Unlike some, I do not view the atrocities of September 11, 2001, as just another set of terrorist acts of the sort that much of the world has had to endure in recent decades. The images and reality behind them will haunt us for decades, maybe centuries. They are the stuff of evil. The scale of the attacks, their enormity, places them on a qualitatively different scale from prior situations characterized by terrorism. Other societies may have lost more people in facing ruthless terrorist enemies, internal or external, over a protracted period. But precisely the fact that the perpetrators of 9/11 could destroy in a single hour lives and property that other terrorist movements have taken years or decades to destroy, make them an enemy requiring maximum resistance. That is why, with or without a Security Council resolution, I should have had no problem in considering the invasion of Afghanistan, the perpetrators’ base at the time, as being a necessary and proportionate response to the challenge. But, as you will gather pretty soon, I simply don’t think the case has been, or can be made, that it is necessary or proportionate to rewrite international law on the humane treatment of detainees.
My second preambular point relates to the interrogation practices that have been the subject of national and international concern. It would not be appropriate of me, as a member of the Human Rights Committee under the International Covenant on Civil and Political Rights, to address contested matters of fact. I shall not comment on how abhorrent or otherwise were the notorious violations of Abu Ghraib, in respect of which some courts marshal have taken place, whatever the low level of responsibility. But a number of techniques approved by the U.S. secretary of defense for possible use by interrogators could constitute torture and/or cruel, inhuman treatment.
The methods include sleep adjustment, for example reversing sleep cycles from day to night, which we’re told is not sleep deprivation; false flag; threat of transfer, that is, threatening to transfer a person to a third country, in which the subject is likely to fear torture or death. The threat would not be acted on, nor would the threat include any information beyond the naming of the receiving country. Isolation for up to 30 days; forced grooming; use of stress positions, such as prolonged standing for up to 4 in any 24 hours; sleep deprivation; removal of clothing; increasing anxiety by the use of aversions, such as the presence of dogs; deprivation of light and auditory stimuli; sensory deprivation techniques.
Any combination of these, especially over a protracted period of time, would certainly amount to torture. Many of these techniques have clearly been used at Guantanamo Bay. The sin apparently committed at Abu Ghraib is that they were used without the appropriate safeguards and perhaps on camera. It was not done by the book, even if it was contemplated by the book. Somebody called it “amateur hour.” It is a book approved by people with legal credentials. I’m looking forward to seeing the case for the following also—not to constitute torture or cruel or inhuman treatment—seizing and transferring people to the other side of the world for months or years without end; holding them isolated from the outside world, sometimes hidden from the International Committee of the Red Cross (ICRC) as so-called “ghost detainees;” and so-called “extraordinary renditions” to countries where the rendered person faces