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Senator McCain has
won the battle but
lost the war



Jonathan Power
TFF Associate since 1991

Comments directly to

September 29, 2006

LONDON - Even if the U.S. Senate’s compromise with the Bush Administration over the Geneva Conventions and the use of torture works out in the way that Senator John McCain intends it will - and his previous efforts have always been given short shrift in practice - the damage has already been done. As Brita Sydhoff, the secretary-general of the International Rehabilitation Council for Torture Victims told me in her office in a tranquil Copenhagen street last week, “We had always expected with the post Cold War spread of democracy and 141 countries signing the UN Convention Against Torture that torture would diminish sharply. It hasn’t. It is painful to see the world’s leading democracy practising it and now that we have lost momentum it will be very difficult to persuade other countries to forgo it”.

Her council which has an enviable record in treating torture victims all over the world - with nine treatment centres in the Middle East alone - feels it is losing a battle which once it was winning. “Even my own country, Sweden, connived with the U.S. in allowing rendition of terrorist suspects to Egypt, where we know they were tortured.”

Nieves Molina Clemente, her legal advisor, makes the point that information garnered by torture is invariably “polluted”. “Imagine what you would say if you were being tortured and were desperate for them to ease up.” I put to her the ticking bomb scenario- wouldn’t you torture the man who you knew had planted a nuclear bomb in a city and was the only one who knew where it was?” “Real life it not like that”, she replied. “Nearly all cases of torture happen in onward rolling scenarios - like the struggle against Al Qaeda or in Northern Ireland - there is time for well trained interrogators to do their job - and the best who have the most success in extracting unpolluted information know that torture doesn’t help them. You can talk to some of them in the CIA”.

Harvard professor Elaine Scarry asks in Sanford Levinson’s collection of essays, “Torture”, “What makes the ticking bomb scenario improbable is the notion that in a world where knowledge is ordinarily so imperfect, we are suddenly granted the omniscience to know that the person in front of us holds this crucial information about the bomb’s whereabouts. Why not just grant us the omniscience to know where the bomb is!”

That the tortuously slow legal system of the United States has not allowed a case of torture to be brought before the Supreme Court is a black mark for western jurisprudence. Justice delayed is justice denied.

In contrast the Israeli Supreme Court grabbed the nettle of this issue even as it was a stinging political issue. In 1999 its president, Aharon Barak, summarised their conclusion in outlawing torture: “Although a democracy must often fight with one hand behind its back, it nevertheless has the upper hand.”

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The Court did leave the security services a small window of opportunity in extreme cases: if an interrogator felt that he had no recourse but to torture he, when tried for this offence, could use the traditional common-law defence of necessity and then a jury of his peers would decide the case on its merits. Even Professor Scarry finds that acceptable. “That one might have to do something that is wrong does not mean it has ceased to be wrong or punishable…and while it is possible that a jury would exonerate someone in this situation, it does not follow that any such guarantee should be provided before the fact.”

The Israeli Supreme Court, addressing “the difficult reality in which Israel finds itself”, concluded, “This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it.”

Senator McCain and his allies have concentrated their argument on the Geneva Conventions and the need for honoring its prohibitions against torture in order to increase the leverage against future enemies who may be tempted to torture American prisoners of war. But most torture these days is not carried out by countries at war with another. It is simply a tool of the military or the police in repressing opposition and protest. As a tool of intimidation it certainly works, but if we want to see more freedom around the world we don’t want them to be able to justify their behaviour by quoting ours.

This is why such conservatives as Ronald Reagan and Margaret Thatcher had no reservations about seeking the ratification of the UN Convention Against Torture. And why it is such a setback for democracy to watch an American government throwing this to the wind.



Copyright © 2006 By JONATHAN POWER


I can be reached by phone +44 7785 351172 and e-mail:


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