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by Maj. Anthony Milavic USMC(RET)
INTRODUCTION
“In every war but one that the United States has fought, the conduct
of those of its servicemen who were captured and held in enemy
prison camps presented no unforeseen problems to the armed forces
and gave rise to no particular concern in the country as a whole.. . .
That one war was the Korean War.”
In Every War But One1
Some 50 years later, it is the conduct of U. S. servicemen and women toward those they have captured that has caused “concern in the country”: the case of LTC West firing a pistol during the interrogation of a detainee in August 2003, photographs of nude men from the Abu Ghraib prison, reports of Afghans and Iraqis dying while in U.S. custody, etc. Overarching and amplifying these events, there has been an almost worldwide accusation that: “Americans are torturing detainees!” In the arena of public opinion all these events have been called “torture” even though many of these acts were of a lesser intensity and should be categorized as coercion or physical/mental abuse. Accordingly, this essay looks at these acts as “torture” through the prisms of some legal imperatives, the effectiveness of torture, why some resort to torture, trained interrogators, and a closing comment.
SOME LEGAL IMPERATIVES
The United States Congress ratified both the Third and Fourth Geneva Conventions thereby compelling the U. S. Armed Forces to comply with their strictures. The Third Geneva Convention, which covers prisoners of war, contains the following proscription within Article 17:
“No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.”2
The Fourth Geneva Convention, which covers “the Protection of Civilian Persons in Time of War” from the occupying power has less precise rules on interrogation but Article 31 still bans all "physical or moral coercion" to obtain information.3 Soon after 9/11, there was some confusion as to who was a Prisoner of War and/or protected by these Conventions. That was quickly put to rest with the 7 February 2002 memorandum “Humane Treatment of al Qaeda and Taliban Detainees” from President Bush that directs, in part:
“Our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. As a matter of policy, the U.S. armed forces shall continue to treat detainees humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”4
Regardless of where you place the threshold between torture and coercion, they are both banned by the Third and Fourth Geneva Conventions and anathema to President Bush’s order to “treat detainees humanely.”
EFFECTIVENESS OF TORTURE
In addition to being illegal, these acts are frequently ineffective and counter-productive. The Romans threatened the early Christians with crucifixion, being burned at the stake, or being fed to wild animals in the Coliseum if they did not reject their new religion and embrace the many gods of Rome: Thousands chose death. Joan of Arc was tried before an ecclesiastical tribunal accused of witchcraft and heresy because she claimed to be guided by divine voices. She was told to admit that she heard no such voices or be burned at the stake: She was not dissuaded by death. William Wallace, of Braveheart popularity, was hanged, drawn and quartered because he refused to swear allegiance to King Edward I. The threat of certain and excruciating death was ineffective in dissuading these individuals and their deaths had opposite effects: the slaughter of Christians contributed to the conversion of Rome; Joan of Arc is widely remembered today while few remember the name of the French king she served and who contributed to her demise; and, the death of William Wallace invigorated the Scots to successively eject the English from Scotland.
This is not to say that coercive techniques always fail to influence or prompt some action. These techniques have caused men to do as their abusers wanted them to do or say, and, at times, caused the unintended death of the detainee. For example:
1) "The barbarous custom of having men beaten who are suspected of having important secrets to reveal must be abolished.
It has always been recognized that this way of
interrogating men, by putting them to torture, produces nothing worthwhile. The poor wretches say anything that comes into their mind and what they think the interrogator wishes to know."
Napoleon Bonepart5
2) Four days after the war started and two days after he was captured, an American lieutenant was heard broadcasting over Seoul radio on behalf of the Democratic People’s Republic of [North] Korea. He was followed by others making similar statements and even confessions of using germ warfare weapons. It wasn't long before a journalist explained what was happening to them: “Americans are being brainwashed in Korea.” Although these men were not “tortured”--as defined at the time by the U.S. Army: “the application of pain so extreme that it causes a man to faint or lose control of his will”--they were coerced and abused into saying what the Koreans/Chinese wanted them to say.6
3) During the Vietnam War, Americans were, in the most profound sense of the word, tortured into making confessions of using bacteriological weapons against the North Vietnamese and other acts considered to be criminal by the world community: statements the Americans knew were false.
4) According to the Innocence Project at the Benjamin N. Cardozo School of Law, Yeshiva University, duress, coercion, and violence (threatened or performed) have led innocent Americans to confess to crimes they did not perpetrate. The Project reports that, “33 of the first 123 post conviction DNA exonerations involve false confessions or admissions.”7
5) On 27 May 2004, The New York Times reported that on 30 August 2003, LTC Alvin B. West, an artillery battalion commander, detained an Iraqi police officer named Yehiya Kadoori Hamoodi for interrogation because West believed the officer knew about a “plot to ambush him and his men.” West “made a calculated decision to intimidate the Iraqi officer with a show of force . . . [even though he previously] had never conducted or witnessed an interrogation.” The Interrogation of Hamoodi, that included hitting him and threatening his life, failed to produce the desired answers. West then fired his pistol next to his head. Hamoodi gave West the names of several men who were purportedly involved in an effort to kill him. One man was picked up and shortly thereafter released; none of the named men were determined to be involved in the so-called plot. Later, “Mr. Hamoodi said that he was not sure what he told the Americans, but that it was meaningless information induced by fear and pain.”
6) According to a 12 June 2004 Navy Times story, two Marines, during “motion hearings” held on 28 & 29 June 2004, faced charges in connection with the death of Nagem Sadoon Hatab, a 52-year-old Baath party member who was being held in a makeshift detention center outside Nasiriya. Allegedly, Hatab had been struck and kicked on 4 June 2003 and the following day was lethargic and had defecated on himself. On 6 June, he was found dead.
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