The Gangrene

If you are in my generation or one close to it, chances are you had an opinion on the CIA torture program, at least at some point in the past. Maybe opposing it was even a formative political issue for you—one of the first times you exercised a nascent political conscience. But, chances are no less good, you have not thought about it a great deal since, and when you do, it is exclusively in the past tense. One sees it as an historical episode that should stand as a warning to the future, perhaps, but not one that is still with us. 

After all, the program itself ended at Obama's order more than a decade ago, in 2009. And many of its victims have over time achieved greater recognition of their legal rights. While several have been held extra-territorially in Guantanamo Bay, they are no longer deemed for that reason entirely beyond the reach of the rule of law. A series of landmark Supreme Court rulings from around that same period established that an offshore detention facility cannot be treated—simply because it is not on U.S. soil—as a total legal black hole. 

2006's Hamdan v. Rumsfeld required the U.S. government to at least comply with the Geneva Conventions in setting up military commissions to try terrorism suspects held offshore, for instance. The 2008 Boumediene v. Bush ruling went further, establishing that the writ of habeas corpus also applies in Guantanamo. 

One was of course aware that there had been a systematic failure to hold the architects and practitioners of the torture program legally accountable for their actions. But focusing on this felt backward-looking, after a certain point, and I suspect in my heart I embraced something like Max Weber's principle, which he articulates toward the end of Politics as a Vocation: namely, that the politician's responsibility is toward the future rather than the past. 

All of which is well and good, except that the crimes of the past will leach into the future if they are treated with impunity (this is the thrust of what international legal experts mean when they demand an "effective remedy" for past preaches of humanitarian law). Indeed, recent events have shown that they are already doing so. 

In brief: the legacy of the torture program is still with us. And even if some of us (like me) were privileged to be able to forget this for at least part of the near-two decades that have elapsed since the first post-9/11 terrorism suspects were transferred to Guantanamo, those still languishing in that facility (many of whom were at one time tortured there or at CIA black sites around the world) have not. 

Some limited media attention has been cast again on that site due to President Biden's campaign trail promise to finally shut down the facility and stop jailing suspects offshore. As welcome as such a commitment is, however, it only underlines that the last Democratic administration made the same pledge, and yet there are people who have been held there now under four different presidencies. 

Among them are people who have been tortured at the hands of our government, who have sat in indefinite detention with no criminal charge—all the horrors of the Bush administration's extralegal approach to prosecuting the "War on Terror," continuing right up to the present. 

I should have known this, of course; I should have been following it, and not be surprised all over again now; but I didn't. I had it in my head that the decisions from the Supreme Court in the twilight of the Bush administration had guaranteed some access to U.S. federal courts, and that the trials of the various men held in Guantanamo Bay were merely dragging on for practical and procedural reasons. While this is true to some extent, however, the Bush-era military commissions are also still in place, and continue their proceedings. 

And there are also, as I say, people who are still detained who have never been charged with an offense at all. People like Abu Zubaydah, who has spent nearly two decades in confinement at Guantanamo (during which he was tortured while the CIA program existed) without ever having been charged or indicted, let alone tried and convicted, and whom the CIA itself admitted they realized as far back as 2006 was not actually a member of Al Qaeda, despite this being the basis for his original capture. 

This is where my eyes start to go into cartoon spirals of confusion. Didn't the Supreme Court rule as far back as 2008 that people in Guantanamo have habeas rights under the Constitution, since they are still under the effective jurisdiction of the United States, and therefore cannot be considered to be placed entirely beyond the reach of the Constitution and the rule of law? 

Yes, but this decision only addressed the writ of habeas, which requires people to have some ability to periodically challenge the legitimacy of their confinement, rather than the more robust due process protections of the Constitution's Fifth Amendment; and our government, it would seem, has concluded that simply convening a "periodic review board," to determine that indefinite detention without criminal charge or trial is still warranted, fully satisfies this requirement. 

In which case, a landmark decision by the Supreme Court, with all due respect to that august body, seems hardly worth the paper it is written on. If the Constitutional writ of habeas can't save you from 19 years of arbitrary confinement at the hands of the same government that tortured you, based on suspicions that that same government has since withdrawn, without ever once being given a chance to challenge the basis for your detention and face your accusers in open court, then what exactly can it do? 

When I say that the legacy of the torture program is still very much with us, however, I'm not just referring to the fact that people our government has tortured are still held in custody without charge or trial; I mean also that the U.S. government continues to take further steps to elude accountability for these crimes, while simultaneously wishing to make use of evidence in criminal proceedings that was originally obtained through torture. 

A recent article in Just Security by David Luban summarizes a number of these disturbing legal developments. First, there was the recent prosecution agreement in the case of Majid Khan, in which he and his defense team agreed to forfeit the right to call witnesses to describe his torture and ill treatment at the hands of the CIA, in exchange for greater lenity in sentencing. As much as Mr. Khan cannot be faulted for making such a trade, it will prove another roadblock to ever having a full accounting in U.S. courts of the crimes our government perpetrated against terrorism suspects in our name. 

Then, perhaps even more troublingly, there was a recent decision by Judge Acosta in the military commission trial of Al-Nashiri, concerning language in the authorizing statute for the military commissions which clearly forbids the use of any evidence obtained through torture in the course of such a proceeding. Judge Acosta's decision found that this prohibition applied only to the use of such evidence at trial, (even though the statute uses broader language than this) and that it therefore could be admissible in pre-trial hearings.  

As David Luban notes, this creates no small loophole by which torture evidence might leach into a criminal proceeding. Important information affecting the remainder of the case and the judge's ultimate decisions is shared at pre-trial interlocutory hearings. To allow evidence obtained through torture to make an appearance there is to risk contaminating the entire process. As Luban puts it: "Torture would circulate through all the Commissions’ business like a noxious gas."

There is something about torture that lends itself to the use of this kind of metaphor: the image that comes to mind is not only of something toxic, but of something that, if left untreated, will spread. In an effort to purge the military commission trials of the taint of torture, for instance, the U.S. government deployed so-called "clean teams" to re-interrogate the same suspects under ostensibly non-coercive conditions. But, as Luban notes, the question of whether such a stain can be removed from the process so easily, when the "clean team" comes from the same government as the earlier "dirty" one, is an open one at best. 

But there is also the spread of illegality that impunity makes possible. This, again, is why international legal experts so often resort to medical terminology—calling for an "effective remedy." If people are never held accountable for torture and other crimes, then the rule of law is never re-established, and the torture has become in effect legal. There is therefore nothing to prevent it from occurring again.  

One of the most potent metaphors for something that is diseased and will spread if untreated is of course "gangrene," and it is precisely this term that Jean-Paul Sartre invokes in his preface to Henri Alleg's classic first-hand account of torture, The Question—the book which exposed to a broader public the truth about the French authorities' systematic use of torture in their Algerian campaign. "And the gangrene is spreading;" writes Sartre, "it has crossed the sea: it has even got about that the 'Question' is applied in certain civil prisons in the Metropolis."

Most likely, this passage was the inspiration for the title of a work published two years later in Paris, called, fittingly, The Gangrene, that described exactly the phenomenon Sartre had diagnosed. The book is referenced in Susan Sontag's Illness as Metaphor (it being translated into English by her friend Robert Silvers), and having tracked down a copy of it, one finds it is composed of first-hand testimonies by Algerian students living in Paris, who were subjected at the hands of the metropolitan police to the same torture methods used against FLN suspects in Algeria. 

To read these two short and searing books side-by-side, The Question and The Gangrene, is to confront how incredibly contemporary and on-point they feel. They exist in the perpetual present, wherever torture occurs. Henri Alleg, a French journalist living in Algeria who was arrested and tortured for suspected ties to FLN sympathizers, puts one in mind of the unknown fate of Danny Fenster, an American journalist recently detained and disappeared in Myanmar by the military junta, and who is believed to be held still and most likely being tortured in the notorious Insein prison. 

The central image of "the gangrene" reminds one of the unknown amounts of torture, brutality, "third degree," etc. that occur in local police forces throughout the United States, and which were documented for decades in the Chicago Police Department under commander Jon Burge, throughout the 1970s and '80s, where officers systematically tortured primarily Black suspects in order to coerce false confessions—contaminating all subsequent criminal proceedings in the city in much the same way as Luban's "noxious gas" of torture is now fouling up the military commissions in Guantanamo. 

The idea that illegality is not only a disease, but one of the spreading kind, also puts one in mind of the way in which the extra-legal "Title 42" policy that has authorized expulsions without the usual legal process governing asylum and deportation in the United States, has crept beyond its original limits. While ostensibly designed as a policy for rapidly removing people who recently crossed the southern U.S. border, it increasingly has evolved into a shadow system of extra-legal deportation, with at least one account documenting cases of people being removed under this doctrine far in the interior of the country. 

Most of all, however, the books remind us of the official, formal, openly-sanctioned torture policy that our government created and inflicted in the course of fighting its "War on Terror," and whose effects and legacy, as we have seen above, are still with us. We see parallels between our experience and that of the French that are hard to ignore. 

Like the U.S. torture program, the French one was created under color of law, with the fiction being that this form of torture was not truly torture at all, but merely an enhanced form of interrogation, and that it could thus be done in a "humane" way. The front matter of The Gangrene describes how French military rules re-defined torture so as to exclude those forms of physical abuse and ill-treatment that "leave no trace"—thus, some of the methods described in Alleg's and the Algerian students' accounts were therefore "acceptable"—simulated drowning, electrocution, etc. 

One is reminded that the infamous "torture memos" drafted by John Yoo, offering an ostensible legal pretext for the methods the Bush administration wanted to use, deployed the same specious semantic reasoning. The memos redefined torture as only those acts which cause "serious physical injury," clearing the way for the use of waterboarding, sleep deprivation, extreme physical confinement, and various forms of psychological and physical abuse that were inflicted on post-9/11 terrorism suspects who were caught in the CIA's black site web. 

The mid-century French and twenty-first century U.S. torture programs also had similar political and psychological origins. In this country, it was born from the terror caused by 9/11. Likewise, as Sartre acknowledges in his preface to The Question, the French military began deploying torture in part due to the fear aroused by the FLN's methods of guerrilla warfare—particularly the use of indiscriminate bombings that could strike anytime, anywhere. 

Thus, the French used the same "ticking time bomb" scenario to justify torture that one often heard in defense of the U.S. program back in the Bush years. "It is sometimes said that it is right to torture a man," writes Sartre, "if his confession can save a hundred lives." 

None of the authors, though—not Sartre, not Alleg, not any of the various contributors to The Gangrene—wastes much time contending with such thought experiments and philosophical posers. They let the horror of what they experienced speak for itself. Alleg's account of the "humane" methods which "leave no trace" deployed by the French paratroopers, for instance, which include attaching crocodile clips to his genitals and running electrical currents through them (shades of Abu Ghraib); of having a cloth wrapped around his face and soaked to the point of suffocation (shades of CIA waterboarding)... 

One realizes in reading about such things that anyone who seeks to justify torture, even in hypothetical, is not worthy of a reasoned or philosophical response. They should, rather, be treated with the same contempt in which Alleg always views his captors and tormentors—a contempt that ultimately saves him. In the end, as Alleg describes it, it is his determination not to give way to the "brutes" who deploy these methods, not to reward these methods, not to let all he suffered previously at their hands be for nothing, that enables him to withstand the torture without talking, until the point at which his tormentors at last give up and let him go. 

It should be the same determination not to reward torture that must motivate us today to demand the release of or at the very least due process for the people still confined at Guantanamo; that must forever preclude the use of evidence obtained by torture at any stage of a criminal proceeding; and that must lead us to renew our demands for an ultimate accounting and legal reckoning for those who built and authorized the Bush administration/CIA program. If Alleg and so many others could withstand extreme pain in order not to justify or gratify the torturers, we can resist the infinitely weaker currents of collective amnesia, apathy, and the passage of time that lead us to wish to forget and move on before justice has been done. 

As Alleg cried out to his readers in the final page of his story, the citizens of France could not ignore the torture being inflicted in Algeria, because it was being done in their name. So too, we must remember the people still confined in Gitmo, because they are being held there by the government we, the people, have empowered to serve.