Legal and Humane Frameworks for Opposing TortureCases come in by the thousands from all over the world. A man was beaten and whipped. A woman was beaten and raped. A boy was hooded with three empty sand bags in 100-degree heat all day, starved, beaten, and kept in stress positions. Alleged suicide victims had their hands tied behind their backs, had boot prints on their heads, or turned out to have been electrocuted. There are torture victims covered with cigarette burns, and torture victims with no visible injuries. They need the expert assistance of doctors and lawyers to heal, to win asylum, and to create any sort of accountability in courts of law.
I’ve participated in countless nonviolent protests of torture, including congressional lobbying, panels and seminars, online petition writing, bird-dogging of politicians and judges and professors. I’ve met victims and told their stories and reviewed their books. But I had never spent a day with a crowd of lawyers and doctors who deal with the medical and court struggles arising out of torture cases, not until I attended a conference in February at American University in Washington, DC, entitled “Forensic Evidence in the Fight Against Torture.”
The doctors, lawyers, and others attending and speaking at the conference were from the United States and many other countries. It was not lost on them that they were addressing something different from a “natural” disaster. In their public comments and private discussions I found universal agreement that torture has gained dramatically greater, world-wide public acceptance during the past decade, and that the United States has been the leader in promoting that greater acceptance. While Juan Mendez, U.N. Special Rapporteur on Torture, pointed his finger at Hollywood movies and TV shows in which harsh interrogation techniques succeed in aiding crime solvers, several experts independently told me that by granting legal immunity to torturers, the United States has led by example.
It may be hard to recall that a mere decade ago torture was almost universally condemned here, and had been almost universally condemned in the Western world for centuries (racist exceptions for slavery excluded). By 2004, 43 percent of U.S. respondents to a Pew Research Center survey were saying that torture was often or sometimes justified to gain key information. By 2009, 49 percent said so. The Chicago Council on Global Affairs found that public support for torture increased in the United States from 27 percent in 2004 to 42 percent in 2010. AP-GfK polling found U.S. public support for torture at 38 percent in 2005, increasing to 52 percent by 2009.
That was the society I left behind as I entered the conference rooms of AU’s Washington College of Law to join an international gathering of professionals who still viewed torture as the evil it had been considered by the authors of the Eighth Amendment to the U.S. Constitution, which included an absolute ban on “cruel and unusual punishment.”
In broad historical terms, many forms of violence are being eliminated or are diminishing significantly in frequency, in the United States and abroad. But the flipside of recognizing that there is nothing “inevitable” or “natural” about cannibalism or infanticide or the burning of witches, or—for that matter—fist fights, spanking, child abuse, spousal abuse, or cruelty to animals, is that trends away from such practices can easily be reversed. We may be living through such a reversal on torture.
Some of the torture cases discussed at the conference involved U.S. victims; most did not. Some implicated governments that receive support from the United States, such as that of Bahrain. So the United States is unable to advocate against torture from a persuasive position to governments it opposes, not only because of its own conduct but also because of the conduct of governments it supports, including the governments of Iraq and Afghanistan. This problem was confirmed for me by various conference attendees, including U.S. government grant recipients and some federal employees.
Our government helps fund support of torture victims, both through the Office of Refugee Resettlement and through the U.S. Agency for International Development (USAID), both of which create grants to aid the victims of torture by any government other than the United States. The United Nations, partially funded by the United States, provides grants without that limitation. I spoke with participants at the conference who worked at centers in the United States helping torture victims from Afghanistan, Iraq, Iran, Ethiopia, Eritrea, Fiji, and other countries. There is a National Consortium of Torture Treatment Programs that was holding its own meetings in DC around the same time. While these groups were new to me, I had worked in the past with the Torture Abolition and Survivor Support Coalition, an organization that seems to bridge the gap between treating victims and addressing the root problem of torture acceptance through political mobilization.
Examination of how individual cases of torture are being addressed suggests another trend of recent years. Even as torture has been gaining acceptance, a nonprofit complex of treatment centers and non-governmental organizations has been developing the tools with which to more expertly diagnose, document, and testify on torture, and to aid the victims. While in the United States best-selling books by former president George W. Bush and former vice president Dick Cheney contain passages in which both openly admit to authorizing the waterboarding prisoners, numerous other nations have been codifying the procedures of the “Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” published by the United Nations in 2004. This conference, in fact, was the culmination of a three-year project funded by the European Union.
While both of these trends—the acceptance of torture and the development of a professional system of response to it—lead to greater public awareness of torture, they have opposite effects in terms of the amount of torture that occurs. It’s not clear whether torture is on the rise or is declining in practice, but I heard at the conference many stories of systematic state torture and careful documentation thereof, and many stories of aid provided to victims including helping them to obtain asylum. I didn’t hear any stories of top government officials being held seriously accountable for torture.
The possible exception to that rule is Hosni Mubarak, the former president of Egypt overthrown by nonviolent protest in 2011. Speaking at the conference, Mostafa Hussein of the El Nadim Center for Psychological Treatment and Rehabilitation in Egypt told the story of Khaled Mohamed Saeed, a young man who was beaten to death by Egyptian secret police in June 2010. The police lied about the cause of death, but photos of their victim’s horribly disfigured corpse went viral online, and public pressure grew. Experts from the International Rehabilitation Council for Torture Victims (IRCT) produced a report. (The IRCT was a sponsor of the conference I attended.) Eventually two low-ranking police officers were given seven-year prison sentences, an outcome widely seen as insufficient after decades of systematically torturing thousands. Saeed was seen as a martyr, and the resulting outrage was channeled into the movement that took over Tahrir Square in Cairo in January 2011 and drove Mubarak out of power. Protesters painted Saeed’s portrait on the wall of the Ministry of the Interior.
But Hussein told me that the public prosecutor hasn’t changed, and dictatorship hasn’t been dismantled. Although activists entered the Ministry of the Interior in March 2011, he said, they brought away very few documents, destroying many more. Omar Suleiman, the former head of Egyptian intelligence, is out of office and being sued by an Australian who says Suleiman oversaw his torture in Egypt on behalf of the United States prior to shipping him to the U.S. detention camp at Guantanamo Bay, Cuba. Suleiman is also accused of having performed a key service for the United States by torturing Ibn al-Shaykh al-Libi until he said that Saddam Hussein was tied to al Qaeda, a statement al-Libi later recanted and which conflicts absurdly with the facts. Will Suleiman be brought to justice? Mostafa Hussein wasn’t holding his breath. “Only the faces have changed,” he said of the new Egyptian government.
After Tunisia and Egypt, the Arab Spring of 2011 emerged in the tiny Persian Gulf nation of Bahrain, a protectorate of the United States and Saudi Arabia, and the port where the U.S. Navy keeps its Fifth Fleet. Bahrain has hired U.S. police chief John Timoney, who made his name by infiltrating and brutalizing nonviolent protesters in Miami and Philadelphia, to lead the crackdown on protesters in Bahrain. On the weekend of the conference on torture in DC, U.S. friends and allies of mine were being tear-gassed, beaten, and arrested in the streets of Bahrain. Speaking at the conference was Dr. Ala’a Shehabi, a British-born Bahraini civil rights activist, economist, writer, and a founding member of the Bahrain Rehabilitation and Anti-Violence Organization (BRAVO) established in January 2012.
Shehabi said that, according to the Bahrain Independent Commission of Inquiry established by King Hamad bin Isa Al Khalifa, 3,000 protesters have been arrested in the past year, 500 of whom are still in prison. 4,500 people have lost jobs. There has been systemic excessive force and torture, with over sixty documented deaths, according to Shehabi. The commission’s report finds that torture has been used systematically as a deliberate government policy both for compelling confessions and for retribution and punishment. The report also found a culture of impunity and recommended prosecutions. But, said Shehabi, there hasn’t been a single conviction, and torture continues, including at the National Security Agency, the basement of which the commissioners were not permitted to enter. The judicial system in Bahrain still allows forced confessions as evidence and dismisses all allegations of torture.
A forensic doctor from Turkey, working for the IRCT, also attended the conference. She had produced expert opinions on torture cases in Bahrain that disproved claims made by the government, which routinely blames the deaths and scars of torture on responses to “resisting arrest.” This is dangerous work in Bahrain, where doctors and lawyers who try to help are themselves targeted. Thus far, fifty doctors have been prosecuted for treating protesters. Some doctors, having lost their jobs and been tortured themselves, are helping out at the rehabilitation center. However, Bahraini doctors are not allowed to study, be licensed in, or practice forensic medicine. That’s a job for the government. Not one psychologist has been found willing and able to assist. And only a handful of lawyers are putting up a defense for those charged with crimes for nonviolent demonstrations.
The man sitting next to me during the discussion of Bahrain turned out to be Mohammed Isa Al-Tajer, a lawyer currently representing over 150 protesters in Bahrain. He was himself imprisoned for three and a half months, tortured, and kept in solitary confinement last year. When he was arrested on April 15, 2011, the government also seized his computers, documents, mobile phones, and office keys, compromising his clients’ confidentiality. He still faces charges.
At the conclusion of a discussion of all-too-similar torture practices in Mexico and Zimbabwe, someone asked about the value of offering trainings for police in the requirements of the Istanbul Protocol. Exactly zero people in the room expressed a belief that such trainings would have much value in these countries. One person expressed the opinion that it would be of greater value to get these nations to ratify the optional protocol to the Convention Against Torture, which would allow monitoring of interrogation sites. Others responded to this with accounts of secret sites and even ad hoc torture sites, which in Zimbabwe have even included hospitals. Several people passionately declared that the only thing that would actually work to stop the torture would be to end impunity and hold individuals accountable, especially the most powerful individuals. Ala’a Shehabi said that what was needed was fundamental governmental change from dictatorship to democracy.
Of course, a government can call itself a democracy while treating torture as a legal policy option. On the Monday following the conference, the United States Court of Appeals, Ninth Circuit, in San Francisco, filed a ruling against a petitioner seeking asylum who claimed that he would likely be tortured if sent back to India. Regardless of the merits of that ruling, it was made by Judge Jay Bybee, who had been appointed to his position by President George W. Bush after obediently signing off on memos legitimizing torture in the U.S. Department of Justice.
The asylum process was a major topic at the conference. Doctors and lawyers from Germany, New Zealand, and the United States described their experiences providing expert reports and testimony for asylum seekers. Roger Haines from New Zealand provided evidence that expert forensic reports detailing ingested substances, lesions found on the body, bone fissures or fractures indicating blunt force trauma, and so forth can make the difference in obtaining asylum. He also noted that an expectation has now developed that weighs against applicants lacking such reports. One example he cited was a case from Canada decided against the applicant by the Convention Against Torture committee in 2010. This man had been arrested and tortured in 1995 in Uzbekistan, Haines said. He fled to the United Arab Emirates and then to Germany, where his request for asylum was rejected. He tried to seek asylum in Norway, using a false name, and was rejected. He then tried Canada in September 2001 and was rejected “on credibility grounds.” Canada pointed out that he had no medical report from Uzbekistan. The CAT committee also rejected his claim, pointing out that he had no medical report from 1995 in Uzbekistan or from 2001 in Canada. Haines pointed out that torturers don’t usually provide medical reports with their services and that a report from six years later might not have shown anything at all.
The truth is that many torture victims don’t have visible injuries. Mental injuries can be examined by experts, whose testimony can at least suggest the likelihood that someone has been tortured or not. Their testimony can also assist judges and officials in understanding why torture victims might have difficulty coherently retelling their entire experience.
Mendez, the U.N. Special Rapporteur, described torture as prevalent and widespread: ”Some time ago we thought abolition was around the corner.” But, he added, no one thinks that now. Instead, he said it will take much more work and imagination to eradicate it. Mendez then proceeded to argue for an inclusive definition of the actions to be abolished. In Mendez’s view, solitary confinement and death row (for any period of time) meet the threshold of both “cruel, inhuman, or degrading treatment” and torture, both of which are illegal. The United States has tens of thousands of people in solitary confinement, and still allows the death penalty. Mendez believes solitary confinement for over fifteen days should be absolutely forbidden. (Incidentally, following the conference Mendez formally accused the U.S. government of cruel, inhumane, and degrading treatment towards Bradley Manning, the U.S. soldier who was held in solitary confinement for almost a year on suspicion of being a major source for WikiLeaks.)
Mendez argued for greater educational efforts by forensic scientists. ”In daily life,” he said, “we talk about torture without the details. But it is the details that make a difference to our moral sense.” He also proposed forensic science as an alternative to harsh interrogation in the task of solving crimes, a moral and legal but also more effective alternative. That may be a lesson that even Hollywood is learning to accept as it proliferates crime-solving dramas with forensic scientist heroes.
Mendez rejected the notion that torture can work. Of course, some confessions will be true, he said, but others won’t be, whether in the imaginary ticking time-bomb scenario or otherwise. Meanwhile, he added, societies pay a heavy price for engaging in torture, damaging innocents and their families but also the institutions that do the torturing.
Let me end on something of a positive note.
It comes from the remarks of Phil Shiner of Public Interest Lawyers in the UK. He has acted in significant recent human rights cases in the UK, including those of Al Skeini, Al-Jedda, and that of Rose Gentle, who sued Prime Minister Tony Blair for the death of her son as a soldier in Iraq. Shiner represents the family of Baha Mousa, an Iraqi man kicked and beaten to death while in British custody in 2003. The UK, Shiner explained, has done everything in Iraq that the United States has, including hooding prisoners. But the UK judicial system allows torture cases to be brought to court.
Shiner and his colleagues argued that hooding qualifies as cruel, inhumane, or degrading treatment, that it had been banned by the Ministry of Defense, and that all such policies of modern scar-free torture (hooding, stress positions, and deprivation of food, water, or sleep) had been banned by the UK in 1972. But British troops were hooding Iraqis, including Baha Mousa, with multiple sand bags in extreme heat for many hours. In Baha Mousa’s case and every other case known, Shiner said, the hooding was combined with other exacerbating factors creating medical risk. In this case, as well, the IRCT helped out with a statement pointing to numerous medical risks from hooding, including asphyxia and heat-related problems. Hooding also distances the torturer and thereby exacerbates torture, makes identification of the torturer by the victim more difficult, and spreads as a practice when photos are released, as in the case of the images of U.S. Army torture from Abu Ghraib prison brought to public attention in 2004.
So, why was hooding standard practice in Iraq? Shiner answered his own question: The invasion was illegal. It was an invasion along with the United States. The United States does not respect international law. And records were not being kept.
Shiner and his colleagues compelled the government of the UK to hold an extensive inquiry on the case of Baha Mousa, which released a report in September 2011. On October 3, 2011, the High Court ruled on another case brought by Shiner, that of Alaa’ Nassif Jassim al-Bazzouni. The court ruled that hooding is always cruel, inhumane, or degrading treatment. Shiner welcomed the decision, noting it means no UK forces anywhere may be associated with hooding and that any UK troop who thinks another state is hooding is required to report it.
I discussed the Baha Mousa case with a Professor Vivienne Nathanson, who was attending the conference from the British Medical Association. She pointed out that a doctor and a chaplain had witnessed hooding and beating but had done nothing, and that the report had recommended prosecution. “Sins of omission need to be prosecuted,” she said, as the day’s meetings wrapped up and the world went about its business.
Video of the conference is at http://www.wcl.american.edu/secle/video.cfm.
Reports and other materials are posted at http://auw.cl/sp12fet.
David Swanson is the author of War Is A Lie and Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union.