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Torture and 'War on Terror'

There is growing opposition, more ironically, from Republican law-makers, to the George Bush administration's contravention of the Geneva conventions in its "war on terror"

Letter from America

Torture and ‘War on Terror’

There is growing opposition, more ironically, from Republican law-makers, to the George Bush administration’s contravention of the Geneva conventions in its “war on terror”.

has the effect of diluting the moral difference between the legally constituted state and the terrorist to a rhetorical fiction, then regardless of legal niceties one would think it would have long ago been dropped.


fter five supine years, senior Republican members of the US senate are finally standing up to the White House. The issue involves the ongoing White House effort to modify the US War Crimes Act: an action that will have the effect of wiping out major US obligations under the Geneva conventions. At stake are the permissibility of acts of torture and the appropriate treatment of detainees.

Starting with the creation of a new legal category – enemy combatants – to identify terrorist suspects, and the use of extraterritorial locations – among others, Guantanamo Bay, a piece of Cuban land annexed by the US a century ago – to interrogate, detain, and torture suspects, the Bush administration recognised early that existing laws of war came in the way of their preferred conduct in the global “war” on terror. Calling suspects “enemy combatants” denied them the ability to be identified as legitimate participants in a war, with corresponding rights under international law, including access to International Red Cross monitors. Holding suspects in locations where US domestic law did not easily apply denied them access to a different range of legal protections, including the right to be brought before a judicial authority. Government lawyers even tried to redefine torture to exclude all actions that did not cause “massive organ failure”.


The laws of war, a body of international jurisprudence that has evolved over nearly two centuries, were originally formulated under the assumption that recognised and legitimate states would be the belligerent parties. Based on this assumption, only states are parties to the Geneva conventions, but more important, the underlying premise for these rules was reciprocity. Soldiers on any side of a conflict could remain confident that if captured in battle they would be treated no differently from their counterparts in similar situations. But reciprocity is one condition that does not apply in today’s inherently asymmetric conflict between states and transnational movements. Al Qaida is neither a state nor is it a movement that desires to become one. Hence, there is a real conundrum, from the point of view of the law, once this conflict is defined as “war.”

Based on past experience, the defeat of terrorist groups without territorial ambitions has always come about through police methods, especially the collection of intelligence and the use of informers. The armed forces are, by definition, unable to defeat an enemy that does not involve the control and domination of military space. Without a physical base to destroy, victory means the elimination of every single terrorist or potential terrorist – an impossible task. But once a conflict is defined as war, counterterror actions are removed from the purview of the police and become defined through military means. The inability to be sure that every terrorist is eliminated produces a grand strategy of state paranoia, which, taken to its extreme, turns the axiom of “innocent until proven guilty” on its head. This is the situation the masterminds of the global war on terror find themselves in today.

There is little doubt today that some suspects under US control have been tortured, violating existing US and international laws. But even assuming that torture was successful, in that it produced useful information, what have the gains been? The most important lessons are likely to have been retrospective – how operations were planned, who were involved, where financing came from, other possible targets considered. For this information to be useful for preventing future acts of terror, officials must hope that future operations would be conducted the same way. Not only are the chances of that small: consider the significant differences between al Qaida’s three most successful attacks against US interests

– the USS Cole, US embassies in Kenya and Tanzania, and the World Trade Centre; but also, with each attack the number of individuals identifying with al Qaida appears to increase. The preferred analogy today is borrowed from cancer research – the terror problem is “metastasizing”. If torture is unsuccessful in preventing new attacks, creates new supporters in the process, and

A particular form of governmental inertia prevents such sensible action from taking place. Not only would the leaders of this war have to admit they were wrong in adopting this path, but more important, some form of responsibility for past illegal actions would have to be taken. Even if the usual coverup took place, and low-level functionaries were indicted for actions approved at much higher levels, any, even semi-independent, accounting would show the extent to which the war on terror is being carried out in a manner that violates all pretences to civilised behaviour. No better evidence of that was offered than a recent news report that CIA operatives were furiously buying insurance against criminal lawsuits.

First, the US Supreme Court rejected the government’s argument that enemy combatants have no recourse to due process and habeas corpus. Then former doormat and general Colin Powell found his voice, opposing proposed changes to the “inhumane standards” condition of the Geneva conventions. Three Republican senators – John Warner, the chairman of the armed services committee, Lindsey Graham, a former military lawyer, and John McCain, a Vietnam veteran and repeatedly tortured former prisoner of war – led the charge to block the administration’s position, giving the White House a real scare, and leading to a week of intense behind the scenesnegotiations. Now we find that the senators have given in on key provisions, essentially creating different rules for the CIA and for the uniformed military. The former will be allowed to continue to act outside the law, although some much-publicised forms of torture like “water-boarding” will now be banned. The military will return to Geneva convention rules. Habeas corpus, however, continues to be a right denied to detainees, in spite of the court’s ruling and its foundational place in Anglo-American jurisprudence. One can only presume that election year pressures forced the senators to back down. Witless Democrats, seemingly unable to garner political advantage from any of the Bush administration’s many failures, like reconstruction in New Orleans, are nowhere to be seen.



Economic and Political Weekly September 30, 2006

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