" and "Written in Stone" and editor of "Torture: A Collection."

Related Links:
About Professor Levinson: http://www.utexas.edu/law/faculty/slevinson/
Professor Sanford Levinson to Discuss, Sign Book on Torture, Nov. 17: http://www.utexas.edu/law/news/2004/111204_torture.html
Levinson Interviewed about TORTURE by Austin American-Statesman book editor Jeff Salamon: http://www.statesman.com/life/content/auto/epaper/editions/sunday/life_entertainment_1459fb4f2464c07a003a.html
TORTURE: A Collection: http://www.utexas.edu/law/faculty/slevinson/torture/
Village Voice article on Abu Ghraib: http://www.utexas.edu/law/news/2004/051204_levinson.html