Debate Over Terrorism Torture Deepens

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The debate over alleged U.S. torture of terrorism suspects is back in the news with media reports that in 2005 the Justice Department authorized the CIA to use brutal tactics on prisoners.

ANDREA SEABROOK, host:

Official Washington is once again embroiled in the torture debate.

This past week, the New York Times revealed that the Justice Department issued secret memos back in 2005 authorizing water boarding, slapping prisoners in the head and other harsh interrogation tactics by the CIA.

Democrats on Capitol Hill demanded to see the memos, but the administration refused to provide them, insisting once again that the U.S. does not engage in torture. As Congress and the White House tussle over the treatment of terror suspects, scholars are gathering in Washington to propose changes to the international laws of war. These scholars will be attending a conference organized by Syracuse University's Institute for National Security and Counterterrorism.

The institute's director is William Banks, and he joins me now.

How are you, sir?

Dr. WILLIAM BANKS (Director, Institute for National Security and Counterterrorism, Syracuse University): Very well. Thank you.

SEABROOK: The conference is called New Battlefields, Old Laws: From the Hague Convention to Asymmetric Warfare. Now, first, quickly remind us what international law - the Geneva Conventions and so on - prescribes for the treatment of terrorists now?

Dr. BANKS: The problem, Andrea, is just that those conventions say almost nothing about the treatment of terrorists, insurgents, guerilla organizations and the like. The conventions beginning with The Hague in 1899, 1907, and the Geneva Conventions after World War II were written for states about states to govern the conflicts between states and their armies. If their organizations, groups, individuals who carry on conflicts, and we all know that they do, they're simply outside those conventions. They're not recognized to such.

SEABROOK: But there was the 1977 Protocol governing insurgents.

Dr. BANKS: That protocol had limited success, Andrea, in part because some of the principal state players refused to sign - United States being the, perhaps, the leading non-signer.

SEABROOK: So what is your proposal for how to change that?

Dr. BANKS: Our idea in the - in a nutshell is to add a new category of non-state entities or non-state actors to recognize a group that's here to force sort of fall in between the cracks as having some status in the international law. Both so that their activities could be better regulated and so that those of us who wage war against them would have a better understanding of the limits of what can be done in that kind of conflict.

SEABROOK: The word asymmetric warfare - the definition of it - is when a state, with its army, is fighting a war against a non-state organization or group. In other words, terrorists or insurgents or so on. But the word terrorist that we use so often here - one man's terrorist is another man's freedom fighter. How do you make a distinction between those different groups?

Dr. BANKS: It's one of the most challenging parts of our project you can imagine. And so it's incumbent on the legal institutions to find ways to identify actors that might, over time, even commit to claim by the rules as distinct from those who never will.

SEABROOK: You're talking about conferring rights to terrorists. And if you do that, theoretically, then it seems like you confer a certain amount of legitimacy on the terrorist and terrorist organizations.

Dr. BANKS: That's a very delicate matter. I think that the thinking that is fomenting now in this project is to imagine a step-by-step process where you would credit some legitimacy to their status so that they could, for example, legitimately target uniformed armies of a state in return for their commitment saying not to target civilians. And if that relationship paid benefits overtime, there might well then be a little further incentive or enticement.

SEABROOK: Isn't the point of being a non-state actor not having to play by the international rules? I mean, isn't that the point? And what makes you think that these non-state actors or guerilla or whatever would find enough benefit to do it?

Dr. BANKS: There are a few different things that might be appealing to non-state actors. For some - now I'm not thinking about the al-Qaidas. I'm thinking more along the lines of the Hezbollah or Hamas. They might see themselves as rulers of a state someday. So there's a reason then to begin to become accountable and to look as they may be responsible officials somewhere down the line.

SEABROOK: Future legitimacy.

Dr. BANKS: Future legitimacy.

SEABROOK: William Banks is the director of Syracuse University's Institute for National Security and Counterterrorism and a professor of law.

Bill Banks, thank you very much.

Dr. BANKS: It was a pleasure.

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