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Lisa Hajjar
December 9,
2005
(Lisa Hajjar,
a professor in the Law and Society Program at the University
of California-Santa Barbara, is the author of Courting Conflict:
The Israeli Military Court System in the West Bank and Gaza [University of California Press], and an editor of Middle
East Report.)
The president
who campaigned on a pledge to “restore honor and dignity
to the White House” has now been compelled to declaim: “We
abide by the law of the United States, and we do not torture.” In
the closing months of 2005, President George W. Bush has been
forced to repeat this undignified denial several times, most
recently with the head of the World Health Organization standing
beside him, because a dwindling number of people believe him.
In fact, as
witnessed by the International Committee for the Red Cross and
as verified by numerous US military and intelligence officers,
during the ongoing “war on terror” the United States
has repeatedly employed interrogation tactics that constitute
torture and inhumane treatment and are proscribed by the Geneva
Conventions and US law. Of the 108 deaths of prisoners in custody
in Iraq and Afghanistan since 2002, at least 26 were classified
as homicides, including cases where people were tortured, beaten,
frozen or suffocated to death. In addition, and despite Bush’s
denial, the US does “render to countries that torture” --
sending captured or kidnapped detainees off to Egypt, Jordan
and other countries, where they have, on several documented occasions,
suffered illegal forms of abuse.
Even as Bush
issued his latest denial on December 6, Secretary of State Condoleezza
Rice was issuing a “non-apology” in Germany for the
CIA’s abduction and detention in Afghanistan of the German
citizen Khalid al-Masri, who they wrongly suspected of complicity
in terrorism and who is now suing the CIA alleging that he was
tortured while in custody. Rice was in Europe to assuage the
public furor at the revelation in the November 3 Washington
Post of secret CIA prisons
-- termed “black sites” -- in two eastern European
countries. ABC News reported on December 5 that in advance of
Rice’s visit the CIA had
“scrambled” to move 11 “high-value al-Qaeda
detainees” from the European locations to a new “black
site” somewhere in North Africa.
The steady
leaks about the Bush administration’s detention policies
forced Rice to attempt to reassure Europeans further on December
7: “As a matter of US policy, the United States’ obligations
under the UN Convention Against Torture, which prohibits cruel,
inhumane and degrading treatment -- those obligations extend
to US personnel wherever they are, whether they are in the United
States or outside of the United States.” But given the
scope of the revelations of US torture that have poured out since
the first Abu Ghraib photos hit the airwaves in late April 2004, “policy
talk” will not satisfy or quiet Bush administration critics,
since by definition policy can be adjusted as circumstances require.
The ban on torture is a matter of law, not policy, and violations
are a crime, not a bureaucratic error. The Bush administration,
moreover, has sought to narrow the accepted legal definition
of torture and to “legalize” the option of cruel,
inhumane and degrading treatment.
These efforts
not only subvert the law of the land, but they may also thwart
the pursuit of justice for planners and abettors of the September
11, 2001 attacks that prompted the Bush administration to launch
its war on terror.
THE NEW PARADIGM
In the pantheon
of crimes, torture is an exceptionally serious one, not because
it is necessarily the worst thing that people can do to others
but because the legal prohibition is universal -- it extends
to all human beings in all places and circumstances. The primary
purpose of the prohibition is to limit what public agents can
do to people who are in custody but have not been found guilty
of a crime, when the capacity to do harm is so one-sided and
so tempting. In US law, the idea of forbidding torture traces
back to the founding of the nation and was enshrined in the Constitution
through the prohibition of cruel treatment, an enlightened repudiation
of the tyrannical excesses of kings. Along with habeas corpus
and the separation of powers, the ban on extralegal cruel treatment
served as a foundation of the modern rule of law, because it
was understood as essential for conditions of human dignity,
liberty, security and due process to thrive.
In the second
half of the twentieth century, the prohibition of torture
“ripened” into a customary international legal norm,
a fact that Congress recognized by passing the Torture Victims
Protection Act in 1992. The 1949 Geneva Conventions, which prohibit
torture and cruel, inhuman and degrading treatment of prisoners
captured in war, are incorporated into the US Uniform Code of Military
Justice (UCMJ), and federal anti-torture and war crimes statutes
passed in the 1990s establish criminal liability for violations
in times of war or peace.
This black-letter
law would seem to settle that torture and inhumane treatment
are not legitimate options for US interrogators, civilian or
military. There is also a strong consensus among experts in the
art of interrogation that hurting and degrading prisoners is
highly unlikely to produce reliable intelligence or confessions
anyway. But in the wake of the September 11 terrorist attacks,
as part of a “new paradigm” for detention and interrogation,
dominant voices in the Bush administration’s inner circles
subscribed to the idea that torture works. If torturing -- or,
the preferred euphemism, “coercively interrogating”
-- prisoners could provide intelligence to save American lives
and win a
“war on terror,” then “quaint” laws should
be no obstacle. The current torture crisis is a direct product
of the policy preference for abandoning the law.
The “new
paradigm” was shaped principally by Vice President Dick
Cheney and his shadowy counsel (now chief of staff), David Addington,
and varnished with legal opinions from the Justice Department’s
Office of Legal Counsel (OLC), most prominently by Berkeley law
professor John Yoo, who served as deputy assistant attorney general
from 2001-2003. Their goal was to expand executive power at the
expense of the courts and Congress. To these ends, Yoo and his
OLC colleagues produced a series of memos opining that the president,
as commander-in-chief, should have unfettered powers to wage
war, that any efforts to subject executive discretion over interrogation
and detention policies to federal, military or treaty laws would
be “unconstitutional,”
that the legal restriction on cruel, inhuman and degrading treatment
is unenforceable outside the United States, and, for good measure,
that prisoners designated as terrorists by presidential fiat (rather
than status review by a tribunal) should have no habeas corpus
right to contest their detention and no right not to be maltreated.
These OLC opinions were treated as “controlling legal authority” and
utilized by the CIA and Pentagon civilians to authorize practices
that the International Committee of the Red Cross (with unique
access to prisoners) has characterized as “tantamount to
torture.”
REMOVING LEGAL
OBSTACLES
The larger
story of how the rule of law and cherished legal norms were hijacked
by right-wing radicals in the Bush administration is still being
pieced together as documents and details emerge. But it is now
clear that the clandestine drive to evade the laws of the land
prohibiting torture and ill treatment started in earnest in January
2002, when then-White House counsel (now Attorney General) Alberto
Gonzales asked the Defense Department to instruct intelligence
officers at Guantánamo Bay, Cuba to fill out a one-page
form on every detainee certifying the president’s “reason
to believe” that the detainee was involved in terrorism.
Those whom the president so suspected were to be tried by the
special military commissions created by Bush’s November
2001 executive order. Within weeks, the officers began reporting
back that interrogations were not producing the information needed
to fulfill Gonzales’ request. At a time when these prisoners
were touted as the “worst of the worst,” the presumption
was that legal restraints on interrogation were the problem.
The first
legal obstacle was cleared on February 7, 2002, when President
Bush embraced the OLC opinion that suspected al-Qaeda detainees
were not protected by the Geneva Conventions, and that suspected
Taliban detainees are categorically not entitled to prisoner-of-war
status under the conventions. This laid the ground for a “no
crime without law” approach to the handling of prisoners.
In the preceding weeks, the State Department had sharply criticized
the legal flaws and political dangers of this position, for which
it was rewarded by exclusion from discussions of interrogation
and detention policies thereafter.
By the summer
of 2002, official agitation was mounting over the lack of intelligence
that could lead to the capture of Osama bin Laden and other top
al-Qaeda and Taliban leaders, whose continuing evasion of the
US dragnet was a political embarrassment. The most infamous memo
that has come to light, dated August 1, 2002 and signed by then-Assistant
Attorney General Jay Bybee but authored by Yoo, was written in
response to the question of how far CIA agents, anxious about
the risk of future prosecution under federal anti-torture laws,
could go in interrogating high-value al-Qaeda suspects. Yoo opined
that a tactic is not “torture” unless it causes pain
comparable to “organ failure or death.” (The analysis
in this memo was so shoddy and embarrassing that it was repudiated
by the administration as soon as it became public in June 2004
and replaced that December with a new OLC memo. Yoo testily defended
his work product and criticized the new memo for “muddying
the water.”)
YOOIFICATION
AND GITMOIZATION
Although the
August 1 torture memo was written specifically for the CIA, the
White House forwarded it to the Pentagon, where it was seized
upon as a solution to military interrogators’ frustration
that Guantánamo detainees were tenaciously resisting lawful
interrogation methods. It should be noted that in August 2002,
a senior Arabic-speaking CIA analyst dispatched to assess Guantánamo
detainees’ intelligence value concluded that few had any
meaningful ties to or information about al-Qaeda. One exception
was Muhammad al-Qahtani, alleged to be the twentieth hijacker.
The desire to “break” him was the reason for authorization
to use dogs, protracted sleep deprivation and stress positions,
forced nudity and other forms of degrading treatment. A memo
by Army Lt. Col. Diane Beaver, dated October 11, 2002, noted
that coercive tactics are
“per se” illegal under the UCMJ, but that this might
be circumvented on the basis of the commander-in-chief’s
authority (one of the key arguments in the August 1 memo).
A December
2, 2002 Defense Department memo authorizing a three-category
menu of interrogation tactics was rescinded on January 15, 2003,
apparently because of concerns among the uniformed military about
the ramifications of abandoning the UCMJ. The Pentagon then convened
a working group to produce new military interrogation guidelines
for Guantánamo. The working group was instructed by General
Counsel William Haynes to accept the OLC’s August 1 analysis,
and forbidden from developing analysis that would conform to
military law (or 50 years of military practice). Top lawyers
in the Judge Advocate General’s Corps from all four branches
of the military wrote memos to the Pentagon leadership in February
and March 2003 conveying uniform dismay at the authorization
of “torture lite” tactics. They protested that this
contravenes the UCMJ, which enshrines Geneva Convention rules
and governs the military, regardless of the status of prisoners,
that it would expose soldiers to the risk of court martial, and
that it would undermine military doctrine and discipline, as
well as public support for the war.
On March 14,
2003, Yoo sent a memo to Haynes responding to the JAGs’ concerns,
which was used by Pentagon civilians to silence the dissent.
(The contents of this memo, which has not yet become public,
are apparently so sensitive or embarrassing that even a 2005
official investigation into prisoner abuse, headed by Vice Adm.
Albert Church, was barred from making a copy and had to read
it in a secure location.) The Pentagon working group issued its
final report on interrogation policy for Guantánamo on
April 4, 2003. (This document was also declassified in June 2004,
and in March 2005 was officially rescinded and declared to be “a
historical document with no standing in policy, practice or law
to guide any activity of the Department of Defense.”)
The coercive
tactics authorized for military interrogators at Guantánamo,
where the Bush administration claimed that the Geneva Conventions
do not apply to prisoners, “migrated” in late August
2003 to Iraq, where there was no dispute that the Geneva Conventions
do apply. Lt. Gen. Ricardo Sanchez, commander of the Iraqi theater
of operations, signed off on tactics that would “Gitmoize” Iraqi
prisons, including use of dogs, sexual humiliation, stress positions
and other forms of prisoner abuse that were conveyed to the world
in the Abu Ghraib photos. When Defense Secretary Donald Rumsfeld
was called before Congress in May 2004 to explain the Abu Ghraib
debacle, he claimed that US forces in Iraq were adhering to the
Geneva Conventions and that any violations were the work of “rogue
soldiers.” But when Army Capt. Ian Fishback saw the footage
of Rumsfeld’s testimony, he “was immediately concerned
that the Army was taking part in a lie to the Congress, which
would have been a clear violation of the Constitution.” He
knew, from firsthand experience, that the tactics depicted in
the Abu Ghraib photos were being used systematically in Iraq
and Afghanistan, where he had done tours of duty. Fishback spent
17 months seeking clarification about the legal standards for
interrogations, during which he was repeatedly told by his superiors
to ignore abuses and advised to “consider your career.” The
civic-minded captain finally turned to Human Rights Watch, which
corroborated his allegations with the testimony of other soldiers.
JOHN DOES
Since June
2004, developments affecting the interrogation and detention
of foreign prisoners have come at a fast and furious pace. In
that month, the Supreme Court ruled in the Rasul v. Bush and al-Odeh v. Bush cases that Guantánamo detainees do, in fact,
have habeas corpus rights. Lawyers with the Center for Constitutional
Rights, who filed the Rasul suit, have assumed a lead role in
coordinating the work of hundreds of lawyers who were prompted
by the decision, which came on the heels of the Abu Ghraib scandal,
to sign on as representatives of other Guantánamo detainees.
The hundreds of lawyers hitting the shores of Cuba have become
important sources of information both about the tactics used
there and the dubious veracity of the information extracted from
prisoners through coercion and torture. Thomas Wilner of the
firm Shearman and Sterling, who represents Fawzi al-Odeh and
ten other Kuwaiti prisoners, maintains that Guantánamo’s
purpose “was to avoid law, and this lawless, simple-minded,
lousy government lawyering led to Abu Ghraib. All my clients
were tortured, however you define the term.”
The influx
of lawyers impelled the CIA to shut down its operations at Guantánamo.
But the Rasul decision
did nothing to clarify the nature of rights that prisoners could
claim, and the Justice and Defense Departments have fought lawyers’ requests
for improved treatment or information, including the identities
of hundreds of Guantánamo prisoners, foiling any access
to lawyers or courts for habeas corpus motions. Nor has the government
made any effort to charge most of the Guantánamo detainees.
As is now known, two alternatives to prosecution have been to “render” detainees
to other countries, where they may be held indefinitely without
charge, or to whisk them off to secret CIA-run facilities overseas.
A government report, declassified in March 2005, confirms that
the Pentagon authorized holding
“ghost detainees” for the CIA, with no access for
the Red Cross. This policy of denying access to the Red Cross
continues to date.
Among the
ghost detainees in CIA custody are Abu Zubayda, al-Qaeda’s
operations chief, Khalid Sheikh Muhammad, the alleged mastermind
of the September 11 attacks, and Ramzi bin al-Shibh, an alleged
September 11 planner. The fate of these men, and an undisclosed
number of others, is one of the “known unknowns”
in the war on terror.
Fearing that
some or all of the unknown Guantánamo prisoners might
be disposed of through secret rendition to other countries, on
February 11, 2005, the Center for Constitutional Rights filed
a habeas motion in federal court, John Does 1-570 v. Bush. “We
call these petitioners
‘John Does,’” explained the Center’s
Barbara Olshansky, “because they have no names and no
faces. They have been disappeared by an administration
that shows as little regard for an order of the Supreme Court
as it does for international law and human rights.”
THE BOTTOM
LINE
In July 2005,
Lt. Gen. Mark Schmidt issued his report on FBI allegations of
detainee abuse at Guantánamo to Congress. The report is
classified, but according to the executive summary that has been
published, Schmidt and his fellow investigators certified that
some detainees were subjected to tactics that were clearly “abusive” (20-hour
interrogations for 48 days in a row, short-shackling to the floor
for extended periods) and “degrading” (being smeared
with fake menstrual blood, being forced to bark like a dog and
perform dog tricks). In an Orwellian twist, however, the report
concluded that these tactics were not unlawful. Why not? In Schmidt’s
view, echoing Yoo’s logic, the “abusive” tactics
were not “inhumane,” and nothing in US law prohibited
degrading and humiliating treatment of “unlawful combatants.”
Defining “humane
treatment” has become the bottom line in the current battle
over interrogation and detention policies. The universally recognized
baseline standard for the treatment of prisoners in wartime is
Geneva Convention Common Article 3, which extends to all detained persons regardless of status. It states that
they “shall in all circumstances be treated humanely,” and
that “[t]o this end,” certain specified acts “are
and shall remain prohibited at any time and in any place whatsoever” including “cruel
treatment and torture,” and
“outrages upon personal dignity, in particular humiliating
and degrading treatment.”
This “baseline” is
far lower than the standards for lawful prisoners of war. To
go below the baseline, as the Bush administration has done --
and seeks to continue doing -- is literally to undermine the
very concept of
“humanity.” If some people cannot claim any legal right
to the minimum standards of treatment in Common Article 3, then
they are, by extension, no longer legally recognized as “human.” The
9/11 Commission, the JAGs and numerous others have declared that,
even where Common Article 3 might not apply as a matter of treaty
obligation, the standards must be the point of reference for the
treatment of prisoners. The Bush administration’s only concession
on this matter is to state that prisoners will be treated “humanely” as
a matter of policy, implying that some people still have no legal
right to their humanity. Cheney, Addington and Yoo have continued
to insist that there is no baseline in a war on terror because
no law can bridle executive discretion and that the president is
under no obligation to abide by customary international law.
TRYING TO
RESTORE THE RULE OF LAW
The denouement
of this rule of law fiasco may be at hand. In July, when Sen.
Lindsey Graham (R-SC) finally succeeded in his year-long quest
to obtain the release of the JAG memos written in the spring
of 2003, he said, “The JAGs were telling the policymakers:
if you go down this road, you are going to get your own people
in trouble…and they were absolutely right.”
The JAG memos
spurred Graham, an Air Force reserve lawyer himself, and fellow
Republicans John McCain and John Warner to draft legislation
that would bring all interrogations conducted anywhere in the
world by any US agents (including the CIA) back within the rubric
of the law. Cheney led the White House campaign to thwart their
initiative, thus earning himself the nickname “vice president
for torture.” The McCain language was endorsed by dozens
of retired military officers, including former Secretary of State
Colin Powell, as well as otherwise stalwart Bush administration
backers from the American Enterprise Institute and the Weekly
Standard.
On October
5, the Senate voted 90-9 to attach McCain’s initiative
as an amendment to the defense appropriations bill, prompting
the threat of a presidential veto and a lobbying campaign directed
at Republicans in the House of Representatives. McCain announced
on November 5 his intention to attach his amendment to every
piece of legislation that goes before the president. For now,
the amendment is in committee, and Republicans are striving to
arrive at a compromise with the White House, which continues
to insist on a CIA exemption. Domestic and foreign pressure on
the government has intensified, but the administration’s
current “policy talk” is just another way of endorsing
the lawless “new paradigm”
as guiding principle for the treatment of prisoners.
JUSTICE LOST?
One of the
many adverse effects of utilizing “enhanced interrogation
techniques,”
conducting “extraordinary renditions” to countries
that torture and “disappearing”
people in CIA custody was to undermine the prospect of ever bringing
to justice any of the captured authors of the September 11 attacks,
or other suspects. As David Cole points out in a December 3 Los
Angeles Times op-ed,
“One probable reason for the military’s reluctance
[to charge and prosecute most detainees in US custody] is the
real risk that any trial will turn into a trial of the United
States’ own interrogation practices. Although the military
tribunal rules do not exclude the use of testimony extracted
by torture, no trial will ever be viewed as legitimate if it
allows such testimony, and defense lawyers are certain to make
this a central issue in any proceeding.”
Critics of
US interrogation practices include the military defense lawyers
assigned to represent the first five Guantánamo detainees
slated for trial before the military commissions. These JAGs
have mounted a vigorous defense of their clients by speaking
out against the government’s authorization of violent and
degrading interrogation tactics, as well as the military commission
rules that permit the use of information from others that might
have been extracted through torture. In November, the Supreme
Court agreed to hear the case of Hamdan v. Rumsfeld,
which was brought by Navy Lt. Cmdr. Charles Swift on behalf of
his client Salim Ahmad Hamdan, and which aims to challenge the
constitutionality of the military commissions themselves. Even
if the McCain amendment survives the pressures and “compromises” and
the prohibitions on torture and cruel treatment are reinforced
as a matter of law, a defeat for the petitioners in the Hamdan case
would indicate that the highest court in the land has abdicated
its independence and succumbed to the “new paradigm” of
unfettered executive dispatch.
The US government
has a right to pursue justice
for the September 11 attacks and for other acts of terrorism
that target civilians. But justice is a matter of law, not policy,
and it requires lawful treatment of prisoners and witnesses,
and legal venues that are able and willing to function independently
to interpret and enforce the laws of the land. At this juncture,
it is vital that many more citizens school themselves in the
legal issues at stake, and speak out loudly to demand lawful
policies. Torture is inimical to law and justice.
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