U.S. makes legal justification for illegal state practices

Following the March 2013 transition of the Parwan detention facility at Bagram Air Base from American hands to Afghani ones, interviews conducted by the Afghan Analysts Network of ex-detainees have suggested that very few significant changes have been made within the prison. The United States still appears to be in an administrative role and retains the authority to interrogate prisoners. The interviews also claim the existence of a U.S.-controlled site known as Tor Jail, where prisoners are held for interrogation and are allegedly subjected to arbitrary sleep deprivation before transfer to Bagram. The method by which the Department of Defense has responded to these allegations has indicated a distinct shift in how the United States justifies state practice and shows an implicit growing concern for international law.

U.S. Army Lt. Col. Todd Breasseale told AAN that the United States has “a number of locations which are classified for obvious security reasons, for transiting and screening, which, as you know, is recognized and specifically mentioned by Geneva, but they are not undisclosed or ‘secret.’”  Breasseale’s appeal to the Geneva Convention marks an anomaly in U.S. rhetoric when accused of illegality in its treatment of prisoners and the existence of classified sites. Rather than being dismissed as non-applicable, the administration has employed the Convention to justify the existence of Tor Jail by insisting it is merely a place for transiting and screening prisoners — a claim nevertheless negated by the ex-detainee accounts.

A decade ago executive powers in Washington D.C. maintained — falsely — that the detainees of Guantánamo Bay were not entitled to any of the protections of the Geneva Conventions.

The rationale of the Bush administration is a far cry from today’s justification.


The interviews within the AAN report, however, expose today’s justification as a legal shield to hide the conduct which the Convention prohibits. The reports include one particularly exposing ex-detainee interview — “There was a camera on my face and … whenever I closed my eyes, they would come very fast … and shout at me.” Such an account satisfies definitions of “cruel, inhuman or degrading” punishments under both the Geneva Convention and the Convention Against Torture. Both documents bear American signatures. Yet, despite all of this American ink, the signatory has yet to accept the necessary international jurisdiction, and hence all possible accountability for alleged violations. Regardless, a lack of legal liability does not negate the existence of these alleged crimes nor the guilt which they accompany.

The United States’ distinctive immunity is not a permanent one. A Department of Defense spokesman has made a case pursuant to the Geneva Convention. This is an implicit recognition that there is a compelling need to begin justifying state practice in reference to human rights law. Breasseale’s justification is evidence of a trajectory toward a world where the concept of international justice encompasses the world’s leading powers.

*The original version of this column appeared in Peter Keffer’s blog on Aug. 21, 2013

A version of this article appeared in the Monday, Sept. 9 print edition. Peter Keffer is a deputy opinion editor. Email him at [email protected]



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