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Good torture, bad torture

Charlotte Silver

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July 12, 2014


Abu Ghraib and Guantanamo victims of torture seek justice in US courts.

July 12, 2014

In June, two US courts issued rulings on cases in which victims of Abu Ghraib and Guantanamo had sought justice. In one, a Washington DC court upheld the foundational rationale for the extrajudicial detention and abuse of men at Guantanamo during the "war on terror"; and in another, it was determined that yet a few more of our bad apples will be thrown on the garbage heap.

As in the old trials of a few lowly US soldiers caught torturing Iraqi prisoners at Abu Ghraib, there continues to be a gaping chasm between prosecuting the "bad apples" and uprooting the whole stinking orchard. Its most recent iteration can be found in these two disparate US court rulings.

Bad apples

In 2004, gruesome photographs that showed the world just what US military personnel were doing to detained Iraqi men in Abu Ghraib - one of the many centres for "enhanced interrogation" that proliferated after September 11, 2001 - were revealed.

Eventually, seven low-ranking people were court-martialled for their repellent actions perpetrated on prisoners, acts which were not only violations of US criminal law and the Geneva Conventions, but had been caught on camera. (Only those people that had been photographed would face condemnation and trial.)

When the pictures were made public, the US government would express shock at the aberrant nature of the treatment prisoners were subjected to, pretending it hadn't worked hard during the first two years after 9/11 to design the legal rationale that allowed the US military to circumvent international laws against torture. At the time, White House officials described the incidents as "abhorrent"; ones that "don't represent America".

Initial military investigations and judicial proceedings into the Abu Ghraib case helpfully maintained the government's facade - giving little consideration to the legal architecture that had been erected during the "war on terror" that began in Afghanistan, then quickly migrated to Iraq and Guantanamo Bay while simultaneously devastating the civil liberties of Muslims in the US. The proceedings served the dual purpose of asserting some storybook code of morality that undergirds US policy and attributing only to an ignoble few the desire or stomach for torture.

After the last of the seven torture trials concluded in the fall of 2005, the US government and military could say they had successfully disposed of the most foul and festering of the rotten apples, while the rest of the orchard remained - to use the apt analogy articulated by Joann Wypijewski in her 2006 feature for Harper's Magazine.

That same orchard in which the seven convicted and sentenced members of the military had been cultivated (as a Senate Armed Services Committee would eventually conclude  in December 2008) had previously been responsible for sending men, many we know to be innocent of any crime, to the US military prison in Guantanamo Bay, Cuba.

As sociologist and author Lisa Hajjar, wrote for  Al Jazeera in 2011, the commander of the Iraq theatre of operations had "signed off on a policy to 'GITMO-ise' Iraqi prisons - a euphemism for the use of dogs, sexual humiliation, stress positions, protracted sleep deprivation and isolation, and other forms of torture and cruel treatment."

The persistent differing treatment of torture at the two prisons as the following cases demonstrate is an inconsistency not in what, but whom, the US is willing to condemn.

Bad torture

At the end of June, a US appeals court ruled that the case of four Iraqis against a US corporation deserved to be tried in a US court.

The plaintiffs had been held at Abu Ghraib in 2003 and were shot in the limbs, stripped naked, beaten on the genitals, sexually assaulted, and forced to watch the rape of another female prisoner.

The defendants in the suit are CACI International - a private US corporation that was contracted by the US government to provide additional linguistic and interrogative services to the US military police at Abu Ghraib - and one of its employees. They are accused of instigating, participating in, and encouraging the infamous torture at Abu Ghraib that was exposed in 2004.

CACI has fought the charges since 2008, arguing, among other things, that their actions were protected because they worked at the behest of the federal government. Until recently their immunity was granted. But on June 30, jurisdiction for the Iraqi victims was restored, and, over 10 years after one CACI employee reportedly boasted he had "broken" one detainee under interrogation, the private corporation may soon face legal accountability for its action.

Good torture

Earlier in June, however, another set of victims of the US' torture programme in Guantanamo had less luck in being allowed to ask for redress and justice in a US court. 

On June 10, a federal court dismissed a lawsuit against Donald Rumsfeld and other military officials brought by six men who were held at Guantanamo between 2001 and 2006 and subjected to various forms of the "enhanced interrogation" methods designed and approved by Rumsfeld himself.

The court determined that it was of no consequence that the plaintiffs had been declared innocent when their constitutional and international legal rights were allegedly violated, because the US was at war with "terror".

In its ruling, the court described the abuses, including solitary confinement, sleep deprivation, body searches, and forced shaving, as "unpalatable treatment", as if political, bodily, and human rights are a matter of good taste rather than commitments to which a country pledges and is, ostensibly, accountable under international law and the Geneva Convention.

"Indeed, the treatment of the detainees in this case appears to be standard for all those similarly situated," the judge wrote. "The conduct was certainly foreseeable because maintaining peace, security, and safety at a place like Guantanamo Bay is a stern and difficult business."

From the two rulings it is clear that litigation that goes after the deepest roots in the orchard will fail.

It is also a reminder that the "war on terror" and its concomitant torture regime is not resolved. Despite Obama's formal ending of the Bush administration's torture programme in January 2009, his administration has shown itself more dedicated to defending the architects of this programme than returning innocent men to their homes. Currently, defence lawyers for the five defendants in the 9/11 case at Guantanamo are resisting signing a Memorandum of Understanding that would prohibit the defendants from seeking remedies under the Convention against Torture.

In the introduction to the ruling on Guantanamo, the judge wrote that we are now at a "coda to [the US'] military engagement in Afghanistan". But if this period is to be truly closed, justice must be granted to all the victims of the US' torture regime, and that means the big people who designed it must be held to account. 

Charlotte Silver is an independent journalist in San Francisco, formerly based in the West Bank, Palestine. 



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