America's shame: how fear drove the White House to condone torture

The problem was how to make detainees squeal and yet avoid criminal prosecution or the release of prisoners by the courts

The Americans confronted a problem. In the aftermath of the Twin Towers attack, they had successfully invaded Afghanistan and captured numerous al-Qa'ida and Taliban fighters but, in the words of one of their generals: "Some detainees have tenaciously resisted our current interrogation methods." Don't forget that the US public at the time was in the same mood as ours after the retreat from Dunkirk in 1940: this is a crisis; another attack (we thought invasion) could be attempted and we have to stop it.

Until then, interrogations by the US army had been conducted within the ambit of a Field Manual first promulgated in 1945. The use of force, mental torture, threats and exposure to inhumane treatment of any kind were expressly forbidden. The manual stated that force was unnecessary to gain co-operation and, in any case, produced unreliable information.

Nonetheless, what some commanders in the US army now wanted to do was to go much further. They wished to have the power to deprive detainees of light and auditory stimuli, to place hoods over their heads during transportation and questioning, to keep interrogations going for 20 hours at a stretch, to groom detainees and to remove their clothing. In addition, they sought the power to convince detainees that death or painful consequences were imminent, to expose them to cold weather or water and to use a wet towel to induce a fear of suffocation. Be careful with this last technique, wrote Judge Advocate Diane Beavor, as "foreign courts have already advised about the potential mental harm that this method may cause".

So the problem was this: how to make detainees squeal and yet avoid liability, criminal prosecution or the release of particular prisoners by the courts. In other words, what would enable the US to use harsher methods and avoid the legal consequences?

Two obstacles had to be overcome. The first was the Geneva Convention of 1949 to which the US is a signatory. At the heart of the convention is what are defined as grave breaches: "wilful killing, torture or inhuman treatment ... wilfully causing great suffering or serious injury to body or health ... wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in [the] Convention".

The second difficulty sprang from the first. It was the War Crimes Act, which directly incorporates into the US criminal code several provisions of international treaties governing the laws of war. As a result, breaches of the Geneva Convention would be classified as a war crime by the American courts. The escape route was described in a number of memoranda written by US government lawyers. Step one would have been for the President to use his constitutional authority to suspend temporally the application of the Geneva Conventions to the conflict in Afghanistan. Essentially this power derives from the President's role as Commander in Chief and from the part he plays in making treaties. The Geneva Convention is a treaty. In the event George Bush declined this advice. "I have the authority" he declared, "but I decline to exercise that authority at this time."

That did not matter very much for Mr Bush followed steps two and three as outlined in the memoranda. He declared that al-Qa'ida detainees cannot claim a prisoner of war status. He had been advised that the Geneva Convention applies only to nation states and not to what is "merely a violent political movement". Yes, but the Geneva Conventions define prisoners of war as including not only captured members of official armed forces but also irregular forces; and isn't this what al-Qa'ida is?

The President also declared that the Taliban detainees do not fit the Geneva definition of lawful combatants. Why not? The argument was put to the White House that for the Taliban to gain the Geneva protections they would have meet the technical definition of what constitutes being a militia or volunteer corps. That is they would be commanded by an individual responsible to his subordinates, they would have a distinctive sign recognisable from a distance, they would carry arms openly and they would obey the laws of war. Unfortunately for the Taliban, while they may have a chief, they don't wear badges that identify them. Nor do they appear knowledgeable about the laws of war. And carrying weapons is hardly distinctive in Afghanistan.

These considerations, however, don't give a carte blanche. So the final stage in the argument was to define torture in a very narrow sense, to put it beyond normal reach. Certainly to elevate it above "cruel, inhuman or degrading treatment or punishment". When the British army in Northern Ireland was charged during the 1970s with hooding prisoners, keeping them in rooms with a loud and continuous hissing noise, depriving them of sleep and reducing their diets, the European Court of Human Rights concluded that these acts were inhuman and degrading but did not amount to torture. For torture to be torture, severe pain and suffering must be inflicted with specific intent. What then is "severe"?

The Assistant Attorney General at the time, Jay Bybee, wrote that "severe pain" meant a physical condition or injury such as would lead to "death, organ failure, or serious impairment of body functions Anything less would be permissible. I wouldn't like to be interrogated by Mr Bybee even though he is, a colleague told The Washington Post, "a pretty gentle soul".

Armed with this sort of advice, the Pentagon wavered. First the interrogation techniques listed as permissible in the standard Army manual were substantially expanded - and no doubt used - only to be reduced again some months later. Procedures that had been banned as too harsh at Guantanamo Bay lingered in Iraq. But even there the rules were changed three times in less than two months.

Finally, last week, the escape route was closed down completely. Mr Bybee's memorandum was withdrawn. Officials at the White House and the Justice Department derided it, calling parts of it over broad and irrelevant. The counsel to the President said that memo and a related Pentagon memo had been meant to "explore the limits of the legal landscape". He acknowledged that some of the conclusions were "controversial" and "subject to misinterpretation." All legal advice on the subject of interrogations is to be reviewed.

This is the encouraging end to the story. The United States has not solved the problem of making hard men talk, but it has decided to pull back from embracing methods that would have amounted to torture in the everyday meaning of the word. During the months when the White House and the Pentagon wrestled with the problem, prison guards and their superiors right up the chain of command lost their bearings and committed war crimes. One person has already been been tried and punished; some more have been charged and more still will have to answer for their conduct. This is as it should be, but their superiors, too, must take a share of the blame for the methods they employed.