On 30 April 2004, torture became an international issue when the New Yorker and CBS News published images from the Abu Ghraib military prison near Baghdad. A little more than two months later, the US Supreme Court repudiated the Bush administration's argument that counter-terrorism detention operations stood beyond the rule of law (see also here). As evidence mounted that Abu Ghraib was no outlier, but a symptom of larger patterns of human-rights violations, presidential hopeful Senator John McCain introduced legislation to clarify and re-entrench legal barriers against abuse. A hopeful glimmering of change could be glimpsed. But did anything change?
Aziz Huq is director of the liberty and national security project at the Brennan Center for Justice at New York University School of Law. He is co-author (with Frederick AO Schwarz Jr) of Unchecked and Unbalanced: Presidential Power in a Time of Terror (New Press, 2007)
Also by Aziz Huq in openDemocracy:
"Rendition and democracy: civil society's role"
(6 December 2006) Three years after Abu Ghraib, the US administration has hedged against a repeat of Abu Ghraib without wholly abandoning the rack or the screw. For the time being, a repetition of large scale abuse by US personnel as occurred in Iraq in 2003-04 is unlikely. But American policymakers still have retained the option of recourse to abusive interrogation tactics inconsistent with international human rights and humanitarian law. Torture, at least at American hands, may no longer be available wholesale, but it will be used on a retail basis for the foreseeable future.
The most dramatic shift in US policy is a bifurcation between the military and the intelligence services, most importantly the CIA. In large measure, the military seemed to have set its face against abusive interrogation practices as unnecessary and counterproductive. The CIA, by contrast, remains in the moral and legal shadows.
Changes in army protocol began even before the resignation of defence secretary Donald Rumsfeld, who had spearheaded the assault of the military's anti-abuse rules. In September 2006, the army issued a new, binding guidance manual on interrogation. The manual clarified and strengthened not only substantive protections against torture by providing a comprehensive list of approved tactics, and rejecting exceptions for "emergency" situations. If the manual were followed, it would minimize torture.
But manuals are not self-executing. Only leadership transforms institutions and sets institutional cultures in different directions. And indeed military leaders also have provided leadership on the abuse issue in ways that break sharply with Rumsfeld-era practice. Rumsfeld's successor as secretary of defence, former CIA chief Robert Gates, early on joined secretary of state Condoleezza Rice in arguing for Guantánamo's closure. Moreover, Iraq commander General David H Petraeus recently set his face firmly against abuse by rejecting the hoary ticking-bomb justification in categorical terms. Even when there was a need for speedy information, Petraeus said in a statement to troops, torture was "neither useful nor necessary."
Further indication that the professional defence establishment stood behind Petraeus came with a December 2006 report called Educing Information produced by the respected governmental body the Defense Science Intelligence Board. Canvassing past empirical research on coercive interrogation, the report found very little evidence that illegal coercion ever yields better information - or that a torturer can ever effectively sift grains of truth from mounds of false information. The 372-page Educing Information is one sign that a professional consensus is solidifying against the basic idea that torture ever works.
This is not to say that abuse and torture by the military will entirely end. A recent survey of soldiers and marines in Iraq found that fewer than half would report a colleague who abused a civilian, and about one in ten admitted to having abused non-combatants or damaged their property. A culture consciously fostered over the past four years seemed to have taken deep root. More troubling still, the increasing role of the ill-trained Iraqi troops, all too eager to use abusive tactics, makes their US allies in the multinational force - Iraq de facto accomplices to torture. As Iraq slides further toward a multipolar factional fight with the US simply arming one side or another, this problem will become increasingly acute. Finally, it is important not to forget that the US military has smaller clandestine units, special-forces units, that work in lawless zones such as the Horn of Africa, where rule-bending may seem appropriate and easy.
Nevertheless, the military is without question moved toward ending systemic abuse. The CIA, by contrast, is a different story.
The CIA does not publish its interrogation rules, but the legal restraints that hold it back are looser than the army's. This is because Congress, at the administration's urging, loosened the principal criminal law - the 1996 War Crimes Act - that proscribes the use of torture by non-military US personnel overseas. (The military are covered by the much-more-strict Uniform Code of Military Justice, which has not been amended).
In the Military Commissions Act, Congress purported to rewrite the relevant international law definitions of torture and abuse.
Set aside for a moment the question whether one country can redefine the laws of war in this way and consider what the law has done. To be precise, the law purports to define what constitutes a violation of one particularly critical piece of international humanitarian law - Common Article III of the Geneva conventions. Common Article III sets a floor of minimal decent treatment for all prisoners in war-related custody, prohibiting both "cruel treatment and torture" and also "humiliating and degrading treatment." In the name of clarity, the Bush administration pushed through new rules for Common Article III that are both complex and impenetrable. On their face, they do not reach the gamut of conduct prohibited by Common Article III. And rather than a cure for vagueness, the new rules are an invitation to casuistic circumvention in the name of abuse.
The Military Commissions Act also invited the president to set forth new rules that would clarify CIA practice. Months after the Act's passage, the agency is still waiting for these rules. The delay may signal an internal struggle about the red lines being drawn internally about precisely which high intensity measures are permitted. But even then, there is scant cause for optimism: in every past internal struggle over interrogation standards, it has been the advocates of brutal measures - most importantly vice-president Dick Cheney and his senior advisor David Addington who have emerged triumphant. More than a year and a half of the Cheney vice-presidency remains. And no one has ever gone bankrupt over-stating the vice-president's determination and bureaucratic skill in making sure that it's his way or the highway.
Furthermore, there is no indication that the United States has abandoned its network of "black sites" and outsourced detentions. Just this last week, an alleged al-Qaida courier seized in the Horn of Africa (likely Somalia) was transferred to the Guantánamo prison. The minimal available evidence suggests that Abdullahi Sudi Arale was detained first in September 2006 - meaning that he was detained either in a clandestine US facility or an allied nation's prison in the intervening nine months. As investigations by the superlative British organisation Reprieve have recently shown, moreover, the United States is working closely with north African governments to seize and detain suspects.
The outsourcing of coercion
Indeed, as the United States military starts to take its human-rights obligations with a modicum of seriousness, expect to see increasing displacement of coercive interrogations to the intelligence agencies, or to the less savoury allies of the US. There are few practical constraints at the moment on this kind of intelligence-to-intelligence agency collaboration. As former CIA assistant general counsel John Radsan suggested in a recent issue of the Seton Hall Law Review, American intelligence agencies retain functional links with countries such as Syria even after diplomatic ties have decomposed. Backed by an enormous post-9/11 slush fund, it seems likely that these subterranean ties have taken on lives on their own - a shadow transnational political economy that strengthens the blackest and most anti-democratic security force elements around the world, all in the name of counter-terrorism.
The story of American torture policy is by no stretch over. But increasingly, that story must be segregated into two strands - the military and the intelligence agencies. On both sides, the issue of outsourcing coercion - collaborating with torturers either intentionally or faute de mieux - looms large. In both strands, gaps will remain between the rules in the books and rubber as it hits the road. But it is the CIA that still stands outside the domain of universally accepted human rights norms. It is the CIA that is still running secret prisons and holding individuals for nine months on end. And short of any future decision to detain en masse, it will be the CIA that rides the tip of the spear - at least as far as torture goes.
The end of Abu Ghraib and its ilk for the time being is an indubitable good. But it should not be mistaken for a redemption of the whole. That must await another day, another administration, and another heave against the tired, fear-soaked presumptions of violence that have animated America's counter-terrorism policy for the past five odd years.