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Robert B. Sklaroff, M.D.
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Terrorism…and “Torture” By Robert B. Sklaroff, M.D. and Michael David Sklaroff http://www.zwire.com/site/index.cfm?newsid=17081980&BRD=2737&PAG=461&dept_id=576361&rfi=8
Just as the Patriot Act augmented the government’s armamentarium against domestic terrorists, the Supreme Court’s recent “Guantanamo Bay” decision requires that Congress define procedures to be used against foreign terrorists. These rules must also allow for coercive interrogation, under extremely circumscribed circumstances. The Court’s 5-3 Opinion mandated legislative clarification of fundamental legal concerns, but it did not find coercive interrogation—what some feel includes “torture”—to be unconstitutional. Thus, this deficiency is amenable to legislative repair, assuming our representatives have the gumption to wrestle this political-ethical tiger. If the Bush Administration endorsed this policy, however, it would be charged with plotting to violate the human rights of terrorists…who admittedly act subhumanly by using methods that unambiguously violate classical definitions of war. America’s defense of Freedom and Democracy against such “unlawful warfare” must be commensurate. Logic, reality and operational capabilities demand no less. The Geneva Conventions are not applicable. They banned torture of captured soldiers to protect civilians (not soldiers) who had been maltreated during World War II. As noted by Charles Krauthammer: “The idea was to deter the abuse of civilians by promising combatants who treated noncombatants well that they themselves would be treated according to a code of dignity if captured—and, crucially, that they would be denied the protections of that code if they broke the laws of war and abused civilians themselves.” Terrorists already torture (and behead) American (and anyone else whom they may encounter) combatants (and civilians), so no such deterrence value exists. Indeed, the Geneva Conventions were not intended to protect terrorists, who: (1)—don’t wear uniforms (enabling them to blend into and be shielded by civilian populations); (2)—target civilians (whom governments are charged to protect); and (3)—are stateless (though countries may finance, house and/or represent them). Terrorists practice “terrorism,” defined as destroying property or killing civilians to further political goals; this is a means, not an end. Prior wars were declared “on” a population, and some have termed this “World War III” as “on” a method, terrorism. Actually, it is “on” an idea, to need to expunge Islamic Fascism from the globe. “The Ticking-Bomb Scenario,” a hypothetical dilemma often raised academically, dramatizes this challenge: Al-Qaeda plants a nuclear dirty-bomb in New York City that is about to detonate. Despite intense interrogation, the recently-captured mastermind refuses to divulge its location. Should “torture” be used (to save millions of innocents) or should his silence be honored (thereby allowing his intent tragically to be fulfilled)? Rephrased by opponents who fear it cedes America’s moral high-ground, the question becomes: “Are the ideals of a nation to survive all-out warfare?” Rephrased by proponents who recognize it as a necessary evil, the question becomes: “Is one who sacrifices innocent lives to uphold a terrorist’s “human rights” no better than the terrorist?” Essentially, “Is the discomfort of one worth more than the lives of many?” Americans and Israelis have found “torture” effective, as detailed in The Dark Art of Interrogation, directed by David Keane and aired last year on The History Channel. Thus, urgent needs for credible data requires its use on recalcitrant ideologues. For example, according to CIA sources cited by ABC News, waterboarding (which simulates drowning) for 150 seconds prompted Khalid Sheikh Mohammed to beg to confess. Such techniques enjoy strong support from Israeli citizens and leaders (regardless of political perspective) "as a last resort in preventing terrorist attacks," according to Glenn Frankel of the Washington Post. If such methods could help in but one instance, their total ban must be precluded. If America’s image of ethical world leadership were tarnished as a result, it would also dramatize the harsh necessity of what must be done to survive myriad threats to Western Civilization in modern—indeed post-modern—times. In the process, people would quickly learn to tackle “situational ethics” while eschewing “moral relativism.” Torture has existed since the dawn of warfare to extract data. The Bill of Rights precludes its use for two other purposes: to discipline (for it bans “cruel and unusual punishment”) or to invoke a confession (for criminals are entitled to “trial by jury”). Enabling-legislation must establish a system of checks and balances to preclude another Abu Ghraib “outsourcing” scandal. Administrative and Congressional oversight must prevent abuse, merely to entertain guards. Suspects, such as Somali pirates in captured in Kenya, must be exempt. All methods employed (whether physical or psychological) must be specified prospectively. Prior issuance of an emergency writ by a secret FISA-like court would also allow retroactive review to be conducted. Extending regulation to top-secret “black sites” outside territorial-America would prevent extreme coercion of questionable efficacy.
In short, the thrust of the Supreme Court’s division-of-powers imprimatur must be honored, ensuring the Administration functions based on Congressional mandate and oversight, with the entire process overseen by the Judiciary. For now, its decision has prompted circulation of a “compliance” memo—Application of Common Article 3 of the Geneva Conventions to the Treatment of Detainees in the Department of Defense—but the Opinion provides a vivid pathway to remedying this situation. The Court’s first objection is predicated on legislative intent. “Congress' rejection of the very language that would have achieved the result the Government urges weighs heavily against the Government's interpretation.” Thus, a new bill would clarify matters. The second objection is centered upon temporal concerns related to military justice, not torture. These are resolved by mandating issuance of warrants. The third objection would a priori be remedied by Congressional action. “The military commission at issue is not expressly authorized by any Congressional Act.” The fourth objection would be remedied by revising the Uniform Code of Military Justice, but its key mandate would require redefinition of the Geneva Conventions. The gravamen thereof is “(ii),” which concluded that Common Article 3 of the Geneva Conventions applies “even if the relevant conflict is not between signatories,” if it is a “conflict not of an international character occurring in the territory of one of the… signatories.” Although this characterization may be debatable, it mandated application “as a minimum” certain provisions protecting detained persons “placed hors de combat.” (In the case of GitMo, this included a prohibition on “the passing of sentences...without previous judgment...by a regularly constituted court affording all the judicial guarantees...recognized as indispensable by civilized peoples.”) In contrast with Common Article 2, the Opinion notes the need to provide “some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory who are involved in a conflict ‘in the territory of’ a signatory.’ The latter kind of conflict does not involve a clash between nations (whether signatories or not).” The Court deferred specifying the character of this “protection.” A subsequent argument claiming tribunals were illegal because Congress hadn’t formally declared war was approved by only four justices. Thus, a formal declaration would both clarify matters and prompt revisiting this concern, noting that its impact would be reversed merely after attraction of a fifth vote in opposition. Therefore, Congressional action could remedy objections to tribunals…and to coercive interrogation. Such enabling legislation would specify how to cause transient “anguish of body or mind, or something that causes agony or pain.” Physical and psychological efforts to dehumanize and stress a person’s psyche might be invoked, including sleep or light deprivation, nudity and extreme temperatures. The boundary between physical and psychological coercion is nebulous, for interrogators constantly use psychological techniques, whether by intentional body language, word choice, questions, or the intimidating nature of the interrogation room. Thus, invoking input from experienced questioners, such non-physical approaches could be included in legislation currently before the Senate Judiciary Committee. Professional constraints on psychiatrists and physicians would be rectified by excluding such caregivers from responsibility for such activities. One need not be a nurse to inject a “truth serum” intravenously. Contemporary warfare carries graver global implications than have other world wars. Its nature requires that America update its tactics accordingly. Some would want the military to be able to engage in such coercion secretly, adopting a “don’t ask, don’t tell” approach. This might preserve a cherished image of America, but it can’t be anticipated that such activities would forever escape the media. America already lacks what other countries consider essential security tools, such as the United Kingdom’s “Official Secrets Act.” Thus, it is even more vital that America ensure that terrorists are legislatively recognized as unlawful combatants to whom the Geneva Conventions do not apply. We ban coercive interrogation at our peril, for asserting that this proven weapon may not work in all instances does not automatically render it ineffectual in a crisis.
Dr. Sklaroff is a hematologist/oncologist/internist and may be contacted at rsklaroff@comcast.net. Mr. Sklaroff is a sophomore at The Akiba Hebrew Academy. |
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To contact me--Robert B. Sklaroff, M.D.--just send an e-mail (rsklaroff@comcast.net).
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