​Interro-Gate? Ft. Manfred Nowak, UN Special Rapporteur on Torture (2004-2010)

The US Senate Intelligence Committee's report on the use of torture in the post 9/11 period shocked the world and dealt a serious blow to America's moral authority. Is torture ever justified, and will its perpetrators be brought to justice? Oksana is joined by Manfred Nowak, a former UN Special Rapporteur on Torture, to thrash out these issues.

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Oksana Boyko: Hello and welcome to Worlds Apart. The depravity of the Holocaust shocked the world into adopting laws that would ban torture once and for all, a stance that was called into question by the US government in the aftermath of 9/11. Are the latest disclosures of the CIA interrogation practices shocking enough to ensure the absolute prohibition of torture – at least as far as states are concerned? Well, to discuss that I'm now joined by Manfred Nowak, an Austrian human rights lawyer who served as the UN Special Rapporteur on Torture between 2004 and 2010. Mr Nowak, thank you very much for your time.

Manfred Nowak: You're most welcome.

OB: Now, many of the details in this report concerning sleep deprivation, waterboarding, stress positions – they have been long in the public domain. Did you, personally, learn anything new over the last couple of days, since that report was released?

MN: Not really, now. Most of what I have read in the report, we knew already. You know that we have done a global study together for the UN in 2010 on secret detention in the fight against terrorism. And we identified 66 states around the world that have been using secret detention – that means usually also torture – in the fight against terrorism. And of course, many of those states were closely related and cooperated with the United States of America. So, in principle, for me, there's nothing new. But for the American public, that was probably shocking, because it's different if the US Senate Intelligence Committee is confirming in essential whatever we have said in our report, and what was in the media, and also others have investigated these torture practices.

OB: Mr Nowak, why then, if there's so little new details coming out of this report, why is this issue receiving so much attention now? Because, as far as I understand, Article 2 of the UN Convention Against Torture clearly states that no exceptional circumstances whatsoever can be invoked to justify torture, whether it is war, threat of terrorism, public emergency, what have you. And yet, the Bush Administration was very, very specific, very explicit and very unapologetic about the use of national security concerns to justify these heavy-handed tactics. Why are we discussing this issue now, as opposed to let's say a decade ago, when this program was being put into practice, and where it was, I think, already clear that the rationale of the Bush Administration was somehow at odds with the UN Convention Against Torture?

MN: You're completely correct. The main torture practices were in the first years after 9/11. That means, 2002, 2003, 2004, 2005. When the Abu Ghraib scandal became public, already then the Bush Administration to some extent changed its policies. But our report, for instance, we presented it in June 2010 to the UN Human Rights Council. And the US and many other states were just simply denying that this happened. There were also CIA black sites in Europe, in Poland, in Romania, in Lithuania, but none of these governments have ever acknowledged that this is true. So now, finally, it's the US government that actually acknowledges these black sites, also in other countries like in Afghanistan, in Thailand, in Jordan etc. So now, of course, this is news in the sense that no state can further deny that what we have found already much earlier was true.

OB: But Mr Nowak, if we look at the commentary from former law enforcement and administration officials, they still avoid using the word “torture”. What they talk about is “applying pressure to extract valuable information”. Now, interrogation by its very definition, is not a friendly chat, there is always some pressure. And I wonder, where would you draw the line between applying some pressure, which is what interrogators in many countries do, and torture?

MN: Of course, again you are right. If you want to get some information or a confession out of a person, you are putting some kind of psychological or other pressure on a person. But torture is defined as the deliberate infliction of severe pain or suffering on a person for a certain purpose. And it always means that this person is in a powerless position. So it's a detainee during interrogation, usually hand-cuffed or even suspended somewhere. So they are in a position where the torturer tells him, “You are under my absolute control, I can do with you whatever I want, so better you cooperate”. That's torture. And of course, there's certain practices like waterboarding which have been used already in the Spanish Inquisition in the Middle Ages as a classical method of torture. The Bush Administration, on the basis of very flawed memos and torture memos by the Department of Justice – John Yoo, Jay Bybee and others – they have redefined, or tried to redefine torture, in saying that the level of pain and suffering must be excruciating, close to organ failure, this kind of things. But this was done in order to justify what the Americans called “enhanced interrogation techniques”. But internationally speaking, this was torture.

OB: Can I pick up on the point that you just mentioned, these efforts to redefine torture? And as a journalist, I'm naturally interested in words. And one thing that jumped out at me when I read that report was the overload of euphemisms that we have there, starting with “enhanced interrogation tactics”, and all the way to “dietary manipulation” to describe starvation, or “adjusting temperature” to describe subjecting people to sub-zero temperatures. I wonder if you find this very round-about language to be intentional? Could it be specifically designed to deflect those allegations, or water down those allegations of torture?

MN: Yes, I mean, George Bush personally said, “We do not torture”. So all those interrogation methods that we also found for instance in Guantanamo Bay – we did a report in 2006, early 2006, where we found torture at Guantanamo Bay authorised by Donald Rumsfeld, the Secretary of Defense at that time. So, for instance, sleep deprivation for a long period of time. Also, putting people first in cages, in Guantanamo Bay, which is very hot. So it was heat, and then for three days in a container with the air conditioner fully on. They were naked, they couldn't defend themselves. Many of the people with whom we were talking said this was for them the worst, because you are shivering, you are extremely cold. So this is again reaching the level of severe pain or suffering, and that's why it is called torture. So, we found at that time already, these are torture practices, irrespective of how the Americans called it. And of course, what you said before also, you rightly cited Article 2 of the Convention Against Torture. Torture is always prohibited. There are no exceptions. So as soon as a particular practice is amounting to torture, you are not allowed to balance it with national security, or whatever, the ticking bomb scenario. It remains absolutely prohibited and therefore is a serious violation of human rights.

OB: Mr Nowak, you just listed some of the very inventive methods of inflicting pain and suffering onto people. And I think what is different about the use of torture by the CIA from torture being used by other law enforcement agencies in other countries is that it was designed and overseen by professional psychologists and doctors. So in a sense, it wasn't just a torture chamber, it was a torture lab. And those psychologists who participated in that, they received multi-million-dollar fees. And I wonder if that combination of scientific interest, scientific curiosity, and financial stimulus was partially responsible for this evil genius, the creative nature of some of the torture tactics that we see in that report?

MN: Yes. It's unfortunate that we have a lot of evidence that psychologists and medical personnell, psychiatrists, were participating. For instance, to give you an example, if people arrived at Guantanamo Bay, they had to undergo a psychiatric test, or a psychological test, in order to find out, for instance, do you have any kind of individual phobia. And again, if you look at Donald Rumsfeld's interrogation methods, he said the exploitation of individual phobias. So if people are claustrophobic, they were put into very narrow cages. And of course, that's for a claustrophobic person soon reaching the level of severe pain or suffering. Or if people are very afraid of dogs or animals, and then you're naked and hooded, and they bring a dog into your cell – of course, for those persons, the level of pain is much higher than for a person who is not afraid of dogs, or who loves dogs. So they were really using these individual situations, in particular phobias of the detainees, in order to apply very, very targeted methods of treatment and interrogation.

OB: Now, Mr Nowak, I don't want to appear anti-American, and I think we have to be fair here. I come from a country, Russia, that also has a long history of police brutality and inhumane treatment of detainees, especially under the Soviet and Stalinist period. But of course, the difference, the main difference was that back then, the Soviet Union was a totalitarian state. The difference is, of course, is that the US at the moment is a democracy with a very strong civil society. So, that leads me to question whether the report we are now discussing reflects not only the failings of the CIA, but also the failings of the American democracy and the American civil society, that failed to keep the CIA in check?

MN: Yes, you're right. I mean, there are many states, when I was Special Rapporteur on Torture, I visited 18 countries on official mission from all regions of the world. And I found torture in 17 of them. And in more than half of the countries in the world, torture is a fairly widely practice, in order usually to get a confession from a criminal suspect. So, torture is quite, not only in dictatorships, of course it's usually as less democratic a country is, and as more authoritarian, as more torture you would have. But still, it is also in functioning democracies. And of course, as you said in the Soviet Union [and] Stalinism, torture was very systematically practised. But also today, when we did our global study, we found 66 states using secret detention in the fight against terrorism, and the Russian Federation was one of them. So we also found, and we spoke with quite a number of former detainees, in Chechnya in particular, who complained about very, very severe forms of torture by the Russian and Chechnyan military and police forces. But what is so shocking about the CIA practices is that the US always have been seen also by many countries in the world as a positive example. They were at the beginning of human rights in the late 18th century, at the end of WWII they were very active in creating the UN with peace, international security, protection of human rights and development being the main aims and objectives. And now, you see that the US under President Bush has really undermined this international consensus by saying we have to balance, torture is the kind of lesser evil, more important is that we find these terrorists. And I think the Senate Intelligence Report shows clearly that this is not true, because the torture did not yield the results which Mr Bush and Mr Cheney wanted us to believe, that they said we have saved many lives, we made America much safer because we used torture. And that is one of the main conclusions of the Senate report, that this is simply not true.

OB: Absolutely, and Mr Nowak, I think one critical difference between the use of torture in the US and in other countries, including Russia, is that at least on the official level, it is not recognised as OK, it is not sanctioned, and officials are not trying to persuade the public that these are legitimate means of extracting information. Obviously, human rights abuses do take place and do happen in many penitentiary systems around the world. But I think what is different in the case of the US is the fact that it is sanctioned at the very highest level, and some of those officials are still very righteous about the use of those tactics.

MN: That is true. The US under the Bush Administration really put into question the absolute prohibition of torture. And this is a very, very dangerous development, because as soon as you allow torture in very exceptional cases, it spreads. And that is a lesson from history – think back [to] the Latin American dictatorships – they also started torture on very, very specific cases, and later it became a very, very widespread practice. You had the same in the Soviet Union and many other states.

OB: Ok, we have to take a very short break now, but when we come back – if admitting the wrongdoing took so much time, what about bringing those responsible to justice? That's coming up in a moment on Worlds Apart.

OB: Welcome back to Worlds Apart where we are discussing enhanced interrogation tactics with the former UN Special Rapporteur on Torture, Manfred Nowak. Mr Nowak, the American discourse on this report seems to focus around the efficacy issue – whether or not the use of these tactics produced actionable intelligence. But I wonder whether it really matters as far as the international law on torture is concerned, whether those tactics were effective or not?

MN: No, it doesn't matter at all. Torture is absolutely prohibited, even if you can prove that in a particular case it yielded useful results. Nevertheless, it is, from a legal point of view and a moral point of view, absolutely prohibited.

OB: Now, speaking about the moral point of view, Dianne Feinstein, the Chairwoman of the US Senate Intelligence Committee who was the driving force behind this report, said that its release suggests that “America is big enough to admit when it's wrong, and confident enough to learn from it.” Admitting and learning – is it enough in this case, given the nature of the revelations?

MN: Under the UN Convention Against Torture, every state party, including the United States of America, have certain obligations. One is to prevent torture, I think that is something they learned - under the Obama Administration, this program has stopped. But secondly, you have to bring the perpetrators to justice, you have to make torture a crime under domestic law and bring every individual perpetrator of torture – whether it's the person who actually tortured, but also those who authorised, who ordered torture practices – are as much committing a crime and need to be brought to justice. Thirdly, every victim of torture has a right to reparation, including rehabilitation. Most people are, for a long time, under post-traumatic stress disorder. They need rehabilitation, psychological, medical. But many at least want to have monetary compensation, and so far, not one person, not one victim was successful. Because even President Obama applied what we call the state secrecy privilege of the President of the United States, in order to stop civil litigation before American civil courts.

OB: Mr Nowak, I heard you say in numerous interviews that the US has a clear obligation of bringing proceedings against President Bush and former Secretary of Defense, Donald Rumsfeld, in relation to the torture in Guantanamo Bay. And I think you explained why it should be done. But do you think it could be, and would be done?

MN: Politically speaking, I do not think that any criminal action will be taken against highest level, whether it's President Bush, or Vice President Cheney, or Donald Rumsfeld, or others. Those who were writing the torture memos are also complicit in the torture practices. Because President Obama has clearly said we are stopping it, we try to close down Guantanamo Bay, but we will not take action against our predecessors. As I said, legally speaking, they would have an obligation. Politically speaking, I do not think that any criminal action will be taken. But I do hope that this report will actually allow the victims to at least get compensation from the United States of America.

OB: Now, you just mentioned President Obama and his statements on Guantanamo Bay. He did suspend the use of those enhanced interrogation tactics, I think in 2009. But he still hasn't been able to close Guantanamo Bay prison. And by now I think it's clear that there are several dozen individuals who will never be prosecuted, and who at the same time will perhaps [be] kept indefinitely behind bars. Now, I know that there is a debate around whether forced-feeding constitutes torture. But I would like to ask you whether this indefinite detention, that led some people [to] contemplate suicide, constitutes a form of torture?

MN: Yes, again. I mean, there's no question that keeping persons at Guantanamo Bay, without charging them, is a violation of the right to personal liberty. There's no question. We said already in our 2006 report, and that's why we really strongly recommended that Guantanamo Bay should be closed immediately. And of course, if people are kept for such a long period of time, and many people simply have been at the wrong time, at the wrong place, and they were sold to the Americans. So those people are now kept for 10 years or longer already, under conditions that are very harsh. So, also together with this insecurity, “will I ever get out of this prison here”, you can also say that this is amounting to torture, torture where the purpose is actually punishment.

OB: Now, there is a heated debate within the US and beyond on whether the release of this report will have a chilling effect on the use of torture around the world, or whether it will provide a justification or perhaps even incentive to law enforcement in other countries to rely on torture methods. Where do you stand there, do you think the glass is half full or half empty in this case?

MN: No, I'm very clear. I think the fact that the Bush Administration used torture had a very, very negative effect on so many other countries. To give you one example, when I visited Jordan, the President of Parliament said, “But why are you coming to Jordan if even the United States of America is officially torturing? Why shouldn't we do the same, we also are fighting terrorism?” And that will take a very, very long time until this awareness will be changed. The fact that now the US Congress, the Senate has also admitted and published that all what we have known before is true, that the CIA systematically used torture against terrorism suspects – that, in my opinion, will not have a negative effect. I think it's a positive sign that at the end, the US at least also took the effort to investigate and even publish, although of course much is still redacted, but in principle – I mean, we get a lot out of this report. And I would be happy if all the other 65 states that we were mentioning in our report, including the Russian Federation, including Poland, including Lithuania, Romania, would now also stop denying that they were keeping people in secret detention places, so that similar national investigations would take place in all the other countries, so that finally we know the truth about the human rights violations in the global fight terrorism.

OB: Mr Nowak, you just alluded to the recognition on the part of the American Senate, and on the part of the Obama Administration, of some wrongdoing. And yet, if you listen to Obama's statement, it was very casual in admitting the US complicity in torture. I mean, he essentially said that, “yes, we tortured some folks in the process.” I think the condemnation definitely could have been a bit stronger. And my question to you [is] whether you think this signal that the White House has so far sent, or the message coming out of Washington, are strong enough for the officials in Jordan, in Saudi Arabia and in many other countries, to take it seriously, to finally recognise that torture is absolutely off limits – especially given that there is a high chance of a Republican come-back, both to the White House and to the Capitol Hill. So, are you confident that this condemnation, American condemnation of torture, is final?

MN: I would also have expected and hoped for a much stronger reaction by President Obama to the publication of the report, saying we admit that this happened, it was not his fault, it was at the time of his predecessor. He should also have encouraged other states to actually investigate. And, as I said, he should also have announced some action that he would do in order to repair the damage that has been done by the Bush Administration, so…

OB: But Mr Nowak, just to make it clear, isn't the US under obligation, in accordance to the UN Convention Against Torture, to actually pursue the perpetrators of torture legally? I mean, you said that politically it would be difficult, but isn't it actually in the line of duty of the American Justice Department and the Obama Administration?

MN: There is a very, very clear obligation under the Convention Against Torture to make torture, every single act of torture, a crime under domestic law, and to bring every, to investigate every allegation. Now we have not only allegations, we have a lot of evidence, also in relation to particular individuals. There is an obligation by the US, of course, Department of Justice, but by the prosecutors, to actually, on the basis of this investigation, start criminal action against the perpetrators. That is what the UN Convention Against Torture is clearly spelling out. If this is not done, this is a violation of the Convention Against Torture by the United States of America, but now by the Obama Administration.

OB: Now, and finally, the defenders of those interrogation tactics cite national security concerns. They also say that the threat of terrorism has increased exponentially. And indeed, the number of terrorist attacks around the world has increased 10-fold over the last decade. I have to ask you whether these conventions on torture, on human rights, that were passed decades ago, could really be implemented in the current security environment? Is it really realistic to expect the American government, and governments around the world, to comply with those documents that were drafted decades ago for a very, very different security environment?

MN: As I said before, torture was never a useful tool in fighting crime, organised crime, terrorism, also not in armed conflicts. Even, it's very clear in international humanitarian law [that] you might kill a soldier, but if you are capturing a soldier, he's a prisoner of war and he should not be tortured. Nobody, there's no exception, torture is not useful. So there are other ways and means how highly sophisticated intelligence organisations can actually deal with terrorism. You should analyse what are the root causes of terrorism, why are there so many people now going into Syria in order to fight for the Islamic State? Much has to do with the situation in the Middle East with the Palestinian question. And then not fighting a war against terror. So, I think we should stop this military approach to fighting terrorism. Terrorism is one of the worst forms of organised crime, but we should treat it as an organised crime and not as an armed conflict, and apply other techniques in order to reduce the amount of terrorism in the world. I think you see the effects today, I think, because of the War on Terror, because of Guantanamo Bay, because of the torture. I am afraid that we have today more terrorism, rather than less terrorism.

OB: Well Mr Nowak, we have to leave it there, I really appreciate your being on our show. And to our viewers, share your thoughts on our Twitter, YouTube and Facebook and pages and I hope to see u again - same place, same time here on Worlds Apart.