1) “One is innocent until proven guilty.” Perhaps this is the bedrock of Americans’ sense of justice. Its corollary is that one should not be punished until that guilt is established. But there is nothing more punishing than the strategic but sadistic use of pain to force a confession or to gain information. Victims of torture—who tell us that they longed for death—would testify that this punishment is even worse than death. Punishment before guilt is proven must be viewed as anathema to American’s values.

2) Punishment must fit the crime, but should never descend to barbarity. Hence, our Eighth Amendment to the Constitution prohibits all forms of “cruel and unusual punishments.” This prohibition together with the privilege against self-incrimination in the Fifth Amendment and the prohibition of unlawful searches and seizures in the Fourth Amendment, led to the abolition of the “third-degree” forms of interrogation by the U.S. Supreme Court in the 1930s, a euphemism for torture routinely applied by police before that time. The Bybee memorandum relies on a narrow legalistic interpretation of the Eighth Amendment as applying only to punishment after conviction and therefore leaves open the possibility of using forms of pain prior to conviction. While there may be court decisions to support this extremely narrow perception of the Eighth Amendment, the Bybee memorandum’s approach ignores the fundamental and far broader American values which are reflected in the cruel and unusual punishments clause. Further, the Bybee memorandum’s approach ignores the first principle and pretends that torture is not an extreme form of punishment, both to the body and the soul of the victim.

3) The most practical tool against torture is the Fifth Amendment to the U.S. Constitution, which protects the accused from self-incrimination (“nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law”). Our Founding Fathers did not write this protection to allow mobsters and the corrupt an easy pass to frustrate justice. They recognized that the restriction puts the burden on the state to prove that a crime has been committed. They did so in a time when torture was still a basic tactic of autocratic states to intimidate populations in the name of order. Freedom from torture was one of the key struggles of the 18th-century Enlightenment. Even today, when human rights experts plan campaigns to end torture, they identify the need to limit the importance of confessions in legal proceedings as the single most important action to be taken. Abolishing confessions—self-incrimination—takes away the incentive to use torture.

The Fifth Amendment has been much degraded by Hollywood movies and politicians. That this protection has fallen from popular favor only indicates the degree to which most Americans have felt free from the fear of torture, a freedom that has expanded as our courts have given greater prominence to the Amendment’s protections.

Faulty Premises

The assumption behind the memoranda, particularly the Bybee memorandum and the later report by the Working Group on Interrogation, is that some form of physical and mental coercion is necessary to get information to protect the American people from terrorism. These are unproven assumptions based on anecdotes from agencies with little transparency. But they have been popularized in the American media by endless repetition of what is called the “ticking time bomb” scenario. A version of this scenario is outlined in the findings of the Israeli Supreme Court, which outlawed the stress and duress type techniques reportedly now in use by American forces. “A given suspect is arrested by the GSS (General Security Service). He holds information respecting the location of a bomb that was set and will imminently explode. There is no way to diffuse the bomb without this information. If the information is obtained, however, the bomb may be diffused. If the bomb is not diffused, scores will be killed and maimed. Is a GSS investigator authorized to employ physical means in order to elicit information regarding the location of the bomb in such instances?” There are variations on this scenario, often emphasizing an increasing number of victims or an ever more imminent blast.

The assumption of the Bybee memorandum is “yes, this is justified.” The conclusion of the Israeli Supreme Court was that it was not. I believe that the Court was right. Based on our experience with torture survivors and understanding the systems in which they have been abused, we believe it is important that these discussions not be shaped by speculation but rather through an understanding of how torture is actually used in the world. There are eight broad lessons we have learned from working with torture survivors:

1. Torture does not yield reliable information. Well-trained interrogators, within the military, the FBI, and the police have testified that torture does not work, is unreliable and distracting from the hard work of interrogation. Nearly every client at the Center for Victims of Torture, when subjected to torture, confessed to a crime they did not commit, gave up extraneous information, or supplied names of innocent friends or colleagues to their torturers. It is a great source of shame for our clients, who tell us they would have said anything their tormentors wanted them to say in order to get the pain to stop. Such extraneous information distracts, rather than supports, valid investigations.

2. Torture does not yield information quickly. Although eventually everyone will confess to something, it takes a lot of time. We know that many militaries and radical groups train their members to resist torture and to pass along false pieces of information during the process. And we note that those with strong religious beliefs and those with strong political beliefs that help them understand the purposes of torture used against them are most able to resist and to recover from its impact.

3. Torture will not be used only against the guilty. Inherent in all of the scenario building is the assumption that we know, with great reliability, that we have the appropriate party who possesses knowledge that could save lives. But our clients are living testimony that once used, torture becomes a fishing expedition to find information. It perverts the system which, seeking shortcuts to the hard work of investigation, relies increasingly on torture. The estimate from the Red Cross was that at least 80 percent of those imprisoned at Abu Ghraib, for example, should never have been arrested, but were there because it was easier to arrest persons than to let them go (people feared letting go a terrorist more than protecting the innocent). The Israeli security system claimed to use its stress and duress techniques only where they had the most reliable information about the detainee’s guilt. Yet human rights monitors estimate that they were used on over 8000 detainees. It is not credible to believe they had this precise information about so many.

4. Torture has a corrupting effect on the perpetrator. The relationship between the victim and the torturer is highly intimate, even if one-sided. It is filled with stress for the interrogator, balancing the job with the moral and ethical values of a person with family and friends. One way this cognitive dissonance is managed is through a group process that dehumanizes the victim. But still another way is to insure that some sort of confession is obtained to justify to the interrogator and to his superiors that pain and suffering was validly used.

5. Torture has never been confined to narrow conditions. Torture has often been justified by reference to a small number of people who know about the “ticking time bomb,” but in practice, it has always been extended to a much wider population.

6. Psychological torture is damaging. When torture is defined as strictly a physical act, many believe that psychological coercion is okay. I was surprised when I began working at CVT to find that our clients said it was the psychological forms of torture that were the most debilitating over a long period. The source of their nightmares, 15 and 20 years later, was the mock executions or hearing others being tortured. The lack of self-esteem and depression were more related to scenarios of humiliation, consciously structured to demean the victim. Many within the world treatment movement believe we have seen increasingly sophisticated forms of psychological torture over the past 20 years.

7. Stress and duress techniques are forms of torture. Many of these techniques were developed during Israel’s struggle against terrorism, and so this example is often cited for effective interrogation techniques falling short of torture. But the Israeli Supreme Court concluded that they were illegitimate. Every democratic nation’s court system and international court which has reviewed them has concluded that they are forms of torture.

8. We cannot use torture and still retain the moral high ground. The arguments we hear are not so different in form and content from those used by the repressive governments of CVT’s clients, and which the U.S. has refused to accept from other nations that have used torture to combat their real or perceived enemies. Torture is not an effective or efficient producer of reliable information. But it is effective and efficient at producing fear and rage, both in the individuals tortured and in their broader communities.

Costs to America’s Leadership

America has much to be proud of in its leadership on torture over the past two decades. Legislation such as the TVPA has provided new ways for survivors of torture to seek justice and also ways of warning torturers that their impunity has real limits. The U.S. is the single largest contributor to efforts to support the care and rehabilitation of torture victims through the TVRA and other efforts supported by Congress. Congress has actively investigated cases of torture and many members have devoted personal efforts to protect individuals and protest government policies of torture. This Congressional action has set into motion a series of national institutions and policies that have worked against torture, such as the creation of the human rights bureau at State Department, whose annual report regularly reports on issues of torture. I have been asked by State Department officials on several occasions to meet with them and representatives of states that use torture so that the experience of the torture rehabilitation network could come to bear on the discussion. Through our New Tactics in Human Rights program, we have consulted with State on ideas and projects that might help diminish the acceptability of torture in a number of nations. I have been proud to serve on the U.S. delegation to the Human Dimension Meeting of the OSCE and deliver our nation’s statement on the prevention of torture.

The costs to America are far reaching, from the disillusionment and fear of individuals, on the one hand, to complications in our ability to conduct foreign policy, on the other.

For CVT clients and other torture victims living in the U.S., there is increased anxiety and a sense of danger to them. They fled seeking safety in a nation known to protect individuals from the abuse of the state. Now they see this guardian engaging in behavior so reminiscent of what happened in their own nation.

Human rights organizations in repressive countries now express fear that they no longer have the assistance and assurance of the U.S. to protect them as human rights defenders from torture. At the recent New Tactics in Human Rights Symposium in Ankara, Turkey, a number of human rights defenders told me that their governments now say that they are only doing what the Americans do. Perceptions of greater vulnerability and fear can reduce the activity of those needed to identify and work to correct human rights abuses in their home countries, including much of the Middle East.

It is not an abstraction for us to say that the August 2002 memorandum received and disseminated by Mr. Gonzales also increases the danger of torture to American citizens. CVT has provided care to American torture survivors—religious leaders, businessmen, tourists—tortured in as diverse locales as Mexico and Saudi Arabia. The struggle to end torture everywhere is to our nation’s benefit in an increasingly globalized world.

Yet for those who oppose America, the use of torture proves to them what they thought they already knew about American policy and justifies to themselves the use of extreme violence against American interests and people. It changes their political calculations of what they can get away with and still attract public support for their cause. Torture produces rage and fear, not only with the victims, but in their society.

The memoranda create a global impression that the U.S. rejects world consensus on basic issues, such as human rights. They embarrass the United States and undermine our political credibility on many other foreign policy issues.

What Must Be Done?

In March 2003, President Bush met with the recently appointed U.N. High Commissioner for Human Rights, Mr. Sergio de Mello, in the Oval Office a few months before Mr. de Mello was killed in a terrorist bombing in Iraq. At that time, there were already concerns being raised about the conduct of American interrogations in Afghanistan. I am told that President Bush himself raised the issue of torture, saying that he would never authorize or condone torture as President of the United States. But, he added, that if there were another terrorist attack like the Twin Towers, he would have to explain to the American people why he did not.

This is a terrible burden to bear, balancing effectiveness in performing his duty to protect the American people and holding firm to an important American value. There are voices telling him that this is no burden and offering torture as an effective instrument of policy with minimal moral and political consequences. There are other voices, as in the Gonzalez and Bybee memoranda, that try to relieve the burden by separating the concepts from the reality that is torture. These answers do not relieve the burden, they only increase the temptation.

It is up to all of us, to members of this Senate, and to the U.S. attorney general to be clear that torture is a line we will not cross under any circumstances or for any purpose. It is imperative to U.S. security, the success of our foreign policy and the safety of Americans working and living abroad that the attorney general is in agreement with American values and will use the full scope of American and international law to take a responsible stance in actively denouncing torture and that he will work vigorously to prevent the use of torture and prosecute perpetrators.

To that end I respectfully call on the Senate Judiciary Committee to require a routine report from the Department of Justice on their work to stop and prevent the use of torture including their collaborative efforts with the Department of Defense and the Department of State. I ask that the Committee keep the issue of torture on the forefront of their agenda. America needs you to be vigilant in your questioning and oversight until it is clear in both our tacit and explicit policies and our actions that the U.S. is back on course and is in full compliance with national and international law and American values.

When speaking on the Senate floor in support of ratification of the Convention Against Torture, Senator Nancy Kassebaum said “I believe we have nothing to fear about our compliance with the terms of the treaty. Torture is simply not accepted in this country, and never will be.” This is as true today as it was then. Now, let us make it so.

Thank you.

http://judiciary.senate.gov/testimony.cfm?id=1345&wit_id=3939