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The American way of torture
October 12, 2007 | Pages 4 and 5
NICOLE COLSON reports that the Bush administration's previous assurances it rejected torture were so much hot air.
"THIS GOVERNMENT does not torture people," George Bush insisted to reporters last week. "We stick to U.S. law and our international obligations."
You might not expect that a "leader of the free world" would have to make such a statement. But the head of the "world's greatest democracy" was forced to publicly disavow a favorite tactic of dictators after new revelations of administration memos condoning the use of torture.
According to the New York Times, in 2005, despite previous public statements declaring torture to be "abhorrent both to American law and values and international norms," the Justice Department drafted two internal memos providing a legal justification for brutal interrogation methods--which human rights activists widely consider to be torture--used by the Central Intelligence Agency.
The first secret memo--allegedly approved personally by then-Attorney General Alberto Gonzales over the objections of then-Deputy Attorney General James Comey--"provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures," the Times report said.
The memo, the Times concluded, amounted to an "expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency."
In a second secret opinion issued in the summer of 2005, Justice Department officials argued that interrogation practices approved for the CIA did not, in some cases, violate pending congressional legislation prohibiting "cruel, inhuman and degrading" treatment of detainees.
In other words, while it was publicly denouncing torture, the Bush administration was reserving the right to use it.
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REVELATIONS OF torture are nothing new for the Bush administration. From the earliest days of the "war on terror," the administration set the stage for the torture of detainees by refusing, among other things, to allow detainees rights under the Geneva Convention or other international laws.
Detainees were subjected to "interrogation tactics" that international law clearly defines as torture: slaps to the head, temperature extremes for hours at a time, sleep deprivation for days, sensory overload with blaring music, hours confined in "stress-and-duress" positions, and mock drowning or "waterboarding."
The CIA seems to have chosen its methods carefully--after studying the interrogations carried out by governments known to torture.
According to the Times, "With virtually no experience in interrogations, the CIA had constructed its program in a few harried months by consulting Egyptian and Saudi intelligence officials and copying Soviet interrogation methods long used in training American servicemen to withstand capture."
Meanwhile, the Justice Department and other Bush administration figures were ready to provide the legal justifications for torture.
As White House counsel, Alberto Gonzales advised Bush in January 2002 that the Geneva Conventions no longer applied. "[T]he war on terrorism is a new kind of war," Gonzales wrote, "a new paradigm [that] renders obsolete Geneva's strict limitation on questioning of enemy prisoners and renders some of its provisions quaint."
In 2002, the "Bybee memo," named for former Assistant Attorney General Jay Bybee, argued that cruel, inhuman or degrading treatment only qualified as torture if an interrogator inflicted pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death" on a detainee.
The barbarism inflicted by the U.S. was dragged out of the shadows by the Abu Ghraib prison scandal, when pictures of the abusive treatment of Iraqi prisoners by U.S. soldiers emerged in the media. Reports of U.S. interrogation tactics and the deaths of several prisoners in Afghanistan, Iraq and elsewhere revealed the scope of torture.
The Justice Department was forced to backtrack with a public statement declaring torture "abhorrent." But as the new revelations about the Justice Department memos show, that opinion was just for show.
The memos exposed by the Times were issued after the CIA, apparently worried about proposed legislation concerning the humane treatment of detainees, approached the Justice Department to ask for specific guidelines on interrogation methods "to ensure that its detention of terrorism suspects in secret sites overseas was sustainable, legally and politically," according to the Times.
Thus, even as Congress voted in 2005 on the Detainee Treatment Act to officially prohibit the "cruel, inhuman and degrading treatment" of anyone in U.S. custody, the Justice Department essentially gave the go-ahead to the CIA to continue torture as usual.
According to the legal theory, put forth by Steven Bradbury, head of the Justice Department's Office of Legal Counsel, the Supreme Court has found that only conduct that "shocks the conscience" is unconstitutional.
Therefore, went the argument, in some circumstances, not even waterboarding is necessarily cruel, inhuman or degrading--"if, for example, a suspect was believed to possess crucial intelligence about a planned terrorist attack," according to the Times.
As Elisa Massimino, Washington director of Human Rights First, told the Washington Post, "Instead of abiding by the law, the administration stocks the Justice Department with lawyers who will say that black is white and wrong is right and waterboarding is not torture."
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FOR ITS part, the Bush administration claims that the actions of the Justice Department and CIA were justified.
Responding to the Times article in an internal memo, CIA Director Michael Hayden claimed that the agency's interrogation program is "small, carefully run and highly productive...Fewer than 100 hardened terrorists have gone through the program since it began in 2002, and, of those, less than a third have required any special methods of questioning."
White House Press Secretary Dana Perino told the media that CIA interrogation methods "are tough, safe, necessary and lawful." The president, Perino added, "has done everything within the corners of the law to make sure that we prevent another attack on this country."
But the "corners of the law" are pretty murky places for the detainees who land there.
Take Majid Khan, a former resident of Baltimore. Khan is one of 14 so-called "ghost detainees" who were held in secret CIA-run prisons--before being transferred to Guantánamo Bay last year after a Supreme Court ruling stating that the Geneva Conventions should apply to "war on terror" detainees.
According to the Center for Constitutional Rights (CCR), which represents Khan and other detainees, Khan came to the U.S. in 1996 from Pakistan and was later granted asylum. In 2003, he traveled back to Pakistan in order to join his wife and family. In the middle of the night on March 5, Pakistani security officials burst into the house and arrested Majid, his brother, his sister-in-law and their month-old daughter.
"Majid's sister-in-law and infant niece were imprisoned for a week," according to the CCR. "Pakistani officials imprisoned his brother for approximately one month. When Majid's brother was released, officials threatened him not to make any public statements or inquire after Majid. As a result of the threats, Majid's family in Baltimore and Karachi waited anxiously and fearfully for his return. He was never released or heard from again."
Majid's family didn't learn of his whereabouts until September 2006, when Bush announced that he was one of the "ghost detainees" being transferred to Guantánamo Bay.
In an affidavit to a military review tribunal at Guantánamo, Majid Khan's father described what he had learned of the early days of Majid's detention:
They retied him in the chair every hour, tightening the bonds on his hands and feet each time so that it was more painful. He was often hooded and had difficulty breathing. They also beat him repeatedly, slapping him in the face, and deprived him of sleep.
When he was not being interrogated, the Americans put Majid in a small cell that was totally dark, and too small for him to lie down in or sit in with his legs stretched out. He had to crouch. The room was also infested with mosquitoes. This torture only stopped when Majid agreed to sign a statement that he was not even allowed to read. But then, it continued again.
Though the CIA denies torturing Khan, the Justice Department argued late last year that Khan should not be allowed to speak to a civilian lawyer, because he might "reveal the agency's closely guarded interrogation techniques."
"The government is denying Majid any access to his attorneys solely to keep his torture and abuse secret, even from his lawyers," said Gitanjali Gutierrez, a CCR lawyer who represents Khan in spite of the government's refusal to let her see her client. "His father's testimony sheds light on the U.S. government's system of secret detention and makes clear that U.S. officials are trying to hide their own criminal conduct."
Now, says CCR executive director Vincent Warren, it's clear that "[e]ven as the government was publicly denouncing torture, our client Majid Khan and others were being subjected to it."
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THE BUSH administration has defended the use of harsh interrogation techniques--if not torture--as regrettable but necessary to protect Americans from terrorist attacks.
But the record at Guantánamo is clearer than ever. Only a handful of detainees have been directly linked to Osama bin Laden or al-Qaeda, much less to definite terrorist attacks. U.S. officials have been forced to admit that a number of prisoners they have been holding for years were guilty of nothing more than being in the wrong place at the wrong time, or having an enemy in Afghanistan or Pakistan who was willing to sell them to the Americans.
The administration's use of torture isn't about protecting Americans, but opening the way to expand the repressive powers of the state.
"Undoubtedly, some in the Bush administration believed that torture would get them information," antiwar writer Tom Engelhardt of TomDispatch said in an interview with Socialist Worker. "But I think the real significance of torture...was that if you can get the right to torture people without restraint, you can get the right to anything."
Democrats have reacted with outrage over revelation of the Justice Department's new torture memos. But the same lawmakers gave Alberto Gonzales the kid-gloves treatment at his 2005 Senate confirmation hearings, even though he made it clear that "he will seek no change in practices that have led to the torture and killing of scores of detainees," the Washington Post reported.
Likewise, when Congress last year passed the Military Commissions Act of 2006 stripping detainees of the 800-year-old right to habeus corpus--the right of a prisoner to challenge their imprisonment in court--Democrats bragged that the bill included language enforcing the Geneva Conventions. But under the law, Bush was given the authority to interpret the "meaning and application" of the conventions.
In July of this year, Bush issued an executive order requiring the CIA to comply with the Geneva Conventions--while allowing the CIA agency to resume its detention and interrogation program.
Exactly which "enhanced interrogation techniques" the CIA is still using is unknown, since the details of the order remain secret, but according to the Times, the CIA is once again holding prisoners in "black sites" overseas.
"Although President Bush himself has said, 'we do not torture,' the Justice Department's torture opinions tell a very different--and shameful--story," said ACLU Executive Director Anthony D. Romero.
"After experiencing nearly three years of a broken Justice Department under an attorney general with one of the worst civil liberties legacies in our nation's history, it is long overdue for the Bush administration to come clean on its record on torture."
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