Terror, Law, and Torture

Chapter 5 Terror, Law, and Torture he United States of America has always been a torturing state, but Tit has professionally institutionalized the practice only recently. Its political leaders offer denials, but blatant practices and tortuous legal arguments make the denials oxymoronic. The history of torture by the United States supports a more general theoretical proposition: the more states legislate against terrorism, the more likely they will use torture as an instrument of terror. Other examples of this proposition include Britain in Northern Ireland, Russia in Chechnya, and of course Nazi Germany. Terror legislation and torture can accompany an imperialist effort or internal national security regimes to suppress dissent. Both motives apply in the case of the United States. The recent development of torture falls into three stages. After the Second World War, the United States assembled torture expertise and apparatus in line with a national security ideology springing from the anti-Communist crusade. In a backlash against liberation and equality movements of the 1950s and 1960s, crime hysteria led to criminal justice restructuring beginning in the mid-1970s and continuing into the twenty- first century. Often described as a turn toward punitiveness, crime hysteria and control prepared the United States institutionally and its people ideo- logically to embark on its current course of terror law and torture. The U.S. torture regime depends on basic structural characteristics of American society, especially its racism and competitive and individualistic capitalism. These in turn give a particular character to its imperial expansion and assertions of world hegemony. Imperialism is central, so is racism. They are intertwined in the Anglophone history of colonialism, but imperialism and racism so often go together, especially since the advent of European imperialism in the late fifteenth century, as to make their pair- ing a general rule. At the same time, the United States has countervailing institutions: most prominently, its historical commitment to democracy, equality, and protection of laws. G. R. Skoll, Social Theory of Fear © Geoffrey R. Skoll 2010 80 SOCIAL THEORY OF FEAR Expansion of U.S. hegemony after the Second World War, and again after the fall of the USSR and Eastern Bloc, put special demands on the U.S. polity. Ruling classes and power elites faced a pressing need. As rec- ognized at least since the time of Metternich and Talleyrand (Kissinger 1964), expansion of influence and control beyond state borders requires a compliant, if not docile, domestic populace. Dangerous classes must be controlled, especially when, as seemed imminent in 1968, they threaten the status quo of wealth, privilege, and power. The United States used the criminal justice system to control the domestic dangerous classes and counterinsurgency tactics including torture to control foreigners. The History of U.S. Torture It was not that state agents did not torture before the end of the Second World War, but the torturers were agents of local governments and the several states of the union. There was no national policy of torture. Settlers and soldiers routinely tortured Native Americans (Churchill 1997; Slotkin 1985). Slave owners tortured slaves, and after 1865, racial lynching often included torture before the coup de grace (Waldrep 2002). Police regularly used the third degree to extract confessions and information. They also punished miscreants by physical abuse, either in lieu of arrest or prior to it. Convicts in state penitentiaries often suffered abuse. Federal police and correctional agencies, if they did employ the use of torture, did so covertly. Beginning in 1936 with the U.S. Supreme Court decision in Brown v. Mississippi (1936), federal courts increasingly intervened in state criminal justice systems to curtail official torture. During the Second World War, in the Pacific theater, but rarely in the European theater, units of the U.S. military used torture against Japanese soldiers as part of the overall brutalization of what both sides viewed as a racial war (Horne 2005). Nonetheless, torture was not national policy, even covertly. As the war in Europe wound down, overtures between Nazi leaders and U.S. intelligence operatives such as Allen Dulles in the OSS (Office of Strategic Services) set the stage for acquiring German expertise; operations Overcast and Paperclip resulted. The Joint Chiefs of Staff authorized Operation Overcast 6 July, 1945, to bring German scientists to the United States, despite possible past membership in the Nazi Party and the SS. In September 1946 President Truman directed bringing various desired specialists to the United States in an operation called Paperclip. Some of the experts were accused of participating in murderous medical experiments on human subjects at concentration camps and brutalizing slave laborers (Simpson 1988:36). Between 1945 and 1955, the United States welcomed 765 German specialists, of whom perhaps 80 percent were Nazi TERROR, LAW, AND TORTURE 81 Party members or SS veterans (Lasby 1975). Some became well known. Werner von Braun appeared on the Walt Disney TV program in the 1950s, for example. Others remained in shadow; among them were those employed in mind control and interrogation techniques. In April 1950, the CIA launched Operation Bluebird to discover more effective interrogation techniques. Boris Pash—an anticommunist since the 1917 Bolshevik Revolution, counterintelligence chief for the Manhattan Project, and recruiter of German specialists in Operation Paperclip—reviewed Nazi techniques for use in the Cold War (McCoy 2006:26–7; Simpson 1988). By April 1953, the CIA unified various mind control and interrogation researches into MKUltra under the direction of Sidney Gottlieb of its Technical Services Division. Gottlieb reported directly to Chief of Operations Richard Helms, who later became CIA director. The sensory deprivation experiments by Donald O. Hebb, a Canadian psychological researcher, caught the eye of Gottlieb. A few years later, more research at Harvard found that sensory deprivation causes unbearable stress, which progressively leads to hallucinations and delu- sions (Wexler et al. 1958). Next, a Princeton psychologist, Jack A. Vernon, received lavish funding from the Army and National Science Foundation to pursue this line of research with the view to applying it to interrogation. Vernon noted that physical violence is often counterproductive, but sensory deprivation could be an effective tool for extracting compliance, dependence, and information (Vernon 1963). Whereas Vernon’s stated intentions seem benign—he ends his book on sensory deprivation by recommending everyone try it to better appreciate the small things in life—the CIA had applications that were more dubious. In 1963, the same year Vernon published his book on sensory deprivation, the CIA wrote the Kubark Counterintelligence manual. Originally secret, leaks and successful FOIA (Freedom of Information Act) struggles have made it readily available on the Internet. The Web site post, “Prisoner Abuse: Patterns from the Past,” by the National Security Archive links to a wealth of information on the topic and related matters. Kubark defined CIA interrogation methods for the next forty years, until the photographs from Abu Ghraib forced worldwide exposure. Kubark premises its techniques for interrogation on inducing regression. Interrogators create existential chaos from the moment of arrest (McCoy 2006:51). The essence of effective interrogation—civil police questioning, military field interrogation of POWs, and even for clandestine work—is to make the subject want to tell the interrogator the desired information. That objective is best reached by creating dependence on the interrogator. While it can be achieved by physical violence, resistance or false compliance is also possible. False compliance occurs when the subject says whatever 82 SOCIAL THEORY OF FEAR seems necessary to stop the pain. Psychological torture is more likely to produce reliable, if not always accurate, information. Of course, reliable information comes from a sincere but not necessarily well-informed subject. McCoy (2006:53) points out another advantage to psychological torture. It leaves none of the usual signs, and thus eludes the strictest human rights protections. Having given up on drugs such as LSD, electroshock, psychosurgery, and similar invasive techniques, Kubark reflects the distillation of research since the end of the Second World War. Once set down in the Kubark manual, the CIA lost no time in exporting the expertise to Cold War allies. Britain used some of them against Northern Ireland guerrillas. Among them are what came to be called the five techniques. They are as follows. 1. Wall standing: forcing detainees to remain in stress positions; 2. Hooding: keeping a light-resistant bag or hood over the detainees’ heads; 3. Noise: subjection to continuous loud noises; 4. Sleep deprivation; 5. Reduced diet (Ireland v. United Kingdom 1978:96, pp. 35–36) These are the same techniques applied to Jose Padilla, who also avers that he was given mind-altering drugs, possibly LSD or PCP (Gerstein 2006; Hegarty 2007). Ireland complained to the European Human Rights Commission against British use of such tactics. The Commission issued its 8,400-page report finding that the five techniques were torture. When the complaint proceeded to the European Court of Human Rights, the British Attorney General assured

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