Tortured by the world’s greatest democracy

April 30, 2009

Eric Ruder explains the backdrop to the Bush administration's torture memos that have caused a firestorm of controversy.

THE OBAMA administration's decision to declassify and release torture memos written by legal advisers to the Bush administration was a long time coming.

The broad outlines of the torture apparatus implemented on Bush's watch have been known for several years, but the memos focused attention specifically on the legal architects and other high-ranking Bush administration officials who conceived, designed and implemented a chain of human rights abuses stretching from Guantánamo Bay to Abu Ghraib to the U.S. military installation in Bagram, Afghanistan.

The memos themselves are grotesque. In grisly detail, they methodically delineate a range of what are called "harsh interrogation tactics," along with a contorted legal justification for why they fall short of actual "torture."

The litany of abuses justified in the memos is familiar, if you've followed the news: Banging a detainee's head into a wall 30 times in a row. Prolonged nudity. Repeated slapping. Manipulation of diet. Shackled in a standing position for 180 hours. Sleep deprivation for 11 days at a time. Dousing with water as cold as 41 degrees. Confinement in a box with biting insects.

Detainees wait in a holding area at Guantánamo Bay's Camp X-Ray in 2002
Detainees wait in a holding area at Guantánamo Bay's Camp X-Ray in 2002 (Shane McCoy)

The memos' authors are Jay Bybee, now a tenured federal judge at the U.S. Court of Appeals, and an assistant attorney general under Bush; Steven Bradbury, then acting head of the Justice Department's Office of Legal Counsel; and John Yoo, a lawyer in the Office of Legal Counsel, and currently a law professor at University of California-Berkeley, and on leave to teach at Chapman University in Orange, Calif.

They are products of the country's most prestigious law schools--Harvard, Yale, Stanford. They climbed to the heights of the U.S. legal establishment.

And as a recently released report from the Senate Armed Services Committee concludes, they knew exactly what they were doing in giving a legal veneer to torture.

"The abuse of detainees in U.S. custody cannot simply be attributed to the actions of 'a few bad apples' acting on their own," according to the Senate report. "The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees."

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THEN THERE'S the waterboarding. Shackle detainee to board. Force water into airway to the point of near drowning or loss of consciousness. Revive. Repeat.

During August 2002, Abu Zubaydah was subjected to 83 such sessions. Abu Zubaydah was initially described as a high-level al-Qaeda operative, but was later found to be involved at the logistical level--and mentally unstable to boot. Dan Coleman, the FBI's top al-Qaeda analyst at the time, described him as the group's flight reservations operative and a "greeter," like "Joe Louis in the lobby of Caesar's Palace," who "knew very little about real operations or strategy."

In one of the notorious memos, Bybee admitted that "the use of the waterboard constitutes a threat of imminent death," but he concluded that because the panic it induces is only a simulation of imminent death and doesn't produce any long-term ill effects, it is not torture.

Further, anticipating a defense that a torturer could use in the event of future prosecution, Bybee argues that "if a defendant acts with the good faith belief that his actions will not cause [severe mental pain or] suffering, he has not acted with specific intent." In other words, even if waterboarding a detainee does equate to torture, the interrogator hasn't tortured anyone if he didn't believe he was doing so.

Imagine this defense in any other legal context: "I can't be guilty of murder. I didn't think that it would kill you if I shot you in the head."

By means of this warped logic, the medieval practice of waterboarding--the preferred torture technique of the Spanish Inquisition--was officially entered into the American arsenal in the so-called war on terror, along with "preemptive war," "extraordinary rendition" and the "indefinite detention of enemy combatants."

Never mind that after the Second World War, the U.S. government prosecuted Japanese officers as war criminals for waterboarding detainees under their control. And never mind that the effects of waterboarding are both long-term and severe, including dissociative mental disorders, physiological effects greater than patients who undergo heart surgery, and post-castration levels of testosterone.

THE MID-April release of the memos by the Obama administration prompted fresh criticism of the Bush administration's attitude toward torture.

Dick Cheney, of course, isn't impressed by the growing condemnations. He came forward to defend waterboarding and other "harsh interrogation methods" as essential for obtaining information that led to the thwarting of attacks on Americans. "I know specifically of reports that I read that lay out what we learned through the interrogation process, and what the consequences were for the country," Cheney said on Fox News.

But it might come as a shock that Dennis Blair, Obama's intelligence director, issued a communication to his staff on the same day the memos were released that made the same point. "High-value information came from interrogations in which those methods were used and provided a deeper understanding of the al-Qaeda organization that was attacking this country," wrote Blair.

Blair's memo fit with Obama's initial approach to the torture memos--to condemn the practice of torture, but still grant immunity to the torturers, as well as the torture architects of the Bush administration.

But as public outcry and pressure from human rights groups mounted, Obama found himself on the defensive. Within a few days, Obama announced that the decision about whether and how to prosecute violations of U.S. laws proscribing torture would be made by Attorney General Eric Holder.

Thus, when Blair's memo was sent as a press release to mainstream newspapers, it appeared without the passage quoted above that appeared to condone the use of torture to extract "high-value information."

The torture memos evoke the so-called "ticking time bomb" argument as a legal and moral justification for torture--that in the face of certain and imminent terrorist attack, who wouldn't resort to harsh means to stop them. Thus, Bybee wrote in his August 1, 2002 memo, "There is currently a level of 'chatter' equal to that which preceded the September 11 attacks."

According to New York Times columnist Frank Rich:

By the time Bybee wrote his memo, Zubaydah had been questioned by the FBI and CIA for months and had given what limited information he had. His most valuable contribution was to finger Khalid Shaikh Mohammed as the 9/11 mastermind.

But, as Jane Mayer wrote in her book The Dark Side, even that contribution may have been old news: according to the 9/11 commission, the CIA had already learned about Mohammed during the summer of 2001.

In any event, as one of Zubaydah's own FBI questioners, Ali Soufan, wrote in a Times op ed article [on April 23], traditional interrogation methods had worked. Yet Bybee's memo purported that an "increased pressure phase" was required to force Zubaydah to talk.

The rest of the memo zeroed in on a justification for this "increased pressure phase," and the waterboarding ensued.

So if Zubaydah had already yielded all the information he had, why was there a need to turn to torture? The answer: There was a ticking clock, but not one attached to a bomb. The Bush administration wanted its war against Iraq and thought that the perfect justification would be a link between al-Qaeda and Iraq--a link that the Bush and Cheney White House had asserted, but couldn't prove because no such link existed.

That didn't stop U.S. interrogators. In the words of Major Paul Burney, quoted in the Senate Armed Services Committee report:

While we were there, a large part of the time, we were focused on trying to establish a link between al-Qaeda and Iraq, and we were not being successful in establishing a link between al-Qaeda and Iraq. The more frustrated people got in not being able to establish this link...there was more and more pressure to resort to measures that might produce more immediate results.

The technique failed to produce the desired results, but that didn't stop the Bush administration from taking the same "ticking time bomb" rationale for torture and putting it to work in Iraq--with predictably tragic results.

In an article "Torture? It Probably Killed More Americans than 9/11," independent journalist Patrick Cockburn interviewed a U.S. officer (who used the pseudonym Major Matthew Alexander) who led an elite interrogation team in Iraq.

"The reason why foreign fighters joined al-Qaeda in Iraq was overwhelmingly because of abuses at Guantánamo and Abu Ghraib, and not Islamic ideology," said the officer, who went on to explain that the "ticking time bomb" rationale for torture not only backfires by exposing the U.S. as hypocrites about issues such as human rights, but it doesn't even work.

According to Cockburn:

Major Alexander says he faced the "ticking time bomb" every day in Iraq because "we held people who knew about future suicide bombings." Leaving aside the moral arguments, he says torture simply does not work. "It hardens their resolve. They shut up."

He points out that the FBI uses normal methods of interrogation to build up trust even when they are investigating a kidnapping, and time is of the essence. He would do the same, he says, "even if my mother was on a bus" with a hypothetical ticking bomb on board. It is quite untrue to imagine that torture is the fastest way of obtaining information, he says.

SO WHY would the Bush administration bluntly dismiss counterintelligence agents such as Alexander who told them torture wouldn't work, and instead recklessly embark on a public defense of torture, despite the inevitable backlash in world public opinion?

The explanation can be gleaned from looking at how the use and legal defense of torture fits into the overall pattern of imperial hubris characteristic of the Bush administration's approach to the post-9/11 world--proclaim that "you're either with us or against us"; seek out technical, military and other kinds of brute-force solutions to social and political developments; do so with a proud disregard for old allies and the "quaint" and "obsolete" prohibitions of the Geneva Conventions, as former Attorney General Alberto Gonzales called them; and finally disregard any and all domestic obstacles as a threat to the right of the executive branch to wage war by any means necessary.

Consider Yoo and Bybee's ultimate trump card in defending indefensible acts of torture: "Even if an interrogation method arguably were to violate Section 2340A [the U.S. statute prohibiting torture], the statute would be unconstitutional if it impermissibly encroached on the President's constitutional power to conduct a military campaign."

Of course, Bush and Cheney aren't the first Americans to assume that their position of power should grant them the authority to deem how and when to break U.S. laws against torture.

The truth is that torture is a longstanding tradition--both in the conduct of U.S. wars abroad, and in prisons and police interrogation rooms all over the U.S. In Vietnam, U.S. soldiers would throw a detainee out of a helicopter to get another to talk. Beatings, rape and massacres were also considered useful ways to "gather intelligence"--or send a message.

As a U.S. soldier during Vietnam, Jon Burge learned how to use a hand-cranked field telephone to apply electric shocks to suspected guerrilla fighters. When he returned to Chicago and became a police commander, he led a ring of officers in the torture of more than 100 African American men on the city's South Side. They used electroshock, beatings and suffocation with plastic typewriter covers to elicit "confessions."

In 1983, Ronald Reagan's Justice Department prosecuted a Texas sheriff and three of his deputies for waterboarding suspects in order to coerce confessions. The sheriff received a 10-year sentence, while the deputies got off with four years.

Most commentators decry the failure of the system to prevent the legal sanctioning of torture, but in truth, the system isn't charged with preventing torture but concealing it. The failure in this case is that the system allowed the mask to slip.

That the Bush administration allowed this to happen explains why so many within the foreign policy establishment turned against the Republicans and supported the Democrats in the 2008 presidential election.

But it also explains why the Obama administration, even after announcing the closure of the prison camp at Guantánamo Bay, has kept open CIA "black sites" around the world for instances in which there may yet be a "need" for torture. It explains Obama's wobbles on whether to protect the architects and agents of torture or prosecute them.

And it explains why as recently as early March, the Obama administration was defending John Yoo from a lawsuit in federal court alleging that he became an accomplice to the torture of the plaintiff by providing the legal justification for that torture.

Obama's reversal of his earlier decision to grant immunity for the torturers is a critical first step in putting the torturers on notice--the architects as well as the bricklayers. If more of them ended up behind bars, their would-be imitators will be less confident.

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