Tortured Logic: Guantanamo Bay and the Law

March 26th, 2008 · 1 Comment

Manipulated intelligence leading to devastation in the Middle East; a carefully crafted environment of perpetual fear; and extraordinary rendition, extrajudicial torture, and kangaroo courts, habeas corpus and international treaties be damned – such is the tragic legacy of the Bush administration’s “war on terror.”

But after years of tortured logic by Republican lawmakers and administration officials used to sidestep admissions of the use of torture against Guantanamo Bay detainees, there’s finally some truth straight from the horse’s mouth.

In January, former United States Director of National Intelligence John Negroponte, speaking to the National Journal, said, “We’ve taken steps to address the issue of interrogations … and waterboarding has not been used in years. It wasn’t used when I was director of national intelligence, not even for a few years before that.”

Negroponte, by a Senate vote of 98 to 2, became the first director of national intelligence – a position replacing the director of central intelligence – in April 2005. He held the post until February 2007, after which he landed a job as deputy secretary of state.

His admission was likely sparked by news earlier in January from Attorney General Michael Mukasey. Mukasey had announced that the Justice Department would launch a criminal investigation into the CIA’s destruction in November 2005 of interrogation videotapes from 2002. The tapes allegedly documented the waterboarding of al-Qaeda operatives and now Gitmo detainees Abu Zubaydah and Abd al-Rahim al-Nashiri, and were reportedly destroyed at the behest of Jose A. Rodriguez, Jr., who at the time was the CIA’s National Clandestine Service director.

On January 30, the Senate Judiciary Committee grilled Mukasey over the recent revelations. “Would waterboarding be torture if done to you?” asked Massachusetts Democrat Edward Kennedy, to which the attorney general replied, “I would feel that it was.” But despite the widely accepted and centuries-old view that waterboarding constitutes torture, Mukasey never said outright that he considered it so, nor did he agree to a criminal investigation into its perpetrators.

More evidence came to light on February 5, when CIA Director Michael Hayden, addressing the Senate Intelligence Committee, confirmed that Zubaydah and al-Nashiri, as well as Khalid Sheikh Mohammed – the man who the 9/11 Commission Report deemed “the principal architect of the 9/11 attacks” – had been waterboarded in 2002 and 2003.

“We used it against these three detainees because of the circumstances at the time,” Hayden said that day. “There was the belief that additional catastrophic attacks against the homeland were inevitable. And we had limited knowledge about al-Qaeda and its workings. Those two realities have changed.”

So much so, it would appear, that in 2006 Hayden prohibited the CIA’s use of waterboarding and has claimed, in line with Negroponte and Mukasey, that the practice has not been employed by the U.S. since 2003. Even so, current Director of National Intelligence Mike McConnell told senators at the February 5 hearing that he would not rule out its use, provided he had the consent of the president and legal approval from Mukasey.

Historically, the U.S. has not been particularly forgiving toward waterboarding. In an October 5, 2006, article in The Washington Post, Walter Pincus analyzed two pre-9/11 scenarios, one after World War II and the second during the Vietnam war.

“[I]n 1947,” Pincus wrote, “the United States charged a Japanese officer, Yukio Asano, with war crimes for carrying out … waterboarding on a U.S. civilian. The subject was strapped on a stretcher that was tilted so that his feet were in the air and head near the floor, and small amounts of water were poured over his face, leaving him gasping for air until he agreed to talk.” Asano was sentenced to 15 years of hard labor for his transgression.

Pincus’ Vietnam-era example, a Washington Post front page photograph from January 21, 1968, of a U.S. soldier overseeing the waterboarding of a North Vietnamese soldier, was more ambiguous. The picture “reportedly led to an Army investigation,” wrote Pincus, but its corresponding article “said the practice was ‘fairly common’ in part because ‘those who practice it say it combines the advantages of being unpleasant enough to make people talk while still not causing permanent injury.’”

“Not causing permanent injury” is an argument frequently utilized by modern-day proponents of waterboarding that is dismissed out of hand by most critics. In Senate testimony from September 25, 2007, Dr. Allen S. Keller, M.D., director of the Bellevue Hospital Center/New York University Program for Survivors of Torture, wrote, “To think that abusive methods, including the enhanced interrogation techniques, are harmless psychological ploys is contradictory to well established medical knowledge and clinical experience.”

Keller singled out waterboarding as an example, writing, “Long term effects include panic attacks, depression and [post traumatic stress disorder].” He also wrote that the practice poses a “real risk of death.”

His reasoning serves to back up critics who cite the United Nations’ Convention Against Torture, ratified by the U.S. Senate in 1994, which prohibits the use of techniques causing long-term physical or psychological harm. Others point to the Military Commissions Act of 2006, which outlaws “cruel, inhuman and degrading” treatment of terror suspects. The American Civil Liberties Union adds to the list the federal Anti-Torture Act, federal War Crimes Act, McCain Amendment in the Detainee Treatment Act of 2005, Senate-ratified Geneva Conventions, and Army Field Manual on Interrogation.

All told, however, Mukasey’s reluctance to categorically condemn waterboarding as a method of torture isn’t necessarily as sinister as it may seem, Ames High School graduate and former Gitmo Defense Attorney Tom Fleener told the Progressive. At the hearings, Mukasey had insisted that “no one who relied in good faith on the Department’s past advice should be subject to criminal investigation for actions taken in reliance on that advice.”

“I think what the attorney general really is trying to do is simply not put the agents that relied on what they believed to be valid legal precedent on the chopping block,” Fleener said. “These guys were acting pursuant to Office of Legal Counsel memoranda prepared by Jay Bybee and John Yoo and other folks that essentially know the memoranda are wrong [and] authorized the agents to do these things.”

One of the memoranda Fleener refers to is the notorious “torture memo.” Dated August 1, 2002, it is commonly called the Bybee memo, named after the man who served as assistant attorney general from 2001 to 2003. Yoo, the deputy assistant attorney general during that same period known for his legal arguments in support of near-authoritarian executive branch powers, co-authored the directive. It was sent to then-counsel to the president Alberto Gonzalez.

It defined torture as physical pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death”; and as mental pain “result[ing] in significant psychological harm of significant duration, e.g., lasting for months or even years.” It argued that for torture to be a breach of protocol, the pain inflicted must have been the “specific intent” of the action, and it proclaimed that the Convention Against Torture might be unconstitutional for limiting the president’s authority.

The Justice Department retracted its assertions on December 30, 2004, months after the memo was leaked to the media in June and shortly before Gonzalez’s scheduled appointment with the Senate Judiciary Committee regarding his recent nomination as U.S. attorney general. In 2003, Bybee became a federal judge on the United States Court of Appeals for the Ninth Circuit, and Yoo now teaches law at the University of California, Berkeley.

“When you’re a bunch of government lawyers sitting around debating what is torture and what is not torture,” Fleener said, “you need to step back and ask yourself, ‘What are we doing? We’re trying to cut corners on torture and split hairs on what torture is.’”

Those people, Fleener believes, are the individuals worthy of investigation. Democratic Senators Dick Durbin of Illinois and Sheldon Whitehouse of Rhode Island agree. On February 12, the two men sent a letter to Justice Department Inspector General Glenn Fine and Director of the Office of Professional Responsibility H. Marshall Jarrett demanding an investigation into members of the department who advised the CIA to torture detainees.

A day prior, the Bush administration announced that it would seek the death penalty for six Gitmo prisoners – Khalid Sheikh Mohammed, Mohammed al-Qahtani, Ramzi bin al-Shibh, Ali Abd al-Aziz Ali, Mustafa Ahmed al-Hawsawi, and Walid bin Attash – whom it stuck with 169 charges, including murder and conspiracy in violation of the law of war, alleging their direct involvement in the 9/11 attacks.

Although Khalid Sheikh Mohammed is the only one of the six known to have been waterboarded, The Washington Post reported that a “Clean Team” composed of FBI officials and military interrogators had been at work reinterrogating the suspects since late 2006, giving them “food whenever they were hungry as well as Starbucks coffee.” And although the officials touted their amicable techniques, The Post wrote that they “set as their goal the collection of virtually the same information the CIA had obtained from five of the six through duress at secret prisons.”

In November 2005, “former and current intelligence officers and supervisors” told ABC News about “a list of six ‘Enhanced Interrogation Techniques’ instituted in mid-March 2002 and used, they said, on a dozen top al Qaeda targets incarcerated in isolation at secret locations on military bases in regions from Asia to Eastern Europe.”

The techniques cited were the attention grab, in which “[t]he interrogator forcefully grabs the shirt front of the prisoner and shakes him”; the attention slap, “[a]n open-handed slap aimed at causing pain and triggering fear”; the belly slap, “[a] hard open-handed slap to the stomach” intended “to cause pain, but not internal injury”; long time standing, in which “[p]risoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours” to induce “[e]xhaustion and sleep deprivation”; the cold cell, where a “prisoner is left to stand naked in a cell kept near 50 degrees” and “doused with cold water”; and waterboarding.

Whether these particular techniques were used on the Gitmo six remains to be seen, with the exception of Mohammed, but the clean team “could certainly be interpreted as sort of a tacit admission that the earlier techniques were unlawful,” Fleener said. “If there wasn’t anything wrong with the earlier techniques, there’s no reason to go on with the clean team.”

The clean team, Fleener said, “highlights the absolute absurdity that an individual in Guantanamo Bay will ever receive a fair trial.” In a federal trial, he said, discrimination exists between evidence gathered non-coersively (admissible in court and highly relevant), coersively (not admissible), and non-coersively but under trying circumstances (admissible, but not necessarily relevant). “In the Military Commissions Act they threw them all together so that all evidence, no matter how it’s taken, is treated the same way. Thumbs up, it’s good to go. And not only that, you’re prohibited from digging into the evidence to determine how it was taken.”

Naturally, Director of Homeland Security Michael Chertoff has insisted that the trials will be fair. He told the BBC that “full due process and defence [sic] lawyers and all of the fundamental rights that would bring to justice those [who] were responsible for one of the worst war crimes in world history” would exist. When asked about evidence collected through waterboarding, he replied, “The judges will decide what’s reasonably admissible and what’s not admissible.”

But the clean team, coupled with Bush’s March 8 veto of the Intelligence Authorization Bill that passed the Senate on February 13 by a vote of 51-45 and contained a provision from Democratic Senator Diane Feinstein of California explicitly banning the CIA from interrogation methods not approved by the Army Field Manual – waterboarding included – raises serious doubts about the integrity of Chertoff’s claims.

To further complicate matters, on the day after the Senate vote, Mukasey told the AP that while he believed the alleged crimes of the Gitmo six fully merited death sentences, he had personal reservations about capital punishment because “many of them want to be martyrs.”

Fleener remains confident that some progress is being made. On February 22, The New York Times reported that the Justice Department’s “internal ethics office was investigating the department’s legal approval for waterboarding of [al-]Qaeda suspects by the Central Intelligence Agency and was likely to make public an unclassified version of its report.” Jarrett, the paper reported, responded to the Durbin/Whitehouse letter, writing that “legal advice approving waterboarding was one subject of an investigation into ‘the circumstances surrounding the drafting’” of the Bybee memo and related memoranda, which, according to The Times, “suggested the investigation would address still-secret legal opinions written in 2005 by Steven G. Bradbury, then and now the acting head of the Office of Legal Counsel, that gave legal approval for waterboarding and other tough methods.”

“I think it’s a great issue that may very well lead to [a] sanction of some sort against the authors of the memorandum,” Fleener said. “What the investigation still could get done now is essentially the work of the lawyers, and not from a criminal standpoint but from more of a legal ethics standpoint. And that’s an area that’s ripe and should be evaluated.”

Regardless of the investigation’s results, the stain of Guantanamo Bay will no doubt linger, and our country’s next president will have no choice but to inherit its consequences. And closing Guantanamo Bay, a proposal John McCain, Hillary Clinton, and Barack Obama have all voiced support for, “is a very difficult political position,” Fleener said. “You’d either have to transfer [the detainees] to the United States or somewhere else. It’s going to be a tough move for anybody to do it.” What it could come down to is a matter of priorities, he suggested. “It clearly had no priority in the Bush administration. It was just lip service.”

On torture, McCain has historically strongly opposed the Bush administration agenda that has enjoyed strong support from most congressional Republicans. The presumptive Republican presidential nominee lived as a prisoner of war for more than five years after his A-4 Skyhawk was shot down over North Vietnam in 1967. He endured intermittent periods of torture there that have left him unable to raise his arms above his head to this day.

McCain sponsored the Detainee Treatment Act of 2005, which prohibited “cruel, inhuman, or degrading treatment or punishment” of Gitmo detainees and bound military interrogators to the practices set forth in the Army Field Manual. But it also denied detainees habeas corpus – the right to appear before a court in objection to unlawful imprisonment – and a loophole allowed CIA interrogators to operate outside the constraints of the Army manual. The bill’s positive attributes were cast aside without regard to the law by a Bush signing statement that implemented Yoo’s unitary executive argument.

Feinstein’s provision in this year’s Intelligence Authorization Bill would have closed the CIA loophole, but the bill failed to receive enough support to override Bush’s veto. During a November 28, 2007, Republican presidential debate, McCain harshly condemned Mitt Romney when Romney refused to offer an opinion about waterboarding. Replied a visibly distressed McCain, “I’m astonished that … anyone could believe that’s not torture. It’s in violation of the Geneva Conventions; it’s in violation of existing law.” McCain, who then reiterated his support for the Army Field Manual at that debate, voted against the intelligence bill this year, arguing that the provision was already covered under the Geneva Conventions.

“I don’t believe [closing Gitmo] would be lip service in the McCain administration, but I do believe that its priority would be very low,” Fleener said. “I certainly believe [McCain] is going to cave in on many things that he already has caved in on – immigration reform, campaign reform, Bush tax cuts. I mean, he’s already certainly given into the conservative base on those issues.”

But torture, Fleener added, “is near and dear to his heart. So if he were to backpedal any further than that which is allowed in the Military Commissions Act [and want to] allow interrogation techniques that were harsher than those believed to be considered by the MCA or by the Detainee Treatment Act of 2005, I would be surprised.”

Fleener said Barack Obama “is by far” the most likely candidate to address the Gitmo problem, but voiced some support for Clinton, too. “I think that both Democratic candidates would do their best to close Guantanamo and restore habeas corpus. I believe that in an Obama administration it would have a higher priority.”

If all else fails, America can at least rejoice in knowing that, in a matter of months, history will rid itself of the Bush administration and its devastating legacy of unfettered deceit and lawlessness – if not the nation’s tarnished reputation – with a near-certain chance that Bush’s successor will pay more heed, if only marginally so, to the open wounds left unstitched by the abuses at Guantanamo Bay.

Tags: 2008 · AP Issues · Features · Gavin Aronsen · March 2008

1 response so far ↓

  • 1 Matt Bachman // Mar 31, 2008 at 5:37 pm

    Great article!

    I have but one suggestion: that you incorporate some sort of psychological analysis concerning torture. I am not personally familiar with the psychological literature concerning this, but I am sure that they have lots about this somewhere.

    I’m unsure if you can make a fair judgment over this issue without some sort of learning in psychology.

    Thanks again for the great article.

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