The Second James MacKeith Lecture

Torture Old and New*

What studied torments, tyrant, has thou for me? What wheels, racks, fires?
What flaying, boiling in leads or oils? What old or newer torture must I receive,
whose every word deserves to taste of thy most worst?
The Winter’s Tale, Act 3, Scene 2

I regret that I did not have the opportunity of meeting and getting to know

Dr Mackeith. Reading about him in preparation for tonight’s lecture, I

came to appreciate the extraordinary contribution he made to justice and

human rights, and why the British Psychoanalytical Society has named an

annual lecture in his honour. His work had a profound effect on the justice

system of the United Kingdom, and led to his being awarded an OBE for

having "changed the landscape in criminal justice and human rights". I

will be talking tonight about torture. This is appropriate for Dr Mackeith

was a medical adviser to the European Committee for the Prevention of

Torture, was active in promoting the need for a comprehensive psychiatric

overview of the regimen (subsequently declared by the House of Lords to be

invalid) of the indefinite detention in Belmarsh prison of aliens suspected of

links to terrorism, and in condemning the system of detention and

interrogation at Guantanamo Bay.

*The prelimi nary re s ea rc h f or t hi s l ec ture was done i n t he be a uti f ul a nd

int ell ec t uall y sti m ula ti ng s urroundi ngs of t he St ell e nbos c h I ns tit ut e f or
Adv a nc e d S t udie s .

1
Dr Mackeith was clearly a man of great ability, integrity, and energy, and I

appreciate the honour of being invited to deliver tonight’s lecture.

Each year the United Nations recognizes the 26th June as the International

Day in Support of Victims of Torture. 1 To mark the occasion in 2003

President George W Bush issued a statement on behalf of the United States

government, saying:

The United States declares its strong solidarity with torture victims

across the world. Torture anywhere is an affront to human dignity

everywhere. We are committed to building a world where human

rights are respected and protected by the rule of law.

The statement affirms the United States commitment to the provisions of

the UN Convention Against Torture, and goes on to say:

1
For a discussion of the history of torture see Kenneh Pennington, Torture and Fear: Enemies of Justice,
Rivista Internazionale di Diritto Comune 19 (2008). Se also Jeff McMahon, Torture, Morality, and Law,
Case Western Reserve Journal of International Law 37 (2005-2006), pp. 241-248, for a bibliography of
articles dealing with torture citing over 100 articles published during the past decade.

2
 The United States is committed to the world-wide elimination of

torture and we are leading this fight by example. I call on all

governments to join with the United States and the community of

law-abiding nations in prohibiting, investigating, and prosecuting all

acts of torture and in undertaking to prevent other cruel and unusual

punishment.2

In April and May of the following year, the practices at the Abu Ghraib

prison in Iraq, since notorious, were disclosed in a 60 Minutes television

programme, and in an article in the New Yorker. You will recall the

photographs of naked detainees forced to lie on top of each other in

pyramids, and images and accounts of detainees being subjected to other

degrading humiliations. More recent reports reveal that there are other

photographs which were not made public, and whose publication has now

been blocked by the Obama administration. According to a comment

attributed to retired Major General Taguba, who had investigated

allegations of abuse for the US military, these photographs “show torture,

abuse, rape and every indecency.” 3

2
Statement issued by the Office of the Press Secretary, the White House, on 26 June 2003
3
As reported in The UK Telegraph of 13 January 2010 available at
www.telegraph.co.uk/news/worldnews/northamerica/usa/5395830/abu-Ghraib-abuse-photos-show

3
On 26 June 2004, following the publication of the first series of Abu Ghraib

photographs, President Bush said:

Freedom from torture is an inalienable human right . . . America

stands against and will not tolerate torture. We will investigate and

prosecute all acts of torture and undertake to prevent other cruel and

unusual punishment in all territory under our jurisdiction. . . . The

United States also remains steadfastly committed to upholding the

Geneva Conventions, which have been the bedrock of protection in

armed conflict for more than 50 years . . . . ..4

According to the Convention against Torture, torture includes

any act by which severe pain or suffering, whether physical or

mental, is intentionally inflicted on a person for such purposes as

obtaining from him or a third person information or a confession,

…when such pain or suffering is inflicted by, or at the instigation of,

or with the consent or acquiescence of a public official or other

person acting in a an official capacity.5

4
Statement by President Bush on the International Day in Support of Torture Victims, 26 June 2004
5
Article 1of the Convention

4
The Convention requires all state parties to take effective measures to

prevent acts of torture in any territory under their jurisdiction,6 and to

ensure that all acts of torture, including any act by any person which

constitutes complicity or participation in torture, are made serious offences

under its criminal law.7 It treats torture as being so egregious as to require

that no exceptional circumstances whatsoever, whether a state of war or a

threat or war, internal political instability or any other public emergency,

may be invoked as a justification of torture.8

An order from a superior officer or a public authority may not be

invoked as a justification of torture.9

This affirms the finding by the Nuremberg War Tribunal, which held that

the question is not whether there was an order, but whether a moral choice

was in fact possible.10 The Convention goes on to provide that states must

establish jurisdiction in respect of the crime of torture, not only where it

has been committed in any territory under their jurisdiction . . . but also

where the alleged offender is present in any territory under its jurisdiction
6
Article 2(1) of the Convention
7
Article 4 (1) of the Convention
8
Article 2 (2) of the Convention
9
Article 2(3) of the Convention
10
Judgment of the International Military Tribunal for the Trial of German War Criminals, available in the
Avalon Project at Yale Law School, http://www.yale.edu/lawweb/avalon/imt/proc/judcont.htm The Tribunal
deliberatred according to “The Law of the Charter” which provided that “The official position of defendants,
whether as heads of State, or responsible officials in government departments, shall not be considered as freeing
them from responsibility” Commenting on this, the Tribunal said that this provision was “in conformity with the
law of all nations . . . the true test, which is found in varying degrees in the criminal law of most nations, is not
the existence of the order, but whether moral choice was in fact possible” (at pages 6 – 7 of the section of the
judgment dealing with The Law of the Charter).

5
and the alleged offender is not extradited to the country where the offence

was committed for prosecution.11

By the time the Abu Ghraib images were published in 2004, serious

allegations of the mistreatment of detainees by the US security forces had

already been made by respected human rights organizations.12 We now

know a great deal more about these matters and their impact on other

countries. This, because of investigative journalism, leaked documents,

freedom of information applications brought by NGOs in the United States,

statements by released detainees, the release by the Obama administration

of some documents that were previously classified, investigations by the US

Senate and the European Parliament, and numerous articles in the media

and in respected journals.13 There is still, however, much that has not yet

been disclosed.

The United States is one of the leaders of the world community. As

President Bush said in 2003 it leads by example. It is important, therefore,

to look again at what that example has been, and to ask what lessons can be

learnt from it.

11
Article 5 (2) of the Convention
12
See for instance the open letter by Amnesty International to President George W Bush dated 7 May 2004
recording previous complaints.
13
A detailed account of the treatment of “High Value Detainees” is given by Mark Danner in US
Torture:Voices from the Black Sites, 56 The New York Review of Books, (April 2009). See also the report of 26
January 2010 on global practices in relation to secret detention in the context of countering terrorism, by Martin
Scheinen, Manfred Nowak, Shaheen Sardar and Jeremy Sarkin, 19 February 2010, submitted to the Human
Rights Council (A/HRC/13/42)

6
In 2009 a report of 7 May 2004 by the Inspector General of the CIA, 14was

made public. There are 266 paragraphs in the report which is written in

bland and sanitized language. 131 of the paragraphs have for all practical

purposes been blacked out in the version that is available to the public, and

significant parts of what remains have been redacted. However, sufficient

is left to reveal how the US counter-insurgency programme developed and

at least some of what it entailed.

Following the attacks on the World Trade Centre and other targets in

September 2001, the United States became involved in wars in Afghanistan

and Iraq. By early 2002 a large number of detainees captured by its

security forces were already in US custody. The CIA was under pressure to

obtain information for its counter-terrorist and insurgency programmes. It

took the view that what is referred to in the Inspector-General’s report as a

“more coercive physical technique”15 was required because it believed that

detainees were withholding information that could not be obtained through

authorized interrogation techniques. What could be done about that? The

answer was to call in psychologists and lawyers.

14
Report of 7 May 2004 on Counterterrorism, Detention and Interrogation Activities (September 2001 – October
2003), obtained by the American Civil Liberties Union through a freedom of information application and
released on 24 August 2009
15
Paragraph 5 of the Inspector General’s Report

7
With the assistance of what the report refers to as “knowledgeable

academics in the field of psychopathology”,16 psychologists developed and

recommended what are euphemistically called “enhanced interrogation

techniques”17 to be used against resistant detainees; a more appropriate

name for this would be psychological torture.

The “enhanced” interrogation programme was as follows. Those charged

with questioning detainees were to be divided into two categories, called

“interrogators” and “debriefers”. Interrogators would undergo a course

of two weeks in “enhanced interrogation techniques”. Their task, in the

language of the report, was to “transition a detainee from a non-cooperative

phase to a cooperative phase, where a debriefer can obtain actionable

intelligence from the detainee through non aggressive techniques”. The

debriefer would then take over and engage the detainee “solely through

question and answer”.18 There was, however, a problem as the Inspector

General’s report records, and that was that according to United States law,

torture is a criminal offence. It was now the turn of the lawyers.

16
Paragraph 33 of the Inspector General’s Report
17
Paragraph 6 of the Inspector General’s Report
18
Footnote 6, Page 6 of the Inspector General’s Report

8
In an infamous secret memorandum of August 2002 the Assistant Attorney

General of the United States19addresses the question: when is pain and

suffering sufficiently severe to amount to torture? The answer given was:

for an act to constitute torture . . . it must inflict pain that is difficult

to endure. Physical pain amounting to torture must be equivalent to

intensity to the pain accompanying serious physical injury, such as

organ failure, impairment of bodily function, or even death. For

purely mental pain or suffering to amount to torture . . . it must result

in significant psychological harm of significant duration, e.g., lasting

for months or even years . . . 20

The memorandum concludes that torture involves only extreme acts

specifically intended to inflict, pain and suffering of that order. The

prohibition of cruel and degrading treatment, a material provision of the

Convention Against Torture, and absolutely prohibited by international

law21 and all civilized legal systems, is not treated as being of any moment.

19
Jay S. Bybee (Assistant Attorney General), Memorandum for Alberto R. Gonzales, Counsel to the President
[1 August 2002], published in The Torture Papers: the Road to Abu Ghraib, Eds:Karen J. Greenberg and Joshua
L. Dratel, Cambridge University Press (2005)
20
Bybee opinion, page 1
21
Article 7 of the International Covenant on Civil and Political Rights. Article 2(2) of the Convenant requires
all states to adopt laws that give effect to the rights recognized in the Covenant. General Comment 7 of the
Human Rights Committee interprets this as including the provision of criminal sanctions for the breach of
Article 7. See also the discussion at pages 24-25 of the ICRC report on the treatment of Fourteen “High Value
Detainees” in CIA Custody, transmitted on 14 February 2007, available at http://www.nybooks.com/icrc-
report.pdf, discussed more fully at pages below.

9
US law does not impose criminal responsibility for cruel and degrading

treatment; only for torture; and the focus of the opinion was on avoiding

criminal responsibility. The memorandum offers CIA operatives an escape

route from possible prosecutions, saying that they would not be guilty of

torture even if they caused severe pain, if they showed that they acted in

good faith, believing that their acts did not amount to torture. 22 Good faith,

the opinion says, could be established by showing that they had consulted

with experts or reviewed evidence gained from past experience. The

opinion went on to say that necessity or self defence might justify

interrogation methods that would otherwise constitute torture under US

law. Put bluntly: a pressing need for information could be greater than the

constraint of the prohibition against torture. A later opinion deals with

details of the enhanced interrogation techniques and says that they do not

22
The opinion states: “A defendant could negate a showing of specific intent to cause severe
mental pain or suffering by showing that he had acted in good faith that his conduct would not
amount to the acts prohibited by the statute. Thus, if a defendant has a good faith belief that
his actions will not result in prolonged mental harm, he lacks the mental state necessary for
his actions to constitute torture. A defendant could show that he acted in good faith by taking
such steps as surveying professional literature, consulting with experts, or reviewing evidence
gained from past experience. See, e.g., Ratzlaf, 510 U.S. at 142 n.10 (noting that where the
statute required that the defendant act with the specific intent to violate the law, the specific
intent element "might be negated by, e.g., proof that defendant relied in good faith on advice
of counsel.") (citations omitted). All of these steps would show that he has drawn on the
relevant body of knowledge concerning the result proscribed that [by] the statute, namely
prolonged mental harm. Because the presence of good faith would negate the specific intent
element of torture, it is a complete defense to such a charge. See, e.g., United States v. Wall,
130 F.3d 739, 746 (6th Cir. 1997); United States v. Casperson, 773 F.2d 216, 222-23 (8th Cir.
1985).”

10
amount to torture.23 One commentator has referred to the opinions as a

“get out of gaol free card”.24

These opinions opened the way for the programme to go ahead. Operatives

had been told that the contemplated procedures were lawful, that they

would not be liable to prosecution unless their purpose was to cause severe

pain and suffering comparable to death, organ failure, or the like. Doctors

would be present to avoid such calamities.

A CIA background document25 describes the programme in some detail. It

was designed, so it is said, to create a state of “helplessness and

dependence”,26 and reading its provisions there is little doubt that it did so.

This, of course, is the essence of torture. The victim is powerless, and at the

mercy of the all powerful torturer. The relationship between torturer and

victim has been described thus:

For torture to occur, its perpetrators and victims must see themselves

as standing in a particular kind of relationship with one another, and

understand that the other understands this as well.

Characteristically, victims of torture see themselves as being

completely at the mercy of their tormentors. A victim of torture must

23
Memorandum by Jay Bybee for John Rizzo dated August 1, 2002
24
John Sifton in Slate of March 29, 2010, available at www.slate.com/id/2249126
25
Background Document sent to Dan Levin of the DOJ Command Center on 30 December 2004.
26
Id at page 1

11
 be unable to shield herself in any significant way, and must be unable

to effectively evade or fight back against her tormenter . . . . the

torture victim realizes that he has no room to maneuver against his

antagonist, no way to fight back or protect himself, and he must

realize that his antagonist operates in an awareness of this as well.

The most intimate and private parts of a victim’s life and body

become publicly available tools for the torturer to exploit and enjoy

as he will . . . . The asymmetry of power, knowledge, and prerogative

is absolute: the victim is in a position of complete vulnerability and

exposure, the torturer in one of perfect control and inscrutability. 27

The CIA programme achieved this perfectly. High value detainees

captured, in fact often kidnapped in foreign countries not at war with the

US, were transported by air to prisons in foreign countries. An account of

this process, similar to accounts given by other detainees, has been given by

Khaled El-Masri, a German citizen, arrested in Macedonia. He was held

there incommunicado for 23 days, and then told that he was to be released

and taken back to Germany. He was driven to an airport and he describes

what happened then:

27
Professor David Susman, Defining Torture, 37 Case Western Journal of International Law, 225 at 227-228

12
 I was taken from the car, and led to a building where I was severely

beaten by people's fists and what felt like a thick stick. Someone

sliced the clothes off my body, and when I would not remove my

underwear, I was beaten again until someone forcibly removed them

from me. I was thrown on the floor, my hands were pulled behind me,

and someone's boot was placed on my back. Then I felt something

firm being forced inside my anus. I was dragged across the floor and

my blindfold was removed. I saw seven or eight men dressed in black

and wearing black ski masks. One of the men placed me in a diaper

and a track suit. I was put in a belt with chains that attached to my

wrists and ankles, earmuffs were placed over my ears, eye pads over

my eyes, and then I was blindfolded and hooded. After being

marched to a plane, I was thrown to the floor face down and my legs

and arms were spread-eagled and secured to the sides of the plane. I

felt two injections, and I was rendered nearly unconscious. At some

point, I felt the plane land and take off again. When it landed again, I

was unchained and taken off the plane. It felt very warm outside . . .

I learned later that I was in Afghanistan.28

28
Statement of Khaled el-Masri taken by the American Civil Liberties Union available at
www.aclu.org/cpredirect/22201

13
High value detainees were rendered to what the CIA refer to as “black

sites”. A background document describes what happens there.29 On arrival

the detainee’s head and face are shaved and a series of photographs are

taken of him naked. A medical officer and a psychologist determine

whether there are, what is referred to as “contraindications” to the use of

the interrogation techniques that are to be applied.30 If the go ahead is

given, the interrogation begins.

Language has an important role in the process of legitimating torture and

other unlawful acts. We see this in the CIA documents. What is involved is

described in language which depersonalizes the detainees and is laden with

euphemisms. Prisoners are referred to as HVDs, torture becomes “intensive

interrogation”, and kidnapping is extraordinary rendition. The detainees

are not people like us; they are objects to be dealt with by the interrogators

in the national interest. This takes place against a background of political

rhetoric, denigrating the detainees as the worst of the worst.31 However, the

reality of what is involved emerges from the account of what has to be done.

We are told in the background document that the victim is “reduced to a

baseline dependent state designed to demonstrate to the HVD that he has no

29
CIA Background Document, Fn ? above. See also the ICRC report on the treatment of Fourteen “High Value
Detainees” in CIA Custody, transmitted on 14 February 2007, available at http://www.nybooks.com/icrc-
report.pdf referred to in an article in the New York Review of Books, Vo l56, No 6, April 9, 2009. See also,
Danner, fn. 12 above.
30
CIA Background report, FN ? above, Pages 2-3
31
New York Times of October 23 2002, referring to a comment made by Defence Secretary Donald H Rumsfeld
earlier in that year.

14
control over basic human needs”.32 His clothes are removed, and he is

shackled, naked, in a vertical position, where he will be exposed to white

noise, loud sounds and constant light, aggravated by artificially produced

cold temperatures. He will also be subjected to what is euphemistically

referred to as “sleep deprivation” and “dietary manipulation”.33 In

practice constant waking to ensure that he gets no sleep, and being fed on

liquid and not solid food. During the interrogation that follows these

preliminaries, the interrogator will make use of what in Orwellian language

is called “the insult slap”, the “abdominal slap”, the “facial hold” and the

“attention grasp”,34 which are designed to demonstrate the interrogator’s

control over the detainee. That, it is said, is usually not sufficient to

produce the required cooperation, and this leads to the second stage of

interrogation, which is said to “place the detainee in more physical and

psychological stress . . . more effective in persuading a resistant HVD to

participate with CIA interrogators.35 This involves “wall standing”,

“walling”, “water dousing”, “stress positions”, cramped confinement in

either a large or a small boxes without light, and waterboarding. “Wall

standing”, according to the Inspector General’s Report, requires the

detainee to stand in one position about 4 or 5 feet from a wall with feet

spread to shoulder width and arms outstretched for long periods of time.

The detainee may not reposition his hands or feet. The report does not say

32
Fn 30 above at page 4
33
Id at page 5
34
Id at pages 5-7
35
Id at page 7

15
what happens if the detainee refuses to do so, but later reports show that in

practice this could be prevented by forcing the detainee’s arms above his

head and shackling them to a wall. Feet can also be shackled to the floor.

The report mentions that “wall standing is usually self-limiting in that

temporary muscle fatigue leads to the HVD being unable to maintain the

position after a period of time”.36 The shackling addresses this and doctors

are present to monitor the swelling of the legs and other complications that

might result from the forced standing. The same problem is encountered

with stress positions. Water dousing is said to be an effective technique: it

involves throwing cold water over the naked detainee and may take place

during other procedures. During the period of confinement in the dark

boxes, insects may be introduced. “Walling” involves throwing the detainee

hard against a specially designed wall that makes a loud noise at the time of

impact. According to the report it “wears down the detainee physically and

creates a sense of dread when the detainee knows it is about to be done

again.”37 The background document says that a recalcitrant HVD could be

walled 20 to 30 times consecutively. Water-boarding is also on the list. This

involves binding the detainee vertically to a bench with his feet elevated

above his head. A saturated wet cloth, into which water is poured, is placed

36
Id at page8
37
Id at page 7

16
over the face and mouth of the detainee to cause suffocation and near

drowning. A terrifying experience, and an old method of torture.38

The use of psychological torture by the CIA and other security services is

not new. Russian security services are known to have used enforced

standing and interrupted sleep; so did the South African security police.

Chinese interrogators used these methods, which resulted in 36 of 59 United

States airmen captured during the Korean war confessing to or cooperating

in charges that the United States committed war crimes.39 An investigation

of the methods used to secure these confessions and cooperation formed the

basis of an article by Farber, Harlow and West.40 West, is reported to have

said in an interview. ''It was just one device used to confuse, bewilder and

torment our men until they were ready to confess to anything. That device

was prolonged, chronic loss of sleep.'' That, combined with the constant

fear of harm and the total dependency on their captors, led the airmen into

startling and fairly long-lasting personality changes. 41 This was influential

in the adoption of methods later used by the CIA.

38
Jeremy Waldron, Torture and the Positive Law: Jurisprudence for the White House, (2005) 105 Columbia Law
Review, 1684-1685
39
See the New York Times Obituary, n.41below
40
I.E.Farber, H.F.Harlow and L.J.West, Brainwashing, Conditioning and DDD (Debility, Dependency and
Dread), Sociometry, Vol 20, No 4, (Dec 1957)
41
Cited by the New York Times in an obituary of Dr West, available at
http://www.nytimes.com/1999/01/09us/louis-j-west-74-psychiatrist-who-studied-extrem...

17
A CIA manual, known as the Kubark Manual, prepared during 1963 for

the training of security personnel in Latin America, deals with techniques

to extract information from resistant detainees. It was disclosed under

threat of a freedom of information application in 199742 and can now be

purchased from Amazon.com for $21.95, gift wrapped. It formed the basis

of a later CIA manual issued in 1983 entitled “Human Resource

Exploitation Training Manual”. It makes the point that “it is a waste of

time and energy to apply strong pressures on a hit-or-miss basis if a tap on

the psychological jugular will produce compliance”. 43 Citing Farber,

Harlow and West, it says that the response to coercion typically contains

"at least three important elements: debility, dependency, and dread." The

result according to the manual is that prisoners have “reduced” viability,

are helplessly dependent on their captors for the satisfaction of their many

basic needs, and experience the emotional and motivational reactions of

intense fear and anxiety.44 It lists the principal coercive techniques as

being: “arrest, detention, deprivation of sensory stimuli through solitary

confinement or similar methods, threats and fear, debility, pain, heightened

suggestibility and hypnosis, narcosis, and induced regression”.45

The Kubark manual also says that the chief effect of arrest and detention,

and particularly of solitary confinement, is to deprive the subject of many

42
The application was threatened by the Baltimore Sun
43
At page 83
44
At pages 83-84
45
id

18
or most of the sights, sounds, tastes, smells, and tactile sensations to which

he has grown accustomed. It warns that intense pain is quite likely to

produce false confessions, concocted as a means of escaping from distress,

resulting in a time-consuming delay while investigation is conducted and

the admissions are proven untrue. "In the simple torture situation” it says”

the contest is one between the individual and his tormentor . . . and he can

frequently endure”. In contrast, it suggests that whereas pain inflicted on a

person from outside himself may actually focus or intensify his will to resist,

his resistance is likelier to be sapped by pain which he seems to inflict

upon himself. The immediate source of pain is not the interrogator but the

victim himself, and the motivational strength of the individual is likely to

exhaust itself in this internal encounter. 46 Stripped of its euphemisms, what

is being said is that new torture is more efficient than old; of course, it also

has the merit that when the detainee is released from detention it leaves no

visible physical disabilities – only mental scars.

The 1963 and 1983 manuals were substantially the same. However, the 1983

manual was amended after Congressional Enquiries in the mid 1980s into

the complicity of the CIA in the training of operatives in Central America

who had used techniques which amounted to torture. Many amendments

were made to the manual to emphasise the dangers of coercive

interrogation. The following specific disclaimer was added:

46
At page 94

19
 The use of force, mental torture, threats, insults or exposure to

unpleasant and inhumane treatment is prohibited by law, both

international and domestic. It is neither authorized nor condoned.

In dealing with the deprivation of sensory stimuli the text was amended to

provide: “Extreme deprivation of sensory stimuli induces unbearable stress

and anxiety and is a form of torture. Its use constitutes a serious

impropriety and violates policy”. It also warns against the use of prolonged

solitary confinement, and says requiring a detainee to maintain a rigid

position such as standing may only be used for periods of time that are not

long enough to induce pain or physical damage.

A report by the Red Cross, leaked by US government officials, and

subsequently published in the New York Review Of Books,47 describes the

conditions of detention of 14 high value detainees in black sites in which

they were held by the CIA before being brought to Guantanamo Bay. The

black sites were not disclosed to the Red Cross. These detainees were not

captured on the battlefield. All of them were captured in countries with

which the United States was not at war.48 They were only seen by the Red

47
ICRC report on the treatment of Fourteen “High Value Detainees” in CIA Custody, transmitted on 14
February 2007, available at http://www.nybooks.com/icrc-report.pdf
48
Id at page 5

20
Cross after they had been moved to Guantanamo Bay, and it was then that

they described what had happened to them.

The report records that throughout the entire period of detention, varying

from 16 months to almost four and a half years for different detainees, (for

11 of the 14 the period was over three years) they were held

incommunicado and in solitary confinement. In itself this would amount to

torture. The report refers to treatment meted out to the detainees –

waterboarding, prolonged stress positions, using a collar around the neck to

bang the head and body against a wall, beating and kicking, confinement in

a box, prolonged nudity, sleep deprivation, exposure to cold temperature,

prolonged shackling, threats of ill treatment and deprivation of solid food

from 3 days to a month after arrest. Not all the detainees were submitted to

all these actions, but all were treated extremely harshly. The Red Cross’

assessment of the accounts of their treatment was that the detainees “were

subjected to systematic physical and/or psychological ill-treatment”

including “physical and mental pain and suffering . . . resulting in

exhaustion, depersonalisation and dehumanization.”49

According to the Geneva Conventions detainees must be registered, held in

officially recognized places of detention, and the Red Cross must be

informed of the detention and given access to the detainees. This was not

49
Id at page 26.

21
done, their relatives were not informed of where they were – they were

“missing persons” placed outside the protection of the law in circumstances

which according to the Red Cross “effectively amounted to arbitrary

deprivation of liberty and enforced disappearance in contravention of

international law.”50 It appears from the report that others (the numbers

are not given) held in the black sites had previously been released and

returned to their countries of origin.

The Congressional enquiry of the mid 1980s, and the consequent

amendments to the CIA manual, may explain why the CIA was concerned

about its position, and asked for legal opinion to sanction the interrogation

techniques designed by the psychologists. Some operatives continued to be

concerned about this even after the “get out of gaol free card” had been

issued. The Inspector General noted in his 2004 report that a number of

Agency officers “expressed unsolicited concern about the possibility of

recrimination or legal action resulting in their participation in the counter

terrorist programme.”51 This would have been in 2003 before the release of

the secret CIA memoranda.

They had good cause for this concern. UN human rights experts who visited

Guantanamo Bay reported that conditions of confinement have had a

50
id
51
At page 94 of the report

22
profound effect on many of the Guantanamo Bay detainees, likely to be

long term in many cases, creating health burdens on detainees and their

families for years to come. It also notes that there were over 350 acts of self

harm by Guantanamo Bay detainees in 2003 alone.52 Guantanamo Bay was

not the only detention centre. Tens of thousands of prisoners were held in

US prisons in Iraq and elsewhwere. The Senate Armed Services Committee

conducted an inquiry into the treatment of detainees in US custody. One of

its findings was that the Department of Justice opinions “distorted the

meaning and intent of the anti-torture laws, rationalised the abuse of

detainees in US custody and influenced the Department of Defence

determinations as to what interrogation techniques were legal.”53 In an

editorial, the New York Times described the opinions as having been

written “to provide legal immunity for acts that are clearly illegal, immoral

and in violation of the country’s most basic values”,54 and they have

provoked an avalanche of criticism in the United States and elsewhere.

What is common to the practice of torture is that once permitted it is

difficult to contain. It spreads and expands because personnel know that it

is allowed and that offenders will not be prosecuted or disciplined. The

Senate Armed Services Report made the point that “the abuse of detainees

52
Zerrougi, Despouy, Nowak, Jahangir,and Hunt, The Situation of Detainees at Guantanamo Bay (26 February
2006: E/CN.4/2006/120)
53
Executive Summary of the Report of the Senate Armed Services Committee, Conclusion 6, Pages xxvi-xxvii,
released on December 11, 2008 by Senators Levin and McCain.
54
New York Times editorial, April 18, 2009

23
in U.S. custody cannot be attributed to the actions of “a few bad apples

acting on their own. The fact is that senior officials in the United States

government solicited information on how to use aggressive techniques,

redefined the law to create the appearance of legality, and authorized their

use against detainees”.55 It also drew attention to the fact that the

interrogation programme spread from Guantanamo Bay, to Afghanistan

and from there to Iraq.56 The Report refers to an order in February 2002

by President Bush that though prisoners should be treated humanely, the

Geneva Conventions did not apply to Al Qaeda and Talliban prisoners.

Their provisions should be observed in the treatment of such prisoners but

“subject to military necessity”; in other words, the military could ignore the

Geneva Conventions if they considered it necessary to do so. This, as the

Senate report says, opened the door to aggressive techniques of

interrogation.57 Other reports show how the enhanced interrogation

techniques that were adopted infected not only the military personnel

involved, but also health and legal professionals and civil contractors

involved in the interrogation of prisoners, and the security services of other

countries.

Physicians for Human Rights has recorded the systematic use of

psychological and physical torture by US personnel in Guantanamo Bay,

55
Id, at Page xii
56
Id at Pages xxii-xxiv.
57
Id at Page xiii

24
Afghanistan and Iraq in reports graphically entitled, “Break Them Down,58

Leave No Marks,59 Broken Laws, Broken Lives”,60 and Aiding Torture.61

In Aiding Torture, the Inspector General’s report is analysed to show that

physicians and psychologists not only monitored torture, but also kept data

on the prisoners’ reaction in ways that Physicians for Human Rights say

“may amount to human experimentation”. In a report of Human Rights

First concerning the investigation by the military of 100 deaths that

occurred in detention, it is alleged that there was inadequate record keeping

of the circumstances of these deaths, a failure to investigate the deaths

properly, the destruction of relevant evidence and attempts to cover up

possible criminal actions. 62 Writing first in The Lancet 63and later in a book

entitled Oath Betrayed,64 Dr Steven H Miles concluded that in addition to

the monitoring of interrogation by psychologists and physicians, “military

pathologists delayed releasing information from death certificates and

autopsies, and these delays enabled the Pentagon to claim, falsely, that

prisoners who had died of torture had died from natural causes. Medical

58
Break Them Down: Systematic Use of Psychological Torture by US Forces, Physicians for Human Rights
(2005)
59
Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality, Physicians for Human
Rights and Human Rights First (August 2007)
60
Broken law, Broken Lives: Medical Evidence of Torture in the US, Physicians for Human Rights (April 2009)
61
Aiding Torture: Health Professionals’ Ethics and Human Rights Violations Revealed in the May 2004 CIA
Inspector General’s Report, Physicians for Human Rights (August 2009)
62
Human Rights First: http://www.humanrightsfirst.org.us_law/etn/dic/exec-sum.aspx,
63
Abu Ghraib, Its Legacy for Military Medicine, The Lancet, August 2004, 725-729
64
Steven H Miles, Oath Betrayed, Random House, New York (2006)

25
personnel who knew of this system of neglect, abuse and death by torture,

had remained silent.”65

There is a pattern to what has happened. A pattern that is evident in other

societies where torture has been practiced. The core element is that victims

are isolated, held incommunicado in solitary confinement for long periods

of time with no access to family, friends, lawyers or independent doctors.

This serves two purposes. Victims are alone and vulnerable and know this;

and there are no independent witnesses to support the victims’ accounts of

their treatment if they are ultimately brought to court or released.

I lived through this in South Africa. Laws permitted detainees to be held

incommunicado in solitary confinement and denied them access to courts.

This provided a shield for torturers. Allegations of torture, later admitted

to be true by the torturers themselves at hearings of the Truth and

Reconciliation Commission, could be and were denied when raised by

detainees after being released from detention. In such cases courts tended

to back the security police.

District surgeons who had medical responsibility for the health of detainees

kept silent, and when detainees died in detention, they supported

exculpatory explanations offered by the security police. Magistrates

65
Id, Introduction at page xi

26
conducting the inquests were compliant and exonerated the police. There

were over --- deaths in detention, but as George Bizos, who represented

families of deceased detainees at several inquests, recounts in a book

dealing with some of these episodes, the invariable verdict was “No One To

Blame”. 66 The most notorious inquest was probably that into the death of

Steve Biko, a charismatic young leader who died in police custody, whose

family was represented by Sydney Kentridge SC, now Sir Sydney

Kentridge QC. The inquest magistrate’s verdict of accidental death was

described by Bob Alexander QC, later Lord Alexander, who attended the

inquest as an observer, as risible.

Evidence given at the Biko inquest also suggested that two district surgeons

responsible for the medical supervision of Mr Biko while he was in

detention had been guilty of gross misconduct. Complaints against them by

other doctors were lodged with the South African Medical and Dental

Council. The Council decided that there was no cause for an investigation.

The two doctors were members of the Medical Association of South Africa,

and it also rejected complaints against them, and rebuked the complainants

for persisting in their complaints. Undeterred by this, some of the

complainants launched court proceedings, which resulted in a finding that

the medical associations had erred in finding that there was no case for the

66
David Philip/Mayibuye Books (Cape Town, 1998)

27
 67
doctors to meet. International pressure on the Medical Council built up,

and when as a result of the court decision, it ultimately conducted an

enquiry, it found the two doctors guilty of improper conduct, and removed

the name of one of them from the medical register. It was pressure from

the court and world opinion that made them act.

The same pattern is evident in the torture practised by the CIA. It was the

psychologists and lawyers under pressure from political leaders and the

CIA who cleared the way for the methods adopted at the black sites,

Guantanamo Bay and elsewhere. But they were not alone; what happened

was made possible by the complicity of leaders in various arms of

government, by a legal framework which facilitated secrecy, purported to

exclude access to courts, blocked claims for damages on the grounds of state

security, offered impunity to those who tortured, and by institutional

failure and the complicity of other countries.

Remember the statement by President Bush in June 2003:

The United States is committed to the world-wide elimination of

torture and we are leading this fight by example. I call on all

governments to join with the United States and the community of

law-abiding nations in prohibiting, investigating, and prosecuting all

67
Veriava v President, SA Medical and Dental Council 1985 (2) SA 293(T)

28
 acts of torture and in undertaking to prevent other cruel and unusual

punishment.

What has the US example been? The choice of Guantanamo Bay and the

black sites as offshore prisons beyond the boundaries of the United States

was made deliberately to isolate the detainees and deny US Courts

jurisdiction to make habeas corpus orders or to enquire into the conditions

of detention. When the US Supreme Court held that detainees on

Guantanamo Bay were entitled to bring habeas corpus applications,68

legislation was passed to exclude such right in specific terms. 69 The

Supreme Court then held that this provision was not retrospective,70 and

this precipitated further legislation, the Military Commissions Act,71

stripping courts of their jurisdiction to make habeas corpus applications at

the suit of what were called enemy combatants, deemed to include persons

detained at Guantanamo Bay.72 The Supreme Court has, however, held that

this exclusion of the right of Guantanamo Bay detainees to assert a claim

for habeas corpus is inconsistent with the US Constitution and invalid.73

68
Hamdi v Rumsfeld 542 US 507 (2004);
69
Detainee Treatment Act 2005
70
Hamdan v Rumsfeld 548 US 557 (2006)
71
Military Commissions Act, 2006
72
The Act defined enemy combatants as including all members of the Taliban, Al Qaeda and “associated
forces”, as well as all detainees declared to be such by Commbat Status Review Tribunals which were presided
over by military officers. .
73
Boumediene v Bush 553 US 723 (2008)

29
The Military Commissions Act also indemnified members of the armed

forces and other agents of the state engaged in interrogation of detainees

against civil or criminal liability for actions that they did not know were

unlawful,74thus enacting into law, the protection that had been offered by

the Department of Justice memoranda; an indemnity that will not be valid

outside of the United States.

What has been done pursuant to President Bush’s call on law-abiding

nations to prohibit, investigate, and prosecute all acts of torture and to

prevent other cruel and unusual punishment? The answer is, nothing of

substance in the US before President Obama was elected. The policy of the

US administration was to refuse to disclose evidence of torture and to put

pressure on other countries to do the same. Within days of coming into

office, President Obama prohibited the continuation of intensive

interrogation.75 He has, however, given an assurance that “those who

carried out their duties relying in good faith upon legal advice from the

Department of Justice... will not be subject to prosecution."76

The Nuremberg trials and the U N Convention Against Torture make clear

that there is no justification for torture. Neither superior orders nor

exceptional circumstances can be relied upon. Does the same apply to the

74
Detainee Treatment Act 2005, section 1004
75
Executive order of 22 January 2009
76
Statement by president Obama on 16 April 2009

30
advice of psychologists and lawyers? CIA operatives who used these

methods may not presently be at risk in the US, but are at grave risk of

being prosecuted in other countries exercising universal jurisdiction in

respect of torture, as required by the Convention.77 As Mr Justice Collins is

said to have observed in a case before him here in the United Kingdom:

America’s ideas of what constitutes torture "is not the same as ours and

doesn't appear to coincide with that of most civilised countries"78

How have professional bodies reacted to what has happened? The US

Department of Justice conducted an enquiry into the conduct of the authors

of the principal memoranda which sanctioned the use of these methods.

They were former Assistant Attorney General Jay Bybee, and former

Deputy Assistant Attorney General, John Yoo. The Office of Professional

Responsibility concluded that John Yoo had committed intentional

professional misconduct, having acted in reckless disregard of his duty to

exercise independent legal judgment and render thorough, objective and

candid legal advice; Jay Bybee was found to have acted in reckless

disregard of his duty to exercise independent legal judgment and render

thorough, objective and candid legal advice. Yoo and Bybee objected to

these findings, and on review by the Associate Deputy Attorney General,

77
See the compelling case for prosecution made by M Cherif Bassiouni, Co-Chair of the Committee of Experts
who prepared the first draft of the Convention Against Torture, in The Institutionalisation of Torture Under the
Bush Administration, Case Western Reserve Journal for International Law, Vol 37, Pages 389 et seq. and the
report to the General Assembly of the United Nations by the Special Rapporteur on Torture, n 29 above,
paragraph 15.
78
The Guardian of 17 February 2006

31
David Margolis, they were not affirmed. Margolis, though critical of the

Office of Professional responsibility’s investigation, concluded that the

memoranda represented an “unfortunate chapter” in the history of the

office of legal counsel, and contained “some significant flaws”. He said that

although it was a close question, and the memoranda were not up to the

standard that the office expected its officials to observe, he could not find

that Yoo had intentionally or recklessly provided misleading advice. Yoo

and Bybee had exercised poor judgment, he said, but in his opinion not of a

degree amounting to professional misconduct. Poor judgment would have

exposed them to disciplinary action, but both had left the Department of

Justice. Jay Bybee to become a federal judge of appeal. He was appointed

before the torture memoranda became known: the memoranda were not

disclosed to the Senate during his confirmation. John Yoo to be a Professor

at University of California’s Boalt Hall School of Law.

Washing his hands of the matter, Margolis authorised the release of so

much of professional investigation as would be consistent with privacy

concerns, saying that the public could make its own judgments and the Bar

Associations, if so minded, could choose to take the matter up. It is not

clear whether that is going to happen.

What about the psychologists? The Red Cross report condemned the

monitoring of the interrogation of detainees by health professionals saying

32
that it constituted a “gross breach of medical ethics”. That is consistent

with resolutions of the United Nations and the World Medical Association,

and with the ethical codes of many medical associations.79 However, the

American Psychological Association sanctioned the participation of its

members in the design and implementation of the enhanced interrogation

techniques, and amended its ethical code in a way that was understood to

permit military psychologists to carry out orders even if they were contrary

to recognized medical ethics.80 Under pressure from members who objected

to this and threatened to break away from the Association, it convened a

Presidential Task Force to review the ethics of psychologists participating

in interrogations. The membership of the Task Force which met privately

was initially not disclosed, but it later emerged that 6 of the 9 voting

members had direct ties to the military.81 They concluded that participation

in interrogations by psychologists was permissible, saying that psychologists

“are in a unique position to assist in ensuring that these processes are safe

and ethical for all the participants.”82 It is appropriate to refer to two

responses to this. First, the response by the President of American

Psychiatric Association, who commented in his Presidential address in

2006: “if you were ever wondering what makes us different from

79
Steven Miles gives examples in Oath Betrayed, fn above, at pages 33 – 37. See also Medicine Betrayed, the
Report of the Working Group of the British Medical Council on the participation of doctors in human rights
abuses, Zed Books, London 1992.
80
The amended rule provided: If psychologists ethical responsibilities conflict with the law, regulations or other
governing legal authority, psychologists make known their commitment to the Ethics Code and take steps to
resolve the conflict. If the conflict is unresolvable via such means, psychologists may adhere to the requirements
of the law, regulations or governing legal authority”
81
David F. Tolin and Jeffrey M. Lohr, Cliniucal Science (fall 2009) ay page 6
82
Id at page 7

33
Psychologists, here it is”.83 Second, the response of the Pentagon, which

said that the military would use psychologists rather than psychiatrists to

help interrogators devise strategies to get information from detainees, a

policy which the Assistant Secretary for Defence said recognized the

differing positions taken by their respective professional groups. 84

Physicians for Human Rights and others have called for a “full

investigation” to be made into the interrogation practices, “including

accountability for war crimes”, and for “health professionals who have

violated ethical standards or the law to be held accountable through

criminal prosecution, loss of license, and loss of professional membership

where appropriate.”85 As yet, however, no such steps have been taken.

What has happened in other countries? As a result of renditions and

cooperation between intelligence services elsewhere, the interrogation

policy of the United States has had implications far beyond its boundaries.86

Other countries became complicit in the renditions through making their

airports available for rendition flights, or their prisons as destinations to

which the victims were sent, secretly detained incommunicado and

tortured. In some case the security services of foreign countries have been

83
Id, at pages 7-8
84
Id, at 7
85
Aiding Torture, N. ? above, page 6.
86
Assesing Damage, Urging Action: Report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and
Human Rights, International Commission of Jurists (Geneva 2009)

34
complicit in the kidnapping of suspects and their transfer to US security

personnel, or in the interrogation of the detainees in foreign countries.

European countries’ collusion with rendition has been described by Swiss

Senator Marty, appointed by the European Parliament to investigate

allegations of complicity, as a “spider web” of cooperative endeavours.

Recently, an Italian Court convicted 23 members of the CIA in absentia,

and two agents of the Italian security services, sentencing them all to

substantial terms of imprisonment for complicity in the kidnapping and

rendition to Egypt of a suspect at the instance of the CIA. 87 Renditions have

led to judicial enquiries in Canada, Spain, and Germany. Here in the

United Kingdom there is the case of Binyamin Mahomed, which led the

Joint Committee of the House of Lords and Parliament in its report on

Counter-Terrorism and Human Rights, to conclude that there was strong

evidence to suggest that the Security Service was complicit in his torture by

the US authorities.88 The Joint Committee also concluded from this and

other evidence that the case for setting up an independent enquiry into the

allegations of complicity in torture is now irresistible”.89 No independent

enquiry was appointed by the former government. Will the new

government do so?

87
The victim of the kidnapping was Abu Omar, who was rendered to Egypt where he was held for years. He
alleges he was tortured there. He was subsequently released without being charged. The prison sentences were 8
years for the CIA Milan station chief, 5 years for the other Americans, and 3 years for the two Italian agents.
The fines were 1.5 million Euros for Abu Omar, and 500,000 Euros for his wife. Two senior members of the
Italian security services were acquitted because they were protected by state secrecy rules
88
17th Report of the Joint Committee published in March 2010, para.50.
89
Id, para 53

35
What is the lesson that can be learned from this? It is the lesson of history,

which tell us that torture is made possible by objectifying the victims, by

secrecy, by impunity, by collusion of others such as professionals whose

work brings them into contact with the torturers and their victims, by

institutional failure, and by the lack of political will to prevent it. As Lord

Hoffman said when the issue of torture had to be considered by the House

of Lords: “It corrupts and degrades the state which uses it and the legal

system which accepts it.”90 Once permitted, torture spreads from security,

to crime prevention and investigation, and in some cases to political control.

What is of particular concern is the US’s position as a world leader. There

is a risk, and evidence that this has happened, that its example will lead to

lip service being given by other states to the international prohibition of

torture and cruel and degrading treatment entrenched until now as a

fundamental provision of international law. The study by four UN experts

on secret detentions, records secret detentions, associated with alleged

counter-terrorism policies, in 25 countries in addition to the United States,

saying:

the very purpose of secret detention is to facilitate and ultimately

cover up torture and inhuman and degrading treatment used either

to obtain information or to silence people. 91

90
id para 85.
91
Joint study on global practices in relation to secret detention, fn 12 above.

36
President Obama has announced that the CIA programme for “enhanced

interrogation techniques” will no longer be permitted. But that is not

enough. There is a need for the United States and all nations that have been

complicit in renditions and torture to end impunity and secrecy, to

acknowledge what has happened and not to conceal it. There is also a need

for a political commitment by all nations to respect and uphold the

Convention Against Torture, to put an end to secret detention

incommunicado which is a shield for torture, to acknowledge that the

psychological methods of debilitating and demeaning detainees, including

holding them for long periods in solitary confinement, and the so called

enhanced interrogation techniques of the CIA, are torture, and for

institutions to play their part and take action against members who have

been party to such practices. Only then can we begin the process of

restoring respect for the Convention Against Torture, and the Geneva

Conventions, and the commitment made there to put an end both to torture

and complicity in torture. That, I think, is what Dr Mackeith would have

wanted.

Arthur Chaskalson

21 May 2010

37
38