Here’s an interesting article on Philippe Sands and his new book Torture Team:
Torture has always been horribly common, so why does Sands see such significance in a legal decision that may have directly affected only a single detainee? “These things happen. But there’s a very big difference between things happening on the battlefield, in the heat of the moment and without formal authorisation, and a situation where the highest levels of government in the US authorise it. It opens the door to something qualitatively different.
“In physical terms, of course, it’s not worse than the mass torture that is happening today in many countries of the world. The reason that it’s so important is that the US has always held itself out as doing things differently – and has done things differently. It has been a leader in developing international human rights law and international humanitarian law. If a country like the US opens the door to this type of behaviour in a formal sense, the world has changed. It’s vitally significant.
“I work as a barrister for a large number of governments. I have been told by foreign ministers, I’ve even been told by a president, that – on the basis of the legal advice and the documents that led to the decision of December 2002 – they now see no reason why they can’t do the same thing. It has opened the door to the legitimation of those types of action in foreign countries. And worse, it has made it impossible for the US to say to those countries you can’t do them. So moral authority has gone, and there’s no longer any difference between us and them. We have seen the price Britain and America have paid for that over the past five years. It’s a big price, and it’s going to take a generation to get over it.”
Within the piece Sands argues that “never means never” with regard to torture, a stance I am happy to support with regard to government policies on torture. However, does Sands have a disinterested enough perspective to judge the scale of any loss of moral authority, and how long it will take to regain? I’m not convinced. This is a war that will take at least a generation to conclude. Early mistakes, misjudgments and over-reactions to a new paradigm of a non-state actor waging war by the use of indiscriminate violence (although some past parallels exist) are perhaps understandable, if not forgivable. I doubt they will undermine the eventual victory of moderates of all persuasions over the violent reactionary forces ranged against them.