President Bush has insisted that the Military Commissions Act of 2006 is an essential tool for military and CIA prosecution of the war against terrorists. And yesterday, Vice President Dick Cheney argued that choking someone in water to gather needed intelligence is a "no brainer" and that the MCA covered the White House's "fairly robust interrogation program," including this technique. Legislation of this sort is always slippery, and the newspapers and legal blogs are full of disagreements about exactly what the new law means and what its effects will be. But one lasting effect is almost certain: Historically, laws like the Military Commissions Act have powerful corrupting forces on the militaries that use them, making them less able to achieve their ultimate goals.
The MCA creates a two-track system for interrogation: CIA interrogators can use painful, physical, "enhanced interrogation" techniques; military interrogators cannot. But it is only a matter of time before military interrogators will wonder why they are stuck using techniques that are allegedly less effective than the CIA's. Then, they too will start quietly adopting these "robust" interrogation techniques.
Prior to the enactment of the new legislation, the definition of torture, for both military and CIA interrogators, was broad and comprehensive. Torture was defined as an "act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions)" on someone in his control. This definition affirmed the definition of torture in the United Nations Convention Against Torture, to which the United States is a signatory.
The MCA changed the definition of torture. In clarifying what "severe physical or mental pain or suffering meant," it created a new standard: Torture must involve a "substantial risk of death, extreme physical pain, a burn or physical disfigurement of a serious nature, not to include cuts, abrasions or bruises; or significant loss or impairment of the function of a bodily member, organ or mental faculty."
Every torturer knows death in torture is failure, as is driving your prisoner mad. This is why most torturers around the world avoid techniques that cause serious risk of organ failure, madness, or substantial risk of death. The new U.S. legislation absurdly disqualifies as torture not just the enhanced interrogation techniques used by the CIA, but the vast majority of techniques used by torturers worldwide. Among the CIA's authorized techniques, only choking someone in water comes close to failing to meet this standard, and even this is debatable. The vice president, who endorsed waterboarding in some circumstances, clearly believes it does not, emphasizing yesterday that "we don't torture" and that he is not the vice president "for torture."
Is anyone so credulous as to believe that these "alternative" techniques will remain confined to the CIA interrogators? There is ample cause to believe that the new techniques will seep into other agencies. And by their very nature, these techniques are almost impossible to prove after the fact.
We have seen this pattern before in the war on terror. In Iraq and Afghanistan, soldiers reported having learned their interrogation techniques by imitating CIA field officers. This slippery slope will now undoubtedly be slicker and sharper with the official endorsement of enhanced interrogation techniques.
New interrogation manuals, recently disseminated by the Pentagon, sharply discourage torture, but it is unlikely that military investigators will ever catch interrogators using these techniques. This is because all of the reported CIA techniques for enhanced interrogation—such as stress positions, waterboarding, and exposure to extreme temperatures—leave no lasting marks on the body. Again, this is not news to U.S. military interrogators. "No blood, no foul" was the motto of a group of American military interrogators who tortured at Camp Nama, outside Baghdad.
It is only a matter of time before new rot sets into the U.S. military, thanks to the new MCA. This is inevitable when you codify a two-track interrogation system. In the 1970s, the Brazilian military had a similar two-track system, and the state had to eliminate its torturers in order to preserve itself. As Brazilian journalist Elio Gaspari observed at the time: "Unless everyone in the army participates in torture, you very quickly develop two kinds of soldiers." He called them "the combatants," who fight the terrorists with torture, and the "bureaucrats," who are committed to preserving the military's everyday functioning and discipline. In Brazil, the day came when the combatant-torturers refused to accept the orders of the bureaucrats and regarded with contempt their peers who were committed to army discipline. The generals eventually concluded that "[t]he torturers were going to have to be isolated, marginalized and eliminated, so as to save the Army."
And this corruption will not be limited to the military. Two-track interrogation systems have similar corrupting influences in domestic policing, particularly as former interrogators and MPs seek jobs as police officers after being decommissioned. The military tortures in the Franco-Algerian War soon seeped into French policing in the 1960s. And in the United States, this kind of slippage has happened twice: initially, as the water tortures of the Spanish-American War began appearing in police stations in the 1920s, and again as electrical techniques used during the Vietnam War appeared in Chicago policing in the 1970s. These torturers-turned-policemen-turned-torturers were especially attracted to techniques that were clean, and there is every reason to believe that the clean techniques now approved in the Iraq war will, sooner or later, appear in a neighborhood near you.
The nasty thing about "clean" torture techniques—and especially the six reportedly approved CIA techniques: the attention grab, the attention slap, the belly slap, the cold room, forced standing, and waterboarding—is that no one can tell how much pain the subject is in as the torture is done. And after the fact, victims have nothing to show to their communities or even to their families—who want to believe them.
Clean tortures are unlike other tortures because they are calculated to prevent any kind of public expression of outrage or sympathy. They are also exceedingly hard to monitor and track, so their corrupting influence is pernicious.
Forced standing was regular fare in Stalinist prisons and German concentration camps, where there were, sometimes, specialized "standing cells." The CIA's own study of this technique showed that ankles and feet swell to twice their normal size within 24 hours. Moving becomes agony, and large blisters develop. The heart rate increases, and some prisoners faint.
Japan's fascist military police, the Kempeitai, routinely used hard slapping in the interrogation and punishment of Allied prisoners of war. "There can be few Allied prisoners of war," wrote Lord Russell of Liverpool, "who were not at some time slapped," adding that "a Japanese slap was something to remember." The pain and humiliation, he said, were intense. Few Allied prisoners would have been inclined to be forgiving when, in 1946, Prime Minister Tojo humbly apologized to the Allies for this particular form of torture.
Hard shaking is a well-known Israeli torture technique the Palestinians call "al-Hazz," one that doctors suspect can cause long-term brain damage. And cold rooms are well-known features of the worst days of American policing: from the nasty days of the Denver Black Hole and Chicago policing in the 1920s, to the Alabama police of the 1960s, who froze Freedom Riders in chilled cells.
Which brings us to the most notorious torture: waterboarding, or choking someone in water. In 1968, a soldier in the 1st Cavalry Division was court-martialed for waterboarding a prisoner in Vietnam. In fact, the practice was identified as a crime as early as 1901, when the Army judge advocate general court-martialed Maj. Edwin Glenn of the 5th U.S. Infantry for waterboarding, a technique he did not hesitate to call torture.
That military judge went further, anticipating (and then dismissing) a key justification President Bush and his allies use for torture today. The judge said that the defense of needing to obtain information through torture "falls completely," even when at war with "a savage or semi-civilized enemy" who conducts "his operations in violation of the rules of civilized war. This no modern State will admit for an instant."
Except, it seems, the United States in 2006.