This is a guest post from Rebecca Gordon from War Times/Tiempo de Guerras. It is also our current "Month in Review" email. You can sign up to receive these informative overviews at the War Times website.
If it weren't for swine flu, Phil Specter's conviction and Arlen Specter's defection, the Bush Administration's torture regime would still be the lead story in this country. This month saw the release of four Justice Department memos about interrogation of detainees, one from 2002 and three from 2005, all addressed to CIA lawyer John Rizzo. The following week the Senate Armed Forces Committee declassified its November 2008 report on the treatment of detainees in U.S. custody. In addition, a 2006 report from the International Committee of the Red Cross on U.S. treatment of 14 "high value" detainees was leaked to the press.
You can download the Justice Department Office of Legal Counsel memos from the ACLU, whose Freedom of Information Act suit shook them loose. Here's the link.
A searchable version of the 263-page Armed Forces Committee report is available from the New York Times.
The ICRC report can be downloaded from the New York Review of Books.
TORTURE AS INTENTIONAL POLICY
Some key points emerge from these documents:
- No reasonable person can doubt that the use of torture was an intentional Bush Administration policy, beginning at least as early as 2002. In August of that year, Jay Bybee wrote for the Justice Department's Office of Legal Counsel (the "OLC") that his office believed that none of 10 interrogation methods suggested by the CIA for use on their detainee Abu Zubaydah would violate the U.S. legal statute prohibiting U.S. citizens from performing torture outside the United States. (Other laws cover this inside U.S. territory).
These methods included stress positions, sleep deprivation, confinement in a very small box, confinement in a very small box with an insect, waterboarding and something called "walling." Walling consists of wrapping a towel around a prisoner's neck and using it to slam his back into a supposedly "flexible wall" -- In Abu Zubaydah's case, the wall was actually concrete, as he told the International Committee of the Red Cross. One day, after some hours spent in a box that was too small for him to sit or stand, he was released for another session of walling. A piece of plywood had been affixed to the concrete wall in the interim, presumably to make it "flexible." The ICRC calls walling "beating by use of a collar."
Each of the method approved by the OLC qualifies as torture under the definitions in U.S. law and the United Nations Convention against Torture and Other Cruel, Inhuman, and Degrading Treatment. Sleep deprivation, to take just one example, can cause extreme disorientation, paranoia, and hallucinations in a short period of time. The CIA's method of preventing sleep was to shackle the prisoner in a standing position, with his arms suspended from above. If the prisoner fell asleep, the jerking on his wrists would wake him up. Prisoners spent days at a time in this position, and were fitted with diapers to that they could defecate while standing. The ICRC reports that medical personnel routinely measured detainees' legs, to make sure that the swelling this treatment provoked was within some "acceptable" limit.
- The purpose of the four OLC memos was not to provide legal advice, but to give legal cover for CIA operatives involved in interrogations. The three Bradbury memos from 2005 evaluate a similar list of interrogation "techniques," explaining why none of them violates either U.S. law or the Convention against Torture. One memo dealing with the Convention begins by arguing that nothing the CIA does in a foreign country can violate the treaty, because the CIA is not acting in "territory under U.S. jurisdiction."
The memos examine each proposed interrogation procedure in turn, concluding that none of them rise to the legal standard of "shocking the conscience," or involve the infliction of sufficiently severe physical or mental pain or suffering to violate the law. One memo bemoans "the imprecision in the statutory standard and the lack of guidance from the courts," on the question of how much pain or suffering is too much.
Here is a taste of the OLC arguments: The CIA would be legally covered, Bradbury wrote, even if sleep deprivation causes hallucinations, because the U.S. law prohibits treatment calculated "to disrupt profoundly the senses or personality." Because hallucinations are merely a by-product of sleep deprivation, not its purpose, "any hallucination on the part of a detainee undergoing sleep deprivation is not something that would be a 'calculated' result of the use of this technique"--and so would be perfectly legal!
- The purpose of torture was not to extract the truth so much as to establish it. Major Charles Burney, a former U.S. Army psychiatrist told the Senate Armed Services Committee, that interrogators at Guantánamo were under pressure to get detainees to say there was a link between Saddam Hussein's government in Iraq and Al Qaeda. Since no such link existed, this proved difficult to do. "The more frustrated people got in not being able to establish that link..." said Burney, "there was more and more pressure to resort to measures that might produce more immediate results."
- Torture wasn't necessary anyway. Former Vice President Dick Cheney has been making the news-talk rounds, arguing that not only was the treatment of detainees not torture, it produced very important information. But the information was already available. There was no reason to waterboard Abu Zubaydah 83 times to find out that Khalid Sheikh Mohammed masterminded the 9/11 attacks. But former FBI agent Ali Soufan wrote in the New York Times that "KSM" had already revealed this -- back in March 2002, before the CIA began using its harsher methods.
PROSECUTE THE TORTURERS
When President Obama ordered the Justice Department memos released (a step bitterly opposed by the Bush-Cheney-McCain wing of the elite as well as virtually the entire national security establishment), he said that "nothing will be gained by spending our time and energy laying blame for the past."
War Times disagrees. First, this particular "past" is not over. Guantánamo is still open, as are prisons in Iraq and Afghanistan. The President has prohibited torture, but U.S. citizens cannot rest until we know the prohibition is sticking.
That is why the United States must prosecute the people who have ordered and sanctioned torture over the last seven years. Otherwise we will be constructing a culture of impunity no different from that which protected Latin American generals responsible for dirty wars in Chile or Argentina.
If the U.S. doesn't prosecute, Spanish judge Baltasar Garzón may. He's bucking his own government to bring charges against Bush Administration officials, based in part on the newly declassified memos.
Article 2.2 of the Convention against Torture -- which the United States has signed and ratified -- says, "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture." We must do everything we can to prevent our nation from ever breaking the treaty again.
One thing you can do is join the ACLU's campaign for a special prosecutor. Here's the link.
War Times co-editor Rebecca Gordon teaches ethics to college students and is finishing a dissertation on torture in the post-9/11 United States.