Last Spring, BHRR reporters Marc Briz and Michael Miller spoke with Lisa Hajjar, a Professor of Sociology from the University of California at Santa Barbara, about U.S. foreign policy, torture, and International Law. In the interview, Hajjar explains the current U.S. stance on torture, the debate surrounding Guantanamo, and the U.S.’s selective enforcement of International Law.
Brown Human Rights Report:
In your lecture on Guantanamo Bay, you said repeatedly that President Obama has inherited a “legal mess.” Could you explain what you meant by that comment?
First, the President used the term “legal mess” while giving a speech at the National Archives on May 21st 2009, about five months after he entered office, to describe the unfortunate complexity of the political situation he inherited. Remember that Obama had originally promised to close Guantanamo, cancel military commissions at the base, and reform CIA interrogation tactics. None of this has happened. This is the same guy, and I think he still feels the same way, but why has nothing changed? Well, he has realized during his first four months in office how incredibly messy the political and legal situation actually was.
In Guantanamo, Obama encountered both more and less information he expected or wanted: less information about which detainees were still in custody; whether they had been tortured; and whether he could release them. At the same time, he encountered more information than we would have wanted when [Former Vice President] Cheney and other right wing pundits came out condemning every effort he made to institute changes to the institutions. This is the mess he inherited.
And it has remained a mess. President Obama has maintained the political trajectory of the Bush administration, even though he categorically condemns Bush’s support for the denial of habeus rights and the use of coercive interrogation tactics because he and his administration do not see a domestic constituency that would be willing to support the rule of law. The current administration doesn’t see cleaning up this mess as a priority. Healthcare and the economy are its top priorities, so the administration has been unwilling to lead on a cleanup effort that would require significant political mobilization. So in short, Obama inherited a mess, and now he has made it his own.
Brown Human Rights Report:
It is timely that we are having this interview just days after the death of Osama bin Laden. What is your reaction to hearing statements that torture methods in Guantanamo Bay produced the information that led to his death? Do you worry that his death will further motivate politicians to subscribe to what you described as “the new paradigm”? [Editors Note: Hajjar used the term “the new paradigm” in an Al-Jazeera article to describe American exceptionalism regarding International Law—a stance that has encouraged the continued use of torture and the bypassing of due process.]
First and rather paradoxically, a slight majority opposed the use of torture for much of the War on Terror. Just last month, however, the American Red Cross did a survey that showed that support for torture had increased since 2009 because of the “pro-torture” campaign that Cheney and others pursued after Obama was elected.
This should not surprise anyone. As we move farther from 9/11, public opinion regarding these issues depends on how they are depicted in the media. Thanks to the way that Cheney and others have campaigned in the media, tolerance and even support for torture has risen in the public opinion. This is more visible now than ever thanks to the incredible amount of political rhetoric vindicating the use of waterboarding after the death of Osama bin Laden. Empirically, you can make no connections between waterboarding and Osama’s death, but that does not stop people from making the argument. New York Republican Congressman Peter King effectively said, “waterboarding was the answer! We got him because we waterboard,” which is just empirically false, but this thought is still out there in the public domain.
The whole debate on the legality of torture further entrenches us in our current right-wing hostility against implementing restraints on the government in their pursuit of law and order. The Bush administration exhibited an extreme version of something that has remained consistent across party lines in recent history: a state-centric view of International Law. The view is that International Law only exists when it benefits us. It either justifies our actions or is irrelevant: there is no gray area, and we constantly vacillate between these two.
This mentality took on its most extreme form during the Bush years, and the current White House has not appeared the least bit interested in challenging it. We are still waiting to see the promised vociferous defense of human rights, and vociferous critic of the previously administration.
Brown Human Rights Report:
Media criticism often serves as a corrective against Human Rights abuses. Why hasn’t the international press’ coverage of Guantanamo resulted in any concrete changes? And if publicity cannot provide an impetus for change, what can?
First, the international press has covered Guantanamo very differently than has the domestic press. The domestic press has literally become the scribe of the executive. That’s to say, it takes whatever the executive branch says to it without question. If there is anything that is critical of government policy, the media—particularly TV media—needs to balance that criticism with a conflicting opinion. For example, if someone argues that torture is bad, someone else has to argue that torture is good. In this regard, the media has failed to fulfill its fourth estate role of educating the public.
There are ways that the press can have a positive impact over extended periods of time. Media coverage, particularly around brutal interrogation tactics, has in fact led to some changes. There are people who doggedly insist on pressing these issues in public, and so the media has done something positive. For example, we don’t waterboard prison inmates or force detainees into naked pyramids like in Abu Grab anymore. We are no longer doing things that we were doing in 2002 thanks to media attention.
Additionally, some members of the military have been absolutely heroic. Maybe the best example of that is Matthew Alexander, who was an interrogator that used normal interrogation techniques to find Al-Zarkowee, the head of Al-Qaeda in Iraq. He has become the most visible, professional anti-torture interrogator and is all over the media, arguing that it was his legal interrogation tactics that were responsible for the capture of Al-Zarkowee. His story proves that coercive tactics are not essential to our national security. Alexander is getting this message out. Everyone may not listen, but at least it is there, and it is having some impact.
Brown Human Rights Report:
The U.S. is currently involved in nation building in both Iraq and Afghanistan. Throughout this process, liberation and social empowerment of the Iraqi and Afghani people has been emphasized repeatedly. How can such a message be reconciled with the U.S. government’s use of torture and drone attacks in that same region?
Our goals for the world and the methods we use to achieve them are not in line. There is a very powerful strain in American public thought that claims we can fix things because of who we are, but that is just not the reality. When it comes to fighting these wars, the strategy has been almost Orwellian: peace through war and justice through torture.
Let’s look at Iraq. Maybe things could improve, but right now the country is clearly much worse off. Saddam was a brutal authoritarian dictator, but the wreckage of the conflict—such as refugee problems, the destruction of infrastructure, and the disruption of an entire generation of children’s education—certainly outweigh Saddam’s abuses. The U.S. does not have the capacity to fix any of these problems, which means that although Iraq may be a different place, it will not be a better place.
The conquering “hearts and minds” strategy in rebuilding Iraq with a sort of Humanist ideology is not a new concept. We have been doing it for years, and it does not seem to be working.
Brown Human Rights Report:
You have criticized the U.S.’s misuse and ignorance of the laws of war (jus in bello). How does the U.S.’s current interpretation of jus in bello constitute a violation? And will the U.S.’s current interpretation have an impact on International Law, much of which is based off of the practice of nations?
First, the laws of war, namely International Humanitarian Law (IHL), which the Geneva Conventions codify, exists not to prevent war, but to establish norms to minimize unnecessary or excessive human suffering during war by expanding on laws governing how one treats prisoners of war, civilians, etc. The idea is to try to balance the legitimacy of waging war—the rights of states—against the desire to minimize human suffering—the rights of individuals.
Because IHL is essentially interpreted through states practice, the action of powerful states shapes the normative understanding of these laws. Indeed, once the United States argued that anybody deemed to be a terrorist has no legal rights, other often authoritarian regimes followed suit. So yes, US policy is changing international legal norms.
An important development is the way in which the U.S. has tried to reinterpret the laws of war to justify its actions. For example, they have even created a new legal category, unlawful enemy combatants, which does not actually exist under International Law. Moreover, U.S. military conventions have routinely transformed ordinary crimes such as conspiracy into war crimes for the purpose of prosecuting people at Guantanamo. Ask yourself: what is conspiracy in a war? That may be a criminal offense, but it is not a war crime. “Providing material support to terrorism” is also not a war crime, but it has been made one for the purpose of the military commissions.
The case of Omar Khadir, who is accused of throwing a grenade that killed an American soldier, is interesting because he is one of the few people at Guantanamo accused of a “hot-war crime”. Yet according to International Law, killing a soldier in battle is not a war crime because soldiers enter into a social contract during wartime that exempts them from traditional types of prosecution. This distinction is the foundational argument of jus in bello. The U.S. government, however, does not want to acknowledge this globally accepted norm and has instead invented a new concept, “murder and violation of the laws of armed conflict,” in order to prosecute these crimes.
This interpretation says more about our domestic politics than it does the international legal system. To overcome these sorts of politics, people need to understand and care about certain principles; otherwise the ideals Geneva Conventions will cease to exist. If we are just going to say screw it let the powerful do whatever they want and make it legal, then that creates a very, very serious challenge to the architecture of modernity and individual rights.
[Photo courtesy of the U.S. Army via flickr.]