Slate's Jurisprudence: Torture and 'War on Terror'

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Alex Chadwick talks to Slate legal affairs writer Emily Bazelon about how the so-called "war on terror" may be influencing national policy on torture. Slate has published an extensive collection of data and documents on the events leading up to the Abu Ghraib prison scandal and the U.S. government's response to numerous allegations of prisoner abuse.


From NPR West and Slate magazine online, this is DAY TO DAY. I'm Alex Chadwick.

Our lead today, a question of torture. `The Gulag of our times'--that's what Amnesty International is calling the US naval base at Guantanamo Bay, Cuba, that has served as a detention center for hundreds of prisoners from the war on terror. Most of them were captured in Afghanistan and Pakistan. Amnesty says senior US officials are circumventing the international ban on torture and tough interrogation techniques under the Geneva Convention and other agreements. White House press secretary Scott McClellan called the Amnesty charges ridiculous and unsupported by the facts.

But there is no question that after the September 11th attacks, Americans have re-examined the issue of what is allowable in questioning prisoners who may have vital secrets. Back in January at a confirmation hearing for attorney general nominee Alberto Gonzales, Republican Senator Lindsey Graham pressed him about the Bush administration's policies, some of which Mr. Gonzales helped develop in his role as White House counsel.

Senator LINDSEY GRAHAM (Republican, South Carolina): I think we've dramatically undermined the war effort by getting on a slippery slope in terms of playing cute with the law 'cause it's come back to bite us. And I think you weaken yourself as a nation and become more like your enemy instead of like who you want to be.

Mr. ALBERTO GONZALES (Nominee for Attorney General): We are nothing like our enemy, Senator. While we are struggling mightily to try to find out what happened at Abu Ghraib, they are beheading people like Danny Pearl and Nick Berg.

CHADWICK: He was referring to Wall Street Journal reporter Daniel Pearl and American contractor Nicholas Berg, both executed.

Our partners at Slate magazine have just published the results of a months-long project on torture and the war on terror. It's an interactive guide through the many reports and memos and personalities that have shaped this discussion over the last three and a half years. Slate's Emily Bazelon wrote for the project and was editor for it, and we spoke earlier.

Emily Bazelon, explain the overall goals for this project.

EMILY BAZELON reporting:

Well, the idea is to provide the facts and the law to illuminate and add depth to the torture debate, not to persuade anyone to support or oppose torture, but to help you formulate your own views on where the acceptable boundaries may lie. So to that end, we've tried as much as we can to separate facts from analysis, and we've used a lot of primary documents, the ones that are available through government reports, leaks to the press, or requests under the Freedom of Information Act.

CHADWICK: In one piece, Slate contributor Phil Carter--he is both an attorney and a former Army officer--has compiled a chain of command for the Abu Ghraib prison during the period when abuse took place there. And what do we learn from that?

BAZELON: When the Abu Ghraib scandal broke in April 2004, attention was focused on a very small group of players: the soldiers that were in the photographs and the senior officers who were directly in charge of them. Since then, the scope of the abuse allegations has widened considerably, and while it's impossible to catalog every single soldier and officer who's been involved, we wanted to chart who among the major players did what. And we really wanted to show how the conditions that gave rise to torture in many cases were set by people higher up the chain of command.

CHADWICK: One aspect of this, Emily, that's clear is that the whole question of how to interrogate detainees or prisoners and what's legal, what's torture, what isn't--this is something the Bush administration was thinking about very soon after the attacks of 9/11. There are a series of legal memos that go back a long way and outline what is permissible and what's not. And your colleague Dahlia Lithwick has composed a guide to what these most important legal papers are saying and when they say it, what the pattern of events is. And what pattern do you see?

BAZELON: Dahlia's piece showed that the legal memos written by various lawyers in the Bush administration reframed the discussion about what constitutes torture and to whom the new rules apply. What's most striking about these memos is their consistency. Almost from the outset, the principal ideas were set in place--that the Geneva Conventions might not apply to some prisoners, that torture could be defined narrowly so as to permit egregious conduct as long as the intent of the interrogator was not to violate the law, and also that conduct prohibited under the Constitution and international law could be redefined so that it was permissible. There were a few critics along the way who raised objections, but for the most part the memos reveal a uniform willingness up and down the ranks to accept a pretty extreme doctrinal definition of torture.

CHADWICK: Well, despite the legalisms, when these photographs came out of Abu Ghraib, this really blew up into a huge international story and scandal, and there followed a series of investigations and reports about the interrogation methods. You've written a guide to these reports. Again, do you see a pattern here? And this question as well: Why so many reports? Ten of them, I think.

BAZELON: Right. Depending on how you count, there are as many as 10 reports by the military and the Pentagon. And I think that different Pentagon agencies and different units in the military have initiated their own reports for their own reasons. And the patchwork of investigation really reflects the lack of a systemic response overall to the scandal. And if there's a pattern in the reports, it really shows that the inquiries that were conducted soon after the abuses at Abu Ghraib were uncovered are far more bluntly critical of the higher-ups in the chain of command than the recent follow-up inquiries. And it's also interesting to note that those recent inquiries were the ones that had greater authority to recommend punishment.

CHADWICK: The Abu Ghraib scandal, Emily, has really focused a lot of people's minds on this question of torture. I want to play a clip here from The New Yorker journalist Seymour Hersh, who's uncovered many of these abuses. He described the famous Abu Ghraib photographs in an interview with NPR. Here he is.

(Soundbite of interview)

Mr. SEYMOUR HERSH (Journalist, The New Yorker): The photographs are an important part of the interrogation process to help dehumanize and break down the people. So somebody said, somewhere, that the process now is going to include photographing. Why do you photograph? Because one of the ways--things you can do to somebody you believe to be a recalcitrant prisoner is to say, `We're gonna take these photographs and pass them all over your neighborhood.' And the shame therein would be so extreme. It's a form of interrogation and a form of torture.

CHADWICK: That's Seymour Hersh's definition of torture. But after studying this topic for months now, what do you conclude? Because a number of people who've written about this say that most of the techniques that we've seen aren't really that bad. It's not like yanking out people's fingernails or some of the things that we associate with the Inquisition.

BAZELON: One of the things that Phil Carter points out in his taxonomy of torture in Slate is that a few of the techniques that are being used really do date back to the Middle Ages. For example, in Afghanistan there were two prisoners who were hung suspended by their arms from the ceiling, and that's a technique that dates from the Italian Inquisition. So while for the most part we're talking about different kinds of behavior, it really has gone that far in a few instances. I think what's more important to think about is that without a larger context it's really hard to know how to think about this and how to frame the issues. And that helps explain, I think, why people find themselves either for or against torturing alleged terrorists, without having really developed nuanced ideas of what those positions mean.

CHADWICK: Writing about all of this, you say, `It's not true, as many in the Arab world believe, that the United States has embarked on a reckless campaign of torture and abuse of its Arab prisoners of war, but what has happened should warrant public outcry.' And, you know, while it has gotten people upset somewhat, there isn't this huge public outcry. Why is that?

BAZELON: Well, one of the reasons we decided to work on this feature is that much of the official thinking about interrogation has taken place in government offices behind closed doors. And we think that that's prevented public understanding of where the government is drawing the lines and why. And so we wanted to try to do a little bit to change that, to give people the information they need to participate in a more informed way in the conversation about what America should and shouldn't do in fighting the war on terror.

CHADWICK: Opinion and analysis from Emily Bazelon. She is editor of Slate's project on torture, which is up on the site today.

Emily, thank you.

BAZELON: Thank you, Alex.

CHADWICK: DAY TO DAY has sought response from Capitol Hill about the question of oversight. We've not had any so far. We'll try for more for tomorrow.

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