Jun 1 2004

The Times’ Tortured Terminology

The New York Times, revealing the interrogation techniques the CIA is using against Al-Qaeda suspects, seemed unable to find a source who would call torture by its proper name.

The May 13 article, headlined “Harsh CIA Methods Cited in Top Qaeda Interrogation,” described “coercive interrogation methods” endorsed by the CIA and the Justice Department, including hooding, sensory deprivation, withholding of food and medicine, and “a technique known as ‘water-boarding,’ in which a prisoner is strapped down, forcibly pushed under water and made to believe he might drown.”

The Times piece took pains to explain that, according to U.S. officials, such techniques do not constitute torture:

Defenders of the operation said the methods stopped short of torture, did not violate American anti-torture statutes, and were necessary to fight a war against a nebulous enemy whose strength and intentions could only be gleaned by extracting information from often uncooperative detainees.

The Times seemed to accept that the techniques described were something other than torture: “The tactics simulate torture, but officials say they are supposed to stop short of serious injury” (emphasis added). The implication is that only interrogation methods that caused serious physical harm would be real and not simulated torture.

Reporters James Risen, David Johnston and Neil A. Lewis quoted no one who said that the CIA methods described were, in fact, torture. Yet it would have been easy to find human rights experts who would describe them as such. The website of Human Rights Watch (hrw.org) reports that “the prohibition against torture under international law applies to many measures,” including “near drowning through submersion in water.” Amnesty International USA (amnestyusa.org) names “submersion into water almost to the point of suffocation” as a form of torture, and emphasizes that torture “can be psychological, including threats, deceit, humiliation, insults, sleep deprivation, blindfolding, isolation, mock executions…and the withholding of medication or personal items.”

Undefined term

The article did quote the Geneva Conventions’ prohibition against “violence to life and person, in particular…cruel treatment and torture” and “outrages upon personal dignity, in particular, humiliating and degrading treatment.” But it did not quote the definition of “torture” under international law, contained in the 1984 Convention Against Torture, which makes it clear that psychological as well as physical methods of coercion are prohibited. According to the Convention, “torture” is:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

Noting the Convention’s reference to “consent or acquiescence” would have been helpful in evaluating the claims made by officials in the article that the U.S. can skirt prohibitions on torture if detainees are formally in the custody of another country. In fact, the Convention Against Torture, which the U.S. signed in 1994, explicitly prohibits sending a person anywhere “where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

If the Times had included independent human rights or international law experts in the article, this information could have been available to readers. Even talking to military sources could have produced a more straightforward account of what kind of interrogation is prohibited by international law; the Wall Street Journal (5/13/04), in an article about Iraq prison tactics published the same day as the Times piece, quoted a former Marine judge who admitted that “there’s no getting around it, we have ignored provisions of the Geneva Convention in favor of gathering intelligence.”

In fact, the Times might have looked back to its own archives on the subject to find critics of U.S. detention policies. Some of the information included in the May 13, 2004 article was first reported on March 9, 2003–except the original story quoted Holly Burkhalter of Physicians for Human Rights, who decried the lack of a “specific policy that eschews torture.” It also noted critics’ assertion that “transferring Qaeda suspects to countries where torture is believed common–like Egypt, Jordan and Saudi Arabia–violates American law and the 1984 international convention against torture, which bans such transfers.”

While the May 13 article did impart important information about the tactics being used by American agents to interrogate terrorist suspects, it’s also critical to know whether these methods violate international or domestic law. By relying solely on administration officials to define what torture is and what the U.S. government’s legal obligations are, the New York Times failed to provide the context necessary for readers to make an informed judgment.