In this episode of Perspectives, we are delighted to share an interview with Alka Pradhan, an extraordinary lawyer and advocate for torture prevention.
Adjunct Professor of Law at the University of Pennsylvania, Ms Pradhan serves as Human Rights Counsel for Ammar al Baluchi at the Guantanamo Bay Military Commissions, and as Associate Counsel for Al Hassan at the International Criminal Court.
Over a number of years, she has seen first-hand the impact of torture on defendants she has represented.
Ms Pradhan was member of the expert drafting committee for the Méndez Principles on Effective Interviewing, sharing her deep insights into the application of human rights to counter-terrorism situations and the impact of torture on fair trials. She is also a forthright media commentator on these issues.
Hello and welcome to Perspectives, the APT’s podcast which explores contemporary issues related to torture prevention and dignity in detention.
I’m Almudena Garcia, APT’s Digital Communication Adviser, and we are delighted to share with you an interview with Alka Pradhan, an extraordinary lawyer and advocate for torture prevention.
Adjunct Professor of Law at the University of Pennsylvania, Ms Pradhan also serves as Human Rights Counsel at the Guantanamo Bay Military Commissions. Over a number of years, she has seen first-hand the impact of torture on defendents she has represented.
Ms Pradhan was member of the expert drafting committee for the Méndez Principles on Effective Interviewing, sharing her deep insights into the application of human rights to counter-terrorism situations and the impact of torture on fair trials.
She is also a forthright media commentator on these issues.
We began our conversation with Ms Pradhan reflecting on the physical and psychological consequences that torture and ill-treatment has on people who are detained and interrogated.
Well, in my experience, there are three impacts, sort of distinct impacts on individuals after they've been tortured. The first of course, is physical. That's what everyone thinks about, and those are the literal scars that remain after the torture is over. So for example, one of my clients had his head bashed against a wall, and so he's got parts of his brain actually missing, things like that. They have scars from the beatings, they have damage to their ligaments, to their joints that cause them pain every day. So that's the physical impact that they have to live with at their daily reminders of their torture. The second is the psychological impact, as you mentioned, on their mental health. And those are the scars that remain when everything else is gone. And those manifest in different ways. Anything can trigger a psychological impact. There are what we call trauma triggers, things like smells and sounds, and even the sound of someone's voice a certain way can trigger the fear that existed during the actual torture.
And those triggers can stay for a very, very long time, perhaps even for the rest of their lives. In addition to those triggers, there are actual psychological conditions that are caused by torture, that are exacerbated by these triggers. Things like post-traumatic stress disorder, anxiety, depression, panic attacks. In some cases they manifest differently in every person, but every person has both physical and psychological remnants of their torture. And the third thing that I just want to mention that I feel like is often skipped over is it's also psychological, but it is the psychological aspect of being separated from, in many cases when you're in detention, after you've been tortured, being separated from your family. Because once something has happened to you like that, once you have been tortured, there's this constant fear that something may happen to your family. Similar things may happen to your family and you can't protect them from that. Perhaps either because you're detained or because you yourself are so debilitated from that torture that you can't protect them. And that is a whole separate set of psychological concerns for these people who have been tortured.
Oh, that's so interesting. And beyond this impact on individuals, torture also compromises investigations. What is the impact of torture-tainted evidence on investigations and, more broadly, on our institutions and the rule of law?
So very simply, when individuals speak out of fear, those statements are not voluntary. And so if they're not voluntary then they cannot be reliable. And I've seen this in my work at Guantanamo Bay. I've seen it honestly in my work at the International Criminal Court, that there is this idea that, "Well, if I didn't torture them personally, if someone else tortured them and I didn't do anything and I'm not torturing them while I'm asking them questions, then what they're saying to me must still must be voluntary, must be true." And that is false. Once someone is tortured, it is extraordinarily difficult, if not impossible, to remove the fear associated with that torture. And so we see often investigators and prosecutors say, "Well, they were tortured by other people. And what they said to me, they were drinking a cup of coffee and they were fine".
And I was talking about triggers. There are these little triggers that the smell or the tone of someone's voice, if it's similar to what they heard while they were being tortured, can trigger those fears. And so it's very, very important for everyone in our system of justice to understand how delicate the balance is once someone has been tortured. And as far as institutions go, institutions from, again, investigators, prosecutors, judges, and lawyers, all need to understand how coercion manifests after torture. That it's not just the act of waterboarding or beating, that it's everything that comes afterwards that then has to be closely monitored to ensure that there is no additional coercion. And I think that is where we find the most problems nowadays.
And in relation to ending this culture of torture and ill-treatment, what are some of the key lessons that you have learned from your experience working with defendants at the Guantanamo Bay Military Commissions?
The main lesson I've learned from working at Guantanamo, and honestly in my practice generally, where I represent defendants who are not often very popular because they've been charged with serious crimes, is that every human being is affected by torture. It doesn't matter whether they are innocent, or a witness, or guilty or someone you think is the worst person in the world. Everyone is susceptible to both the physical and psychological effects of torture. There is no person on earth who is subhuman or immune to those effects. And I think we try to justify, often we as a society try to justify the use of torture by saying, "Well, these people are monsters, or these people have done horrible things and they must therefore be different from normal human beings." And that's just not true. That's false.
And so in some of the people who have done or have been accused of some really heinous crimes, you have to accept the truth that two things can be true. Someone can be accused of a heinous crime and someone can also be the victim of torture and suffer from that torture. I think that that is an understanding that we still need to work on.
And now I’d like to discuss with you the new Méndez Principles on Effective Interviewing. How can the Principles help address some of these systemic challenges and issues that you’ve mentioned?
So I think the strength of the Méndez Principles is that they're practical. They are essentially an A to Z guide for simple steps that can be taken at every juncture in the justice system, starting with the investigation process. How do we investigate, what safeguards do we put in place to make sure that any coercion is minimised? Then we get to detention. Detention is, in and of itself, a coercive situation. People have lost their agency. And so again, prosecutors and defence lawyers have to be super hyper-aware of what the baseline detention conditions are and what on top of that would be coerced. And the Méndez Principles offer really, really good practical advice for the safeguards you can put in place to make sure additional coercion does not happen.
I think the key point is that even beyond the prosecution stage, when you get in front of the judges, the judges need to understand where elements of coercion come in. And again, the principles are very, very clear on what judges should be looking for, what they should be aware of, what questions they should be asking. What should call their attention to potential coercion that could taint the case in front of them, and therefore taint a potential judgment. And so I think the biggest value of the Mendez principles, which is extraordinary value, but the biggest benefit is that they are so practical.
Mm-hmm. And you were invited to join the drafting team of the Méndez Principles. What insights and considerations do you feel were especially valuable to contribute to the drafting process?
There were two priorities for me in contributing to the drafting process of Mendez Principles. The first was that it needed to be clear, it needed to memorialise that the principles and this idea of non coercion is the responsibility of every member of the justice system. So again, from all the way from the initial taking someone into custody or just interviewing them as a witness, all the way through to potential conviction and post-trial detention. Every member of that chain has a duty to contribute, to educate themselves, to abide by the standards of non-coercion. And at the worst, the prohibition on torture and CIDT. So that was the first concern for me, and which I think was really well addressed in our final version of the principles that make clear that it's the full process that this is applicable to. The second priority for me was given my experience dealing with cases that arise out of terrorism situations, or security situations or war situations, those situations tend to be characterised by States as special. These are the most urgent situations.
These are the situations that require special techniques or in which often end up being torture or at the very least coercive. And so, one of my priorities was ensuring that what we wrote would be applicable in all circumstances. And I think we accomplished that. We based the principles in most cases, on customary international law, which is binding in any case, but they come from so many different traditions. And we made clear throughout that these are baseline principles that apply in police investigations from for minor theft all the way up to the biggest terrorism case that in the past may have been dealt with through secret detention, or torture or some other means. So the hope is that States will understand that these apply everywhere.
And that actually leads me to my next question, which is about the fact that the Principles are presented in concise and accessible language and that they are applicable, as you said, in any circumstance. Can you describe the process, and maybe some of the challenges as well, in developing a framework that can be applied in such a wide range of circumstances and across diverse legal systems?
So I think what is funny or what became very clear through the process of drafting the principles is that really, the science of torture and the fact that torture is ineffective, and immoral and illegal has been known for centuries. There is a wealth of writing about that, a wealth of studies cases, historical going back 4, 500 years. And so we were able to draw on a rich variety of western tradition, eastern tradition, international law, domestic law. We were looking to the African Commission, we were looking to really all of these different bodies of jurisprudence. And so, I think many people think that it was a challenge to pull together the law. It was not. The challenge was that anytime you have a group of lawyers, and we were not all lawyers, but lawyers drafting the body. We like to put in substantive citations to everything.
We like to substantiate all of our points with all the relevant cases and all the relevant arguments. And the good news for us was that we had that research, we had all of that support. But the difficulty I think, was in distilling it down to what the basic principles needed to be, the practical kind of guidelines. I think we were successful. Time will tell, but I think we were successful in doing so. And the good news is that that body of research is there if anyone wants to know where did principle number two or the principal number four come from, we've got all of that information and it's available.
Mm-hmm. So implementation by law enforcement, security and other institutions is obviously key to the effectiveness of the Méndez Principles. And a hashtag that we use at the APT, and other partners are using, is “shift the mindset”. What do you think are some of the factors that will help drive the implementation by States and shift the mindset that we know is false, that “torture works”.
One of the big strengths of the Mendez Principles is for the first time we fold in, we marry the science with the law. And I think that many people have talked about, "Look, torture doesn't work", but have not explained why. And that's because a lot of research has been done just in the past 10 or 20 years about this. And so we know more now than we did two decades ago, certainly a hundred years ago, about why torture doesn't work. We can point to studies of the brain, we can point to how the brain changes, how false memories are implanted.
And I think a lot of that we drew on that body of science in drafting the principles and wanted to make sure that it had not just a legal basis. Not just lawyers telling the world this is a bad thing to do, but explaining why. And I think that that is tremendously powerful. And I think if we are able to use that and educate states from the ground up, from local police all the way up to the judiciary, and ambassadors and people who end up sitting on the international courts using that science. Then that will eventually shift the mindset. It will take time, but I think that basis of science will help.
Definitely. And the final question relates to your experience as a regular media commentator on the issues we’ve been discussing. How important is it to “shift the mindset” in relation to community awareness and support for torture prevention?
It is absolutely critical to shift the mindset, and I hope this hashtag takes off. I really do, because it is absolutely critical. We still live in a world where torture is shown as entertainment, everywhere, in children's films all the way up to the television shows that become extremely popular and then influence in a case of art, influencing life, influence, real time interrogations. We saw it on TV, so it must work. And that has all coloured the public's perception of whether or not torture works. Well, these lawyers tell us it doesn't work, but this famous actor did it in a film and it looked really effective. So we don't know what to believe. And that's not to undercut the intelligence of the public, but when you are bombarded with that sort of misinformation constantly, it is difficult. It becomes a difficult question.
In terms of shifting the mindset, we need to focus on that link between the science and the pursuit of justice. That if we continue to use coercive techniques, if we don't adopt these standards of effective interviewing, we corrupt our own justice system. And so we need to... The way in which the mindset needs to shift is really, which would be ideal, is to get the public instead of calling for prosecutions or confessions or convictions, calling for justice. Calling for truth seeking, rather than just the simple pursuit of convictions. I think that will lead us, that will show us in any case that the mindset has shifted.
Alka Pradhan is currently Human Rights Counsel at the Guantanamo Bay Military Commissions.
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