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Torture Guidelines

Tom Malinowski
Advocacy Director, Human Rights Watch
Monday, June 14, 2004; 1:00 PM

An Aug. 1, 2002, memo from the Justice Department's Office of Legal Counsel said that torturing suspected al Qaeda members abroad "may be justified" and that international laws against torture "may be unconstitutional if applied to interrogation" conducted against suspected terrorists. The Washington Post has obtained the full text of the Aug. 2002 memo, now posted online:

Memo Mentions Torture, (June 13)
Complete Aug. 2002 Memo, (PDF)


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Tom Malinowski, advocacy director at Human Rights Watch, was online Monday, June 14 at 1 p.m. ET, to discuss the Justice Department memo and U.S. treatment of suspected terrorists.

Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.

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Washington, D.C.: Would it be safe to say that under the definitions outlined in the DOJ memo, the pictures of abuse we saw from Abu Ghraib do not constitute torture according to the Office of Legal Counsel?

Tom Malinowski: That's true. According to the memo, for abuse to count as physical torture, it has to cause pain equivalent to that accompanying "organ failure, impairment of bodily function, or even death." To qualify as mental torture, the abuse has to cause (and even be intended to cause) pscychological harm that last months or years. As horrible as the abuse in the pictures was, these lawyers would probably argue that it doesn't rise to that level.

Of course, 99% of experts in the laws against torture would disagree with the Justice Department's extremely narrow definition. The US military, for example, has traditionally prohibited as torture many of the things Justice would permit.

To borrow a phrase from the late Sen. Daniel Patrick Moynihan, the Justice Dept. lawyers were "defining deviancy down."

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East Atlantic Beach, N.Y.: Hi Tom,

One of the memos states that the adjective "severe" in domestic and international torture statutes means the infliction of pain or suffering per se does not constitute torture (I think it was the March 6 memo).

I'm horrified by what happened at Abu Ghraib, but I'm also scared by this legal argument in that I find it to be particularly compelling!

When does pain or suffering become severe? How can we quantify severe pain? Perhaps one could argue that the inflication of any pain violates "human dignity?"

Does the obligation fall upon the alleged torturers to show that inflicted pain was severe, or does the obligation fall upon the alleged victims that the pain was not severe?

Tom Malinowski: Torture is defined as "severe" pain for a common sense reason -- no one wants anti-torture laws to lead to frivolous complaints about minor things like uncomfortable matresses for example. But the Justice Department's definition of "severe pain" is totally new, and based on embarrassingly, bizarrely bad logic. If you read the memo, you see it is based on another US law that defines an "emergency medical condition" for the purpose of providing health benefits. Under this law an emergency condition involves pain so severe that it could be associated with such things as organ failure and imminent death. But this law never defines severe pain, nor does it suggest that severe pain can only be associated with those things.

The US military has traditionaly defined this standard to include such things as binding prisoners in painful positions, forcing them to stand or sit in painful positions for prolonged periods of time, and plain old fashioned beatings.

The Army interrogation manual also lays down a simple rule whenever there is any doubt: If the enemy can't do it to American prisoners, we can't do it to the enemy. The Justice memo clearly fails that test, and thus invites abuses against American POWs.

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Alexandria, Va.: If all of this was researched regarding torture and its policies, why then does the Bush administration say they knew nothing about the abuse? The president must have really feigned his shock re: the torture of the Abu Ghraib detainees when the photos came out! Your thoughts? Thank you!

Tom Malinowski: With this memo, we do know that senior officials were at least contemplating the use of torture. We don't yet know what they knew about what was actually going on in the field. I imagine there was a "see no evil, hear no evil" attitude. They gave broad direction that interrogators could do what was necessary to get information, sometimes with vague instructions that prisoners be treated humanely. And then they didn't want to know or hear about reports that abuses were getting out of hand.

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Madrid, Spain: Mr. Malinowski, I am Human Rights Lecturer at Carlos III University and it is a quite difficult to explain to the students that in U.S. there is a "rule of law" policy after torture cases and Guantamano situation. How is it possible that a democratic government had done something like that? Has the political rationality erased the rule of law? Thank you.

Tom Malinowski: There was a belief held by many officials in the Bush administration and by many in the public that the "old" rules of law didn't apply to the "new" war on terror, that we were in uncharted territory. That was a terrible mistake, and hopefully this democratic society will show its strength in the way it deals with that mistake.

Of course, the U.S. isn't the only country that has gone through this. As you know, Spain, too, has been accused of mistreating terrorist suspects in its custody.

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Eugene, Ore.: Why would any nation sanction torture as a means of interrogation? Why would a nation look for a legal angle so as it could try to legitimize and carry out horrific behavior?

We said that Saddam Hussein was evil and acted in an evil fashion towards his people. What gives the United States the right to do the same thing -- torture another human being?

Tom Malinowski: I think some officials wanted to have it both ways. They wanted to use abusive techniques to get information (though they should have known that such techniques usually don't work!). And they also wanted to believe they were acting within the law. These memos gave them the legal and moral cover they craved.

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Islamabad, Pakistan: The disclosure of the memo has utterly shocked the people world over. The "legalization" of torture by the government the state of USA is really condemnable. What moral justification is left with the USA to accuse other countries and their rulers of human rights violations and torture, etc.,(and all other actions of "regime change")?

Tom Malinowski: I don't want the US government to stop condemning torture in countries like Pakistan or Egypt or China. The most powerful country in the world needs to be using its influence on behalf of human rights. At the same time, the US government has to clean up its own act, by holding accountable those responsible for these abuses and respecting the laws against torture, if it is going to be an effective champion of human rights in the world again.

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Fredericksburg, Va.: I think the American public deserves to be told what 24 approved interrogation practices were approved by Rumsfeld. It changes who we are and what we stand for. Do you think this information will be released soon?

Tom Malinowski: The Defense Department promised to provide those guidelines to the Congress, and one way or another, we will probably see them. But that may not be the end of the story, because there may well have been interrogation techniques widely in use that were not on the list of 24 that Rumsfeld approved.

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Burke, Va.: Whatever happened to the Bill of Rights? Aren't the right to a quick trial and the right to remain silent a bedrock value on which this country is founded, and one that any citizen of the U.S. can be proud of no matter what your politics. Isn't what is going on with torture and indefinite improsonment without trial againt the Bill of Rights, no matter what kind of fancy language one might disguise it?

Tom Malinowski: Enemy POW's captured in Iraq or Afghanistan don't have all the rights a US citizen would have under the bill of rights. They can be held without trial, for example, for the duration of the war. But the prohibition of torture is absolute -- it applies to citizens and non-citizens, captured combatants and civilians. And one way America has traditionally interpreted what international treaties against torture forbid is by reference to the 8th Amendment to our own Constitution. The Congress has said that the cruel treatment forbidden by international law is the same as the cruel treatment forbidden by our Bill of Rights.

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Menomonie, Wis.: I want to know why that poor E-4 specialist was the first to be punished. I was in Iraq for 10 months, and I know soldiers are forced to follow orders. Those who were in charge of that E-4 should be in jail, not a bust in rank, or a letter of reprimand. Those who allowed the acts at Abu Ghraib should be severely punished, and their punishments should be made public. I would like to believe active duty officers, and senior NCO's are nothing but the best!

Please keep me posted on information concering these issues.

Tom Malinowski: Thanks, that's a very good point.

Of course, if someone committed a crime, they have to be held accountable, even if they were just following orders. But it would be really wrong if the only people punished were the rank and file. If there's one thing this Justice memo proves it's that these abuses weren't dreamed up by a bunch of sargeants and privates.

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Rockledge, Fla.: Other than voting out the Bush administration in November, what can be done to change this re-write the DOJ is applying to the original tenets of the Geneva Convention? Thank you.

Tom Malinowski: First, President Bush needs to repudiate the argument Justice made (i.e., that some torture is lawful, and that even when it isn't, the commander in chief can ignore the law). Second, the administration needs to be clear that its interrogation guidelines prohibit some of the abusive techniques that were employed routinely in Iraq and Afghanistan. Finally, they need to permit some independent monitoring of detention facilities (without that, I'm afraid that even if they did all the right things no one would believe them).

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Washington, D.C.: I understand that during its war with Algeria, the French decided that under certain specific circumstances -- where a prisoner may know information about an attack that could kill people -- French interrogators could use torture to attempt to extract the information from the prisoner. I have been told that ultimately the decision to use torture was very demoralizing to the French army. Conscientious soldiers who were directed to use torture felt terrible about it, and their discontent spread. Soldiers who enjoyed torturing someone, or who were able to do it without moral qualms, were seen as disturbing by their fellow troops. Furthermore, the torture did not result in acquisition of much useful information. Are you aware of this experience of the French? Do you think this analogous experience is relevant to the American experience?

Tom Malinowski: That's a very interesting account.

There is no question that torture is a very poor method for getting reliable information. Prisoners certainly talk when they are tortured, but they don't necessarily tell the truth -- more likely, they will say whatever they think the interrogator wants to hear just to stop the pain.

Whatever small benefit, if any, the United States may have gotten out of using these techniques has clearly been outweighed by the damage to US interests caused by the revelations of abuse.

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Washington, D.C.: Dear Tom -
Thanks for doing this chat. We are sure hearing a lot these days about torture, what it is, and what it isn't, and what are "accpetable" methods of gathering intelligence from prisoners of war and others (since the detainees aren't given POW status by our government). The one thing I'm not hearing is what is most effective: surely there must be some kind of study out there which describes what have historically been effective methods of getting reliable information that don't result in the torture or abuse of prisoners? (The Post's article today hinted, though I'd love more information, that abuse and torture don't always produce reliable info.) In addition to having this conversation about the apparent torture and abuse of the detainees, shouldn't we also be discussing how we can get reliable information without violating people's basic human dignity? Surely some would say that this is a "bleeding heart" approach and that we should have no mercy for those who wish to do us harm, however, as we've already seen from this memo and the abuses which have been committed, to ignore the gray areas of information gathering means we have started down a slippery slope. I only hope we can pull ourselves back up before our values are wholly destroyed in the name of the war on terror.

Tom Malinowski: No one says you have to be polite to detainees. This debate is about physical and mental abuse, which undermines standards we need to protect American soldiers, and doesn't work well anyway.

What does work? There are a number of techniques that are far more subtle and sophisticated, many involving psychological trickery, that the military has used over the years. Some of these are described in detail in the Army's interrogation manual, an older version of which you can find on this site:
http://www.globalsecurity.org/intell/library/policy/army/fm/fm34-52/

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Kendall Park, N.J.: When questioned at the G-8 summit, Bush told reporters that he ordered everyone to operate "within the law" or according to U.S. law. These memos being released justify torture under U.S. law and also say that the Geneva Conventions are "unconstitutional."

This begs two questions -- when Bush says "within the law" does he mean U.S. law as defined by the Justice Department and DoD in these memos, which sanction torture? And two, if the Justice Department tells the president he doesn't have to abide by the Geneva Conventions because they're unconstitutional, doesn't that limit our ability to demand other countries adhere to Geneva conventions with our soldiers, such as we demanded in the early days of the Iraq war?

Tom Malinowski: Exactly. It was a very legalistic answer, uncharacteristic for this president. And until he tells us otherwise, we have to presume that "within the law" means within the law as creatively re-interpreted by the Justice Dept.

And yes, it does limit our ability to complain when Americans are abused overseas. After all, if our President has the inherent right under his war-making authority to authorize the torture of prisoners, than so do the leaders of other countries. Saddam could have used the argumentation of this memo to justify the abuse of American POW's. That's one of the most amazing things about this memo -- that these politically appointed lawyers at Justice could have been allowed to set a policy that endangers Americans in uniform.

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Washington, D.C. : Thanks for taking our questions. You said that even the rank and file need to be held accountable, despite their defense that they were simply following orders. Isn't one of the tenents, and perhaps the successes, of the U.S. military the nature of the hierarchy and a foundation of following orders to create one cohesive unit? If the rank and file are allowed to defy orders given to them, where does that leave the effectiveness of our troops in combat situations? Can we hold different standards after the war is over?

Tom Malinowski: It's a good and difficult question, but American service personnel are taught that they are not supposed to follow unlawful orders. It can't always be easy to resist a commanding officer in wartime, and that's one reason why it's particularly important that commanders be held accountable. But even in this case, there were soldiers and marines who had the decency and courage to complain about what was going on -- in fact, that's one reason we know it happened!

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Ashburn, Va.: This whole issue makes me terribly angry. I am very frustrated with two things: first that the torture appears to have been ordered from the very highest levels of our government, without informing the American people what our government apparently stands for now, and second, that when the tactics were first discovered it seems that those who originated the plan were content to let a bunch of 18-year-olds take the rap (what a way to support our troops).

If it is discovered that our president did authorize the military to ignore the Geneva convention, can there be any charges against him?

Tom Malinowski: Yes, the President could be held accountable if it is proved that he specifically authorized unlawful acts. (Even if his lawyers were telling him they were lawful!)

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Alexandria, Va.: I think a lot of people are ignoring (or didn't read as far as) the memo's "greater evil" argument.

If I'm allowed to kill someone to stop his attempt to kill my entire family, why should my government be prohibited from torturing someone it knows has crucial information about an imminent plan to kill thousands?

Tom Malinowski: It's a good hypothetical question, but in the real world, you almost never "know" that the person you're interrogating knows something that, if revealed, would definitely save lives. What you have instead are literally thousands of people picked up in Afghanistan and Iraq. Each one of them potentially knows something important. Each one, in the eyes of interrogators, is a potential "ticking time bomb." But you just don't know until you interrogate them, and even then you may not know.

So once you accept the principle that torture is justified when someone may know something that may save lives, you end up using torture routinely. And you always end up paying a huge price. That may be what happened here. And the price paid by the United States -- not just to its image, but to its core national interest of fighting terror -- is incalculable.

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New York, N.Y.: Could you put yourself in the place of an interrogator who has read or been briefed on this memo? What kinds of interrogation methods would be allowed under this memo? How far could you stretch it?

Tom Malinowski: This memo would clearly allow techniques like forcing prisoners into very painful "stress" positions for extended periods of time, extended sleep and sensory deprivation, denying them food, exposing them to extreme cold and heat, keeping them nude, sexually humiliating them, and beating them -- a whole range of techniques that cause severe pain and humiliation, but not necessarily serious or life threatening injury.

The memo says that more severe torture is illegal. But then it argues that the President, as commander in chief, isn't necessarily bound by the law in war time. So really, it could be read to permit anything.

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Fairfax, Va.: Why do you "do-gooders" only defend the Iraqis? Why don't you care about the Americans? You seem to be very one-sided and political for an organization that considers itself neutral.

Tom Malinowski: The rules that were violated here are not just there to protect Iraqis. They are there to protect everyone, including American servicemen and women. The people I know who are most angry about this scandal are people in the US military, who believe in the Geneva Conventions, and who fear that we are inviting similar abuses against Americans when we ignore the Conventions ourselves.

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Tom Malinowski: Thank you all for a very interesting discussion. Signing off . . .

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