By Morris Davis
The imagery depicting the mutilated body of 13-year old Hamza Ali al-Khateeb was rapidly disseminated around the world and is Syrian President Bashar al-Assad’s Abu Ghraib; iconic images documenting torture forever etched into the record of his government’s infamous history.
At nearly the same time, the body of Pakistani journalist Syed Saleem Shahzad, who had written about suspected links between some in the Pakistani government and extremists, was pulled from a canal about 100 miles from his home where he was last seen alive. His body bore the marks of torture, too. Suspicion immediately fell on Pakistan’s spy agency, the Inter-Services Intelligence (ISI) agency, and adds to a growing list of doubts about the ISI and the Pakistani government that includes possible links to the deadly terrorist attack in Mumbai, India, in 2008 and providing safe harbor to al Qaeda leader Osama Bin Laden until U.S. forces killed him in 2011 in Abbottabad.
U.S. Secretary of State Hillary Clinton has mentioned Hamza Ali al-Khateeb and Syed Saleem Shahzad in recent days and condemned their abductions and murders. She called on the Syrian government specifically to “end the brutality.”
Service members understand that war is hell and the law of war constrains the hellishness. It is a code of conduct developed by warriors over centuries on battlefields around the world.
In the fall of 2005, when I was chief prosecutor for the military commissions at Guantanamo Bay, Cuba, I sat down for a lengthy discussion with a veteran member of the prosecution team, a Marine Corps officer with an extensive background in criminal prosecution. We discussed a case that caused him concern, one he said he was not comfortable prosecuting. After describing some of the specifics of the detainee’s treatment at Guantanamo, which was documented in official records, the prosecutor said: “Sir, they fucked with him and they fucked with him until now he’s as crazy as a shit-house rat.” In an interview with Bob Woodward published in the Washington Post in January 2009, Susan Crawford, the Bush administration official who supervised the military commissions, explained why she refused to send the same case to trial when it reached her desk in the spring of 2008. “We tortured Qahtani,” she said, “His treatment met the legal definition of torture.”
The alleged torture of Hamza Ali al-Khateeb, Syed Saleem Shahzad, and Mohammed al Qahtani by government agents that signed the Convention Against Torture begs the question, is a law that is ignored worth the paper it is written on?
Some people dismiss the Geneva Conventions as “quaint,” and some believe “law” and “war” have no place in the same sentence; but few who make the military a profession hold such mistaken beliefs. Service members understand that war is hell and the law of war constrains the hellishness. It is a code of conduct developed by warriors over centuries on battlefields around the world.
The law of war is drilled into every U.S. service member from the start of basic training. It is reinforced regularly and tested during combat exercises in the belief that engrained values survive the fog and friction of war. Honor matters to service members. The failure to abide by the law of war dishonors the military profession and discredits military professionals. Army Specialist Jeremy Morlock pled guilty in March and accepted responsibility for his role in murdering innocent Afghan civilians, telling the court, “I’ve spent a lot of time reflecting on how I lost my moral compass.”
Nothing is further from the profession of arms than the cowardice of terrorism. The mass murder of innocent civilians, sending children into crowded markets on suicide missions, and hiding explosives in the trunks of cars to kill and maim indiscriminately—calling those who use such tactics “combatants” gives them more status than they deserve.
As chief prosecutor for the military commissions, I personally approved the charges against some of the detainees now convicted of war crimes and I participated in discussions on potential charges against others like Khalid Sheikh Mohammed. A phrase used repeatedly in detainee charges is “in violation of the law of war.” As a career military attorney, prosecuting those who violated the law of war was a duty I readily accepted. For nearly two years, I was a vocal supporter of the detention facility at Guantanamo and the military commissions. In June 2007, I published an op-ed entitled “The Guantanamo I Know,” where I defended the detention facility and the military commission process.
I instructed the prosecutors that we would not use information derived by waterboarding or any other technique that went too far, and for two years that policy was unchallenged. Then, in October 2007, I received a written order from Deputy Secretary of Defense Gordon England placing me under the command of Brigadier General Tom Hartmann and Defense Department General Counsel Jim Haynes. Hartmann disputed the policy I established arguing that “President Bush said we don’t torture, so what makes you think you have the authority to say we do?” He believed the information I had excluded should be introduced as evidence in detainee trials. Haynes was the architect of the memo former Secretary of Defense Donald Rumsfeld signed authorizing enhanced interrogation techniques, the memo on which Rumsfeld scribbled, “I stand 8-10 hours a day. Why is standing limited to four hours?” I was summoned to the Pentagon and given a copy of the order. I went back to my office and drafted my resignation. Information obtained by extreme coercion – what most call torture – has no place as evidence in what purports to be an American military court of justice.
I became a critic of what I once defended. In February 2008, I published an op-ed entitled “Unforgivable Behavior, Inadmissible Evidence” and I have advocated repeatedly since then in support of the rule of law and against torture.
Terrorists are cowards. Torturers are, too.
Those who bias the torture debate by pandering to fear and casting it as “you’re either with us or you’re with the terrorists” are as disingenuous as those who try to justify terrorism by perverting Islam. It is not a choice of one or the other. There is nothing inconsistent in holding torturers and terrorists accountable for acts that break the law.
“My conscience cannot abide torture — or any other euphemism used to describe it. Torture is inconsistent with American values and international law.”
In his new book, Tangled Webs, author James Stewart argues that lying has become more prevalent and undermines the fundamental fabric of society, which is built on the premise that honesty and integrity are core values. For instance, he notes that former senior White House official Scooter Libby was not prosecuted for leaking the identity of CIA agent Valerie Plame, he was prosecuted for perjury for lying about it. Then, after Libby was convicted for lying under oath, President Bush commuted the punishment, which perpetuates the perception that lying when you have a duty to tell the truth is acceptable. Stewart told NPR, “You have to have people being held accountable for breaking the law, and then you have to have encouragement for people who do the right thing.”
The same rationale applies to torture.
The fact that some detainees were tortured has been acknowledged by former administration officials, in findings by federal and military judges, in statements by Sen. (R-AZ) John McCain, and even in an op-ed by Fox News analyst Juan Williams, who wrote: “My conscience cannot abide torture — or any other euphemism used to describe it. Torture is inconsistent with American values and international law.”
Torture violates both domestic and international law, and like the basis for the charges against the detainees, torture is “in violation of the law of war.” The law requires that allegations of torture be investigated and those who engaged in it be held to account. To ignore that binding legal obligation is indefensible and inexcusable, whether it is the government of Syria, Pakistan or the United States who is derelict in performing its duties.
Some argue that the ends – extracting intelligence – justify the means – torture. I debated Harvard law professor Alan Dershowitz on CNN’s Pier Morgan Tonight shortly after Osama Bin Laden was killed. Professor Dershowitz said he opposes torture and he acknowledges that it violates our international obligations, but he said we must admit torture works as a means to get information and that “every country tortures.” Physician and law professor Gregg Bloch published an op-ed this week entitled “Torture is Wrong – But It Might Work.” Former CIA director and retired Air Force four-star Michael Hayden wrote an op-ed entitled “Birthers, Truthers, and Interrogation Deniers” where he argues enhanced interrogation techniques (he never once uses the word “torture”) helped find Osama Bin Laden and to deny the effectiveness of such techniques is “lunacy.”
Who decides which obligations are truly obligatory and which means go too far to ever justify the ends? Chemical weapons may have been a fast and convenient way to defeat the Taliban and al Qaeda in the rugged Tora Bora region in late 2001 and may have killed Bin Laden a decade earlier, but is effectiveness, or that it might work, or that others do it justification to violate the Chemical Weapons Convention prohibitions and commit a war crime? If the standard is the United States decides ad hoc which commitments it will honor and which it will not then it should be honest and repudiate those it considers non-binding and the sense to stop the hypocritical criticism of others that fail to live up to its “do as we say, not as we do” example. On the other hand, if the United States means what it says about the rule of law, it has to demonstrate that it practices what it purports to preach.
Justice Stephen Breyer spoke on the theme of justice and accountability at the 2011 Day of Remembrance at the U.S. Holocaust Memorial Museum. He said, “we need only look around today’s world to understand that rights, rules, the obligations that the law sets forth; all of them are no more powerful than the human will to enforce them.”
Do decent human beings have the temerity to stand up and insist the law be enforced? Does the United States have the integrity to lead by example, or has the government engaging in torture become as accepted as government official lying when the truth is inconvenient? We need to find our moral compass.
The views expressed are those of the author.