American Academy of Political and Social Science

Restoring Moral Authority: Ending Torture, Secret Detention, and the Prison at
Guantanamo Bay
Author(s): Tom Malinowski
Source: The Annals of the American Academy of Political and Social Science, Vol. 618,
Terrorism: What the Next President Will Face (Jul., 2008), pp. 148-159
Published by: Sage Publications, Inc. in association with the American Academy of
Political and Social Science
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 From Guantanamo Bay to Abu Ghraib, the history of
the United States s handling of combatants in the Global
War on Terrorism is filled with episodes that have
diminished its reputation and influence in the world.
Most military and intelligence professionals now agree
that presenting a more positive vision of American val-
ues is critical to success over terrorist organizations like
al Qaeda. Developing a coherent and effective human
rights policy raises important questions: about the effi-
cacy and legality of torture and extraordinary rendition,

Restoring
the use of military instead of civilian courts to prosecute
suspected terrorists, and whether some prisoners can be

Moral held indefinitely without charge or trial. Considering

both morality and strategy, the next president should
issue an executive order that categorically forbids tor-
ture, end the use of secret detention, close the deten-
Authority: tion facility in Guantanamo Bay, and seek to release or
transfer to home countries detainees who cannot be
Ending Torture, prosecuted by the United States.

Secret Keywords: interrogation; torture; rendition; Guanta-

namo; Geneva Conventions; secret prisons

Detention, and
the Prison at sterling to the leaders on the front lines of
America's struggle with terrorism today,
Guantanamo one wonders why there was ever a controversy
in America about torturing terrorist suspects or
Bay placing them beyond the law. Most thoughtful
military and intelligence professionals have
come to believe that compliance with legal
norms is a strategic as well as a moral necessity.

By
TOM MALINOWSKI Tom Malinowski has been Washington advocacy direc-
tor for Human Rights Watch since April 2001, respon-
sible for its advocacy effort with the U.S. government.
Prior to joining Human Rights Watch, he was special
assistant to President Bill Clinton and senior director
for foreign policy speechwriting at the National
Security Council. From 1994 to 1998, he was a speech-
writer for Secretaries of State Warren Christopher and
Madeleine Albright and a member of the State
Department Policy Planning Staff. He has also worked
for the Ford Foundation and as a legislative aide to U. S.
Senator Daniel Patrick Moynihan. He holds degrees in
political science from the University of California,
Berkeley, and Oxford University and is a member of the
Council on Foreign Relations.

DOI: 10.1177/0002716208317118

148 ANNALS, AAPSS, 618, July 2008

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RESTORING MORAL AUTHORITY 149

After taking command of U.S

Petraeus wrote a letter to his tro
stating, "This fight depends on s
that we - not our enemies - occup
U.S. Army/Marines Counterinsur
lessons of Iraq and Afghanistan
involving the use of power without
ture, and punishment without t
Marine Corps 2006, 1-24). The Ap
that to defeat al Qaeda, the Unite
audiences they seek to persuade"
most powerful weapon in the war o
Had President George W. Bush a
principles from the start, the Un
the prisoner abuse scandal at Abu
at Guantanamo Bay. Instead, the
struggle from the values and nor
has diminished Americas moral s
Americas enemies a victory they
fall to the next president to repair
The first sign of the administra
2002, when President Bush decid
supposed to protect all combatan
armed conflict, would not apply
2002). Although the president ord
did not define the term. Other se
did not mean much - dismissing
ers as "outdated," (Gonzales 2002
come off' (Black 2002). The messa
in Afghanistan was clear: their l
harshly than the traditional rules
The administration brought hu
assumption that U.S. courts coul
pected terrorists would be held ind
tary commissions that denied bas
before civilian courts. In addition
pects anywhere in the world (inclu
cratic countries like Italy) and se
where torture is routinely practice
overseas facilities to which even
had no access.1
The White House also authori
against captives that the United Sta

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150 THE ANNALS OF THE AMERICAN ACADEMY

technique was water boarding, in which a p

with his feet above his head, a cloth or celloph
over or down his throat until he begins to fee
were also subjected to "stress positions," suc
hours on end and being bound in painful po
and cold, and deprived of sleep for extended
The CIA apparently learned these techniqu
Evasion, Resistance and Escape (or SERE)
forces for the experience of being tortured
former master instructor at the SERE scho
there (in a highly controlled setting) are "de
ian enemy would use torture at the slighte
studying the practices of past U.S. enemies
Germany, and the Viet Cong (Nance 2007).2
Methods like sleep deprivation and stress p
trade of the Soviet KGB. They are designed
ultimately unbearable, physical and psycholo
visible scars (which allows torturers to port
torships that have used these techniques h
their nature and purpose. They have employed
confess to crimes, not to extract truthful info
to get the truth from prisoners, the admini
as it was deceiving the public.
The administration also assumed that imm
As it turned out, the "highly controlled" meth
handful of high-value suspects spread - re
saw them being used by CIA personnel);
briefly, part of the approved interrogation re
known even to junior reservists at Abu Ghr
world. Military leaders and civilian officia
interrogation policies began leaking legal m
ment. Extraordinary renditions of prisoners
Europe inevitably came to light; several
released and told their stories. The move
world was revealed by an "enemy" the C
spotters - hobbyists who track aircraft landin
their data on the Internet.
Perhaps because it trusted these policies co
tration did not consider how much harm th
as a country dedicated to liberty and law - a
mote those values in the Middle East (as he
ask what should have been an obvious quest
react if another country did similar things - i

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RESTORING MORAL AUTHORITY 151

or official off the streets of an Iraq

secret prison, and subjected him to
If the United States could beat al
members, then perhaps some degree
might be acceptable. As the administ
people don't like the United States
the Army Counterinsurgency Man
tional terrorist foes, it is never po
States Army and United States Mar
depends on cutting off the enemy's
adherents to its cause - by diminishi
The key to beating al Qaeda, then
Muslim world that America's values a
than those of its enemies. The Uni
from the values it preaches to other
The greatest damage may have be
gency in Iraq, when abuse of detai
like Abu Ghraib was routine. Inevitab
in sweeps of dangerous Iraqi neigh
mately sent home. If these men ex
more eager to fight Americans. As o
Human Rights Watch, "Half of th
nothing. We sent them back to Fallu
a bad guy because of the way we t
The Bush administration would pr
of harsh interrogation methods an
that the use of such methods again
worth the trouble, because it pro
that some useful information was
(something that outsiders cannot r
gram would depend on the answer
next president should ask.
First, how much misleading infor
many false leads have intelligence
result? How many innocent or insi
many real terrorists have escaped
affected? After all, most experienced
if you water board a prisoner or stri
sleep for days on end, he will usua
wants to hear, whether true or not,
hear what they want to hear, they a
to confirm whatever false assumptio
interrogation.

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152 THE ANNALS OF THE AMERICAN ACADEMY

Perhaps the best example involves one of the

extraordinary rendition after 9/11 - a susp
Sheikh al Libi, who was held by the CIA and ev
al Libi s family was threatened; he was water b
standing overnight in a cold cell while bein
(Ross and Esposito 2005). And he told his int
tration wanted to hear: that Saddam Hussei
the use of chemical weapons. This false inform
in Colin Powell s presentation to the UN Sec
ing the case for war with Iraq (Jehl 2005). Per
in American history came about in part becaus
CIA program and the tortured confessions i

Most experienced interrogator

is unreliable. . . . Torture ten
whatever false assumptions th
community brings into an in

Second, how much good intelligence was l

used? One of the best sources of intelligence
in which terrorists hide. Public cooperation ha
potentially deadly attacks: for example, it was
community in London that allowed British
several transatlantic flights last year (Whitl
live in those communities are much less likely
about their neighbors, acquaintances, and re
are turning in are liable to be abused.
Third, could the good intelligence obtaine
secret prisons have been obtained anyway usin
Ultimately, the most important question is t
Rumsfeld asked in October 2003: "Are we cap
suading more terrorists every day than the
recruiting, training and deploying against us?"
ful detention produce more enemies than they
is not even a trade-off between liberty and sec
On the contrary - you cannot win the fight if

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RESTORING MORAL AUTHORITY 153

How can the next president regain

the rules governing how suspecte
way to come to terms with the p
The next president s first orde
order that categorically forbids t
should make clear that the United S
interrogation methods that it wo
against captured Americans.4 It s
ment agency of interrogation tec
Manual on interrogation (United
The Army Field Manual explicitl
water boarding as ineffective and u
psychological techniques designed
up information. Some focus on buil
a detainee s insecurities and fears. A
interrogation is not to make a priso
make a prisoner want to talk and, m
Experienced interrogators belie
than coercive methods. FBI officials
of the high-value al Qaeda detain
turned them over to the CIA - or t
ment (Eban 2007). Such techniqu
forces to pinpoint Abu Musab Al
forces interrogators spent weeks w
network, playing on his ego and
place in the future of Iraq if he c
information that led to Zarqawi s
interrogation compiled by Mark Bo
to imagine that coercive techniqu
probably would have caused the k
One argument against applying
its techniques are publicly know
specific techniques in or out, th
then know what to expect when t
the U.S. government does not rul
the rack or thumbscrews or apply
an American were subjected to s
United States still say, "We don't
ping off terrorists - by now al Qae
about the range of techniques the
ing newspapers or talking to any
has released from custody in Ira
does not confound Americas enem
Another argument is that some
by the Army Field Manual but f

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154 THE ANNALS OF THE AMERICAN ACADEMY

permitted to use them. But it is hard to imagine

of forced standing, or a night of sleep depriv
ened terrorist to betray his comrades or his cau
go the coercive route, they usually have to go al
pain and suffering beyond the limits of a pr
"controlled" use of such techniques nearly alw
Finally, there is the classic, ticking bomb argu
have the authority to torture a prisoner who kn
attack. Fictional presidents on television argu
real-life presidents should consider just how
bomb scenario is: it assumes, first, that the U.S.
is imminent, but does not know the location
terrorist it knows for certain can reveal the
comrades have not noticed he is missing, or a
or location of their attack once they know t
third, that a prisoner who only needs to hold ou
simply tell a credible lie to stop the torture.
In real life, the question we face is not wha
clearly knows the one piece of information t
what to do about the thousands of people wh
year of this conflict. Every young man U.S. troo
or Pakistan, may know some small piece of a
number, a bank account number, or the identity
these pieces together, interrogators can avert
that justify torturing thousands of people? A
who face suicide bombs and improvised expl
know that their commander in chief believes
justified, how can we tell them they cannot u
fellow soldiers? As retired generals Charles K
written, "Any degree of 'flexibility' about tortu
of command like a stone - the rare except
absolute and public prohibition of torture and cr
A future executive order on torture should
municado detention and guarantee the Inter
Cross access to all prisoners in U.S. custody. I
ruled out, there will be no reason to hide pr
moreover, not in the U.S. interest to set a p
could use to hold in secret any American they
In addition, such an order should place st
detainees to third countries. While renditions
dition process - have traditionally been used t
criminal justice in their home countries, they
prisoners or to send them where they are lik
pects be "rendered" from countries where th
procedures are available. One promising appro

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RESTORING MORAL AUTHORITY 155

been proposed by Senator Joseph

Act" would allow renditions only to
due process and assign a special co
risk of torture upon return (Bide
A harder question for the next p
ing prisoners at Guantanamo Bay,
future terrorist suspects. Guant
that this could be done quickly by
United States, at which point som
their home countries. At the sam
prisoners cannot be prosecuted6
with this category, some have ur
tion law permitting detainees to be
than they have received at Guant
Such a law, however, would be a
dred years of legal practice in th
tential threats to its security wit
up without trial. It could set a d
Russia, and China, where Americ
out trial to deal with security th
untested system for dealing with d
lenges and fail as miserably as th
world like little more than an ext
Before considering such a system
question: whom should the United
ror? Should it detain everyone in
and who fits the profile of a poten
building a thousand Guantanam
Pakistani man who ever associate
Taliban or al Qaeda training cam
prison camps will do. Or should
committed terrorist acts or who
in al Qaeda? If so, then going forwa
be necessary, for such people can
new legal authorities granted by p
With respect to the existing Gu
cannot be prosecuted clearly fall
passed through Afghanistan before
ciated with al Qaeda members. Som
they any different from countles
communities around the world?
hundreds of thousands of angr
released, and a few decided to be
add to the number of terrorist at

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156 THE ANNALS OF THE AMERICAN ACADEMY

sadly, no shortage of potential suicide bom

arguably makes that problem worse, not better.
Despite its rhetoric about never letting dang
istration has quietly begun to accept this logic. I
Saudi detainees in Guantanamo will either be
Arabia, where they will spend a few month
Muslim clerics and then will be released, wit
Wright 2007). This is a far better option for the
these men for the rest of their lives. The next p
ments with other countries for all those detaine
As for those who are prosecuted, should mi
Under international law, combatants captured
cases be prosecuted by military tribunals. The
whether suspected terrorists can lawfully b
which the next president would have to resolve
commissions or courts martial. But from a polic
be a far better option in most if not all cases.
argued that civilian courts cannot handle evid
without compromising intelligence sources an
prosecutors and judges who have prosecuted t
view (Moore 2007; Coughenour 2007).
Indeed, since 9/11, U.S. federal courts have
terrorism suspects, putting many of them aw
have brought not a single 9/11 planner to ju
cuted only one man - an Australian former ka
bit player in al Qaeda. What is more, no one
tenced by federal courts were treated unjustly.
to recruit more terrorists. To use one of Pres
terrorists who got justice in civilian courts are n
States of America. Everyone who remains in
extrajudicial measures remains a profound pro
Treating terrorists as criminals, rather than as
trials, also helps deny them legitimacy. Giving t
other hand, reinforces their narrative that they
entitled to kill their enemies. When 9/11 mas
for example, was brought before his military
the title of "enemy combatant" as a badge o
George Washington and said that if Washi
British, he, too, would have been called an "e
The United States would be better off saying
William Young said to "shoe bomber" Richar
"You are not an enemy combatant. You are a terr
war. ... To give you that reference, to call yo
stature" (Reid 2003).

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 RESTORING MORAL AUTHORITY 157

A final and particularly sensitive

involve not looking forward but lo
previous administration. Torture is
boarding has been prosecuted as t
hundred years (Wallach 2007, 16).
Can knowledge of what happened
next administration to punish CIA
ecute the senior officials, inclu
However, it is hard to imagine that
decessor to trial. Such a proceedin
to forge a bipartisan consensus that
At the least, however, the next a
past. The basic facts of the CIA pro
techniques the agency used and th
recognition would showcase U.S.
and its capacity for renewal. Such
commission led by retired milita
how detainees were treated, mea
recommend a way forward.
The story such a commission woul
be proud. But a more hopeful narra
September 11, 2001. It tried to re
it also made mistakes out of fear. Y
cratic institutions corrected those m
next administration chooses wisely,

Notes

1. In September 2006, President Bush announced that no prisoners remained in CIA custody, but since
then several newly captured detainees have been held in secret facilities by the agency.
2. Nance, who administered water boarding in the U.S. Armys Survival, Evasion, Resistance and
Escape (SERE) course, said of the technique, "When done right it is controlled death. Its lack of physical
scarring allows the victim to recover and be threaten [sic] with its use again and again" (Nance 2007).
3. While water boarding has captured the publics attention as a particularly brutal technique, sleep
deprivation and stress positions may be even more cruel over time. Their use in combination was known as
"the conveyor" in Soviet days and was the basic technique Stalin's regime used to break the victims of its
1930s show trials. In his book on Stalin, The Great Terror: A Reassessment, Robert Conquest (1990)
described a technique known as the "stoika": "It consisted of standing a prisoner against a wall on tiptoe and
making him hold that position for several hours. A day or two of this was said to be enough to break almost
anyone" (p. 121). He continued, "Sitting on a stool for fourteen hours is, according to one victim, more
painful that standing against a wall, where you can at least shift your weight from one foot to the other. The
groin swells and violent pains set in" (p. 124). In his memoirs, former Israeli prime minister Menachem
Begin (1977) described being subjected to sleep deprivation in a Soviet prison: "In the head of the interro-
gated prisoner a haze begins to form. His spirit is wearied to death, his legs are unsteady, and he has one
sole desire: to sleep, to sleep just a little, not to get up, to lie, to rest, to forget. . . . Anyone who has expe-
rienced this desire knows that not even hunger or thirst are comparable with it. ... I came across prison-
ers who signed what they were ordered to sign, only to get what the interrogator promised them. He did
not promise them their liberty. He promised them - if they signed - uninterrupted sleep!" (p. 107).

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158 THE ANNALS OF THE AMERICAN ACADEMY

4. This "golden rule," which is already embodied in the U.

larly important given the Supreme Courts ruling in Hamda
ment requirements of Common Article 3 of the Geneva C
including those held by the CIA. Following this decision, if th
rogation technique, the United States has to consider that tec
3, and would therefore have to accept that an enemy coul
American in any situation governed by Common Article 3.
5. Though much has been said about how al Qaeda members
niques, there is little evidence of any systematic effort to do s
ally be effective. American criminals who watch television ha
use the "good cop, bad cop" technique, and yet it still seems
ticated psychological techniques, which are tailored to the u
would be harder to prepare for, or even to recognize, than a
6. Because prisoners have not yet committed a prosecutab
tainted by torture.
7. A small number of detainees cannot be sent home becau
of ethnic Uighurs from China who were wrongly imprison
for six years. Such prisoners should have the right to raise ob
sion maker. If their concerns are valid, the government shou
few emblematic cases like those of the Uighurs, be willing

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