Can the endorsement of torture be ever justified in a democracy?

By: Hatto Fischer, Athens

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When Minister of Interior, Wolfgang Schaeuble, was asked in an interview by the Sueddeutsche Zeitung (16.December 2005) whether or not those who committed the attack on 11th of September 2001 were criminals or combatants, he replied as follows:

“The terrorists of 11th of September are in any case criminals. But certainly I know, that the Security Council allowed after 11th of September the deployment of military forces in accordance with Article 51 of the United Nations Charta. With that we are in the American discussion, but I put a great deal of value on the fact, as careful as I am, that I cannot lead as German Minister of the Interior the American debate. Whether combatant or not, in accordance with international law, there do exist certain rules. Torture is ruled out independent of the status of combatant.”

What is so significant in this quote beginning with a clever tautology, namely that terrorists = criminals, are the recollections to bridge the time between then and now. Schaeuble recalls what were some of the important responses immediately in the aftermath to 9/11, including the resolution of the Security Council allowing (or rather legitimizing America) to deploy ‘military forces’. This has to be read very carefully since you don’t chase ordinary criminals with an entire army. There is, therefore, a horrific escalation in the meaning given to terrorists as criminals to justify the going to war first in Afghanistan, then in Iraq. It is more than mere manipulation of words when they are upgraded into full scale ‘combatants’.

To recall at the same time all NATO partners declared their solidarity with America as foreseen in the NATO treaty if one of its members has come under ‘attack’. Only a few, perhaps not more than three European countries, protested against this automatic evocation of the NATO treaty. For it was unclear what would warrant such declaration of solidarity if America had been hit by terrorists but was not under ‘attack’ when compared with Pearl Harbor, that is with a standing army ready to launch an even greater assault and ready to occupy the entire country? Even if organized crime would have behind 9/11, it still would not warrant all what followed. Consequently the term ‘America under attack’ plays a huge role in what was then evoked at international and institutional level with both the Security Council and NATO involved to legitimize what was to follow practically blindly.

The significance of that can be downplayed as does Schaeuble in the interview by just referring to this question whether or not terrorists are just ordinary criminals or indeed combatants. But depending on how viewed, defined and categorized, if called combatants then military means to fight them is more easily justified than if only ordinary criminals. The significance can be immediately felt when America can declare on the basis of having been attacked that it is at war with terrorists and therefore is legitimized to go to war i.e. use military means to combat them.

How vague terms are, and yet what tremendous consequences they have when interpreted in a certain way, that became also clear in the aftermath. Two examples can be given to illustrate that point. The first one is that one woman, a well known international lawyer, and whose husband was one of the 3 000 who died in one of the Twin Towers, said the life of her husband would be rendered meaningless if his death would be a reason for the United States to go to war. That then evokes the important term of ‘victim’ and if all Americans have been transformed by 9/11 into victims what does it legitimize the government of the United States to undertake in order to protect its citizens? There was made audible the objection that under the many victims who died as a result of the two Twin Towers collapsing, there were many non American citizens, including migrant workers, foreign personal and just ordinary visitors who happened to be that day in the vicinity. Yet the international aspect was completely shoved aside by matters become a matter of highest national security for the American government.

The second example is a debate which took place amongst the Greens in the European Parliament. They responded to what developments would shape the course after 9/11. Clearly most of the MEPs argued for the need not to start a war but to proceed with criminal procedures against ‘unknown’. For although everyone assumed that Bin Laden was behind this attack, there was definitely no such proof as there was no connection at all to Saddam Hussein being behind such an attack. We have consequently here to deal with something ‘unknown’, something much greater than the entire intelligence community of the United States (and of the international world) capable of knowing, an ‘unknown’ appearing to be so dangerous because linked to ‘terrorists’ that there was made out of a global phenomenon over which America could launch a new global war, the ‘war against terrorism’. Such a war would without any clearly defined borders since not coming from one particular territory which could be held accountable and yet by launching a war with an army the conventional terms had to prevail. It meant concretization of the enemy, for if no terrorist could be readily identified, then the second best target would have to be those governments which were accused of supporting these terrorists. Thus the ‘unknown’ obtained a concrete image of first the Talibans in Afghanistan and second Saddam Hussein. Since both of them had terrible stories connected with them, they were easy targets for the spin doctors who had to fabricate them into concrete ‘enemy targets’ at which the entire American army could mount its forces and shot at.

But to come back to the statement made by German Minister of Interior Wolfgang Schaeuble, it should be clear by now that when he departs from ‘terrorists’ who did it that he never questions this presumption although terrorists and terrorism is used so widely to cover almost everything. Such absolute setting of a concept as to who was behind the 9/11 attack, that has legal, political and social consequences for the kind of debate everyone is participating in whether willingly or not since then. One censorship principle is automatically invoked: it may not be anti American for then it means to show not only understanding for the terrorists, but to affirm their actions as if the entire world was already polarized along the lines Bush drew, namely “who is not with us, is against us.” Not much rational has entered the debate; it is usually charged with plenty of misunderstandings and many more would-be politicians becoming outraged at fundamental, equally moralistic level so that their tone becomes shrill and close to fanaticism itself. This can be explained on the one hand as convictions replace ‘belief in reason’ and images count more than in depth analysis. For the debate is largely media based and depends upon loaded images as if they could replace any thorough investigation and help avoid the biggest of all pitfalls, namely wrong pre-conclusions. CNN is the best example of claiming to follow up a story in depth when in fact it hardly scratches the surface due their star correspondents parachuting in where ever the next crisis point has been reached in this global war on terror.

So let us step outside the context of 9/11 since four years later torture has become the key issue not only due to what images were made public as to treatments of prisoners in Guantanamo bay or in Iraq prison cells, but also because of the CIA flights taking prisoners to countries where they can be tortured apparently in order to obtain information that can save lives, so the legitimization given despite what Schaeuble stated, namely regardless of status – whether criminal or combatant – torture is not allowed. So why does it happen, and especially outside any legal jurisdiction?

A first answer could be torture takes place outside all legalities in order to avoid legal consequences. This would reaffirm the statement made by a former Yugoslavian citizen who explained the eruption of violence there with the indifference of the world while in local communities lawlessness reigns completely once people feel they have been abandoned by the world. Certainly torture can take place wherever there is not the rule of law i.e. the person isolated after having been abandoned by the rest of the world. A derivative of that is to weaken the case of the law against torture by allowing grey zones to enter apparently semi legal procedures. Schaeuble was asked if he condones that the Americans brought Zamar, a German citizen, to Syria and whose authorities in turn allowed German officers to interrogate him in Syria, and to this question he replied that “it is of no big surprise since the man has also a Syrian passport and the Americans brought him to that country.” Amazing are two things: the legitimization of rendition practices and in what other light Syria is brought often enough by American critics especially with regards to their role in Lebanon and further when it comes to supporting terrorist groups like the Hamas. Instead of criticizing that, he underlines in the interview how well German secret police work together with the Syrian secret police. The latter had made the offer of interrogation possibilities. When it took place, Zamar complained about having been beaten up while in jail. Again Schaeuble rephrases it as being ‘his claim’ – but presumably not in Syria, but in Lebanon or somewhere else. He then adds the important qualification: “I have no cause to assume that the federal investigation office has profited from a praxis which could be signified as being torture.” Still, it affirmed that information is needed if danger to one’s own citizens are to be averted and then certain praxis are legitimized especially if the person in jail is there due to being suspected of having direct involvement with terrorist activities. The moment such suspicion and speculation has put a label on someone, he becomes ‘a second class citizen’ without any rights. When the so called ‘red line’ has been trespassed by state officials in the pursuit of vital information, remains unclear. Apparently Schaeuble gives a greater priority to the image a state must retain that it is capable of protecting its citizens, something Bush uses as argument to legitimize his eavesdropping policy, than to what happens if certain civil liberties are curtailed and definite things have been given up since people cannot be left free as birds as if still in the Middle Ages, so his comparison in the interview. It can be called the vertical ‘einerseits…anderseits…’ (on the one hand …while on the other…) balancing act compared to what Chancellor Merkel tries to practice at horizontal level and about which later on something needs to be said.

A second more systematic reason for torture is that 9/11 triggered off something in the American mind set that was expressed by Johnny Cash shortly before he died when he was asked by Larry King of CNN how he felt when he heard about those attacks in New York. First of all, Johnny said he was watching television when the news broke and he immediately thought ‘all of America was under attack’. Such exaggeration is possible when no one steps outside their living room and is, therefore, completely dependent upon the images flickering across the television screen. A step outside the house throughout the United States would have ascertained that no armies were marching down the street or some other invaders were blowing up still other cars or sky scrapers in Chicago, Seattle, Los Angeles, Texas, or New Orleans. As everyone knows a terrorist attack is a single handed event, unexpected, lethal, yes, but not repetitive nor the unfolding of a greater plan as had Hitler in mind when he invaded Poland by risking war once he crossed over the border with tanks and soldiers. Alone the logistics for a full scale attack would require as anyone knowing the American army a huge logistical support system and many more resources available than just a few sleeping cells of terrorists. How long did it take to build up the army needed for invading Iraq? There were observed trains after trains taking troops from Germany to the ports of Antwerp and Rotterdam prior to March 21, 2003, the day the first air attacks were launched upon Baghdad. Here it suffices to say that Johnny Cash, himself in and out of jail, had that impression that America was under attack and therefore his thought underlines what America made out of 9/11, namely an attack against everything America stands for. This needs still further analysis in order to understand why America responded so viciously and violently as expressed already in that anger out on the street when people started to shout ‘Go bomb them’ while everyone draped the American flag out of his or her window. Significantly in that conjunction was what Johnny Cash said as his second statement when interviewed on Larry King Live of CNN, namely that he thought ‘who would be so crazy to do that and think he can get away with it?’ For he knew immediately then that America would lash back as if a wounded tiger more in terms of pride and myth of invulnerability having been scratched than in real physical terms. The pattern was clearly set then. America would do everything to hit back and undertake everything in order to find out who did it. There was, however, deep panic in the air. Since terror comes alone, it needs no fighting units nor a huge logistical support but works with fear of the unknown. Indeed the frightening thing was not only that someone managed to bring down those two towers in New York but also to keep everyone in the ‘unknown’.

The ‘unknown’ is one of the most terrible things people can be exposed to. It is sufficient to say once such panic grips not only people in the streets but also the entire US administration, then the path to torture is not very far. For the fear of the unknown seems to legitimize the trespassing of even the last human rights by no longer respecting that every human being has his or her dignity which should not be damaged. Instead this inner fear of the unknown makes all means appear appropriate to find out who did it. Now in this overall context the Bush administration has legitimized itself to an ‘eavesdropping policy’ that violates the Rights of every US citizen. This administration has given itself the right that “detainees are being herded like animals into the prison at Guantanamo Bay, Cuba, where many were abused and denied the right to challenge – or even hear – the charges against them”, writes Bob Herbert in the International Herald Tribune (December 20, 2005, p. 9) and he goes on to remark that “whether they were innocent or guilty made no difference.” A part of the same system is the practice of ‘extraordinary renditions’ by which people are abducted and taken to countries were the regime has no problem in torturing people. In other words, the use of torture is a logical consequence of that kind of mind set the Bush administration is known for best when speaking about the Right to hunt down every terrorist. That this has gone too far by now, this is at least slowly but steadily becoming conscious to many Americans who no longer feel obliged by a wave of Patriotism to keep their mouths shut when they see flagrant abuse of human and civil Rights.

Now as to the German discussion to which Schaeuble has contributed with his wish to be able to use information gained from people when under torture, it is a typical feature that German politics becomes again anachronistic to the rest of the world. Instead of condoning torture not only in principle, but in making the definition of torture so clear that no abuse of power during interrogations is possible, he oversees a point that Mary Robinson made on the BBC when asked to comment upon Rice’s admittance to Merkel that the United States have erred in its policy to fight terrorism if that means having become permissive in the use of torture for such clarification of the definition is needed once torture as such has been condoned. Merkel must wonder now why Schaeuble prefers less of a clarity or rather it may be the new German government’s policy to continue the hard road as advocated already by Schaeuble’s predecessor since Otto Schily wanted ‘preventive arrests’ to be made legal.

There needs to be said something right at the outset, and in response to the position presumed by Schaeuble: this is not only a moral issue linked to upholding Human Rights around the world, something which should be self understood and be upheld not merely for one’s own citizens, but for everyone. Rather at a practical level it is highly naïve, politically speaking, to think information obtained under conditions of torture has any authenticity to it. Rather the opposite is the case for people will do everything to avoid torture and therefore make confessions by saying anything the torturers may want to hear. There have been cases before when entire governments were misled by not checking the source of information. Furthermore it should also be known by now that truly important information shall never be concealed even under conditions of the worst possible torture. Who does not recall the novel by Fallaci about the Greek Pangoulis imprisoned by the Greek Junta and repeatedly tortured. She describes how he would provoke his torturers to hit him even harder so that they would knock him unconscious, since he was then relieved by no longer feeling anymore pain, by not having to look into their faces nor that he could be forced to say anything. Indeed what man wishes to keep as a secret, he will never reveal. Consequently what gets out is always false, indeed distorted information.

There has to be added still another dimension to this distortion. The torturers themselves stand under huge pressure since everybody up the ranks knows that here a definite risk is taken for what will happen if this breach of the law becomes known? Hence the torturers are forced to succeed under very special circumstances, the more secretive the better which in turn means no validation possibilities. Torturers are by inclination willing to help produce information even if false but which no one can check since obtained under conditions of absolute secrecy and anonymity. By the same token, no one wants to take responsibilities under which conditions this information was obtained. There is a high degree of vagueness and here precisely Mary Robinson said it is important that if America is against torture, does it mean they will no longer use the ‘water board’ method: blind folding a person and tying him to a board and then pouring water over him to simulate that he will be drowning if he does not signal that he is ready to talk. There are many more methods by which intimidation combines with sadistic forms of humiliation until the dehumanization process sets in. This affects not only the prisoners but those doing the torturing as well since they become more and more accompli of an entire system.

Here then the difference between individual soldiers carrying out secret or explicit instructions and chain of command all the way up to the President or Minister of Interior is no longer decisive, since everything has become a part of a twisted logic. This is the hidden dimension of the fight against terrorism or where the unexplored fear of the unknown becomes an explicit method to fight something concrete: torture not as dance of ecstatic as described by Herrmann Broch in his analysis of Fascism from an angle of political psychology, but the beating up the unknown of a person unknown till stepping for the first time into the cell as the ecstatic way to overcome fear. Broch says the most terrible fear is the ‘unknown’ creeping up inside and in not knowing where it comes from spreads the fear to such an extent throughout the entire body that the person can easily become paralyzed by such fear of the unknown.

Once fear has driven people into a wish to overcome it by reaching a new level of ecstatic, then those who do the torturing, they can only once they have become so dehumanized themselves that they fail to resist such a wrong move. As a matter of fact they do not just follow orders rather than disobey their own voices cautioning them that they cannot overcome the fear inside of themselves by beating up others. For only after having become dehumanized beings and worse not doing it out of a cause but simply out of fear to disobey orders from above, then they become the torturers. They are by definition cowards who have lost all self respect and dignity. In their furry over these inner losses of self respect they even wish as a secondary effect of their inhuman practices to extract something out of the prisoners they can use themselves. As someone writing in Chile about his mother who was tortured by the helpers of Pinochet that they did so out of wish to hear human screams of their victims in order to mask themselves with these human gestures before going out into society as if they are normal human beings. They are not.

There is still another deep flaw in this hunt for terrorists and once presumably caught that such information could be extracted out of them to be used in the fight against terrorism. Here shows that the definition of terrorism is already highly problematic, if not basically wrong. If terrorism is not the method of a specific organization but merely a ‘tactic’ – and anybody can throw a bomb into the middle of a square – then this hidden power working with the unknown is the type of enemy which has no concrete person or group but is everywhere present as this tactic works with the ‘expected unexpected’. Political wisdom should prevail here before attributing singularly all these acts to one single group based on a mythological figure like Bin Laden. Anyone can provoke the use of such tactic while the very terror lies exactly in keeping up the factor of the ‘unknown’. No one knows who did it and even why.

The very response of the Americans before going to war over 9/11 was to give the ‘unknown’ a concrete face, indeed country and therefore people and government which could be attacked. The fictitious production of an enemy picture is exactly what a military needs in order to know who should be bombarded, even if it means innocent civilians will loose their lives just because for want of anyone else who could be blamed for the attack, Iraq under Saddam Hussein had to fill in that void. This is why many people in the streets said worst of all wars is the one fought for no reason at all.

Now that Merkel has come back from her first successful appearance at European level where budgetary plans of the European Union were resolved for the time period after 2007, there is a need to go back to what she said in the presence of Secretary of State Rice when visiting Berlin. Merkel used the typical academic formulation of ‘einerseits ….anderseits….’ i.e. on the one hand….on the other. She reiterated like Schaeuble the present legal position but now at horizontal level that terrorism needs to be fought within the legal framework of working democracy. But that was only on the one hand. On the other, she explained, the secret services should not be hindered in their work i.e. the facilitation of their work needs to be taken as serious as the protection of human rights and civil liberties of every individual. Now this is a strange formulation: the state as facilitator of the work of the secret police. Coming from a woman who spent most of her formative years in a country that was virtually ruled by the secret police, I wonder why no alarm bells were ringing immediately after she said that? Anyone in both East and West Germany had countless encounters and experiences with how the Stasi worked. As part of a system that meant no public scrutiny of the work by the police, it was ordered and more over designed as such that they could work under conditions of anonymity and beyond the reach of public accountability. This then is the crucial question but how does Merkel understand the need for facilitating the work of the secret police, if there is anything to be feared, then misuse and abuse of power rather than citizens being protected?

It is highly naïve to think once certain structures are created they will not be abused. The moment someone has power over another human being outside of any control, i.e. public scrutiny, there exists the danger that such one sided power position will be misused. When reading the countless reports on how prisoners were treated not only in concentration camps but in police custodies during the Third Reich, then brutal beatings, food and sleep deprivation, humiliations through all kinds of sadistic forms were used as daily practices in order to intimidate and more so to suppress an inner fear everyone had for there is this inner knowledge about what one is doing especially if deeply wrong. However, this deeper knowledge connected to the conscience is suppressed when torturers are trained in such a way that they are ready to extract what ever it takes information from prisoners. It is a well known method that only once someone becomes a malleable tool in the hands of power all inner human feelings have been given up. In German it is called ‘den inneren Schweinehund hervorkehren’ – to turn the inner pig dog inside out.

Alone it is sufficient to apply extreme measures once general images provide legitimization. Torture is not merely the rule of the game but even before it is condoned, it will be practiced out of the very fear of the unknown described above. America and the world are haunted by the fear of another attack and in order to prevent this they legitimize almost everything.

 

There is a still another angle on the use of torture. That becomes explicit when used not to extract information a prisoner may have, but to silence him and others. As one Chilean female professor said only years later could she speak about it, but then, and immediately thereafter, she stopped engaging herself politically speaking because she had seen her students being tortured while she got out free after only 15 days of imprisonment. The fact that she was a witness without being tortured herself made her feel guilty and ashamed towards those who were. By being overwhelmed with guilty feelings, she felt so responsible for what happened that she withdrew from any political activities. Side effects as these are more telling sometimes than what happens to the prisoners themselves.

 

The sad thing is that efficiency of methods to combat crime is linked nowadays with the war against terrorism and that makes it all the more dangerous if states mix the two together in order to have at least some lethal weapon against terrorism. Schaeuble argues as if torture would be needed to combat terrorism and therefore by the very nature of how he conducted himself in that interview with the Sueddeutsche shows how dangerous any Minister of Interior can become especially if not condoning forthwith and out rightly torture, but views it exactly as if in the grey zone between legality and illegality and moreover motivated to justify this method as a needed instrument for the fight against terrorism in order to protect the citizens. It is a sad thing and made worse by being so anachronistic to world development but then in view as to what many experienced during the reign of National Socialism in concentration camps there is still another underlying fear in Germany when such state reasoning as exemplified by Schaeuble cross the danger line with his demand that information obtained even under conditions of torture should be allowed at court in order to have evidence to be brought against the prisoner. Not condoning torture in whatever form means thinking self accusation by the prisoner can alleviate the system from any charges of criminal neglect in upholding human and civil rights.