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Torture, the War on Terror, and The New York Times by Dr Cynthia Banham, Centre for International Governance and Justice. Reprinted by special permission of Regarding Rights
Last month, The New York Times decided it was time to ‘recalibrate’ its language to describe aspects of the US’s treatment of detainees in the war on terror. The executive editor, Dean Banquet, released a statement announcing that, at the urging of the newspaper’s reporters, from now on it would use the word ‘torture’ to describe some of the more brutal interrogation methods the CIA used against detainees under the Bush Administration. Previously the newspaper had used euphemisms favoured by the Bush Administration to describe these practices, such as ‘harsh or brutal interrogation methods’.
The NYT’s justification for why it has taken so long to reach this point is less than convincing. Its statement, moreover, raises questions about possible repercussions flowing from the newspaper’s reluctance before now to use the universally recognised language of torture – contained in international human rights instruments including the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – in its reporting and commentary about the Bush Administration’s detainee interrogation practices. In particular, it is important to consider the influence the NYT’s actions may have had on public debate and on calls for official accountability for what occurred under the cover of the war on terror.
The NYT begins its statement by explaining how, when revelations first emerged about the CIA’s torture practices, ‘the situation was murky’; details about what the CIA was doing during interrogations of terrorist suspects were ‘vague’; and the US Justice Department insisted that the techniques ‘did not rise to the legal definition of “torture”’. The statement continues: ‘The Times described what we knew of the program but avoided a label that was still in dispute, instead using terms like harsh or brutal interrogation methods.’
This much is true: the Bush Administration was highly secretive about its CIA detainee program. It only admitted in 2006, for example, to holding ‘ghost detainees’ extra-legally in secret CIA ‘black sites’ in countries such as Poland, Afghanistan and Thailand. And the Justice Department did, in a series of legal memoranda in 2002, purport to give a new contorted definition to the word ‘torture’. Its efforts to redefine torture were necessary given that torture was prohibited under US domestic and international law (as it continues to be). According to the Justice Department’s arguments, to be torture, conduct had to ‘be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death’.
The Justice Department also argued that a series of methods –waterboarding, slamming detainees into walls, extreme sleep deprivation, facial holding and slapping, grasping, confining detainees in boxes for long periods, locking detainees in boxes with insects, wall standing ‘to induce muscle fatigue’ and stress positions – would not, even when used in combination, meet its new definition of torture. This tells us much about the US government’s policies regarding torture. None of it explains, however, why it took the NYT, the US’s esteemed newspaper of record, so long to call the CIA’s interrogations methods what they were: torture.
Continuing the explanation for its change of position, the NYT notes that far more is now understood about the CIA’s methods, including that it ‘inflicted the suffocation technique called waterboarding 183 times on a single detainee and that other techniques, such as locking a prisoner in a claustrophobic box, prolonged sleep deprivation and shackling people’s bodies into painful positions, were routinely employed in an effort to break their wills to resist interrogation’.
Except that much of this has been known for a long time. The fact that the CIA waterboarded Khalid Sheikh Mohammed, the terrorist suspect accused of planning the 11 September 2001 attacks, 183 times was reported by the NYT in 2009. Karen Greenberg and Joshua Dratel published their book, The Torture Papers: The Road to Abu Ghraib, containing many of the Bush Administration’s memos that originally authorised the practices, in 2005. Jane Mayer reported in The New Yorker in 2006 that the US Navy general counsel, Alberto Mora, had warned Bush Administration officials that the behaviour they were sanctioning for use against prisoners at Guantánamo Bay could reach ‘the level of torture’. Phillipe Sands published Torture Team: Rumsfeld’s Memo and the Betrayal of American Values, where he traced responsibility for the torture carried out against detainees in the war on terror to the top of the Administration, in 2008. Then President-elect Barack Obama said in 2009 he was ‘gonna make sure that we don’t torture’ – an acknowledgement of sorts that what had gone before, under the previous Administration, was torture.
The final part of the NYT explanation for changing its language around the CIA’s interrogation practices is based on President Obama’s indication that he will not prosecute officials over any torture inflicted on detainees. Because of this decision not to prosecute, at least in the view of NYT editors, the debate around the legality of torture methods used by the CIA during the Bush Administration is academic. According to the NYT:
today, the debate is focused less on whether the methods violated a statute or treaty provision, and more on whether they worked – that is, whether they generated useful information that the government could not otherwise have obtained from prisoners. In that context, the disputed legal meaning of the word ‘torture’ is secondary to the common meaning: the intentional infliction of pain to make someone talk.
And so the NYT will from now on use the word ‘torture’ to describe incidents where it knows ‘for sure that interrogators inflicted pain on a prisoner in an effort to get information’.
In other words, the NYT refrained before now from describing as torture particular methods that would commonly be regarded as such under international law, because the Bush Administration argued they should be called something else. (In fact, in July, the European Court of Human Rights in the cases of Al Nashiri v Poland and Husayn (Abu Zubaydah) v Poland, which involved the extraordinary rendition by the CIA of two terrorist suspects to Poland, unequivocally described the treatment of these men as torture in breach of Article 3 of the European Convention on Human Rights which prohibits torture). How remarkably accommodating of the NYT.
So why did it take so long for The NYT to call torture what so many others – lawyers, journalists, members of the US government, presidents-elect – had done long before, and why does it matter? Possibly, the NYT’s failure to use the word torture when describing CIA methods had become an embarrassment to itself. Everyone else was calling it torture. The US Senate is, any time now, going to release its long-awaited report into the CIA’s interrogation program which will give the most comprehensive account to date of the Bush Administration’s detainee torture regime. President Obama, last month, used the plainest language possible in describing the methods used by the US after 11 September, saying ‘we tortured some folks’. For the NYT to continue writing about ‘harsh interrogation techniques’ would look very silly indeed.
Why the NYT chose to tip-toe for so long around the ugly truths of what the US did to detainees in the war on terror, why for so long it kept in step with the policies of an Administration five and a half years out of office, is intriguing. In the beginning, it is possible to see that government intimidation of the media, combined with a misdirected sense of patriotism that sometimes occurs in war reporting, may have played a role. The tendency of the news media to self-censor during war-time is well-documented. To do it for so long, however, is more difficult to understand.
Was the NYT afraid of being branded anti-American, of putting past or future governments or agencies off-side? Was it reluctant to admit it had erred in the past? Or is this whole episode a demonstration of how it can sometimes be too confronting for the Western media to acknowledge that their own liberal democracies engage in behaviour as barbaric as torture?
The more important point, from a human rights perspective, is the effect that the NYTpolicies may have had on public awareness of, and on encouraging government accountability over, violations of international law and principles during the post-11 September decade. The refusal to use the language associated with international laws and domestic criminal statutes of what constitutes torture serves at least two purposes. It helps to numb the reading public to the full reality and truth of what was done in their names after 11 September. This then allows the perpetrators of those violations – and the architects of the policies that enabled them to occur – to go unchallenged.
Media play a critical role in promoting human rights by increasing public awareness of what rights are, what constitutes them and when they are transgressed, especially by governments. The media have done many things to expose official wrong doing in the war on terror when it comes to the rights of detainees. Following the government line for so long in failing to call torture – when carried out by the US – torture, is not one of them.
 Jay S. Bybee, Assistant Attorney General, ‘Memorandum for Alberto R. Gonzalez Counsel to the President’, 1 August 2002, in Karen J Greenberg and Joshua L Dratel (eds), The Torture Papers: The Road to Abu Ghraib (Cambridge University Press, 2005) 172.
 Jay S. Bybee, Assistant Attorney General, ‘Memorandum for John Rizzo, Actring General Counsel of the Central Intelligence Agency’, 1 August 2002 in David Cole, The Torture Memos: Rationalizing the Unthinkable (The New Press 2009) 106.
 Karen J. Greenberg, and Joshua L Dratel (eds), The Torture Papers: the Road to Abu Ghraib(Cambridge University Press, 2005).
 Philippe Sands, Torture Team: Rumsfeld’s Memo and the Betrayal of American Values(Palgrave Macmillan, 2008).
 Case of Al Nashiri v Poland (European Court of Human Rights, Former Foruth Section, Application No. 28761/11, 24 July 2014) and Case of Husayn (Abu Zubaydah) v Poland (European Court of Human Rights, Former Foruth Section, Application No. 7511/13, 24 July 2014).
See, for example Susan L Carruthers, The Media at War (Palgrave Macmillan, 2nd ed, 2011).
Dr Cynthia Banham recently completed her PhD at the Australian National University, in the Regulatory Institutions Network’s Centre for International Governance and Justice, where she is currently based. Her thesis was entitled “The Responses of Liberal Democracies to the Torture of Citizens: A Comparative Study”. She is a former foreign affairs and defence correspondent for The Sydney Morning Herald, and spent almost a decade working in the Canberra Press Gallery. Cynthia also has a Masters of International Affairs from the ANU and was a Visiting Fellow/Journalist in Residence in the ANU’s International Relations Department. She is a lawyer, and worked as a solicitor in Sydney in the 1990s.