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‘TORTURE 101’: A MODEL OF STATE TORTURE

Martha K. Huggins, Ph.D.

Professor of Sociology and Latin American Studies

Tulane University, New Orleans, LA

mhuggins@tulane.edu

 

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Torture 101

Modern torture occurs within multiple State and corporate systems that include

national and international perpetrators, facilitators, bystanders, and their organizations--a

conclusion derived from my 1993 study of torture in Brazil (Huggins et al., 2002/2003).

Therefore, years before the release of photographs of U.S. torture at Abu Ghraib, I had

begun seeing similarities between torture in authoritarian Brazil (1964-1985) and

post-9-11 U.S. torture at Abu Ghraib and Guantanamo.i Without explicitly comparing

two countries with very different politico-legal systems, just the same, based on my work

in Brazil, I knew there was torture at Guantanamo Bay’s “Camp X-Ray.” My March

2002 letter to the Albany, New York’s Times Union newspaper (“Treat prisoners like

human beings”) registered this concern:

One hundred and eighty-six combatants captured in Afghanistan from more than 25 countries are being held at Guantanamo Naval Base (known familiarly as “Gitmo”').

The U.S. government has placed them in a legal no-man's land with profound implications for their treatment. In fact, the Bush administration's unilateral decisions on prisoners' legal status has led to flouting of international and U.S. constitutional law and to gross mistreatment of the prisoners after their capture, during their removal to Guantanamo and after arrival there.

Conditions at Guantanamo are ideal for the kind of prolonged interrogations that bear the mark of torture, defined in international law as any act that imposes severe pain and suffering, whether physical or mental, intentionally inflicted on its victim to obtain information or confession or to punish.

Many of the U.S.'s European allies see the treatment of Guantanamo prisoners as cruel and unusual and even as torture.

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A research team under my leadership has recently studied state-sponsored and state-encouraged torture and assassinations during Brazil's military government (1964-1985)ii. We found that torture is nurtured and promoted by four interrelated conditions: unchecked and arbitrary executive rule, secret interrogation locations and procedures, hidden identities of both interrogators and those under interrogation and a supportive public.

Guantanamo captives had been deprived, upon arrival, of sensory inputs. Goggles darkened their vision, their mouths were covered, hearing blocked by an over-the-ears cap and sedated with drugs. With most sensory inputs cut off, stripped of identity-defining clothes, beards and hair, and sleep-deprived on the long flight from Afghanistan, the prisoner-as-battlefield detainee arrives at Gitmo in a state ideal for aggressive questioning by specialized interrogators. Heavy interrogation had very likely been carried out already in Afghanistan.

The recently released deposition of the so-called American Taliban, John Walker Lindh, is illustrative. Immediately after his capture by U.S.-allied Afghan troops, Lindh was allegedly imprisoned in a basement densely packed with other captives, denied food, given little water and subjected to his captors' throwing in exploding grenades, starting fires and flooding the confined space with deep water. After this torture-by-proxy -- a process that should have broken Lindh down for interrogation -- American agents allegedly put Lindh's stretcher-bound body into a windowless, suffocating, casket-like metal container.

If such treatment is accorded an “American Taliban'' prisoner with rights under the Constitution, what happens to “illegal combatants'' at Guantanamo or in battlefield interrogations? According to the U.S. government, their treatment is formally not covered by the U.S. Constitution, yet also unregulated by international law as well.

Contending that the treatment of “illegal combatants'' is determined only by presidential executive orders, the United States has refused to define these detainees as prisoners of war. After heated criticism of what one legal scholar calls “international law a la carte,'' the Bush administration announced last month that detained Taliban combatants would be treated

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according to the Geneva Convention. But those it decided were al-Qaida terrorist network fighters would not be so designated, ignoring the Geneva accords' stipulation that an independent, impartial and legally constituted military tribunal must decide the status of “battlefield detainees.''

Much modern official torture has in fact been carried out under ideologies that justify war against an ever-expanding category of enemies, especially where there is pressure by non-participating publics for answers. Almost one-third of Americans polled in recent U.S. surveys agree that torture should be used against terrorist suspects. Harvard law professor Alan Dershowitz argues that torture is permissible in cases of suspected national security violations, if court-issued “torture warrants'' and official oversight guide its application.

Most U.S. and Brazilian police I have interviewed argue that information provided under torture is highly unreliable. “Those suffering pain will tell you anything you want to hear just to get you to stop,'' as one infamous Brazilian torturer told me. Furthermore, senior U.S. military officials and Secretary of State Colin Powell point out that adhering to the Geneva Convention could help protect U.S. soldiers from maltreatment at the hands of other countries. The most compelling reason for the United States to avoid torture is that otherwise we lose any moral claim to challenge other nations' human rights violations, including torture and state-sponsored assassinations. The United States cannot demand that so-called terror states implement the rule of law if its war against terrorism violates its own standards and those in international law.

As the global war against terror continues and the number of battlefield detainees rises, the United States needs to adhere to the Geneva Convention in treating prisoners under international law's stipulation that the status of a battlefield detainee be decided by a “competent tribunal.'' Clear and internationally recognized legal standards for prisoner treatment and interrogation need to be consistently applied. Their treatment should not be shrouded in secrecy; prisoners must have independent legal representation; and interrogators must be monitored and guided by due process. Falling

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short of these recommendations invites torture and other mistreatment of prisoners.

Years later I learned that in March 2002 when my letter was published, orders were

awaiting the signatures of President George W. Bush and Defense Secretary Donald

Rumsfeld, “authorizing brutal interrogations” of suspected terrorists. By 2003, such

orders had become “‘policy’ at Guantanamo and Abu Ghraib” (Leopold, 2011)iii The

U.S. ‘war on terror’--already well under way--was enabled by “more than twenty

countries [,mostly European]…[that were collaborating with the U.S.] in a ‘global

spider's web’ of secret U.S. CIA prisons and prisoner transfers” (Iran Daily, 6/7/2006)iv.

A corporate subsidiary of the U.S. Boeing Corporation, Jeppesen Data Plan, provided the

CIA with “flight plans and logistical support for the aircraft used in [its] extraordinary

rendition flights”. These so-called “prisoner transfers” involved flying suspected high-

profile terrorists to one or another ‘friendly’ country that would let the CIA proxy out

one of its own secret holding facilities. The large network of torture facilitators who

worked with and within the U.S. ‘war on terror’ were crucial to the system’s effective

operation.

MODELLING THE HIDDEN AND UNACCEPTABLE

Over the next nine years, developing ‘Torture 101’ meant fighting a battle against

secrecy. I had learned in Brazil first-hand how secrecy shaped what I could learn from

torturers; I was generally able to overcome Brazilian torturers’ efforts to protect

themselves against my probing questions (Huggins et al., 2002, Chs. 2-4). Studying U.S.

torture at Abu Ghraib, Guantanamo, and in the Iraq and Afghan battlefields from afar has

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almost been my undoing: secrecy seemed insurmountable as I waited for each new

journalistic disclosure and used the slow FOIA process to obtain U.S. documents.

Knowing that journalistic disclosures raise academic questions about ‘scientific

reliability’, I was relieved each time an older disclosure was validated by newer ones.

Having seen so many similarities between torture by authoritarian Brazil and

democratic U.S., I worked on a model for predicting torture in politically dissimilar

national systems. Some academics who read my work argued that a developing

authoritarian country—Brazil, 1964-1985—and a formally democratic one--U.S., post 9-

11--cannot be scientifically compared. It helped to overcome this concern that, in 2004, I

was invited to present my Brazil/U.S. model of State-sponsored torture at the American

Association for the Advancement of Science’s (AAAS)v expert panel on “The Science of

Torture”vi. Arguing that a country’s level of economic development, or its “torture

culture”, or its “politico-legal” system were the central variables for predicting State

torture, I proposed, somewhat counter-intuitively, that State torture can be most

fruitfully understood through societal-level factors that transgress a country’s level of

economic development or its politico-legal system. I compared Brazil (1964-1985)--a

developing country with an undemocratic politico-legal system and a ‘culture of

torture’—with post-911 U.S., to a richer older democracy with a formal rule-of-law

culture. New opportunities for analyzing State-sponsored torture opened up once the

blinders had been removed about democracy’s inoculating against torture.

The societal-level variables in my ‘Torture 101’ model are: ideology; mislabeling

language; ad-hoc legalism; constructed invisibility; denial; responsibility diffused into

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bureaucracy; multiple actor categories; competition; international partnerships; and

differential impunity. I argue that these ten factors enable, promote, and justify torture,

whether carried out by an authoritarian, totalitarian, or democratic government. Yet

while such factors are hypothesized to transgress level of economic development, culture

(or not) of torture, and type of politico-legal system, they are shaped to a greater or

lesser degree by economy, culture, and the politico-legal system. For example, Brazil’s

authoritarian government used visible government censorship and regulation of

legislature and judiciary to protect the secrecy of its repression. A modern formally

democratic government, such as post-‘9-11’ U.S., cannot risk employing such openly

undemocratic strategies to protect the secrecy of its illegal operations--without raising

questions about the quality and seriousness of its democracy. Secrecy plays an important

role in State torture, although the ways that it is protected will according to a system’s

politico-legal structure.

PREDICTING STATE TORTURE: TORTURE 101

Ideology. Flexible ideologies create ever-expanding categories of ‘enemy others’:

When ‘good’ nations are threatened by ‘evil-doers’ and anyone could be an ‘enemy,’

there can be no restrictions on a State’s response. U.S. President George W. Bush argued

that, “Quando nacões ‘boas’ [quer dizer cristaõs] são ameacadas pelos ‘evil doers’

[agentes do ‘mal’--muculmanos], e quando qualquer pessoa pode ser inimigo, nao pode

ter restrições nas técnicas da interrogatório’. Likewise, Brazilian President Ernesto

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Geisal (1974-1979) asserted that, “há circunstâncias em que uma pessoa é forçada a

envolver-se [em tortura] para obter confissões, assim evitar maior dano….” (FGV, 1997).

Such thinking filters down to agents on the street and in torture rooms: As a

former Brazilian Civil Policeman explained, “Travalhámous como se estivessemos em

guerra. Éramos patriotas, estávamos defendendo nosso pais, tínhamos orgulho disso,

então eles eram adversários, o inimigo. Tínhamos orgulho do que fazíamos (…)

trabalhando no DOPS (…) aquele orgulho de limpar o país de uma ameaça, de um regime

comunista …” (Huggins, 1997, XXX)

Mislabeling. The ‘T’ word (‘torture’) is seldom used; euphemisms prevail. The

Brazilian police I interviewed referred to torture as ‘that type of conduct’, ‘a conversation

with our prisoners’; they had carried out such ‘lesser excesses’ as, ‘slapping…and

punching [a prisoner] around a little’ or ‘hanging [a prisoner] up there’--placing him on

the notorious ‘Parrot’s Perch.’ (Huggins et al. 2002, ).

U.S. officials described torture at Guantanamo and Abu Ghraib as

‘degradation’, ‘staging’, ‘rough interrogation’, ‘the hard takedown’, ‘’water dousing’,

‘pressure point techniques’.

Ad-hoc legalism. A violence-enabling culture is fostered and justified by

official rulings that render government violence ‘legal.’ Julius, a Brazilian civil police

official from Sao Paulo State, admired AI-5 (31-3-1969) for the freedom it gave cops:

“You sometimes found a guy you wanted out of circulation because of the threat he

represented to society; you didn’t have any proof [against him],…[but] the law allowed

you to arrest him” (Huggins, 1997, 70).

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The U.S. “Patriot Act” (U.S. Public Law 107-56) has made arrest and

‘disappearance’ (i.e., kidnapping) possible without warrant.vii As for international law,

the Bush Administration accepted the Geneva Accords and the UN Convention Against

Tortureviii--except when it did not--an illustration of what some legal scholars call

‘international law a la carte.’ The U.S. State Department and CIA lawyers conjured up

ad-hoc legalism to exempt the U.S. from violating international and its national law

against torture:

Torture by foreign governments, that is, torture ‘by proxy,’ would not

implicate the U.S., even if information obtained through torture was

passed on to U. S. officials ( Jamieson and McEvoy 2005).

‘The Federal anti- torture statute would not be violated as long as any of

the proposed Strategies were not specifically intended to cause severe

physical or prolonged mental harm.

An interrogator would be guilty of torture ‘only if he acts with the express

purpose of inflicting severe pain or suffering on a person within his

control’.

Interrogation that ‘simulates torture’ might be used as long as such acts

stop ‘short of serious injury.’ (Washington Post, 6/23/04).

Invisibility hides torture. Victim kidnapping (e.g., U.S. CIA ‘rendition’), secret

holding facilities (CIA ‘black sites’), and “disappearances” (assassination), keeps torture

and assassination invisible. Censorship helps suppress news of torture. Ideology renders

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State violence ‘necessary’ and so hides its atrocities. Mislabeling language erases the

word “torture” and/or links it to culturally positive images: ‘water boarding’--the surf

board; ‘parrot’s perch’--resting tropical parrots; the ‘refrigerator’ (‘geladeira’) and

‘telephone’ (‘telefone’)--modern home conveniences; the little pepper (‘pimentinha’)—a

dash of spice.ix All such insider discourse helps keep torture hidden.

Denial. Evidence of State torture is denied, and lied about until this can no longer

be sustained, as happened with U.S. torture at Abu Ghraib when televised evidence of

prisoner mistreatment called U.S. government denials into question. Torture regimes that

exercise press censorship, eliminate legislative and other controls, abolish elections, and

stranglehold the judiciary--as Brazil did during its authoritarian period--create a

relatively secure environment for torture, ‘disappearances’, and assassinations, although

denial was still common.

Diffusion of responsibility into Bureaucratic organization. Formal

bureaucracyx--a legitimized (although not necessarily legitimate) formal structure and

process--can easily embrace, promote, and justify torture, beginning with its division of

labor and specialization. Together these provide an opportunity to blame malfunctions,

including illegality, on failures in a chain-of-command. It is now known that U.S. torture

at Abu Ghraib and Guantanamo was embraced within a well-functioning chain of

command, as “water boarding” torture illustrates:

President George W. Bush: George Bush was on board: "CIA

experts drew up a list of interrogation techniques. ... [and] at my direction,

Department of Justice and CIA lawyers conducted a careful legal review [of

those techniques]. The enhanced interrogation program complied with the 10

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Constitution and all applicable laws, including those that ban torture.

Waterboarding…no doubt…was tough, but medical experts assured the CIA

that it did no lasting harm.” (CNN, 11/5/2020)xi

Vice-President Richard Cheney: “I signed off on it; others did, as

well, too”,… I thought that it was absolutely the right thing to do”

(AFP, 12/29/2008)xii. "I'm a strong believer in [waterboarding],… I

thought it was well done” (Defrank, 6/1/09)xiii;

Condoleeza Rice, “On July 17, 2002, then national security adviser

Condoleezza Rice,… said the CIA could proceed with ‘alternative

interrogation methods,’ including waterboarding, when questioning

suspected al Qaeda leader Abu Zubaydah. The decision was

contingent on the Justice Department's determining the method's

legality. A week later, Attorney General John Ashcroft had determined

the "proposed interrogation techniques were lawful" (CNN,

4/23/2009); see also U.S. Senate, 2008)xiv

Donald Rumsfeld, speaking about torture at Abu Ghraib, proclaimed

that, “As secretary of defense, I am accountable for… the terrible activities

that took place at Abu Ghraib… and I take full responsibility” (WT,

5/7/2004)xv Army Major General George R. Fay’s report indeed

documents “Rumsfeld’s verbal and written authorization in December

2002 allowing interrogators to use ‘stress positions, isolation for up

to 30 days, removal of clothing and the use of detainees' phobias (such

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as the use of dogs)’. As for Rumsfeld’s complicity in Guantanamo

torture, an Army Inspector General Report (12/20/2005), “relating to

the capture and interrogation of Mohammad al-Qahtani included a

sworn statement by Lt. Gen. Randall M. Schmidt… [that] Secretary

Rumsfeld was ‘personally involved’ in the interrogation of al-Qahtani

and spoke “weekly” with Major Gen. Geoffrey Miller, the commander

at Guantanamo, about the status of the interrogations between late

2002 and early 2003”. “Orders signed by Bush and Rumsfeld in 2002

and 2003 authorizing brutal interrogations ‘became policy’ at

Guantanamo and Abu Ghraib, according to the 2004 Schlesinger

Report (Leopold, 2011)xvi

Alberto Gonzales (U.S. Attorney General, 2005-2007): I was aware

of [waterboarding], … and I know that a number of lawyers worked to

look to see whether it could be administered in a way that was

consistent with the anti-torture statute and guidance was given by the

Department of Justice while I was in the White House about how these

techniques could be implemented to gather important information….”

(Reilly, 11/22/10)xvii

General Geoffrey Miller (Director Guantanamo Complex and

later of Abu Ghraib) ordered Guantanamo prison guards to help “set

conditions for the successful interrogation” of prisoners.

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Medical Personnel. “14 prisoners held in CIA prisons overseas…

said that medical personnel were on hand when they were stripped

naked, beaten, shackled for days in ‘stress positions’ and subjected to

the practice of controlled drowning, commonly known as

waterboarding” (NPR, 4/7/2009; see ICRC, 2/14/2007)xviii.

Orders to “water board” came from the highest levels of U.S. government and

filtered down to those at the middle and bottom of several interlocking government and

private bureaucracies. Yet when photographic evidence exposed Abu Ghraib torture,

U.S. government and military officials blamed prisoner mistreatment on a breach in

military chain-of-command and ‘bad apples’ within the ranks.

Bureaucratic work specialization neutralizes actors’ relationship to outcomes,

leading them to misrecognize their contribution to an end result. Brazilian policeman,

Bernardo-- an ‘exclusively’ operations (i.e., assassination squad) policemen, proclaimed:

“I never tortured anyone! I just delivered people to the interrogators; I don’t know what

happened to them after that.’ Joao, a former CODI (DOI/CODI)xix squad member

asserted, “I never murdered anyone, we just entered the room and every one was

shooting and someone died. I do not know who killed the man.” (Huggins et al. 2002).

A bureaucracy’s division of labor provides opportunities: a person cannot torture

or assassinate routinely unless associated with an interrogation team or murder squad. In

Robert J. Lifton’s words (1986: 425), atrocity organizations are “so structured …

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atrocities”. A person’s position within a bureaucracy provides opportunities for gaining

status and prestige. One Brazilian torturer knew that he had done a “good job” if an

official later dispatched him to “another mission that had a certain importance” (Huggins

et al 2002, XXX). The man’s personal and professional accomplishment was greatest

when each mission was more dangerous and important than a previous one, an

expectation that must have encouraged him to learn how to make each new mission live

up to his superiors’ (no doubt rising) expectations.

Written rules and formal policies make a bureaucracy appear fair and ‘rational’

(i.e., ‘rule-based’). By enhancing an organization’s legitimacy questions about

bureaucratic illegalities can be neutralized. Consider the U.S. Department of Justice’s

“Interrogation Memos” ( “The Torture Memos”)--“a set of legal [guidelines]…drafted by

Deputy Assistant Attorney General of the United States John Yoo and signed by

Assistant Attorney General Jay Bybee and addressed… to Alberto Gonzales, then

Counsel to the President, dated August 1, 2002”xx. President Bush was assured that “the

use of mental and physical torment and coercion such as prolonged sleep deprivation,

…’stress positions,’ and water boarding,…[--] acts widely regarded as torture[--] might

be legally permissible under an expansive interpretation of Presidential authority during

the ‘War on Terror.’"xxi Likewise, Brazil’s authoritarian repression, ‘legalized’ at the time

by ‘executive decrees’,’ Institutional Acts (AI), a National Security Law , and an

authoritarian Constitution, fostered a sense of legality for authoritarian rule.

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Multiple actor categories. Bureaucratic organizations are one kind of torture

system ‘actor’; torture facilitators, perpetrators, and bystanders constitute three more

actor types. Facilitators are more numerous and usually more powerful than a State

torture system’s perpetrators. Two facilitators in Brazil’s military authoritarian system

are current Senators Romeu Tuma (Director of Sao Paulo DOPS, 1966-1983) and Paulo

Maluf (Mayor of Sao Paulo State, 1969-1971). Charged in Sao Paulo in an ação civil

pública proposta pelo Ministério Público Federal (MPF), with the “ocultação de

cadáveres durante a ditadura militar (1964-1985)”, Tuma allegedly “formalizou prisões

feitas ilegalmente pelo Exército brasileiro e fazia inquéritos policiais. Tuma tinha

conhecimento de várias mortes ocorridas sob a tutela de policiais, mas não a comunicou a

familiares dos mortos...xxii. Paulo Maluf, as Mayor of Sao Paulo, “ordenou a construção

do cemitério de Perus, que, de acordo com a ação, tinha quadras marcadas específicas

para receber a ossada de "terroristas".xxiii It is alleged that “desaparecidos políticos foram

sepultados nos cemitérios de Perus e Vila Formosa de forma "ilegal" e "clandestina", com

a participação do IML e da Prefeitura de São Paulo". These chargesxxiv highlight the role

of facilitators in carrying out and hiding atrocity.

A torture system’s less numerous, and usually less powerful and prestigious

actors—the direct perpetrators—are more likely than facilitators to suffer disclosure and

punishment. By singling out torture perpetrators for punishment, those who facilitated or

were bystanders to it may escape punishment. State torture will continue—as it does in

Brazil and by the U.S.—as long as powerful facilitators continue to enable it. Infamous

torture perpetrator, DOPS Delegado Sergio Paranhos Fleury, could not have regularly

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tortured, ‘disappeared’ and killed Brazilian dissidents without such powerful facilitators

as Romeu Tuma—his DOPS superior—and Sao Paulo Mayor, Paulo Maluf.

Similarly, U.S. torture at Abu Ghraib could not have been carried out without

many facilitatorsxxv (Horton 2008; Taguba Report 2004).xxvi Abu Ghraib’s immediate

torture environment included physicians, nurses, medics, psychologists, translators,

guards, and dog handlers. CIA doctors, nurses and/or paramedics “monitored prisoners

undergoing water boarding; medical workers were present when guards confined

prisoners in small boxes, shackled their arms to the ceiling, kept them in frigid cells, and

slammed them repeatedly into walls [the ‘hard takedown’]” (ICRC, Ibid). Abu Ghraib

medical personnel “condoned and participated in ill treatment..., [giving] instructions to

interrogators to continue, to adjust, or to stop particular methods” (Rall, 4/10/09; see also

Taguba 2004; ICRC 2/14/07).

Those who know torture is occurring and do nothing about it—torture’s

bystanders—contribute to concealing and fostering it. Bob Overby, managing director

of the Jeppesen Corporation—which provided air support to for CIA “rendition”, stated:

"We do all of the [CIA’s} extraordinary rendition flights—you know, the torture flights.

Let’s face it, some of these flights end up that way. It certainly pays well."

Competition. Intelligence-system ‘speed-up,’ nurtured by a broadly defined

‘war’ against an expanding category of enemy ‘others’, encourages competition among

and between State agencies, creating a hospitable climate for torture. As military and

civilian intelligence agencies and their agents vie for the ‘most’ and the ‘best’

information from and about ‘terrorists’--with each of these terms (‘best,’ ‘most,’ and

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‘terrorist’) ill-defined and subject to change—‘normal’ psychological pressure and

physical coercion often devolve into outright physical torture. In military Brazil, for

example, what furthered an operative’s career and his agency’s prestige was capturing the

‘most important’ subversives, and/or bringing in the ‘greatest number’ of suspects, or

obtaining the ‘highest-quality’ information. This required above all great speed and

secrecy, which very often encouraged the harshest treatment of prisoners, especially

during the first hours after a suspect had been arrested (see Huggins 1998, Chs. 9, 10).

While bureaucracies in general pit one stratum or entity against another, the ramifications

of this can become especially lethal when operations are privatized and information is

‘bankable’, whether correct or not.

International partnerships. The U.S. “extraordinary rendition” program that

kidnapped and sent suspects to CIA “black sites” in countries allowing torture,

transported up to eighty thousand alleged terrorists to secret ‘off-shore’ prisons outside

the United States (Campbell and Norton-Taylor 2008): “More than twenty countries

[,mostly European]…colluded in a ‘global spider's web’ of secret U.S. CIA prisons and

prisoner transfers”. (Iran Daily, 6/7/2006) xxvii By 2008, “the U. S. government [was]…

detaining at least twenty-six thousand people without trial in secret prisons”. Such

prisons included at least seventeen U.S. ships specifically designated for holding and

interrogating high-level detainees (Campbell and Norton-Taylor 2008).

Transportation for ‘high-profile terrorists’ was by Jeppeson Dataplan, a

subsidiary of the U.S. Boeing Corporation. In a legal suit filed in 2007, the American

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Civil Liberties Union argued that, “beginning in 2001, Jeppesen provided the U.S.

Central Intelligence Agency with flight plans and logistical support for the aircraft used

in the extraordinary rendition flights” . xxviii Private Military Contract corporations

(PMCs) also facilitated (and perpetrated) torture. For Abu Ghraib, these included CACI

and Titanxxix, among the PMCs receiving up to ninety-five percent of their funding from

the U.S. Department of Defense and the CIA (BW 11/25/02). Although routinely labeled

“private”—The PMCs and their ‘outsourced’ employees are torture proxies for the U.S.

government—outlaws beholden to no domestic or global authority. xxx

Differential Impunity exists when lower-level facilitators and perpetrators are

more vulnerable to exposure and punishment than more powerful ones. This disparity

fosters a State torture system’s longevity. Most facilitators of U.S. torture at Abu Ghraib

have not suffered any punishment for their complicity. (Earthtimes.org 2005, 2007;

Hirsch 2007; Sevastopulo 2005). In Brazil, some atrocity facilitators and perpetrators

have been publicly denounced, some legal actions brought, some professional licenses

revoked, and some reparations paid. Yet what Greenwald (7/27/09)xxxi asserts for the

U.S. is true for Brazil, as well: “When political crimes become so blatant and extreme

that they can no longer be safely excused (Watergate, Iran-contra, Abu Ghraib), then it's

necessary to sacrifice some underlings,…but no matter what else happens--the high-level

political officials…must be shielded from all accountability”. 

Brazil’s Amnesty Shield

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In 1979, with enactment of Amnesty (Law 6. 683/79) for leaders and militants during

specified years of Brazil’s authoritarian government (1961-1979), the Brazilian State formally

recognized--whether intended or not--that its agents had carried out atrocities--otherwise why

amnesty them? The U.S. has not even made this implicit admission about its own practices.

Barack Obama’s administration is continuing some Bush administration policies: authorizing

torture (Harnden, 5/4/2011) for obtaining information leading to Osama bin Laden’s Islamabad

(Pakistan) location, sanctioning bin Laden’s assassination by U.S. Navy Seals. Such ad-hoc

legality, legitimized by a Bush administration (2001)xxxii top-secret ‘Presidential Finding’ xxxiii,

did not cease with election of Barack Obama--a more liberal president. As Anthony Pereira (c.

1997) points out for Brazil, “the legal and organizational infrastructure, including the 1979

amnesty law, that made authoritarian government possible, still exist….”

Brazil’s amnesty law--part of “a legal machinery for…prosecution of political

dissenters….” (Pereira, n.d., c.1997)xxxiv—is legitimized today by ideologies: of legal equity and

functionality; 17th and 18th century “social contract” philosophy; and by evoking fear. Those

citing the law’s legal equity and functionality point out that amnesty law protects both sides

equally from punishment—government agents and political militants. This of course

misrecognizes that many suspected or actual political dissidents paid several times over before

amnesty had been granted. Their political rights suspended (cassação), residences and

employment lost, and forced into exile. Many who remained in Brazil suffered beatings, rape,

torture, and assassination. Those victimized carry scars.

The vast majority of government facilitators and perpetrators of rape, torture, kidnappings,

and assassination, have still suffered no significant legal penalties at all for their crimes.

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Pointing to amnesty law’s functionality Brazilian Supreme Court Justice, Eros Grau—a

torture victim himself—argues that “Era ceder e sobreviver ou não ceder e continuar a viver em

angústia (em alguns casos, nem mesmo viver)” (Grau, 4/28/2010) xxxv. “O advogado-geral da

União, Luiz Inácio Adams, afirmou que a anistia é um instrumento necessário para permitir a

transição a um regime democrático”. (Henriques, 4/28/10)xxxvi

Those advancing social contract arguments for retaining Brazil’s amnesty law, appeal to

selective ideas from Hobbes, Locke, or Rousseau. Arguing philosophical fictions, these

proponents of amnesty law believe that self-interested rational actors chose to allow a ‘sovereign

authority’ to act on their behalf in exchange for government’s protecting their interests. Justice

Grau has argued that amnesty law, “foi amplamente negociada entre políticos da situação e a

sociedade civil--com a participação, inclusive, da Ordem dos Advogados do Brasil (OAB)….

Brazil’s OAB counters that “o Congresso da época, dominado indiretamente por militares e o

presidente da República militar da época não teriam poder de se autoanistiar e de anistiar os que

cometeram crimes sob suas ordens”. (in Grau, Ibid)

Perhaps, relying on Hobbesian interpretations of the social contract some proponents of

amnesty law caution against revoking it--lest Brazil devolve into social turmoil. Yet Locke

argues that when people’s property and well-being are not protected or when a government

becomes a tyrant acting against people’s interests, they have a right, indeed, an obligation, to

resist a government acting against the “people’s will”. Rousseau believes that a government

cannot know the people’s ‘general will’ unless they have the freedom to assemble regularly.

Without this, the ‘social contract favors those who have become stronger as a result of private

property. Indeed, the authoritarian government’s 1979 ‘social contract’, that some believe

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validated amnesty law, could not have possibly reflected the “people’s will”: direct elections

had been suspended, the law was military controlled; civic participation severely curtailed:

the people were in a military stranglehold. Attorney Fábio Konder Comparato--representing the

Brazilian Bar Association (OAB) at Brazil’s April 2010 Supreme Court hearing on Amnesty

Law--challenged the legitimacy of a law voted in “por um ‘parlamento submisso’ ao regime

militar’” (Bonin, 2010)xxxvii

A politics of fear dominates most arguments for retaining amnesty law. Supreme Court

Justices, Gilmar Mendes e Marco Aurélio, according to Globo news (in Grau, Ibid), “acreditam

que a lei é o marco da redemocratização no país e que mudá-la poderia causar instabilidade

institucional”. This argument overlooks the demonstrated strengths of Brazil institutional

democracy: it operated as congress impeached a post-military president; it held during years

brutal inflation and grinding international debt; it prevails as congress impeaches corrupt

politicians. Brazil’s institutional democracy can withstand debating and revoking amnesty law.

Failing to revoke this law could cast a shadow on Brazil’s working democracy.

Conclusion

Brazil’s 1979 Amnesty Law--a reflection of neither the ‘people’s will’, nor of legal equity

—represents a continuation of authoritarian ‘justice’. Amnesty law was um “jeito” for pardoning

the illegal actions of authoritarian government. Just the same, Brazilians must take credit—

through the courageous and laborious work of human rights groups, professional associations,

atrocity victims and their families, and forensic technicians who uncover bones of authoritarian

government’s victims—for publicizing, disgracing, and even sometimes punishing human rights

abusers.

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“É necessário não esquecermos, para que nunca mais as coisas voltem a ser como foram

no passado”, urges Justice Grau (Grau, 4/28/2010). Much educational, judicial, and criminal

action must occur if State terror is to remain in Brazil’s past.

I favor, besides revoking amnesty law, a two-pronged approach to correcting past wrongs.

An educator and critic of many criminal justice solutions, I lean toward consciousness raising:

public, televised ‘truth commissions’ in regional cities across Brazil;

strengthening of the Comissão sobre Mortos e Desaparecidos Políticos da

Secretaria de Direitos Humanos;

revision of school and university and military and police academy text

books to include the accurate and painful history of Brazil’s authoritarian

period;

regional academic and legal conferences on correcting authoritarian

wrongs;

arts community involvement in consciousness-raisingabout authoritarian

Brazil.

The Brazilian and U.S. governments—past partners in authoritarian repression--might establish

funding for all such initiatives, particularly during the years leading up to 2014, the 50-year

anniversary of Brazil’s U.S.-supported military golpe.

As a human rights proponent, I believe that some injustices require punishment—political

rapes, kidnapping, imprisonment without trial, torture, assassination, and genocide. Justice Eros

Grau has argued that it is not within the purview of Brazil’s Supreme Court “para decidir se

alcança ou não agentes do Estado acusados de crimes comuns como abuso de autoridade,

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sequestro, tortura e lesões corporais, homicídio, desaparecimento forçado, estupro praticados

contra opositores ao regime político da época”. Fair enough, but designating human rights

atrocities as “common crimes” will make it impossible to carry out penal punishment. The

statutes of limitations attached to such human rights “common crimes” guarantee that

perpetrators and facilitators will not be punished. Perhaps only such crimes against humanity as

torture and mass murder (as occurred in Araguaia) remain punishable?

By 2014, the 1979 amnesty law must have been revoked. Brazil’s democracy will survive

and thrive. In the process, Brazil’s addressing the unpunished crimes of authoritarian rule will

become a model for democracy in action.

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24

iNOTES

Martha Huggins. 2002. “Treat prisoners like human beings.” The Albany Times

Union. March 26. (http://www.highbeam.com/doc/1G1-157603013.html)

ii Martha K. Huggins, Mika Haritos-Fatouros, Philip Zimbardo. 2002. Violence Workers: Police

Torturers and Murders Reconstruct Brazilian Atrocities. Duram, NC: Duke University Press.

iii Jason Leopold, 2011. “Michael Chertoff Played Integral Role in Authorizing Torture.

Warcrimeswatch.com (http://warcriminalswatch.org/index.php/news/40-recent-news/116-michael-

chertoff-played-integral-role-in-authorizing-torture-). See Schlesinger Report,

http://fl1.findlaw.com/news.findlaw.com/wp/docs/dod/abughraibrpt.pdf

iv See also, Human Rights Watch, 6/7/07; ABCNews, 6/8/07.

v Martha K. Huggins. 2004. American Association for the Advancement of Science, The Science of

Torture. “Torture 101,” June 28. (http://www.aaas.org/news/releases/2004/0625torture-Huggins.pdf)

vi Subsequently reproduced by the Friends Committee on National Legislation (FCNL) for

distribution to U.S. Congress.

vii Still in effect, the Patriot Act was reauthorized in 2005, George W. Bush presidency, and again in

2011, Barak Obama’s presidency. The 2011 reauthorization retained “three critical terrorism-fighting

powers [:]…to conduct roving wiretaps and [to] examine business records in pursuit of terrorists…[and

to allow] surveillance of non-American ‘lone wolf’ suspects” not affiliated with any terrorist group.

viii The UN Convention Against Torture, signed by the United States in 1994, defines torture as ‘any act

that creates severe pain and suffering, whether physical or mental, intentionally inflicted to obtain

information or a confession, or to punish’.

ix For Brazil see, Roberto Navaro. “Quais foram as torturas utilizadas na época da ditadura militar no

Brasil?”. (http://mundoestranho.abril.com.br/materia/quais-foram-as-torturas-utilizadas-na-epoca-da-

ditadura-militar-no-brasil)

x Bureaucracies in general are characterized by a hierarchal distribution of power and authority, a

division of labor, written rules (i.e., ‘operational rationality’), opportunity structures, and the

‘routinization’ (i.e. ‘normalization’) of tasks.

xi CNN. 2010. “Bush on waterboarding: ‘Damn right’', 11/5

(http://articles.cnn.com/2010-11-05/politics/bush.book_1_waterboarding-interrogation-torture-bush-

book?_s=PM:POLITICS)

xii Atlantic Free Press. 2008. “Cheney Admits He 'Signed Off' on Waterboarding of Three Guantanamo

Prisoners”, December 28 ( http://www.atlanticfreepress.com/news/1/6983--cheney-admits-he-signed-

off-on-waterboarding-of-three-guantanamo-prisoners.htm)

xiii Thomas M. Defrank. 2009. “ Former Vice President Dick Cheney 'a strong believer' in

waterboarding”, New York Daily News, June 1

(http://articles.nydailynews.com/2009-06-01/news/17924702_1_waterboarding-vice-president-dick-

cheney-supreme-court)

xiv CNN. 2009. “Senate report: Rice, Cheney OK'd CIA use of waterboarding”, April 23.

(http://www.cnn.com/2009/POLITICS/04/23/cheney.rice.waterboarding/); see also “INQUIRY INTO

THE TREATMENT OF DETAINEES IN U.S. CUSTODY” U.S. Senate, REPORTOF THE

COMMITTEE ON ARMED SERVICES UNITED STATES SENATE, November 2008.

xv WT (The Washington Times). 2004. “ Iraq prisoner abuse ‘un-American,’ says Rumsfeld”, May 7

(http://www.washingtontimes.com/news/2004/may/7/20040507-115901-6736r/)

xvi Jason Leopold, 2011. “Michael Chertoff Played Integral Role in Authorizing Torture.

Warcrimeswatch.com (http://warcriminalswatch.org/index.php/news/40-recent-news/116-michael-

chertoff-played-integral-role-in-authorizing-torture-). See Schlesinger Report,

http://fl1.findlaw.com/news.findlaw.com/wp/docs/dod/abughraibrpt.pdf

xvii Ryan J. Reilly. 2010. “Gonzales: I Was 'Aware' Of Waterboarding”. TPMMuckraker, 11/22.

(http://tpmmuckraker.talkingpointsmemo.com/2010/11/gonzales_i_was_aware_of_waterboarding.php)

xviii NPR. 2009. “Red Cross Report: Medics Grossly Violated Ethics” April 7

(http://www.npr.org/templates/story/story.php?storyId=102851813); ICRC: International Committee

of the Red Cross, 2/14/07 (http://www.nybooks.com/media/doc/2010/04/22/icrc-report.pdf)

xix OBAN was the predecessor of DOI/CODI, which was a country wide system of internal security

organizations, OBAN operated primarily in Sao Paulo State (see Huggins, 1997)

xx Wikipedia (http://en.wikipedia.org/wiki/Torture_Memos)xxi http://en.wikipedia.org/wiki/Torture_Memos

xxii Terra, 26/11/2009. “MPF processa Tuma e Maluf por ocultar cadáveres em SP”

(http://noticias.terra.com.br/interna/0,,OI4123602-EI2011,00.html

xxiii Estado de Sao Paulo, “Politica”. “Justiça recebe ação do MPF contra Paulo Maluf e Romeu Tuma,”

3 de Dez. 2009. http://www.estadao.com.br/noticias/nacional,justica-recebe-acao-do-mpf-contra-

paulo-maluf-e-romeu-tuma,476039,0.htm. Also included in the suit were three more facilitators, ex-

prefeito de São Paulo Miguel Colasuonno (1973-1975), ex-chefe do necrotério do IML (Instituto

Médico Legal) Harry Shibata e ex-diretor do serviço funerário municipal Fabio Barreto (1970-1974).

xxiv A pena recomendada pelo MPF é de perda de suas funções públicas e/ou aposentadorias. Caso

sentenciados, os mandatos atuais de Tuma e Maluf não seriam afetados, pois a Constituição impede a

perda de mandato em ações civis públicas. Além das medidas administrativas, o MPF pede a

indenização de, no mínimo, 10% do patrimônio pessoal de cada um, revertidos em medidas de

memória sobre as violações aos Direitos Humanos ocorridos na Ditadura. STU, Ossadas de Perus:

MPF processa Tuma e Maluf por ocultar cadáveres em SP (http://www.stu.org.br/?q=node/466)

xxv The International Red Cross found that CIA doctors, nurses and/or paramedics “monitored prisoners

undergoing water boarding, apparently to make sure they did not drown” (Rall, 4/10/09). Medical

workers were also present when guards confined prisoners in small boxes, shackled their arms to the

ceiling, kept them in frigid cells and slammed them repeatedly into walls, reports The New York Times.

See also part 3 of ICRC (2/14/2007)

xxvi Amnesty International (2006), Americas Watch (2005), and American Civil Liberties Union (2005)

have prepared briefs identifying powerful U.S. government torture facilitators.

xxvii See also, Human Rights Watch, 6/7/07; ABCNews, 6/8/07.

xxviii The plaintiffs in this suit were “five individuals who alleged that they had been abducted,

transferred by …plane to secret locations and subjected to torture and cruel, inhuman and degrading

treatment….”

xxix Torture by civilian contract employees at Abu Ghraib was documented in the U.S. Army’s Fay and

Taguba reports, particularly implicating employees of two companies, CACI International (Arlington,

VA) and Titan Corporation (San Diego, CA). Steve Stefanowicz of CACI reportedly directed the use of

threatening dogs at Abu Ghraib, ordered that a prisoner not receive his prescription pain killers, made a

male prisoner wear women’s underwear, failed to report abuse, and then lied to investigators about the

abuse under his direction. Daniel Johnson, CACI employee, is alleged to have both directed and

participated in prisoner abuse, interrogating a prisoner in an ‘unauthorized stress position,’ according to

the Fay Report. Three Titan employees were accused of raping a male juvenile detainee, making false

statements about interrogations, and failing to report detainee abuses.

xxx For U.S. private military contractors at Abu Ghraib

(http://www.basicint.org/pubs/Research/2004PMCapp3.pdf).

xxxi Glen Greenwald. 2009. “The Washington Post endorses Abu Ghraib scapegoating for torture”,

7/27. (http://www.salon.com/news/opinion/glenn_greenwald/2009/07/27/washington_justice)

xxxii “In the aftermath of September 11, President Bush utilized an intelligence "finding" authorizing the

CIA and military to take "lethal covert action" aimed at destroying Osama bin Laden and his al Qaeda

network. White House and CIA lawyers [argued at the time]…that the Intelligence "Finding" is

Constitutional because the ban on political assassination does not apply to wartime. They also contend

that the United States can defend itself against terrorists”. See “Political Assassination”, 18

November, 2001, in Trialbriefs.com (http://www.trialbriefs.com/politicalassassination.htm)

xxxiii A ‘Presidential Finding’ “is a…presidential directive…focused on the Central Intelligence Agency

(see CNN, “What's allowed by a 'presidential finding'?”, March 31, 2011,

(http://articles.cnn.com/2011-03-31/politics/libya.presidential.finding_1_covert-activity-presidential-

findings-libya?_s=PM:POLITICS)

xxxiv Anthony Pereira. C.. 1997. “Law Under Siege: The Origins and Transformation of Brazil’s Political

Trials, 1964-1979”. Presentation, Harvard University, DRCLAS. (http://www.drclas.harvard.edu/files/97-

97-7.pdf)

xxxv Eros Grau, 2010. “Noticias STF: Voto do ministro Eros Grau…., Abril 28.

”http://www.stf.jus.br/portal/cms/verNoticiaDetalhe.asp?idConteudo=125398

xxxvi Andrea Henriques, 2010. “Anistia é instrumento necessário de transição para regime democrático, diz AGU”,

Ultima Instancia, 28 de Abril.

(http://ultimainstancia.uol.com.br/conteudo/noticias/46322/anistia+e+instrumento+necessario+de+transicao+para+regim

e+democratico+diz+agu.shtml)

xxxvii Robeson Bonin. 2010. “Começa sessão do STF que deve julgar se anistia vale para torturadores,”

Globo.com, 28 de Abril. (http://g1.globo.com/brasil/noticia/2010/04/comeca-sessao-do-stf-que-deve-

julgar-se-anistia-vale-para-torturadores.html)