Thomas Marshall, B.A., B.A., L.L.B., (L.L.M. Candidate, University of Ottawa)
The Torture Debate in America. Edited by Karen J. Greenburg. Cambridge NY. Cambridge University Press, 2006. 405 pages.
Few on September 11th 2001 could have predicted the firestorm of fear and gut-rentching reactionism that would consume the United States, and indeed much of the West, in the years following the horrific attacks on American soil. Six years on, however, that unique event - and America’s reaction to it - deserve some quiet reflection.
However, it has only recently become in vogue to critically assess the last six years of government policy in the United States. Before, one could have argued, quite cogently, that, for example, major U.S. media outlets – and even some academics - had actually served more as a ‘mouthpiece’ for government policy rather than serving the public as the unofficial ‘fourth arm’ of truly responsible government. Few questions, for instance, were ever raised about the rationale, or indeed the very legality, of invading Afghanistan in the aftermath of September 11th. Few questions were raised regarding the decision to invade Iraq, despite the rather shaky evidence proffered by American and English intelligence agencies. And, of course, few questions, if any, were seriously posed about the legality of the detentions and arrests of suspected terrorists and fighters on the ‘battlefield’. All that, however, began to change with the revelation of abuses that took place at the now infamous Abu Ghraib prison in Iraq. A prison in which the reviled Saddam Hussein once tortured his captives, the world learned, had been used by American soldiers for the same purpose: to torture.
Karen J. Greenburg, Executive Director of the Center on Law and Security at New York University, and co-editor of The Torture Papers: The Road to Abu Ghraib , has tried to address these issues, and more, in her most recent editorial work, The Torture Debate in America. The central purpose of compiling The Torture Debate in America is, in Karen Greenburg’s words, to expose the “legal…philosophical and ethical perspectives” that have made it possible for ‘A Nation of Laws, Not of Men’ to succumb to the temptation to commit acts of torture, rendition, and other acts contrary to the spirit, if not letter, of the 1949 Geneva Conventions. This book is thus an attempt to engage academics, legal professionals, and the wider public, in a discussion about torture and to expose the legal processes the Bush Administration utilized to bring Americans back to a debate that almost all the West thought was long-since dead – a debate about the utility and legality of torture.
In this collection, Karen Greenburg has amassed an impressive armory of academic, legal, journalistic, and even religious writer’s essays in an attempt to give space and time to the many sides of the torture debate. Some of the better-known contributors include, for example, M. Cherif Bassiouni, Distinguished Research Professor of Law at DePaul University, and author of the recent book, The Legislative History of the International Criminal Court. There is also William H. Taft who, Washington watchers will remember, was Legal Advisor to the Department of State from 1981 to 1984, and served as Deputy Secretary of Defense from 1984 to 1989. Others contributors include, David Rivkin Jr., Peter Weiss, Jeffrey Shapiro, Deborah Pearlstein, and of course many more. Most of these writers however, and perhaps somewhat unfortunately, are from a rather restricted geographical crop - the eastern seaboard of the United States - with most having affiliations with only Harvard, New York University, or Yale.
Despite this, The Torture Debate in America does bring to bear some very important and divergent views – some of which will certainly be offensive to some readers. For example, Heather MacDonald’s essay, “How to Interrogate Terrorists”, reads more like a revivalist sermon than a scholarly article. MacDonald ‘humbly’ suggests, for example, that “Human Rights Watch, the ICRC, Amnesty International, and other self-professed guardians of humanitarianism need to come back to Earth, to the real world in which torture means what the Nazis and Japanese did…the world in which evil regimes…hang adulterous women…innocent passengers…civilians…[in order to upset the] civilized order.” She also at other times appears to deliberately obfuscate the issues at hand by trying to discuss indefinable terms like “real torture” and “American weakness” in order to make the case that America’s softness is its greatest vulnerability. For example, she writes,
Uncertainty is an interrogator’s most powerful ally; exploited wisely, it can lead the detainee to believe that the interrogator is in total control and holds the key to his future. The Kandahar detainees, however, learned almost immediately what their future held no matter how egregious their behavior: nothing untoward…Their biggest annoyance was boredom.
Her characterization of Muslim detainees is similarly contentious and, at times, it must be said, offensive. At various points in her essay, Muslim fighters are referred to as being “evil,” “cocky,” or worse. MacDonald even suggests that “Many prisoners disliked (being moved from camp to camp) because it curtailed their opportunities for homosexual sex”. Still, MacDonald’s views, though difficult to understand, do lend another perspective to the debate - and to Greenburg’s credit she decided to include this writing, along with similarly contentious ones, in her collection.
Other essays in the book contain more detail about what torture is, has been in the past, and possibly will be in the future, namely as a method for extracting information from detainees. While more gruesome at times, these writings help expand the reader’s understanding of “torture” and interrogation techniques. “Waterboarding” for example is described in David Luban’s essay, “Liberalism, Torture, and the Ticking Time Bomb” , as a “technique (designed) to break the will of detainees.” He writes in vivid detail that, “(detainees) are strapped to a board and immersed repeatedly in water, just short of drowning…the…brain sends panic-signals that overwhelm everything else…the terror makes (him) lose control of his bowels and bladder.”
David Luban’s essay, placed first in Greenburg’s book, is also remarkable for its intense theoretical analysis of the propriety and effectiveness of torture. Luban’s central question - does torture accord with liberalism? – is perhaps the best formulated and most thoughtfully answered question in the entire book. Torture, suggests Luban, is abhorrent to liberal western states because its intent is to “strip away from the victim all the qualities of human dignity that liberalism prizes.” His essay is also the longest - at 44 pages - and as noted above, covers everything from what constitutes torture and how torture and interrogations are conducted, to perennial topics like the ‘ticking time bomb’ conundrum.
Interestingly, one contribution to this book, Joyce S Dubensky and Rachel Lavery’s, “Torture: An Interreligious Debate”, appears completely at odds with the tenor of the overall collection. Well written, and certainly clearly delivered, the topic of religion, however, appears to the reader as more of a digression from what is otherwise a very legal and theoretical analysis of torture. For example, the fact that Pope John Paul II “condemned the use of physical and mental torture” is interesting – but may ultimately be unpersuasive to the academic and legal readers the book is aimed at capturing. And while it must be conceded that this is yet another perspective on the torture debate (and a legitimate one too), this one-off digression into the spiritual realm seems to break up, rather than aid, the flow of the book.
The lion’s share of essays, however, do not focus on religion, or liberalism’s dubious relation to torture, but on the work of lawyers. David W Bowker’s essay, “Unwise Counsel: The War on Terrorism and the Criminal Mistreatment of Detainees in US Custody,” is a perfect example of what most of the essays in Greenburg’s book address: the role of lawyers in facilitating and legalizing torture by American hands. As Bowker writes, after President George W. Bush’s call to arms in the wake of September 11th, “a small cadre of ideologically-aligned, politically-appointed lawyers” went to work to provide the president with the legal authority to fight terrorism with a ‘gloves off’ approach. Bowker suggests that lawyers in the Office of Legal Counsel (OLC) and the Attorney General of the United States were “too focused on providing legal cover for whatever US conduct might be operationally necessary, and not focused enough on providing independent legal judgment and reaching sound legal conclusions of law.” Of this, for example, Bowker writes,
“Yoo (an OLC Legal Advisor) concluded that the president can simply disregard the Geneva Conventions by ‘suspend[ing] our treaty obligations…during the period of the conflict.’ Yet, Article 131 of the third Geneva Conventions on Prisoners of War (the ‘GPW’) prohibits any party from ‘absolv[ing] itself of any liability’ for grave breaches of the conventions, e.g., for commission of ‘torture or inhuman treatment.’”
The connection between this type of partisan legal advice which abandons the traditional laws of war and protections for prisoners, and the US government’s wartime conduct inevitably led to a “major breakdown in the rule of law,” and ultimately, to abuses at Abu Ghraib and Guantanamo Bay. Of course, as Burt Newborne, National Legal director of the ACLU, suggests, “Historically, it is an unfortunate truth that there is no inherent relationship between legalism and decency.” We should therefore, so the logic goes, not be at all surprised that in this time, and under these conditions, abuses could - and did -happen.
If there is but one major flaw in this compilation of essays it is in the fact that this point is belabored; successive essays contend that lawyers are to blame for facilitating and legalizing questionable techniques and outright torture in the wake of September 11th. David Bowker’s essay (above) could easily have sufficed in bringing this point to bear (with perhaps one or two other essays of similar character to reinforce the argument), yet Greenburg has insisted on including nearly ten more essays that cover the very same material. After reading midway through the book, what was at first an exciting and interesting read becomes an endless review of the same arguments, facts, and figures. Indeed, this book, instead of requiring a weighty 405 pages, could easily have driven home the same important issues on half the amount of paper.
As well, one might also be forgiven for thinking that Karen Greenburg was too hasty in bringing this book to publication (perhaps because of the topic’s timeliness) and therefore did not do enough basic organizational work. The book is “divided” into three rather malleable and unclear sections, which ostensibly try (somewhat in vein) to group similar essays together. The sections are also themselves a disparate grouping of recurring topics. For example, Section One discusses “Democracy, Terror and Torture.” But Section Three, which is entitled “Torture”, rehashes this same topic (and materials) all over again. Indeed, at times this book appears to be a directionless attempt at bringing together identical material into some sort of ‘readable’ form. Also, some essays that appear later in the book, like Bower’s essay, “Unwise Counsel,” would have carried more argumentative force had they been placed near the beginning. But, by the time the reader has reached that essay, and other very readable ones, the topic, and the reader’s energy has been spent. Indeed, less often is, quite simply, more.
And, as eluded to before, the editor could have canvassed, at the very least, a wider geographic range of writers to give the book greater fidelity to its primary purpose – to expose the debate, writ large, over the utility and propriety of torture as a form of U.S. government policy.
With that said, The Torture Debate in America is a fairly easy read, given the complexity of the subject matter. Topics in the book, besides those expressed above, include the “Failed State” doctrine, the utility of criminal law in the fight against terrorism, legal ethics, the relevance (irrelevance?) of international humanitarian law in the War on Terrorism, among others. It is however, given the structure and type of material included, not a textbook that can be used for reference. Therefore it is suggested that those interested in easily and quickly finding materials on the torture debate should look elsewhere. With these criticisms out of the way, Karen Greenburg’s, The Torture Debate in America, is a persuasive appeal to the conscience of all Americans and those who call themselves liberals. It is highly recommended for lawyers and academics who are interested in reading about the intersection of domestic and international law - or indeed, anyone who has come to believe that the last six years of government policy are desperately in need of critical review.
