Sunday, June 12, 2005


There is a push on for closure of Guantanamo Bay prison for terrorists, or at least for a commission to study, presumably, what is going on there. As a wise man used to say, "First things first." What is our overall approach to the handling of captured persons suspected of being terrorists? What work are we willing to order our service men and women to do, and what, if any chore, do we farm out to foreign allies, who reputedly are less sensitive than we? More to the point, are we American citizens, in this time of international threat, entitled to know how our military people treat those they take into physical custody on the basis that they are terrorists?

The whole hullaballoo began with the pictures of Pvt. England and her leashed Muslim terrorist. The investigation concentrated on the humiliation pictures and acts which caused humiliation. Little has been said about the physical alleged torture.

First, the pictures show humiliation; but the pictures raise the question of how did our guards get the prisoners to undress and be humiliated. What did our guards do, or threaten to do to get the prisoners to pose with electric wires on their privates?Second, the pictures do not show the alleged physical violence, including assault with a broom stick. Interrogation in a shower (?) of a prisoner who had a sack over his head (supposedly concealing his head and face injuries from his interrogators)? Insertion of a broomstick is not a new technique; it was used by convicts on the guards at the New Mexico State Penitentiary in the 1980 riot; but it is sad to see our armed forces put in the position of having to do such things.

The most important point is that the administration in effect concedes that the conduct in Iraq was wrong (not that it went wrong), yet the administration does not state that such conduct is prohibited in Guantanamo. Apparently, the line is being drawn between prisoners who are acknowledged to be under the Geneva convention protections against torture, and those in Guantanamo, who are not protected by the convention.

The question that should be raised, and debated in the United States now, is whether we condone torture of any captives (general term covering prisoners of “war” and terrorists). But so we do not get sidetracked, we also need to define “torture,” because some are in effect condoning what others call torture, and describing it as “conditioning,” “sleep delay,” or “diet adjustment.”

Maybe it is all right to permit our soldiers and civilian operatives to engage in physical or mental torture to get information under certain circumstances. I cannot conceive it, but I am willing to listen. But let us openly debate it. Also, remember that the Fourth Amendment (which I do not suggest applies here, although why not?) not only requires probable cause; it requires that such probable cause, known to the police, be submitted to a neutral, detached magistrate before action is warranted. Would it not be reasonable and fair to have some such requirement in the handling of terrorists?

Exigent circumstances excuse the submission to the magistrate. But take cases such as these. We have the prisoner under interrogation. He or she declines to talk, except for giving name, rank and serial number (if any). We, the interrogators, believe that the circumstances are such that torture (start with mild torture or with severe torture, depending on whether time is of the essence) is necessary and permitted by law. Why not submit a sworn written statement (email okay; voice mail okay) to a Judge and get a warrant that says okay to use water-boarding (repeated near-drownings), or forced masturbation, or forced pyramid stacking of naked people, or chained naked on concrete floor in own waste, or whatever else the CIA and Army intelligence want to propose.

Remember that Secretary Rumsfeld had a list of more than 20 approved techniques, kept secret so far. He originally approved 23, in writing; and when the pictures became public, the 23 became 20. What were the three which were dropped? What are the 20 which have been retained? Does Sen. John Warner know? We could feel much better if he, at least, were let in on the information.

Let us acknowledge what is happening, what methods we are willing to use under what circumstances, what the procedural requirements will be, what the rights of the prisoners shall be, and then we will have a rule of law. Then we should abide the rule of law. If the rule of law that we adopt does not meet with international approval, we should consider but not be controlled by that (for example, maybe we want to withdraw from Geneva rules; but at least we can say we are a nation which believes in the rule of law).

Finally, why get into a debate with the International Red Cross or Amnesty International about what is going on at Guantanamo or any of our other prisons? Open them to scrutiny by any legitimate international oversight group. Then we can regain our pride in being citizens of a country that is governed by the rule of law. We may have to give up torture as a weapon of self defense in the war on terror. That will be our choice; at least we will be honest about it. Some cringe when they think we may be using torture, or using torture unnecessarily or unwisely, but how is one to know whether we are or not?

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