Jaffer critiques States’ torture policy

It wasn’t until Jameel Jaffer ’94 visited U.S. detention centers that his academic interest in law took a sharp personal turn. “I saw the men in the detention centers and they looked like my father,” Jaffer said, describing his experience visiting detainees after Sept. 11. Now director of the American Civil Liberties Union’s (ACLU) National Security Project, Jaffer examined the government’s use of torture last Thursday in a lecture in Griffin Hall entitled “Torture and the Rule of Law: From Abu Ghraib to Washington.”

Jaffer began by defining two hypothetical narratives that have come to dominate the debate surrounding the use of torture. The “ticking bombing” narrative sets up a situation where a terrorist known to possess information about an imminent attack is caught. The terrorist is the only one who knows the plot’s details, and the attack may be averted if interrogators employ torture methods. Meanwhile the “rogue soldier” narrative presents torture as an aberration, the acts of sadistic soldiers defying authority. Jaffer noted that the two scenarios create a tension, evoking fear of the prisoner in the first narrative and sympathy in the second.

“So many people are interested in the theory of torture more than the actual torture itself,” Jaffer said, lamenting that a discussion in hypotheticals has come to stand in place of an examination of actual incidents. “Both narratives present torture as a rare occurrence, when it is actually pervasive and systematic.” Following the Abu Ghraib abuse scandals, the administration was quick to resort to the “rogue soldier” narrative, labeling the incidents as an anomaly. Jaffer added that there still hasn’t been an independent investigation of abuses at the Abu Ghraib and Guantanamo Bay detention centers, allowing the administration to frame the incidents as a one-time occurrence.

“I’m going to offer a third version of what happened, of what’s happening,” Jaffer said, “one that’s not as comforting as either of the narratives, but more faithful to the actual facts.” Recent litigation and use of the Freedom of Information Act has granted the ACLU access to thousands of government documents, including e-mails, autopsies and investigative files detailing the treatment of detainees. “The documents contradict everything that the Bush administration has said about the treatment of prisoners,” Jaffer declared, reading out excerpts from some of the files.

Jaffer showed the audience pictures of prisoners confined in stress positions, lying in the fetal position with hand and foot chained. He went on to list some of the techniques practiced by the U.S., which include sleep deprivation spanning weeks, exposure to extreme temperatures, extensive isolation from human contact, forcing prisoners to perform dog tricks and threatening them with dogs, in addition to violent beatings and burnings.

“While senior officials insist that torture has occurred in spite of policy rather than in accordance with it, it is easy to connect those senior officials to policies that allow, and sometimes even encourage, torture methods,” Jaffer said. He highlighted that the Bush administration has explicitly disregarded the Geneva Conventions, reasoning that the war on terror has rendered them obsolete, and has gone on to redefine torture as narrowly as possible. Methods that formerly constituted grounds for criminal prosecution, such as water boarding, have now been approved as “enhanced interrogation techniques.”

Jaffer acknowledged that not all abuse cases can be traced back to the decisions of senior officials, but maintained that by condoning some instances of torture, the administration has conveyed that abuse is acceptable. “Once an initial barrier has been breached, once given the ‘go,’ it’s hard to limit that.”

Since information obtained through torture is unusable as evidence in court, torture methods are often counterproductive, Jaffer explained, offering instances where courts have been unable to prosecute prisoners because their confessions were obtained illegally. Jaffer went on to question how effective torture methods are overall, as officials admit that less than 10 percent of detainees have any intelligence value at all. “We’re torturing people who we don’t know are actually guilty, who we don’t know actually even have the information we want,” Jaffer said. Additionally, there hasn’t been a single instance of a defense employer acknowledging that torture has been successful in retrieving information. “Instead, we have hundreds of pages listing instances where prisoners, formerly cooperative, have stopped talking after torture.”

“There’s no doubt that the ‘ticking bomb’ narrative is intellectually compelling, but it can’t explain nor justify what’s been going on in the facilities,” Jaffer asserted. “It doesn’t fit the facts.” Intelligence agencies rely on so many uncertainties that even the possibility of such a scenario arising is rare. “It’s doesn’t make sense to form policies around the hypothetical, around the exception.”

Jaffer went on to ask why such narratives have taken the place of actual investigations and dominated discussions on torture. “In light of what’s happened, we find these narratives comforting,” he offered. The narratives present torture as the lesser evil, as a necessity. “It’s a way of rationalizing torture, passing it as morally right.”

As a consequence of this passive response, there has been relatively little pressure to hold senior officials accountable for their actions. “In many cases, senior administrators who should have faced serious consequences have been rewarded instead,” Jaffer claimed.

He added that the implications of this lack of accountability extend beyond the administration, affecting how citizens hold their leaders responsible. “In the traditional Watergate narrative, wrongdoings were exposed and administrators were punished for them,” Jaffer said. “Now wrongdoings are exposed, you hear the president deny them, and the discussion ends there.”

Jaffer closed with a quote from Donald Rumsfeld, where he stated that the country will ultimately be judged on how it deals with torture. “It’s important to remember that Americans, unlike most other people in the world, actually have the tools to advocate for political change and to hold their rulers accountable,” Jaffer said.

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