|The torture chamber of Regensburg, now disused.|
Those CIA detainees who were subject to Excruciating and Intense Torture (EIT) may have felt like being in a snakepit. But that is nothing compared to the number of snakes let loose with the publication of the report on EIT.
There are so many questions to be answered and to many of those questions the answer of an American may be entirely different to that of a stranger. Allow me to be that foreigner.
The first question to be raised will be, whether we have been told the truth. I believe that in the US that part of the debate will not be very prominent and mostly concerned with whether the report has exaggerated.
That will certainly not be the case outside the US. A lot of people will say that since this information had to be dragged out of the dark and that we have only seen an incomplete edition of the conclusions of the report then certainly there must be a lot more left untold. Some might even say that if EIT does work then surely we will only see the full truth when those responsible have be subjected to a dose of their own medicine.
Secondly the US debate will be about shifting the blame from shoulder to shoulder. The senate obviously stresses that it knew nothing and the CIA will insist that it told everything and only acted om superior orders. Foreigners won’t give a damm about that one. Except that some might say that if nobody accepts the blame how can anybody say sorry properly.
What we foreigners will care as much as you about is the core question of how efficient torture is to extract useful information from the enemy. The proper answer to that one is: “Who cares?” Because, as the report has shown, torture has also been used on innocents. Even if torture does work on those who really are bad guys then surely by using it on even a tiny number of innocents you are bound to create so many enemies that it really isn’t worth doing.
And furthermore the report does actually corroborate the view held by most legal systems, namely that torture does not work, and that it even disturbs the effort to obstruct further terror because the victims are likely to admit anything, they believe the tormentors would like to hear. Making a man confess to being Jack the Ripper is simply not conducive to saving lives.
The burden of evidence for the efficacy of torture must be on those who want to change the traditional perception. That burden has not been lifted - not even on the balance of probabilities. Anyone suggesting that the jury is still out cannot be sane enough to sit on a jury.
However, all the above questions are unpleasant to dwell on, surely it is better to put things behind us and look to the future and talk about how the reputation of the United States as the country of freedom may be restored. I would venture to suggest that this is what most commentators will spend most of their effort on whether in or outside the US.
Of course you may start rebuilding the reputation of something before that reputation has reached its nadir, but, probably, in those cases the effort will not be worth the while.
And I am really not sure that the reputation of the US has reached the bottom yet. We may have been told the truth, but it is abundantly clear that we have not been told the whole truth (since we have only seen the conclusions) and some may be dubious about having been told nothing but the truth. So the paramount issue is to persuade the world that there are no more ghosts to be discovered.
The statement by the President was in a very convoluted way saying something like “sure, when looking very carefully we found a few rotten apples in the barrel, but by far the biggest part were not only sound apples, they were actually very tasty.” That statement was, naturally, made for internal consumption, but can anyone imagine how an Islamist may construe that with just a little bit of cut and paste. A sentence like this one “Our intelligence professionals are patriots and we are safer because of their heroic service and sacrifices,” is not going to read well in Arabic or Pashtun.
Put rather bluntly, what the CIA did to western civilization was the mental equivalent of force feeding through the arse. And the CIA did it to America’s allies too. The damage to the reputation of the US in the Islamic world is immense, but do not underestimate the effects in friendly countries. Can your allies in the future allow their troops to be under the command of an US general? Some of them may find it very difficult. Does no one remember how the world reacted to My Lai?
Restoring that reputation is going to be a long haul, and a lot of hot air will be vented about how to do so by political means. In my opinion that is a waste of time. Is it comprehensible if I say that you must not only say sorry and feel sorry, you must also ‘act sorry’. So what actually matter are 3 things:
1) taking proper care of the victims,
2) punishing those responsible, and
3) making a repetition absolutely impossible.
Compensating the victims is not going to be easy. Only a few days ago my own government (the Danish) had to admit responsibility for not granting 9 Somali pirates their constitutional right to habeas corpus when imprisoned on a Danish warship and paid out the standard damages awarded to Danes in those situations. Of course, by Somali standards of purchasing power that amounted to quite a lot of money paid over to presumedly guilty people. The uproar was - and is - enormous.
But if you want to restore your reputation that is a necessary step. And if you are not willing to take it for reasons of internal politics then forget about your reputation.
Punishing those involved is probably going to be even more difficult. Getting it done in the US may even seem unlikely. And getting possible crimes tried at international courts may not be possible either.
It may not be common knowledge in the US, but among the western nations the US has always set itself apart by not accepting the jurisdiction of international courts. That position is all right as long as the world may expect the US to keep its house in order. Otherwise it has a tinge of hypocrisy.
Apparently the perpetrators may avoid justice on these grounds, but that may not be the last of the game. A lot of countries accept universal jurisdiction for breaches of the Geneva conventions (e.g. on the treatment of prisoners of war) and for torture (a least when the accused is present in that country), In consequence, a number of US officials may find themselves in a situation where they have to think very carefully before they put down their feet on foreign soil. We all remember the embarrassment of Britain when dealing with a request for the extradition of Pinochet. Not all countries may be willing to stretch their laws as far as Britain did, certainly not in the case of persons of less importance than a former head of state.
Perhaps on closer consideration those at risk may prefer to be tried in their own country.
The last bit is probably the easiest to fulfill, but it has to be done properly. It may be done in many ways but I would suggest the following:
Extending the right to habeas corpus to anyone being detained by US officials or their henchmen anywhere in the world would be a first step. It would end the anomaly whereby people may be allowed to rot in Guantanamo simply because ordinary rules of law do not apply there. The extra number of cases that US courts would have to deal with must be fairly small and therefore the burden is actually not very great.
On top of that all those detained who have been apprehended abroad and who are not subject to criminal proceedings should be treated as prisoners of war. And the facilities should be subject to inspections by the International Red Cross or a similar independent body.
If that were done then your President might truthfully say that “one of the strengths that makes America exceptional is our willingness to openly confront our past, face our imperfections, make changes and do better.” And the rest of us would have to agree.
Etiketter: folkeret, strafferet, tortur