Is America above the Geneva Conventions?
By Michael Ratner and Sara Miles
Spiegel" -- -- Inside the Pentagon, officials are
arguing with Vice President Dick Cheney about a new set of US
Defense Department guidelines for interrogating suspected
terrorists. The debate over an anti-torture bill is a sad moment for
a country that once stood for human rights.
As someone who has spent decades representing clients who have been
tortured under dictatorships, in dirty wars and by lawless
governments around the world, I'm having a rough week here at home.
Sister Dianna Ortiz, an Ursuline nun whom I represented after she'd
been abducted, raped and tortured by security forces in Guatemala, told me she was having a hard time too. "Torture destroys
trust," she said. "Since my torture, 16 years ago, I've tried to
rebuild that trust, but now my government has shattered it yet
again. Fear returns..."
For Sister Dianna and other victims of torture, this moment
represents what she calls "a choice between courage and cowardice,
human decency and depravity."
Inside the Pentagon, officials are arguing with Vice President
Dick Cheney and some of his aides about a whether a new set of
Defense Department guidelines for interrogating suspected terrorists
should prohibit the "cruel, humiliating, and degrading" treatment of
prisoners. In the Congress, Sen. John McCain, with support from 89
colleagues, is pushing a separate measure to ban cruel, inhuman or
degrading treatment of any detainee in U.S. custody -- against veto
threats from the White House and fierce opposition from Cheney and
his new chief of staff, David Addington, who are maneuvering to
exempt clandestine CIA activities from oversight. And reporters have
uncovered a network of "black sites" in Eastern Europe and elsewhere
-- secret detention camps run by the CIA, where suspects are being
held and brutally interrogated.
The idea that torture could be so publicly defensible -- and the
news that the United States is maintaining secret facilities in
former Soviet-era prisons for torturing nameless and disappeared
people -- fills me with shame and horror. And while it's encouraging
that John McCain, who was himself tortured as a prisoner of war,
wants to make it illegal to strap naked prisoners to boards and hold
them under water, electrocute them or mock-execute them, it's
profoundly depressing that the discourse about torture has come to
Cruelty in war may be universal: but an international code
acknowledging limits on cruelty has been, until now, a fundamental
part of civilization. The Geneva Conventions, adopted in 1949, put
it plainly: Even in war, all persons are to be treated "humanely";
"cruel treatment and torture and outrages upon personal dignity" are
prohibited. The United States and countries from Afghanistan to
Zimbabwe, 192 in all, have agreed that freedom from torture,
degradation, and cruel or inhuman treatment is one of the most basic
of human rights, transcending national boundaries. As Judge Irving
Kaufman of the 2nd Circuit Court of Appeals ruled in 1980 -- in a
landmark case we at the Center for Constitutional Rights brought in
a U.S. court against the Paraguayan general who tortured Joel
Filartiga to death -- "for purposes of civil liability, the torturer
has become like the pirate and slave trader before him hostis humani
generis, an enemy of all mankind."
Changes since 9/11
The Filartiga case set a precedent that torturers anywhere in the
world can be held accountable for their crimes. With the Center for
Constitutional Rights and lawyers for other human rights
organizations, I have represented victims of torture from Bosnia to
Algeria, from East Timor to Tiananmen Square: their stories still
haunt me and bring me to tears. I'm unable to forget a terrorized
Kanjobal Indian boy from Guatemala, who was just 8 when army troops
came to his village and rounded up all the men, shackling and
hooding them. The boy told me how he'd been forced to watch as his
father was hanged from a tree and cut apart alive. The principle
that all people should be safe from torture -- that there are
universal laws that make us human -- has been at the very heart of
Since 9/11, I've found myself swept up in defending basic human
rights and the rule of law against a relentless onslaught by the
Bush administration. We've brought suit on behalf of 500 nameless
"John Doe" prisoners held at Guantánamo in defiance of the Geneva
Conventions; we've fought the indefinite detention of American
citizens; we're challenging the Defense Department and private
contractors over the horrendous abuses at Abu Ghraib. We've
uncovered terrible stories about cruelty and torture carried out by
our country, like that of Maher Arar, an innocent Canadian citizen
kidnapped and "rendered" to Syria by American forces, who was kept
an underground cell for over 10 months and beaten for weeks on end
with a thick cable. I represented three young men from England who
were released from Guantánamo when it was finally proved they'd made
false confessions -- after being stripped, hooded, isolated, chained
to the floor for 12 hours at stifling temperatures and threatened by
Click here to launch the image gallery (9 Photos).
Yet despite victories in court, and rising political outrage from
Republicans as well as Democrats, military lawyers and State
Department officials as well as human-rights activists, it now seems
that administration hard-liners are digging in.
How did we get to this point? Because the United States is bound by
the Geneva Convention governing prisoners of war, and by the 1987
Convention Against Torture with its prohibitions against torture and
cruel, inhuman and degrading treatment, McCain's legislation should
not even be necessary.
But after 9/11, Attorney General Alberto Gonzales (at that time
White House counsel to the president) and others gave their legal
opinion that prohibitions on "cruel, inhuman, and degrading
treatment" didn't apply to noncitizens being held by the United
States outside the United States. Then, because torture, even
outside the United States, remains a crime, they redefined "torture"
so narrowly that almost all violent and coercive methods of
interrogation were excluded. Then, because of the U.S. criminal
statute making violations of the Geneva Conventions a crime, they
insisted that the conventions did not apply to anyone they termed a
suspected al-Qaida member.
These opinions were an attempt to provide legal cover so that U.S.
personnel and contractors could engage in coercive interrogations
without fear of criminal prosecution. They were an attempt to show
that the United States did not really engage in torture and was not
really violating conventions governing cruel, inhuman or degrading
treatment. Once the abuse scandals broke, and the reality of what
was being done to prisoners emerged, officials began to talk about
lack of clarity in the opinions, or a "failure of supervision" that
led to "excesses."
But this administration is now openly and baldly saying that it
claims the right to torture, at its discretion. All the fictions
that sustained the war on terror -- that abuses were one-time
mistakes by low-level grunts; that the rules about human rights
weren't clear; that soldiers didn't understand the parameters when
they beat and humiliated and tortured prisoners -- have been
replaced by a clear declaration: The United States is going to
torture people as it sees fit, to subject them to cruel, inhuman and
degrading treatment wherever and whenever it decides to.
Human rights activists around the world who live under repressive
regimes have long looked to this country for leadership; our
government, flawed as it is, has launched crusades against human
rights abusers abroad and helped prevent terrible suffering by
demanding that torture stop. Now we are facing a new world: one in
which the most powerful country on the planet publicly declares
itself above the laws that have protected individuals everywhere
from disappearance, torture and murder. It is a sad and dark moment,
in which the hostis humani generis, the enemy of all humankind,
speaks with the voice of the United States government.
© SPIEGEL ONLINE 2005
(In accordance with Title 17
U.S.C. Section 107, this material is distributed without profit to
those who have expressed a prior interest in receiving the
included information for research and educational purposes.
Information Clearing House has no affiliation whatsoever with the
originator of this article nor is Information Clearing House
endorsed or sponsored by the originator.)