Laws of Gravity

Almost a year since the first photos of torture from Abu Ghraib appeared, there remains a steady stream of new documents out of Afghanistan and Iraq revealing an ever-larger number of detainees brutalized in U.S. custody. One might have imagined that evidence of such a systemic problem in U.S. detention and interrogation operations (roundly condemned by most on Capitol Hill) would lead lawmakers to seek more effective enforcement mechanisms and stiffer penalties for violators. Yet on the contrary, policy-makers' interest in embracing and regulating “highly coercive” methods of interrogation (based on a realpolitik acceptance that harsh coercion is happening anyway) is emerging as an early agenda item in the first new Congress since Abu Ghraib.

There is a striking disconnect between the universal condemnation of the torture and other cruel treatment we have seen in practice and the steady interest in pursuing coercive interrogation as a matter of policy. But policy-makers interested in the potential utility of harsh tactics are quick to distinguish the gruesome reports from Abu Ghraib and Guantanamo Bay from anything they might consider authorizing under law. Coercive methods would be limited to techniques short of actual torture, which under no circumstances would be permitted. Non-torturous coercion could only be used in the most exceptional cases, not like the indiscriminate use we appear to have seen in certain detention facilities in Afghanistan and Iraq. The use of any congressionally sanctioned techniques would be overseen by Congress or by a secret court; this would not be a system beyond law. And the principal argument on the other side -- that highly coercive interrogation will lead inevitably to torture -- can be dismissed as a hypothetical slippery slope. It may be hard to define the difference between torture on the one hand and cruel and inhuman treatment just short of torture on the other, the reply goes, but we know it when we see it, and American policy-makers are capable of drawing that line in advance.

Slippery-slope arguments can indeed be problematic. After all, how can we know that all efforts by law to authorize the use of coercion in advance -- limited by tactic, time, and place -- will inevitably fail, that mild coercion always leads to torture?

First and foremost, the evidence here is unusually strong. Consider the law: Both torture per se and “cruel, inhuman, and degrading treatment,” as variously defined, are prohibited by a vast number of laws to which the United States is currently bound, from the U.S. Constitution and multiple treaties to federal criminal law and the Uniform Code of Military Justice. Under all of these laws, the difference between torture and any other cruel (and still unlawful) treatment is one of degree, rather than kind. Courts have proven themselves capable of assessing this difference after the fact: Sergeant Charles Graner of Abu Ghraib, for example, received 10 years in prison for gross sexual abuse and assault, while domestic U.S. prison guards were not prosecuted but were denied a qualified immunity defense in a civil suit for chaining a prisoner to a hitching post in the baking sun for hours. But interrogators struggling to make such judgment calls in real time have not proven as subtle. As one U.S. Army interrogator deployed to Afghanistan explained, the torture at Abu Ghraib “represented the gravitational laws that govern human behavior when one group of people is given complete control over another. … Every impulse tugs downward.” Legislative endorsement, for all practical purposes, puts the line-drawing task in the interrogator's hands.

The history of our democratic allies' efforts to confront domestic terrorism agrees that neither reporting requirements nor procedural protections has succeeded in preventing authorized coercion from giving way to the practice of torture. Israel's efforts in the 1980s and '90s to protect the ban on torture but permit “moderate physical pressure” in order to extract information spurred a substantial increase in the use of harsh coercion; government studies found that security-service interrogators regularly used methods that exceeded the limits set on the type and severity of methods to be used. A decade later, one study estimated that 85 percent of those interrogated by Israeli security services were subject to torture, and similar studies estimated that 94 percent of those interrogated were subjected to ill-treatment. The British took a similar lesson from their struggles with the Irish Republican Army (IRA). Following the revelation of widespread use of abusive interrogation techniques against suspected IRA members, the British prime minister concluded in 1972 that techniques including stress positions, humiliation, sleep deprivation, and the like “will not be used in future as an aid to interrogation.” That remains the British Government's position today.

If nothing else, our own recent experience should make clear that efforts to limit the use of coercive techniques -- for example, only to those identified as “enemy combatants” and not civilian internees, or only those held in Afghanistan or at Guantanamo Bay but not in Iraq -- have failed. As the Army's recent investigations have shown, interrogation techniques approved initially only for use at Guantanamo Bay quickly “migrated” to Iraq. General guidance to soldiers in the field to set appropriate conditions for interrogation, or even specific and limited approved techniques such as the use of dogs, quickly degenerated into gross acts of abuse. As recently as June 2004, the Red Cross filed a confidential report with the Pentagon (later leaked by non-Red Cross sources to the press) finding that coercive techniques at Guantanamo Bay were “tantamount to torture” (describing extreme temperatures, humiliation, prolonged solitary confinement, stress positions, and beatings). To date, at least 130 U.S. soldiers have been charged or punished in cases involving abuse of detainees worldwide, with scores of cases still under investigation. The line, such as it is, has not held.

The insistence, nonetheless, that America might be able to avoid these mistakes -- draw a sharper line between torture and anything else, impose better procedural safeguards, enforce the limits more effectively -- points to the other critical reason why the slippery-slope argument here is more than just a fear. The exceptionalist idea that America can productively authorize limited coercive interrogation where the rest of the world has failed runs contrary to our constitutional tradition of judging our own practices against the community of nations. As the U.S. Supreme Court has made clear, the constitutional prohibition against cruel and unusual punishment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.” In this context, and in charting the limits of due process itself, the Court looks directly to the customs of “civilized society” -- here and abroad -- in judging when treatment crosses the line from unpleasant but allowable to cruel and illegal. There are few places in which our laws lead us to ask what is usual to decide what is right, but in this unique context we have made a constitutional commitment to caring what treatment is universally an affront to human dignity. Torture -- as well as cruel, inhuman, or degrading treatment -- has been rejected by our own laws, as well as the laws of the democracies closest to us in the world.

Slippery-slope arguments are rarely decisive. But in the special case of torture, the great weight of law, history, and our own recent experience at a minimum puts the burden on those who would advocate starting down the hill to demonstrate that they have finally found the magic brakes that will keep us from crashing to the bottom.

Deborah Pearlstein is director of the U.S. Law & Security Program at Human Rights First (formerly the Lawyers Committee for Human Rights) and a visiting lecturer on human rights and national security at Stanford Law School.

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