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ROBERT KUTTNER

The torturers among us

WHAT HAVE we learned so far about officially sponsored torture by the US government?

First, it is unambiguously clear that the torture of prisoners in Afghanistan, at Guantanamo, and at Abu Ghraib was official policy. Lawyers for the Pentagon and the White House, reporting directly to Defense Secretary Donald Rumsfeld and President Bush, wrote contorted legal briefs trying to define a category of person immune to both due process of law and the Third Geneva Convention. As recently disclosed Pentagon memos divulge, one explicit purpose was to justify torture as a technique of interrogation.

Second, the grotesque abuses at Abu Ghraib were therefore not the work of a few renegade freaks. Official policy was that coercion should be used to pry information out of prisoners. The torture techniques were at first wielded by military and CIA interrogation specialists and limited to "high value" captives.

But as torture moved down the chain of command, it further degenerated from a twisted and illegal means of interrogation into a sadistic sport for ordinary soldiers to apply to ordinary prisoners. This deterioration is predictable. It has happened under every totalitarian regime, from Stalin to Hitler to Torquemada. When torture is official policy, ordinary soldiers and police let their frustrations and imaginations run wild. This is why civilized nations ban torture categorically.

Third, as details of the freestyle tortures at Abu Ghraib reached Rumsfeld and other top officials, they treated it mainly as a potential public relations problem, not as a sign that the entire policy was flawed and illegal. Indeed, even as the then-secret report by General Taguba on Abu Ghraib was being discussed internally, the government's lawyers continued to contend that the Third Geneva Convention on prisoners of war did not apply to alleged terrorists and that even US citizens, if accused of certain crimes, could be treated outside the law.

For nearly three years, the Bush administration has resorted to the most preposterous fictions to define either locales or categories of people to whom the law does not apply. If you connect the dots, the torture at Abu Ghraib is part of a larger slide toward tyranny as the Bush administration tries to exempt itself from the rule of law.

White House lawyers have contended in court briefs that the US base at Guantanamo, which the United States governs in perpetuity under a treaty, is actually under Cuban sovereignty. They contend that the president's powers as commander in chief override both international and domestic laws and even constitutional due process protections for US citizens as well as aliens accused of "terrorism."

These legal claims are complete fabrications. The Third Geneva Convention is airtight. Its language allows for no special cases where torture is permitted and no gradations of acceptable forms of torture. Prisoners are not required to give their captors information beyond name, rank, and serial number, period. Captors are not allowed to resort to coercion, either physical or psychological. There is no category of alleged crime beyond the rule of law.

Moreover, the legal protections of the US Constitution do not speak of citizens; they speak of "persons." And even if there were some special justification for torturing alleged terrorists -- and there is none -- most prisoners in Iraq are not "illegal combatants" but POWs from a defeated army, exactly those whom the Geneva Convention was intended to protect. Indeed, the United States demands that any American captive abroad be treated with scrupulous respect. (This is the whole point of a universal agreement to ban torture -- it covers everyone.)

US officials darkly mention war crimes prosecutions whenever there are hints that American captives have been abused. Yet the US government, in every official forum, tries to negotiate special exemptions so that US personnel abroad are exempt from any such prosecutions. By definition, we are the good guys; so by definition, Americans cannot be guilty of war crimes.

After Abu Ghraib, even America's allies are no longer willing to grant Washington special exemptions. Major human rights groups have scheduled a national conference for June 21 on the question of how international human rights standards must be applied to the United States. This is overdue, but how shameful that America has fallen to a state where we need international constraints to protect our own liberties and rule of law.

It is appalling that a few grunts are taking the fall for torture that was official government policy. Donald Rumsfeld should not just be impeached. He should be tried as a war criminal. As for Bush, he can be dispatched by the electorate while we are still a democracy.

Robert Kuttner is co-editor of The American Prospect. His column appears regularly in the Globe. 

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