The Law of Torture: December 2008 Archives

Are US Officials Guilty of War Crimes?
by Andy Worthington

Will the Bush administration be held accountable for war crimes? The answer ought to be yes, if the verdict of the Senate Armed Services Committee Inquiry into the Treatment of Detainees in US Custody is to mean anything. The bipartisan report, released on December 11 by senators Carl Levin and John McCain, concluded that the torture and abuse of prisoners was the direct result of policies authorized or implemented by senior officials within the current administration, including President George W. Bush, former Defense Secretary Donald Rumsfeld, and Vice President Dick Cheney's former legal counsel (and now chief of staff) David Addington.

Since the scandal of the abuse of prisoners at Abu Ghraib prison in Iraq broke in April 2004, over a dozen investigations have identified problems concerning the treatment of prisoners in Iraq, Afghanistan and Guantanamo, but until now no official report has looked up the chain of command to blame senior officials for authorizing torture and instigating abusive policies. The Bush administration has been able to maintain, as it did in the wake of the Abu Ghraib scandal, that any abuse was the result of the rogue activities of "a few bad apples."

This is now untenable. As the report states: "The abuse of detainees in US custody cannot simply be attributed to the actions of 'a few bad apples' acting on their own. 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. Those efforts damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority."

Though containing little new information, the report is damning in its revelation of how senior officials sought out and approved the reverse engineering of techniques taught in the US military's SERE schools (Survival, Evasion, Resistance, Escape) for use on prisoners captured in the "war on terror." These include "stripping detainees of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures." In some circumstances, the measures also included waterboarding, a notorious torture technique which involves controlled drowning.

After noting that these techniques were taught to train personnel "to withstand interrogation techniques considered illegal under the Geneva Conventions," and that they are "based, in part, on Chinese Communist techniques used during the Korean war to elicit false confessions," the authors laid out a compelling timeline for the introduction of the techniques, beginning with a crucial memorandum issued by Bush on February 7, 2002. This stated that the protections of the Geneva Conventions, which the authors noted "would have afforded minimum standards for humane treatment," did not apply to prisoners seized in the "war on terror."

Having established Bush's role as the initial facilitator of abuse, the report then implicated those directly responsible for implementing torture, explaining how Pentagon general counsel William J. Haynes II began soliciting advice from the agency responsible for SERE techniques in December 2001, and how Addington, Justice Department legal adviser John Yoo, and White House counsel Alberto Gonzales attempted to redefine torture in the notorious "Torture Memo" of August 2002. The memo claimed that the pain endured "must be equivalent to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

The authors also noted how Rumsfeld approved the use of SERE techniques at Guantanamo in December 2002 (after Haynes had consulted with other senior officials), and explained how the techniques migrated to Afghanistan in January 2003, and were implemented by Lieutenant General Ricardo Sanchez, the commander of coalition forces in Iraq, in September 2003.

Even so, the report is not without its faults. The authors carefully refrained from ever using the words "torture" or "war crimes," which is a considerable semantic achievement, but one that does little to foster a belief that the officials involved will one day be held accountable for their crimes. They also, curiously, omitted all mention of Vice President Dick Cheney, and ignored the importance of the presidential order of November 2001, which authorized the capture and indefinite detention of "enemy combatants," even though Barton Gellman of The Washington Post has established that Cheney played a significant role in this and all the other crucial documents that led to the torture and abuse of detainees.

Responses in the US media have been mixed. Oddly, most major media outlets chose to focus solely on Rumsfeld's responsibility for implementing abusive techniques. More thoughtful commentators have questioned whether Barack Obama would pursue those responsible, noting that he will be unwilling to antagonize Republicans, whose support he needs to tackle the economic crisis, and that many Democrats in Congress knew about the administration's policies, and in some cases were involved in approving them. A recent article in The Nation noted that such complicity made "an unfettered review seem unlikely," but the article also noted, more hopefully: "A growing body of legal opinion holds that Obama will have a duty to investigate war crimes allegations and, if they are found to have merit, to prosecute the perpetrators."

As of December 17, those concerned with pursuing Bush administration officials for war crimes can at least be assured that the perpetrators now include Cheney. In an interview with ABC News, the vice president stuck to a now-discredited script, declaring "we don't do torture, we never have," but admitted for the first time that he knew about the use of waterboarding on a handful of "high-value detainees," and that he considered its use in their cases "appropriate."

Only time will tell if Cheney's admission will be regarded as a stalwart defense of national security, or as the last defiant gesture of a war criminal.

Cheney Admits to Approving Torture
by Carol Jensen

While President Bush and his little band of accomplices have hit the television circuit in a futile attempt at a last-minute revamping of his disastrous presidency, the other half of this destructive-duo, Dick Cheney, has taken a totally different approach that might be labeled the in-your-face confession exit interviews.

Cheney, on ABC News, confessed openly that he took part in ordering aggressive interrogation techniques including waterboarding. It appears that the vice president, in his personal quest to transform his office as outlined by the Constitution, has gone over the edge when it comes to America's tradition that no one is above the law and has placed himself in a position that he certainly should not be bragging about on national television.

During the ABC News interview, Cheney was asked directly about the torture technique known as waterboarding. He replied that, "I was aware of the program, certainly, and involved in helping get the process cleared." He was adamant in his belief that waterboarding was a valid method of interrogation that was appropriate to use on terrorism suspects. This indeed presents a strange twist for the Bush Administration in that they have repeatedly stated that they have not tortured anyone.

But of course Vice President Cheney refuses to acknowledge that courts in the United States of America, where the rest of us live, have long held that waterboarding is in fact defined as torture. Waterboarding is an outlawed interrogation technique where water is poured into someone's nose and mouth until he or she nearly drowns. The federal War Crimes Act does in fact define torture of this sort as a war crime punishable by life imprisonment or even the death penalty if the victim happens to die during a torture session.

Under U.S. law, anyone can and should be held accountable, even the vice president, if he knew that any one of his subordinates did or might commit a war crime and he failed to act to prevent or stop that act from taking place.

Cheney's recent comments are the first in which he has directly acknowledged that he personally played a pivotal role in approving the CIA's use of numerous and controversial interrogation techniques after Sept. 11. Cheney almost seemed proud of his participation with CIA operatives when he said that the CIA officials "in effect came in and wanted to know what they could and couldn't do. They talked to me, as well as others, to explain what they wanted to do. And I supported it," as was reported by the Associated Press.

The vice president needs to be reminded that torture has been banned by both international treaties, which the United States signed on to (the Geneva Conventions), as well as by the aforementioned United States law, which has with good foresight included torture bans in the United States Criminal Code.

Is Dick Cheney now vocalizing in public the fact that orders to torture in the ongoing "war on terror" came from the top down, and were not merely perpetrated by a small group of rogue underlings as the public was initially led to believe? Is the vice president making it imperative that President Bush should include his name on the list of those to be preemptively pardoned before he leaves office on Jan. 20? The American public does not have long to wait before we find out. The fact that Cheney has contradicted the president so openly makes one wonder what else he could possibly have on his mind.

Attorney General Michael Mukasey insists that there is no need for Bush to pardon anyone because there is no evidence that anyone developed the policies "for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful." But as Lt. Gen. Antonio Taguba, who investigated the Abu Ghraib scandal, said, "There is no longer doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account," as was reported by Marjorie Cohn at Common Dreams.

The actions taken during the Bush-Cheney Administration have not, in fact, as the vice president claimed in his ABC News interview, destroyed al Qaeda and saved American lives, but rather have had quite the opposite effect. Al Qaeda numbers have grown and attacks on U.S. troops increased. And the intelligence community has for decades known that information obtained during torture sessions is unreliable at best. Never mind that torture is a war crime.

by Jonathan Shaw, Harvard Magazine, January-February 2009

Huzaifa Parhat, a fruit peddler, has been imprisoned at Guantánamo Bay Detention Center for the last seven years. He is not a terrorist. He's a mistake, a victim of the war against al Qaeda. An interrogator first told him that the military knew he was not a threat to the United States in 2002. Parhat hoped he would soon be free, reunited with his wife and son in China. Again, in 2003, his captors told him he was innocent. Parhat and 16 other Uighurs, a Muslim ethnic minority group, were living in a camp west of the Chinese border in Afghanistan when the U.S. bombing campaign against the Taliban destroyed the village where they were staying. They fled to Pakistan, but were picked up by bounty hunters to whom the U.S. government had offered $5,000 a head for al Qaeda fighters.

The Uighurs were officially cleared for release in 2004, but they remain at Guantánamo. They cannot be repatriated to China, because they might be tortured, and no other country will take them. The U.S. government does not want to allow them into the United States for fear of setting a precedent that might open the door for detainees it still considers dangerous. In 2006, after again being told that they were innocent, and becoming desperate, some of the Uighurs began mouthing off to their captors. They were sent for a time to Camp Six, a $30-million "supermax" prison for holding al Qaeda suspects in isolated cells.

In the tomb-like confines of this concrete prison, some of them began to crack up, says P. Sabin Willett '79, J.D. '83, a Boston-based attorney with Bingham McCutchen, the firm that has represented the Uighurs pro bono since 2005. "The Department of Defense has studied what happens to human beings when they are left alone in spaces like this for a long time and it is grim," Willett notes. "The North Koreans did this to our airmen in the 1950s. The U.S. ambassador to the United Nations went to the floor of the General Assembly and denounced the practice as a step back to the jungle."

Continue reading The War and the Writ: Habeus Corpus and Security in an Age of Terrorism.

On ABC's This Week, Biden was asked whether high-level Bush administration officials should be prosecuted for torture. Biden responded with the following:

"The questions of whether or not a criminal act has been committed...is something the Justice Department decides," Biden responded. "That's a decision I'd look to the Justice Department to make." While stating he was "not ruling it in and not ruling it out," Biden underscored that he and Obama are are "focusing on the future." "I think we should be looking forward, not backwards."

Deterring Torture Through the Law

By Coleen Rowley and Ray McGovern
December 20, 2008

"A widespread lack of understanding regarding the purposes served by the criminal justice system -- and the penal system -- is a major obstacle to even entertaining the thought of prosecuting administration officials for torture.

"All too many pundits are claiming that the country should simply move on and just close the book on this painful chapter -- and that to do otherwise would simply be to try to extract vengeance.

"But it is not about vengeance. The key goal here is deterrence -- the final and most important goal of our criminal justice and penal systems in such circumstances."

UC Berkeley continues to tolerate torture and massive covert domestic-spying as John Yoo remains employed as a Professor of Law at Boalt Hall. UC Berkeley legitimizes John Yoo's Torture Memos and rationalization of secret surveillance with polite academic discourse and arguments of academic freedom, the First Amendment, and Due Process. UC Berkeley continues to do nothing to repudiate John Yoo's deliberate thwarting of professional responsibility. Berkeley Law and Chapman University School of Law provide safe harbor for John Yoo to be shielded from investigation, dismissal, and prosecution for war crimes and crimes against humanity.

John Yoo did not take orders from the top to legalize and implement a domestic spying program and state torture--John Yoo is the principal. The secret collection and data-mining program and secret surveillance were instigated and implemented by John Yoo, who argued that the president's constitutional powers as commander in chief trumped the Foreign Intelligence Surveillance Act (FISA) and Common Article 3 of the Geneva Conventions.

As the legal profession and academia accept John Yoo as providing "the other side of the debate," they neglect confronting reality and the dire consequences for the future of legality. The 'Ivory Tower' and the American Bar Association send the message that illegality can be sanctioned and protected no matter how gruesome and long-lasting the consequences. UC Berkeley has sent the message that tenure outlasts rampant illegal, immoral, and illegitimate decisions to be carried out in creating new standards in which surveillance and torture are viewed as normative. UC Berkeley stands for strengthening draconian laws for empire and shielding John Yoo from accountability and repudiation.

Barack Obama storms the Guantanamo Bay torture chamber

By Tim Shipman

The 'terrorism trial of the decade' begins on Monday in Guantánamo Bay - so why is the US President-Elect planning to derail it?

On Monday morning, a heavy-set man in thick spectacles will be led from a concrete cell, whose narrow-slit window overlooks the Caribbean, by soldiers whose name tags have been removed from their uniforms and replaced with a Velcro strip reading: "I don't know".

He will be taken to a maximum-security courtroom to sit with four co-defendants 30 ft from a glass wall -- all that will separate him from 10 families who lost loved ones in the terrorist atrocities for which he has claimed credit.

The moment marks the start of five days of trial hearings against Khalid Sheikh Mohammed, the self-styled architect of the September 11 attacks and one-time number three in the al-Qaeda hierarchy. The guards at the Guantánamo Bay detention camp, scene of the military tribunal, will be anonymous, to prevent reprisal attacks on their families.

The KSM trial -- as its primary defendant is known in security circles -- ought to be a moment of catharsis for America. It will be pregnant with meaning for the Bush administration, which will have just 43 days left in power; for President-Elect Barack Obama, who has vowed to close the detention camp; and for Alice Hoagland, who will sit behind the glass screen looking at the man responsible for the death of her son, Mark Bingham. He died on United Airlines Flight 93, which plunged into the Pennsylvania countryside after passengers tried to take back the hijacked aircraft.

But what is being dubbed "the terrorism trial of the decade" could be in vain if Mr Obama tears up the laws under which it is being conducted.

The US Supreme Court ruled in June that the detainees have a right to go before federal judges, but officials in the Bush administration pushed to have Guantánamo's most notorious captives tried before the President leaves the White House next month.

Lt-Col Darrel Vandeveld, a former Guantánamo prosecutor who resigned over what he calls a culture of secrecy and mismanagement at the base, said: "It's clear that civilians running the commissions wanted to charge the 9/11 defendants to meet an arbitrary deadline.They wanted to rush what they viewed as the 'worst of the worst' through the system, regardless of the evidence or whether it had been obtained by waterboarding or other forms of torture."

KSM is one of three detainees the CIA admits to waterboarding, an "enhanced interrogation" technique that simulates drowning.

Clive Stafford Smith, the lawyer representing the former British resident Binyam Mohamed, awaiting trial in Guantánamo, is dismissive of the KSM trial: "This is just a PR exercise. Nothing will come of it. It will all be shut down before the trial is completed." Everything said in the courtroom will be broadcast to the watching press and families on a 20-second delay, so that classified material on their treatment can be muted. 

Continue reading here.

"Sixty years ago, Eleanor Roosevelt and the U.S. government worked doggedly to create the Universal Declaration of Human Rights. Mrs. Roosevelt knew many successes in her long years of public service, yet she regarded the writing and passage of the Universal Declaration of Human Rights as her greatest accomplishment. She envisioned it as an international Magna Carta and Bill of Rights for people everywhere. She worked so hard (and drove others hard as well) that one delegate charged that the length of the drafting committee meetings violated his own human rights.

Like all other human organizations, the United States has a less than pure record on human rights. The same U.S. founding documents that set some souls soaring with language of universal rights also enslaved other human beings and defined them as property, while also excluding the female majority of the population entirely. We the people have spent the last 232 years working to live up to the best and undo the worst of those founding documents.

Whatever one thinks of Barack Obama, Sarah Palin or Hillary Clinton, the 2008 presidential election campaign was a historic move to open up our political life and leadership to all. Eleanor Roosevelt was no starry-eyed idealist. As a woman, an advocate for the poor and the wife of a man with a disability, she knew that U.S. rhetoric on human rights often did not match reality. Lest she forget it, the Soviet and other Communist delegates to the United Nations continually reminded her. As she recounted it, they would point out some failure of human rights in the United States and ask, "'Is that what you consider democracy, Mrs. Roosevelt?' And I am sorry to say that quite often I have to say, 'No, that isn't what I consider democracy." [...]

Continue reading Maryann Cusimano Love's "An End To Torture: Can the United States recommit itself to legal interrogation techniques?"

On October 2nd, 2008 at Columbia Law School, Attorney General Mukasey argued in favor of the government's lawyers and the decisions that were enacted and furthered by the Office of Legal Counsel after September 11th, 2001. Mukasey heeded the audience with caution-- "caution against questioning the lawyers' good faith" and "caution against second guessing the Justice Department's decisions in hindsight, beyond the heat of crisis." (Steven G. Calabresi also makes a good faith argument here.)

According to Mukasey and Calabresi, people of consciousness should ignore the illegitimate use of torture, and the legal profession should pass on any form of accountability as, "Questions national security lawyers confront are "as complex and consequential as they come. Lives and the way we live them may hang in the balance," he said. "Political leaders and the public must not forget what was asked of those lawyers seven years ago."

What we asked of lawyers seven years ago and what we ask of lawyers today is adherence to and compliance with domestic and international law. The declaration of a state of national emergency does not warrant anything less than this basic standard. John Yoo's actions cannot be overlooked merely  they dealing with particularly potent questions. The issue of torture does not rise from the sticky political process or how prosecution might destroy any morale in government by the "average" person.

The gravamen of torture is to end torture, to end the mass murder, abuse, and cruel and unusual punishment of individuals who have not been charged, whose livelihoods are in jeopardy as legal limbo lounge persists.

The legalization of torture 'shocks the conscience' of the world. The Office of Legal Counsel does not immunize John Yoo from taking responsibility for legalizing torture pursuant only to the policies that needed to be enacted by the Bush Regime to legitimate the illegitimate occupation of Iraq. John Yoo cites no legal authority to reflect domestic and international laws against torture. John Yoo's authorizations of torture were made in violation of these laws, yet the legal profession stands aside with the line that John Yoo has not acted with a culpable state of mind.

Mukasey went on to question, "where are the legal lines that will be drawn in this new and very different conflict, and as a matter of policy how close to those legal lines we should go, and whether the lines can and should be redrawn."

The legal line against torture has already been crossed and shattered in our names. There is no reason to give the Office of Legal Counsel a "golden shield" on legalizing torture. There is no evidence that points to John Yoo's good faith reasoning. In fact, as Scott Horton points out in "Golden Shield or Achilles Heel?": the evidence points to "a joint criminal enterprise, the object of which was to enable torture--the memos actually were intended to and did further the scheme. They are evidence of a crime and of criminal intent. The core of that criminal enterprise was formed and much of it was carried out inside the Justice Department."