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Strife Series: Legal Violence and Legitimacy Building in the United States - The Torture Memos & the Legacy of U.S. Empire, Part II

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Then-US army Reservist Lynndie England forcing an inmate to crawl and bark like a dog on a leash, from the Abu Ghraib Prison abuse scandal, Iraq. Photo Credit: US Government, Public Domain.

The last instalment in this series laid out the basic facts of the Bush Administration’s plan to justify the use of torture through narrow interpretations of the terminology used to describe the practices labelled as “enhanced interrogation.” This article will be centred on the practices that skirted the legal category of torture under Bybee’s framework.

Torture’s Implementation and Impact

Contrary to Bybee’s claim about the effects of waterboarding, Zubaydah did have immediate and longstanding psychological impacts. New York Times article by Carol Rosenberg discussing some of the negative impacts of the Program, Zubaydah was waterboarded eighty-three times over 4 years. In a declassified Senate Intelligence Committee report from 2014, the CIA’s program was described as “brutal and far worse than the C.I.A. represented.” In Zubaydah’s own words he stated, “They kept pouring water and concentrating on my nose and my mouth until I really felt I was drowning, and my chest was just about to explode from the lack of oxygen.” Zubaydah further describes the immense pain he experienced in other torture methods. During the practice of “walling,” he states how he was blindfolded and had his head forcefully struck into a wall behind him. Rosenberg’s article details how with each strike, he was blinded for a few moments, would collapse, and “be dragged by the plastic-tape-wrapped towel ‘which caused bleeding in my neck.’” Zubaydah also states how he was denied sleep by being bound in uncomfortable positions and doused with water for “maybe two or three weeks or even more,” experienced convulsions and vomiting during waterboarding, and even lost consciousness.[i]

Contrary to the Bush Administration’s official position, prolonged physical and mental suffering were direct impacts of America’s use of torture. As detailed in How America Tortures, Mark P. Denbeaux writes that the CIA “The CIA admitted that sleep deprivation can induce hallucinations; however they falsely claimed, ‘those who experience such psychotic symptoms have almost always had such episodes prior…[ii]’” Denbeaux also references the Senate Select Committee on Intelligence findings that “…five detainees experienced ‘disturbing’ hallucinations during prolonged sleep deprivation (e.g., one detainee was ‘visibly shaken’ by his hallucination of dogs mauling and killing his sons and family). In at least two of those cases, the CIA continued the sleep deprivation.” Denbeaux also cites well-established psychological research that maintains sleep deprivation has negative impacts on mental stability within twenty-four hours. Even in this short time, individuals can develop permanent visual distortions, anxiety, and instability. Within thirty to forty-eight hours, illusions and simple visual hallucinations begin. Complex visual hallucinations occur within fifty-three hours, auditory within sixty, and develop within seventy-two.[iii] Denbeaux also writes how PTSD and other mental disorders are strong possibilities in those subjected to psychological torture. He states “Researchers conducted a survey on the use of physical torture as opposed to psychological torture, and the ‘researchers collected medical assessments of whether the torture survivors showed signs of PTSD…’They found no difference in the prevalence of this disorder between the two groups.[iv]” Following his torture, Zubaydah developed numerous mental and physical ailments as detailed in an LA Times article which states “…he suffers blinding headaches and has permanent brain damage. He has an excruciating sensitivity to sounds, hearing what others do not. The slightest noise drives him nearly insane. In the last two years alone, he has experienced about two hundred seizures… Already, he cannot picture his mother’s face or recall his father’s name. Gradually, his past, like his future, eludes him.[v]”

Sources of Justification for Torture

After the memos were released, they quickly became the subject of public scrutiny and critique. Jack Goldsmith, who took over the OLC in 2003 stated the legal analysis they put forth was “deeply flawed” and “sloppily reasoned.[vi]” Instead of serving any tangible aim, the US use of torture exemplified a blatant disregard for the US Constitution as well as human rights. According to Torture and the Biopolitics of Race by Dorothy E. Roberts, these practices, whether occurring under the Bush administration or elsewhere in US History serve to uphold US hegemony and are an embodiment of white supremacist ideals. According to Roberts, the use of torture can be seen throughout the history of the US, especially in the colonial context. During the US colonial administration in the Philippines, torture was frequently used with overtly racist motivations. During the coverage of an insurrection, American correspondence stated Filipinos were “little better than a dog,” and that US troops were “not dealing with civilized people.” William Howard Taft, who was Governor-General at the time stated that the conflict was a war “between superior and inferior races.[vii]” During the Vietnam war, similar sentiments are echoed, as the US continued previous practices from the French colonial administration.[viii] On the use of torture during the War on Terror, Roberts writes that those attempting to justify the US’ actions “…focused largely on the precise definition of torture, or, more precisely, narrowing the definition enough to exempt U.S. officials from criminal liability under international and domestic laws.[ix]” Referring to the celebratory nature of lynching in the US, Roberts states “Whites purchased photographs of the mutilated bodies as mementos of the event and mailed gruesome picture postcards to their friends and relatives.[x]” She continues “…scholars have noted parallels between the contemporary mass circulation of photographs showing scenes of sexualized torture… Some poses in the Abu Ghraib photographs strikingly (and perhaps deliberately) mirror lynching iconography-the hooded detainee with a noose around his neck; the naked detainees posed in sexually humiliating positions, lacerated, shackled, and held by a dog leash; the U.S. soldiers grinning triumphantly in front of their degraded victims.[xi]” Islamophobia has been a foundational effort of the War on Terror since its earliest stages. According to Khaled A. Beydoun in Exporting Islamophobia in The Global “War on Terror,” this racism is best exemplified by President George W. Bush’s words “This is not . . . just America’s fight. And what is at stake is not just America’s freedom. This is the world’s fight. This is civilization’s fight. This is the fight of all who believe in progress and pluralism, tolerance, and freedom . . .. The civilized world is rallying to America’s side.” Bush’s words are a clear us vs them mentality with the “them” being a faceless and ambiguous yet inherently Muslim enemy.[xii] Since any Muslim has been presumed as a lesser enemy, the inhumane treatment is automatically justified.

Conclusion

Despite having declassified much of the information surrounding the use of torture in the War on Terror during the Obama administration, historical acknowledgement of the practice remains sparse. Additionally, torture has not been completely expunged from the possibility by the United States. In 2016, during his presidential campaign, Donald Trump stated the US should “bring back a hell of a lot worse than waterboarding,” adding “I like it a lot. I don’t think it’s tough enough.” Likewise, racialized comments remain within US political vernacular. As to why the US should continue to practice torture, President Trump stated, “We have to fight so viciously and violently because we’re dealing with violent people, vicious people.[xiii]” With the sentiment of “us vs them” remaining dominant in the US counterterrorist strategy (and to some extent policing domestically), the likelihood that torture will once again be implemented has not completely diminished.

[i] Carol Rosenberg, “What the C.I.A.’S Torture Program Looked like to the Tortured,” The New York Times, December 4, 2019, https://www.nytimes.com/2019/12/04/us/politics/cia-torture-drawings.html.

[ii] Mark Denbeaux et al., “How America Tortures,” papers.ssrn.com, December 2, 2019, 26, (Rochester, NY, November 27, 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3494533.

[iii] Denbeaux, et al., 29

[iv] Denbeaux, et al., 37

[v] Joseph Margulies, “The Suffering of Abu Zubaydah,” Los Angeles Times, April 30, 2009, https://www.latimes.com/archives/la-xpm-2009-apr-30-oe-margulies30-story.html

[vi] Michael Isikoff, “Torture Report Could Be Trouble for Bush Lawyers,” Newsweek, February 13, 2009, https://www.newsweek.com/torture-report-could-be-trouble-bush-lawyers-82707.

[vii] Dorothy E. Roberts, “Torture and the Biopolitics of Race,” University of Miami Law Review 62, no. 229, (2008): 241, https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1574&context=faculty_scholarship.

[viii] Roberts, 241-242

[ix] Roberts, 237

[x] Roberts 234

[xi] Roberts, 234

[xii] Khaled A. Beydoun, “Exporting Islamophobia in the Global ‘War on Terror,’” New York University Law Review Online 95, no. 81 (2020): 82, https://www.nyulawreview.org/online-features/exporting-islamophobia-in-the-global-war-on-terror/.

[xiii] Rory Cox, “Historicizing Waterboarding as a Severe Torture Norm,” International Relations 32, no. 4 (September 20, 2018): 488–512, https://doi.org/10.1177/0047117818774396.

Strife Series: Legal Violence and Legitimacy Building in the United States - The Torture Memos & the Legacy of U.S. Empire, Part I

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Photo from Abu Ghraib prison, Iraq, detailing detainee abuse. Photo Credit: US Government, Public Domain.

The Torture Memos are a collection of documents from the US Justice Department Office of Legal Counsel regarding the use of torture against alleged members of al-Qaeda. The basic motivation of these documents was to determine whether the United States’ practice of “enhanced interrogation techniques” constituted torture under US and international law. They unilaterally justified the US’ practices. After the memos were leaked in 2004, they were lambasted as a clear disconnect from the War on Terror’s emphasis on protecting human rights. The memos are an extension of the legal strategies used to legitimize violations of liberal principles in order to maintain U.S. hegemony and empire. In this article, I will discuss the basic provisions of the torture memos. The next installment in this series will focus on the implementation and impacts that the Bush Administration’s controversial legal strategies caused.

Narrow Interpretations, Broad Implications

The first memo, titled Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A, was authored by Jay Bybee, then-Assistant Attorney General, on 1 August 2002. Addressed to Counsel to the President, Alberto R. Gonzales, this document breaks down Section 2340 and requests the Office of Legal Council’s opinion on what constitutes torture under this statute. Bybee’s arguments are vague, and many were later determined to be untrue. From the earliest sections of this memo, Bybee asserts that torture is a very narrow practice according to Section 2340. He states the statute “makes it a criminal offense for any person ‘outside of the United States to commit or attempt to commit torture,’” adding that the statute defines torture as an “act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering… upon another person within his custody or physical control.”[i] Bybee hones in on the language of the statute, stating it “requires that severe pain and suffering must be inflicted with specific intent…” adding “the defendant had to act with the express ‘purpose to disobey the law’ in order for the mens rea element to be satisfied.”[ii] According to Bybee, infliction of pain without “specific intent” does not violate the statute. If a defendant commits an act that does inflict pain with the knowledge that pain is likely, but not certain, “general intent” is satisfied, disqualifying the perpetrator from torture.[iii] Bybee further dissects the language of the statute, arguing that it does not define “severe” in relation to physical pain and “prolonged” in relation to mental harm. Bybee’s interpretation is that torture, as defined by Section 2340, is “not the mere infliction of pain or suffering on another, but is a step well removed. The victim must experience pain…equivalent to the pain that would be associated with serious physical injury so severe that death organ, failure, or permanent damage resulting in loss of significant body function will likely result. If that pain or suffering is psychological, that suffering must result from one of these acts outlined in the statute, in addition, these acts must cause long-term mental harm.”

In section II, Bybee argues that international law reinforces his interpretation of 2340. He references the UN Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT), which states that torture is

“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, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, 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 an official capacity.”

In response, Bybee states, Accordingly, severe pain or suffering need not be inflicted for those specific purposes to constitute torture; instead, the perpetrator must simply have a purpose of the same kind… the pain and suffering must be severe to reach the threshold of torture.[iv]”

Bybee authored another memo titled Interrogation of al Qaeda Operative in which he addressed John A. Rizzo, General Counsel of the CIA, following a similar request to that of the Gonzales. This document covers the torture of Abu Zubaydah and goes into detail about the interrogation practices in question. At the time, Zubaydah was incarcerated in the US under the presumption that he had information on terror cells and plots in the US and Saudi Arabia. According to Rizzo and the CIA, the level of “chatter” surrounding the supposed cells warranted an “increased pressure phase” which was ultimately the interrogations involving torture. He states that the “interrogations” will last “no more than several days but could last up to thirty days” and will employ 10 techniques to “dislocate expectations regarding the treatment he believes he will receive and encourage him to disclose the crucial information” and employ ten different methods.[v] In describing these methods, all of which involve a degree of physical pain, discomfort, and/or mental strife, the illusion to specific intent is seen. In describing one of these methods, called “facial/insult slap” where an interrogator slaps a prisoner in the face in such a way to increase pain, he writes the intent is to “not inflict physical pain that is severe or lasting. Instead… to induce shock, surprise, and/or humiliation.”

Waterboarding is one of the more infamous methods that the US employed during its duration of the use of torture. Bybee’s memo discusses the practice in detail, and establishes the Bush administration’s legal strategy around this unsavoury tactic as follows:

“…the individual is bound securely to an inclined bench… The individual’s feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. Once the cloth is completely saturated and covers the mouth and nose, air flow is slightly restricted for 20 to 40 seconds… this causes an increase in carbon dioxide in the individual’s blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produces the perception of ‘suffocation and incipient panic’ i.e., the perception of drowning.” He continues by stating “You have orally informed us this procedure triggers an automatic physiological sensation of drowning that the individual cannot control even though he may be aware that he is in fact not drowning.” Bybee also acknowledges technique will be used on Zubaydah stating a medical professional would be in attendance to “prevent severe mental or physical harm to Zubaydah.[vi]”

Bybee goes on to claim that these methods, waterboarding included, did not result in “prolonged mental harm.” Because the tortured subject “may” be aware that they are not drowning despite the fact they feel like they are, the act cannot be considered torture because of the purported sanitizing quality of this possibility. Additionally, he focuses on the lack of physical pain involved in simulated drowning. He references his memo to Gonzales stating “’ pain and suffering’ as used I section 2340A is best understood as a single concept, not distinct concepts…the waterboard, which inflicts no pain or actual harm whatsoever, does not in our view inflict ‘severe pain or suffering…[vii]’”

[i] Jay Bybee, “Memorandum for Alberto R. Gonzales, Counsel to the President Re: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A,” August 1, 2002, 2–3, https://nsarchive2.gwu.edu/NSAEBB/NSAEBB127/02.08.01.pdf.

[ii] Bybee, 3

[iii] Bybee, 3

[iv] Bybee, 14-15

[v] Jay Bybee, “Memorandum for John Rizzo, Acting General Counsel of the Central Intelligence Agency Re: Interrogation of al Qaeda Operative,” Justice.gov, August 1, 2001, 1 , https://www.justice.gov/sites/default/files/olc/legacy/2010/08/05/memo-bybee2002.pdf.

[vi] Bybee, 3-4

[vii] Bybee 11

Punishing the cowboys: Blackwater, justice, and easier wars

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By Charlie de Rivaz:

A Blackwater Little Bird Helicopter flies over the Republican Palace in Baghdad, December 2007. Photo: jamesdale10 (CC 2.0)
A Blackwater helicopter flies over the Republican Palace in Baghdad, Iraq, December 2007. Photo: jamesdale10 (CC 2.0)

On Monday, four former employees of Blackwater, the notorious private US military contractor, were sentenced for the killing of 14 unarmed civilians and the wounding of 17 more in Iraq in 2007.

Paul Slough, Evan Liberty and Dustin Heard each received 30 years in prison after being found guilty of several charges of voluntary and attempted manslaughter. Nicholas Slatten, the team’s sniper, was sentenced to life for first-degree murder for his part in the killings, which took place while the four men were working as part of a security detail for the US State Department.

Slatten began the massacre by firing at the civilian occupants of a car caught up in traffic at the roundabout in Nisour Square, Baghdad. In the ensuing confusion three armoured vehicles opened fire, strafing the cars and pedestrians in and around the square with heavy machine guns and grenade launchers, causing what the lead prosecutor described as ‘a shocking amount of death, injury and destruction’. The defendants’ claim that they believed they were under attack did not convince the jury, who convicted them in October 2014.

After Nisour Square

In the fallout from the massacre in Nisour Square, Blackwater was blocked from providing diplomatic security in Iraq - the so-called ‘cowboys’ were sent home. Indeed, you might have expected a general cooling off in the relationship between the private security companies and state militaries.

But there’s been nothing of the kind. Between 2008 and 2011 there were more military contractors in Iraq and Afghanistan than soldiers. Compare this to the First Gulf War, when there was one contractor to every hundred soldiers. [i] Most of the contractors in Iraq and Afghanistan were working in logistics: building bases, doing the laundry, cooking the food. But a significant chunk – 18% in 2012[ii] – were involved in providing security, exactly what Slough, Liberty, Heard and Slatten were supposed to be doing on that fateful day in Nisour Square.

Even Blackwater is still involved, albeit under a new – less threatening – name: ‘Academi’. As part of the failed counter-narcotics effort in Afghanistan, Academi has received $309 million from the US government. Erik Prince, Blackwater’s founder, escaped any liability for what happened in Nisour Square and is now gallivanting around Africa for Chinese mining, oil and gas companies as part of his new outfit, Frontier Services Group. In the war against ISIS, Prince has called for the US government to ‘let the private sector finish the job’.

Rotten apples?

The use of private military contractors by governments has increased, not decreased, since the Nisour Square massacre. But does it really matter? After all, weren’t Slatten and co. just a few rotten apples, caught up in the heat of the moment?

It is difficult to know how many ‘rotten apples’ are working for private military companies. In 2012, Faiza Patel, then Head of the UN Working Group on the Use of Mercenaries, claimed that the rot was widespread, alleging that private military contractors had been involved in extrajudicial killings and sex trafficking. A 2008 RAND survey found that 20% of diplomatic personnel who had worked with armed contractors in Iraq found them to be ‘unnecessarily threatening, arrogant or belligerent’. This was echoed by a 2010 New York Times article, which claimed that American troops saw contractors as ‘amateurish, overpaid and, often, trigger-happy’.

It has also become clear that private contractors were heavily involved in the torture of Iraqi detainees during the so-called ‘War on Terror’. One of the most striking revelations from the CIA Torture Report, apart from the systematic use of brutal practices like ‘rectal hydration’ and ‘rough takedowns’, was that private contractors conducted 85% of the interrogations of terror suspects. In late 2012, L-3 Services Inc paid $5.8 million in damages to 71 former detainees of Abu Ghraib who allege that they were tortured by employees of the US defence contractor.

Hiding in the shadows

But the truth is that little is known about the behaviour of private military contractors, because they typically operate in the shadows, beyond the scrutiny of the media. Most governments do not publicise the military contractors they hire, and much of what they get up to on the ground is either classified, or obscured by layers of further sub-contractors.

Indeed, it is precisely this secrecy that makes private military companies so attractive to governments: they can hide both the violence and the cost of war. When a contractor dies no one lines the streets of Wootton Bassett, waiting for the flag-draped coffin to pass. Similarly, when a contractor abuses a civilian in a faraway warzone, the government doing the contracting can deny all responsibility. No pesky court-martials are needed; no reputations tarnished.

By employing private contractors, wars can be escalated on the sly, without the need for unpopular troop increases. This is foreign policy by proxy. The UK allegedly used SAS veterans in Libya, who claim they were paid £10,000 per month, to help topple Gaddafi in 2011. The US Congress was not made aware of the fact that Blackwater were assisting the CIA and JSOC in their ‘snatch and grab’ missions in Afghanistan (and even Pakistan) until it was disclosed by the CIA director in 2009.[iii]

At the same time, the costs of private contractors can be kept ‘off the books’ in a way that the costs of regular troops cannot, thereby making an expensive war seem relatively cheap. An estimated 70% of the costs to the US of the wars in Iraq and Afghanistan were kept off the books, funded by emergency appropriations approved outside of the Pentagon’s annual budget.

Regulating the cowboys

It is difficult to control what goes on in the shadows. Since the fifteenth century and despite Machiavelli’s warnings about the ‘undisciplined and treacherous’ nature of mercenaries, states have failed to effectively regulate the role of private companies in war. Even today, there is no effective system of legal accountability to check the behaviour of private military contractors; they typically operate beyond the jurisdiction of both national and international law.[iv]

For a long time it looked like Slough, Liberty, Heard and Slatten would evade justice too. It took over seven years before they were found guilty of the killings in Nisour Square, so long that the statute of limitations kicked in and prosecutors had to drop manslaughter charges against Slatten. In fact, the case only made it to trial after a personal intervention by Vice-President Joe Biden. Blackwater/Academi itself never got anywhere near the courtroom. If a case as high-profile and horrifying as Nisour Square proved so fragile, it is little wonder that private contractors rarely end up in court.

But even if there were effective regulation, even if we did live in a world where international law meant something and international institutions worked; even then it would still be better to reject the turn towards using private contractors instead of the regular state militaries.

More wars, bigger wars

This is because private contractors make war easier. With the support of private contractors, states can engage in more wars, and on a far grander scale than would otherwise be possible. The invasions of Iraq and Afghanistan would not have gone ahead without the support of private contractors: there just weren’t enough soldiers.

In particular, private contractors make unilateral wars easier. There’s a good reason that unilateral wars are unilateral: no one else supports them. If states could only entertain the possibility of going to war if that war had multilateral support, then both the legitimacy of the war and its prospects of success would be greatly increased.

Private contractors make war easier, and they also try damn hard to make it desirable. We should not kid ourselves into believing that these contractors are sitting quietly, twiddling their thumbs, waiting for the government to pick up the phone and call on their services. On the contrary, they are incentivised to lobby the hawks in government to make war. For the contractors, war equals money. It is no surprise that from 1998 Kevin Prince became a steady contributor to the Republican right – one of his recipients was, of course, George W. Bush.

Disturbingly, the more the government outsources its military needs, the more pervasive the war incentive becomes. Intelligence analysts working for companies like Blackwater are now judging security threats. Strategy experts working for these companies are now being asked their advice about the risk of prosecuting such-and-such a war. Those who stand to make money from war are gaining more and more influence in the corridors of power.

While we should welcome the weighty sentences handed down to the ‘cowboys’ responsible for the massacre in Nisour Square; it is no cause for celebration. There has been precious little change since the massacre. The state is still in thrall to the private contractors, and the contractors still operate in the shadows, beyond the eyes of the media and beyond the reach of the law. This matters. We have so far failed to tame the cowboys, we must not let them make violence an easy option.

Charlie de Rivaz is an MA student on the Conflict, Security and Development programme at King’s College London. For three years he worked in Argentina and Colombia as an English teacher and journalist. His main interests include the political economy of war, international human rights law, conflict resolution, and state-building. Charlie is the Managing Editor of Strife blog.

NOTES

[i] Pattison, James (2014), The Morality of Private War, OUP
[ii] Ibid, p.22
[iii] Ibid, p.149
[iv] Ibid, p.147

Gender and the War on Terror

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By Caroline Cottet:

Specialist Lynndie England holds an Iraqi detainee on a lead at Abu Ghraib prison in Iraq, 2003. Photo: Wikipedia.

When making sense of the people and things around us, it is often tempting to rely on binaries. There’s “us” and there’s “them”, there are “men” and “women”, “masculinities” and “femininities”, some are “white” others are not. These lists apply to our our daily routines as much as to extraordinary events. For example, the last few days have seen various forms of celebration for International Women’s Day. The ways in which such an occasion is observed highlight the common dichotomy between “men” and “women”. This constructed binary, like many others, may seem harmless. But those who consider themselves to be outside of that binary construction would disagree, arguing that if you do not conform to the binary labels then you might suffer intolerance, insecurity and perhaps even violence. The extent to which such binaries are problematic is most visible in the War on Terror, as this article sets out to demonstrate.

When the War on Terror was first announced by President George Bush in 2001, it was set up as a simple war of good against evil. The media, caught up in the post-9/11 hysteria, largely followed this narrative. But what has been missing from our general understanding of the War on Terror has been the importance of gender power relations in defining its narrative. While there is a wealth of scholarship on the subject, researchers in gender studies have a tendency to use technical language and to remain within strict academic circles. This is an attempt to step outside of that circle.

Gender can be understood on several levels and so should the War on Terror. On the individual level, certain policies target people because of their gender (such as liberating Afghan women and condemning Taliban men). On a collective level, Western culture is deemed vulnerable and feminised against the dangerous and masculinised “Other”, represented for a long time by al-Qaeda. [1] Gender is socially and politically constructed, it is immaterial yet at times instrumental. Ultimately, gendered narratives and power relations are mutually reinforcing, and make violence possible.

Looking at gender does not mean analysing the positions of men and women as subjects of masculinities and femininities respectively; gender should be considered beyond bodies, and in parallel with other binaries, such as that of skin colour. This is called “intersectionality”.

On an individual level, there is commonly understood to be a static correspondence between gender and sex. In other words, visual instincts draw people to assume that ‘men’ and ‘women’ will behave in certain ways, according to their gender. Traditionally, the gender binary also follows that of gendered roles in war: men and women; the Just Warrior and the Beautiful Soul; the protector and the protected, the soldier and the civilian. [2] While this construction has been increasingly debated and undermined on a theoretical level since the 1950s, [3] it nonetheless presents the major challenge in trying to make sense of several distressing episodes during the War on Terror.

One of these episodes was the torture at Abu Ghraib, the Iraqi prison, in 2003. Photographs of the abuse were widely circulated, and people struggled to make sense of what they were seeing, principally because it did not jive with their understandings of the supposed man / woman binary.

During the scandal Lynndie England received most attention. A female-identified soldier, her acts called for extraordinary justifications: a Sjobergian Monster, a victim of feminine submissiveness by blindly obeying her – male – superior; or a subject deprived of feminine characteristics with an androgynous body. [4] Worst of all for Barbara Ehrenreich was that the photographs represented “imperial arrogance, sexual depravity … and gender equality”. [5] Gender equality?! Ehrenreich’s last, and preposterous, suggestion points to an important mistake: gender cannot be understood solely on an individual level. Trying to do so fails to unveil the gendered power relations that underlay the War on Terror.

Instead, we should consider gender beyond bodies. The femininities were not the female-identified US-soldiers, and the masculinities were not the male-identified prisoners. Instead, Abu Ghraib prisoners were feminised and members of the American armed forces were hyper-masculinised. Torture aside, the emasculation of the “Other” also proceeded domestically in visual representations. For example, an increase in male media anchors to cover the War on Terror, the figure of the heroic male firefighter of 9/11, and posters with sexual humour depicting Ben Laden as “gay”. [6]

In Abu Ghraib, the process of emasculation was much less subtle:

And he called…me “faggot” because I was wearing the women’s underwear, and my answer was “no”. Then he told me “why are you wearing this underwear”, then I told them, “Because you make me wear it”. (Abu Ghraib Detainee #151108) [7]

When instructing naked male prisoners to wear women’s underwear, when they were held on a leash, or were covered in red ink that was supposedly menstrual blood, the gendered dynamic was one of inequality, inequality between the American hegemony and its inferior enemy. [8] This is not an attempt to point fingers. Rather, I am trying to make sense of the power relations present in gendered torture.

The particular relationship between the torturer and the tortured is not just gendered, but also racialized. There are the populations that can be tortured and those that cannot. [9] And yet another binary: that of the Occident (i.e. the Western or European political entities between the Enlightenment and the early 20th century) and its construction of the Orient (the broad stereotypes characterising the Arab culture as exotic, backward, uncivilized, dangerous and so on). [10] Such a dichotomy might sound like a caricature, yet what happened in Abu Ghraib was made possible by anthropological research on “Muslim culture” published in a manual called The Arab Mind. [11] Torture during the War on Terror, of which the abuses in Abu Ghraib are merely the most prominent example, were designed based on a certain archetype of the Arab/Muslim man, who would be most vulnerable to sexual humiliation, in particular when produced by a woman. [12] This shows that it is difficult to dissociate the gendered binary from the racialized one.

What I want to highlight is that binaries are not disconnected. They are all historically constructed and follow a hierarchical logic. The celebrated side of the binary builds and secures its very definition through subordination of the Other – the sexually deviant Orient.

What was made visible during the Abu Ghraib scandal may not be as blatant today, yet it is no less relevant. Making sense of people and things by using binaries places a certain values on lives. Such categorising is not harmless: it is interwoven with a certain judgement of whose lives are deemed to be acceptable subjects of violence. The Obama Administration has now ceased to capture “enemy combatants”. According to Michael Hayden, former Director of the NSA and later the CIA the strategy is now to kill, not capture: “We take another option, we kill them. Now. I don’t morally oppose that.” [13] Clearly the power relations at work have not really changed.

Why does this matter? Because the construction of binaries makes such violence possible. The animation of such binaries in the military sphere is not disconnected from the way gender is understood domestically. (Notice that the “military” and the “domestic” spheres represent another binary.) In the light of the celebrations of International Women’s Day, we should ask ourselves how the construction of “men” and “women” and its fluidity interplays with the notion of race, and how it creates and maintains artificial hierarchies that underlie and perpetuate the War on Terror.

Caroline Cottet is an MA student in Science and Security at King’s College London.

NOTES

[1] Anne J. Tickner (2002) “Feminist Perspectives on 9/11”, International Studies Perspectives, Vol. 3, p.333–350

[2] Jean Bethke Elshtain (1987) Women and War, Chicago: University of Chicago Press

[3] Judith Butler (2008) Gender Trouble: Feminism and the Subversion of Identity, Oxon: Routledge

[4] Laura Sjoberg and Caron E. Gentry (2007) Mothers, Monsters, Whores: Women’s Violence in Global Politics, London: Zed Books, Timothy Kaufman-Osborn (2005) “Gender Trouble at Abu Ghraib?”, Politics and Gender, Vol 1 (4), p.615, and Marita Gronnvoll (2007) “Gender (In)Visibility at Abu Ghraib”, Rhetoric and Public Affairs, Vol. 10 (3), p.375

[5] Barbara Ehrenreich (2004) “What Abu Ghraib Taught Me”, Alter Net, 19 May 2004

[6] Patricia Owens (2010) “Torture, Sex and Military Orientalism”, Third World Quarterly, Volume 31 (7), p.1042 and Meghana Nayak (2006) “Orientalism and ‘Saving’ US State Identity After 9/11”, International Feminist Journal of Politics, Vol. 8 (1), p.46

[7] In Owens 2010, p.1041

[8] Incidents described in Kaufman-Osborn 2005, Owens 2010 and Laleh Khalili (2010) “Gendered Practices of Counterinsurgency”, Review of International Studies, Volume 37 (4), p.1471-1491

[9] Melanie Richter-Montpetit (2014) “Beyond the erotics of Orientalism: Lawfare, torture and the racial–sexual grammars of legitimate suffering”, Security Dialogue, Volume 45, p.43-62

[10] Edward W. Said (1977) Orientalism, London: Penguin

[11] Owens 2010

[12] Ibid.

[13] Michael Hayden, former Director of the NSA (1999-2005) and later of the CIA (2006-2009), quoted in David Kravets (2012) “Former CIA Chief: Obama’s War on Terror Same as Bush’s, But With More Killing”, 9 October 2012 (available at: http://www.wired.com/2012/09/bush-obama-war-on-terror/, last accessed on 12/11/14)

Did torture cost American lives?

by

By Christopher D. Kolenda:

Photo: US Army (creative commons)
US soldier in Iraq. Photo: US Army (creative commons)

“The enemy is the enemy, until he becomes my prisoner,” I remember Lieutenant General Hal Moore saying, “then he is my responsibility”. Moore was with co-author Joe Galloway at Fort Hood, Texas, in 1993. They were talking to officers from 1st Squadron, 7th Cavalry, Moore’s unit in Vietnam, about their book We Were Soldiers Once … and Young.

The message has stuck with me ever since.

This conversation from over twenty years ago came to my mind as I read the Senate Select Committee on Intelligence report about the use of so-called ‘enhanced interrogation techniques’.

It makes disturbing reading. One cannot help but be horrified by the graphic descriptions of actions that Americans inflicted on detainees in the wake of the September 11 attacks – torture, in several instances.

The Senate reports a number of cases in which members of the CIA questioned the legality and efficacy of the techniques, but were allegedly rebuffed. That roughly 85% of the detention and interrogation efforts were reportedly carried out by contractors, who do not share the same oaths or professional values as CIA members, raises other important questions.

The Central Intelligence Agency’s response thankfully notes that the program will not be reinitiated under any circumstances, and carefully explains that their counterpoints to the Senate report in no way suggest an ends-justify-the-means case for the practices employed.

A recent op-ed by former Agency leaders makes no such distinctions. They emphasize that the prevailing sense of fear at the time over another attack and the (disturbing) lack of knowledge about al-Qaeda justified the need for “enhanced” techniques. The outcomes, they suggest, saved American lives.

But did unintended consequences, directly or indirectly, actually cost American lives? That question is beyond the scope of the Senate report, the Agency response, and the arguments by the former CIA leaders. It merits thoughtful attention nonetheless.

Observation #8 from the Senate report notes some of the negative effects of the program on the efforts of other agencies, such as the State Department and Federal Bureau of Investigation. Observation #20 suggests that America’s moral standing in the world has suffered. Impacts on the Department of Defense are not mentioned.

This brings me back to the discussion with Hal Moore. Protection of civilians and combatants no longer posing a threat – wounded, sick and prisoners – even at increased risk to yourself, should distinguish American soldiers in times of war. This would be a principle in any organization that I led. It was also, I believed, a practical necessity.

Equally important was to foster a command climate that encouraged, even demanded, candid feedback. Even the best guardians need other guardians animated by common principles.

How we treat others in combat, whether they be civilians faced with impossible real-world choices, people who cannot protect themselves from violence and brutality, and incapacitated or detained fighters on the battlefield we may have been trying to kill a moment beforehand, says a lot about us.

I relied on this principle time and again as a commander in combat in Afghanistan as we dealt with the real-world complexities of fighting an insurgency – in some cases an insurrection – that wore no uniforms, blended with the population, and played by a very different set of rules.

You find yourself in a constant battle of unenviable trade-offs – balancing risk to the mission, risk to your soldiers, and protection of others, for instance. Uncertainties abound over which local actors to trust and how much, over what rules and incentives motivate them, about which information and various interpretations of it to believe, and how best to accomplish the mission and defeat your adversaries or sets of adversaries.

You also find yourself contending with a wide range of emotions. Elation over winning a battlefield engagement; visceral anger and anguish when your soldiers are wounded or killed; outrage when civilians are brutalized or killed by your enemy; sadness in the face of human suffering; anxiety and concern over setbacks; joy and satisfaction at success.

You operate in a world of fine lines, easily crossed. Elation can turn to bloodlust; anger and outrage into revenge; concern into paralysis; sadness and joy into pity and hubris. Your principles and candid people around you keep you on the right side, especially in the most difficult and dangerous and disorienting circumstances.

I found in Afghanistan that the principles of protection and candour normally carried manageable short-term risks, but had significant positive practical implications.

I was astonished to find, however, that many Afghans believed that Americans engaged in torture and human rights abuses as a matter of policy. Many, I discovered, did not see us as the ‘good guys’. They feared us. I learned over time that several opportunists had beforehand provided bogus reports to eager officials. These reports often provoked military actions against their otherwise innocent rivals. The former knew exactly what buttons to push. Their rivals swore blood-feuds against the Americans. All this made the insurgency stronger, the fighting tougher, and our job much, much harder.

My subsequent tours in Afghanistan suggest that our experience was not unique. Of course demands that our Afghan partners respect human rights rung hollow to some. Even Taliban leaders and associates would contrast their treatment of U.S. Army Sergeant Bowe Bergdahl with rumours and reports of torture of their people by Americans.

It is in this context that I suggest the need for further examination. The program did not exist in isolation. It formed part of the context in which our forces operated in combat. Over seven thousand American service members were killed in Iraq and Afghanistan; tens of thousands live with wounds visible and non-visible. Many more civilians were killed or wounded. A precise answer to the cost in lives is unknowable.

There are important questions about how the program may have affected the conduct of the wars, including:

  • To what extent did the perceptions and justifications of the program, to include the actual and perceived use of torture, affect our soldiers and their mission?
  • To what extent did senior leaders’ public justifications of the program affect broader policy and strategy options in the conduct of the wars?
  • To what extent did perceptions and justifications of the program promote an ends-justify-the-means mentality within the military in Afghanistan and Iraq?
  • To what extent did the perceptions and justifications foster a belief in the military that such practices were acceptable and could be used by them in combat?
  • To what extent did ‘false positives’ or erroneous reports, perhaps made out of fear of torture, lead to military actions that cost lives (civilian and military) and created unnecessary enemies?
  • To what extent did the actual and perceived use of torture compromise the military’s moral standing in the eyes of the people in Afghanistan and Iraq? In what ways did that affect the mission and its prospects of success?

The CIA is filled with people who were repulsed by the behaviours cited on the Senate report. These public servants saved American (and Afghan and Iraqi) lives while upholding the values that make the Agency great. To what extent the program that troubled them affected the conduct of the wars, and the people conducting them, merits further investigation.

Did the mentality that created and justified a program intended to save American lives cost American and civilian lives, too, and what can we learn from that?

Christopher D. Kolenda is a Senior Military Fellow at King’s College London and President and CEO of Kolenda Strategic Leadership which helps Not-for-Profit organizations maximize their impact in conflict zones. He commanded Paratroopers in combat and served as Senior Advisor to three Commanders of International Forces (ISAF) over four tours in Afghanistan. See his two books on applied combat leadership: Leadership: The Warrior’s Art and The Counterinsurgency Challenge.

Editors’ note: Strife and the US Foreign Policy Research group will be hosting our first annual conference 4 March 2015 at King’s College London entitled: “A world in flux? Analysis and prospects for the U.S. in global security”. Leading up to this, we will be featuring a number of articles and responses to current events related to US and global security from a variety of students, researchers, practitioners and academics. This article is part of that series.