By Paul Vallely
Thursday 26 June 2003
The human cost of the 21st century's first war is already enormous. In addition to those who have died, staggering numbers have been detained around the world in violation of their human rights and international law. Paul Vallely investigates their fate, and asks whether this suspension of due process in the name of defending democracy can ever be justified
Privately, the Americans admit that torture, or something very like it, is going on at Bagram air base in Afghanistan, where they are holding an unknown number of suspected terrorists.
Al-Qa'ida and Taliban prisoners inside this secret CIA interrogation centre - in a cluster of metal shipping-containers protected by a triple layer of concertinaed wire - are subjected to a variety of practices. They are kept standing or kneeling for hours, in black hoods or spray-painted goggles. They are bound in awkward, painful positions. They are deprived of sleep with a 24-hour bombardment of lights. They are sometimes beaten on capture, and painkillers are withheld.
The interrogators call these "stress and duress" techniques, which one former US intelligence officer has dubbed "torture-lite". Sometimes there is nothing "lite" about the end results. The US military has announced that a criminal investigation has begun into the case of two prisoners who died after beatings at Bagram. More covertly, other terrorist suspects have been "rendered" into the hands of various foreign intelligence services known to have less fastidious records on the use of torture.
What is perhaps most disturbing about all this is that the US officials who have leaked the information have not done so out of a need to expose something that they see as shameful. On the contrary, they have made it clear that they wanted the world to know what is going on because they feel it is justified.
No fewer than 10 serving US national- security officials - including several people who have been witnesses to the handling of prisoners - came forward to speak to The Washington Post, which has published the most graphic account of what is going on in Bagram, and in several other unnamed US interrogation centres across the world. "If you don't violate someone's human rights some of the time, one told the paper, "you probably aren't doing your job". He and the others involved are, in effect, saying: we are doing these things because we have to, and we want the world to know.
In one sense, there is nothing new in this. British forces used five similar techniques - hooding, forced standing, deprivation of sleep, subjection to noise, and deprivation of food and drink - in Northern Ireland. (The European Court of Human Rights ruled, in 1978, that these did not constitute "torture", but found that such methods were "inhuman and degrading", and therefore illegal under various treaties.) But there is a key difference. Where the British authorities were shamefaced about such practices, leading figures in the US are today aggressively unapologetic.
The changed mood is clear in official circles. "After 9/11, the gloves came off," the head of the CIA's Counterterrorist Centre, Cofer Black, told a joint hearing of the House and Senate intelligence committees. One Harvard law professor, Alan Dershowitz, has even raised the idea that - despite the fact that the US is a signatory to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment - permission for torture could be granted by judicial warrant.
To be concerned about this is not to minimise the threat posed to the civilised world by organisations such as al-Qa'ida - amorphous, mercurial, and motivated by a fanatical fundamentalism that sees martyrdom as a prize, not a price. America has the crater that was the World Trade Centre at its heart as a constant reminder of the gravity of that threat.
Nor is it to deny the importance of the thorough interrogation of suspects. The CIA director George J Tenet estimates that worldwide attempts to capture or kill terrorists have eliminated about a third of the al-Qa'ida leadership - and of these successes, almost half have come about from information gained in interrogations. The captures of the al-Qa'ida leaders Ramzi Binalshibh in Pakistan, Omar al-Faruq in Indonesia, Abd al-Rahim al-Nashiri in Kuwait and Muhammad al-Darbi in Yemen, were all partly the result of information gained in Bagram. An al-Qa'ida plot to blow up warships in the Straits of Gibraltar was reportedly foiled by information obtained from a detainee in Guantanamo Bay.
CIA interrogation techniques are sophisticated and successful. Detainees are confronted with a thick file, often containing only dummy text, to give the impression that so much is already known that resistance is futile. Lies about al-Qa'ida are told to generate uncontrolled indignation in which key intelligence is let slip. In a technique known as "the Spinoza method", the captive is relentlessly questioned on events he cannot know anything about - leading him to tell what he does know by way of psychological compensation.
"The interrogations of Abu Zubaida [al-Qa'ida's head of external operations - see box] drove me nuts at times," said General Wayne Downing, the Bush administration's deputy national-security adviser for combating terrorism, until he resigned in June 2002. "He and some of the others are very clever guys. At times, I felt we were in a classic counter-interrogation class: they were telling us what they thought we already knew. Then, what they thought we wanted to know. As they did that, they fabricated and wove in threads that went nowhere.
"But, even with these ploys, we still get valuable information and they are off the street, unable to plot and co-ordinate future attacks."
But some interrogation techniques go further than many feel is acceptable. Amnesty International has written to President Bush protesting at reports that interrogators holding Khalid Sheikh Mohammed - who, the CIA says, masterminded September 11, the Bali nightclub bombing, and much more - are also holding his two sons, aged seven and nine, as a bargaining tool. Mr Bush has not replied. There can only be "zero tolerance" when it comes to dealing with a man responsible for the deaths of thousands - and the threat to many more.
Yet, when it comes to the holding of children, or the business of torture, the following question arises: when is all this intelligence bought at too great a cost? It is not a question with an easy answer.
What is clear is that something is being eroded in our idea of what should be the ethical norms by which a civilised country acts. The shift is about more than simply a revision of the unwritten rulebook on torture. There is a new tolerance of the suspension of due legal process; of detention without trial; of refusing prisoners legal representation; and of imprisoning unconvicted suspects in harsh conditions. There is a new willingness to risk insults to religious minorities and foreigners - and the increased social tension that this inevitably produces.
Such shifts are not restricted to the US. All across the globe - from China to Chechnya, Israel to Indonesia, the UK to Uzbekistan - similar changes have occurred (see graphic on pages 2 & 3). The rhetoric of the "war on terror" is everywhere being used by governments as the pretext for untrammelled action against rebels and dissidents. Continent by continent, the figures of those "missing" in the so-called war on terror mount to a staggering minimum, according to our calculations, of 12,117 individuals. Were we to have included prisoners of war in Iraq in the calculation, it would be more than 15,000.
Nowhere is this new paradigm of diminished human rights more clearly epitomised than in Guantanamo Bay, the US naval base in Cuba, which has become the main prison for al-Qa'ida and Taliban suspects. The 680 detainees are in a legal limbo. The American military has refused to consider them prisoners of war, even though a majority were captured on the battlefield. They have not even been charged, let alone tried or convicted. They have no access to lawyers. Interrogation is sporadic and varies in length and intensity.
When, last year, three detainees - the British citizens Shafiq Rasul and Asif Iqbal, and the Australian national David Hicks - tried to take the US authorities to court, the presiding judge ruled that the US courts had no jurisdiction over Guantanamo inmates. Instead, an order by President Bush has established military tribunals as the forum for dealing with those accused of terrorism such as the September 11 attacks. Ten detainees are due to appear, in secret, before these tribunals soon, US officials said this month.
Yet, even though US officials privately admit that as many as 10 per cent of those detained may well be innocent - some 41 people have been released so far, including two farmers in their mid-seventies who the US authorities eventually admitted had just been caught in the wrong place at the wrong time - they are all kept in punitive conditions of confinement.
Those released spoke for the first time last week of their treatment. For the initial few months they were kept in small wire-mesh cells, about 6ft by 8ft, covered by a wooden roof, but open at the sides to the elements. The prisoners were taken out only once a week for a one-minute shower. In the fifth month of their imprisonment, they went on hunger strike and were thereafter allowed to shower for five minutes and exercise for 10 minutes once a week, walking around the inside of a 30ft-long cage.
Even if the confinement of unconvicted men is essential to the security of the Western world, it is not clear on what grounds their imprisonment should be so harsh. It is like an Alice-in-Wonderland world of punishment first, trial later - if ever.
But Guantanamo Bay is far from the only place where basic human rights are suspended. Earlier this month, the US Department of Justice's internal watchdog, Inspector General Glenn Fine, issued a hard-hitting report on the treatment of aliens held on immigration charges in connection with the investigation of the September 11 terrorist attacks.
He found more than 1,200 people had been detained, and 766 held for prolonged periods using immigration charges as a pretext. The Justice Department has refused to release names of the detainees, and has conducted hearings against them in secret. The FBI had failed to distinguish between suspected terrorists and illegal aliens uncovered in its trawl. No more than a handful have been charged with a terrorism-related crime, and many were kept in detention even after their immigration cases had been resolved and they had been ordered to be deported to their home countries.
Many are detained under highly restrictive conditions, including "lock down" for at least 23 hours a day in permanently illuminated cells; handcuffs, leg-irons, and heavy chains; a limit of one legal phone call per week and one social call per month. FBI officials frustrated the efforts by detainees' attorneys, families, and even law enforcement officials, to determine where the detainees were being held, and a pattern of physical and verbal abuse was uncovered at one detention centre in Brooklyn, New York. "While our review recognised the enormous challenges and difficult circumstances confronting the Department in responding to the terrorist attacks, we found significant problems in the way the detainees were handled," said Inspector General Fine.
In this country, human-rights groups such as Amnesty and Liberty have made similar complaints about the UK. By contrast with European countries such as the Netherlands, France and Italy - where suspected terrorists have, by and large, been charged and taken through the courts - new legal measures have been introduced in Britain under the Anti-Terrorism Crime and Security Act 2001 (ATCSA), which permit the Home Secretary to designate a foreigner a suspected terrorist, and deport or detain them without trial. In addition, the UK, uniquely, has opted out of the section of the European Convention on Human Rights that guarantees everyone the right to a fair trial. Most recently, the Home Secretary announced that people could be held for 14 days without charge under the 2000 Terrorism Act.
Most of those detained under the 2001 act are held in Belmarsh or Woodhill top-security prisons, where they are classified as Category A and are subjected to the most restrictive regime - locked up for 22 hours a day in single cells 3m by 1.8m, whose access to natural light is limited by the wire mesh on the windows. They are conditions of detention that Amnesty says amount "to cruel, inhuman or degrading treatment".
"These people have not been charged or tried - some haven't even been interviewed by the police," says John Wadham of the civil-rights group Liberty. Moreover, he asks, if these people are so dangerous that they must be locked up so restrictively, why does the Home Office's system permit them to leave if they can find any country that will take them?
There is more to all this even than concerns about civil liberties. It raises levels of suspicion of foreigners and religious minorities in a way that is already having an impact on the lives of Muslims, and others, creating increased social and racial tensions. Anyone who is male, Muslim and Arab - as were the 19 hijackers on September 11 - is, to many people, automatically a terrorist suspect. This would be crassly comic were it not so serious, as in the case of the two men who stopped to pray in a Texas parking lot and were arrested for "suspicious activity"; or the Muslim detainees in New York served pork at the beginning of the holy month of Ramadan.
There is more to this than ignorance and stereotyping. It breeds animus, too. Recent months have seen a Muslim interpreter banned from a British prison for refusing to remove her headscarf, or Muslim men strip-searched in front of female officers in a US detention centre. And another British prison put a detainee on "basic regime" for three weeks - which meant he lost one of the two hours to be spent out of the cell and a cut in visiting time. His offence? During a prayer service, a prison guard entered the room and told them to finish earlier than expected. When the man leading the prayers did not reply, because Islamic practice is that one is unable to speak in the middle of prayer, he was punished.
The problem goes beyond religion. A new xenophobia is abroad. In Connecticut, a resident told police that he had heard two "Arabs" talking about anthrax. Whereupon police officers arrested two Pakistani men suspected of having had the conversation at a gas station. They also hauled in an Indian businessman who was minding the station temporarily for his uncle, the owner. The man was held for 18 days and then released without charge or compensation.
It is, of course, easy to pick up the glaring flaws in the system. It is in the nature of terrorism that its victory is against the ordinary decencies of daily life. Those who are charged with fighting terror have a potent argument when they say that - with an enemy that, by definition, refuses to fight fair - there may be times when the law-enforcers cannot fight fair if they are to win.
Suggestions to the contrary generate irritation and impatience. The US Attorney General John Ashcroft had a tetchy message for civil-liberties activists. "To those who scare peace-loving people with phantoms of lost liberty," he said, "my message is this: your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America's enemies, and pause to America's friends. They encourage people of goodwill to remain silent in the face of evil."
Yet there is a balance to be struck here. If common sense tells us that someone is a fanatical bomber, then it may seem madness to allow that person to proceed unchecked. The danger is that, for short-term gain, we risk making the world not a safer place but a more dangerous one by curtailing human rights, embittering minorities, undermining the rule of international law, and allowing governments that are violating the Geneva Conventions by their interrogation procedures, to hide from scrutiny.
There is a grim irony in the fact that Amnesty International can now visit any prison in the whole of Afghanistan, except one, Bagram - the one run by that great champion of openness and freedom, the United States.
There is danger, self-evidently, from terrorism. But there is danger, too, that we are being changed by our response to that terror. If the terrorists can goad us into undermining part of what it is that makes us different from them, then they will win a victory of a different kind.
Denied Access to Lawyers
Yaser Esam Hamdi was arrested during the war in Afghanistan, reportedly after surrendering to the Northern Alliance. He was detained in Guantanamo Bay until he was found to be a US citizen. He was transferred to a secret location in the US in April 2002. He is being held without access to a lawyer or his family.
In January 2003, a US court upheld the government's right to designate a citizen as an "enemy combatant" and hold him or her indefinitely, without charge and the ability to see a lawyer. Part of the basis for the court's decision was an affidavit by a military bureaucrat indicating Hamdi was a good intelligence resource for the government whose value would be lessened if he were given access to lawyers. The ruling dooms Hamdi to legal limbo unless the Supreme Court reverses it.
Other detainees have had access to lawyers denied, but the Hamdi case makes the practice legal.