The brutal truth

[struggle4progress]

The outrages of Abu Ghraib are no accident, says Stephen Sedley

Saturday March 5, 2005
The Guardian

The Torture Papers: The Road to Abu Ghraib edited by Karen J Greenberg and Joshua L Dratel (900pp, Cambridge, £27.50)
Torture and Truth: America, Abu Ghraib and the War on Terror by Mark Danner (650pp, Granta, £16.99)
How cruelly is a captor allowed to treat a captive before the pain and fear amount to torture? According to advice given by US Assistant Attorney-General Jay S Bybee to President's Counsel Alberto Gonzales in August 2002, it "must be equivalent in intensity to the pain accompanying serious physical injury such as organ failure, impairment of bodily function or even death". With the sanction of such morally and legally ignoble advice, the US has been interrogating, and from time to time killing, an unknown number of captives in Guantánamo, Afghanistan, Iraq and almost certainly elsewhere.

Meanwhile the author of the advice had been made a judge of the ninth circuit federal appeal court, and the presidential counsel who accepted and adopted it is now the United States attorney general. The solitary governmental voice apparently raised against it was that of Colin Powell, who is no longer secretary of state.

Europe is not entirely divorced from this process. When Ireland took the United Kingdom to the European Court of Human Rights over the treatment of suspects in Northern Ireland in 1978, the Strasbourg court held that such practices as hooding, sensory disorientation and sleep disruption in pursuit of information amounted to inhuman and degrading treatment - which are also banned by the human rights convention - but not to torture.

Bybee and his colleagues built on this in seeking to limit the meaning of torture, for the purposes of the international Convention Against Torture, to little more than mutilation and murder. But they also, and inconsistently, developed a theory that in fighting terrorism the president, as commander-in-chief, is in any case not bound by either national or international law. Gonzales, for his part, brought into being the hitherto unknown category of "unlawful combatant", to whom the protections of the Geneva Conventions could be denied because, although a soldier, such a combatant was fighting for a faction (the Taliban or al-Qaida) and not a state. The word "unlawful" in this context has no meaning except to signify that such people will be denied the protection of the law. The licence it carries has been silently transferred to Iraq, which on any view is a state. Powell's objections to the destruction of the work of a century of international law were brushed aside by Gonzales. <snip>

http://books.guardian.co.uk/reviews/politicsphilosophyandsociety/0,6121,1430685,00.html