A project of the Nation Institute compiled and edited
© by Tom Engelhardt
Quotes of the week:
"Congress shall have the power . to declare war and make rules
concerning captures on land and water . to define offenses against the law
of nations [and] to make rules for the government and regulation of the land
and naval forces." (From the Constitution, David G. Savage and Richard B.
Schmitt, Lawyers Ascribed Broad Power to Bush on Torture, the Los Angeles
Times)
"We need to have a less-cramped view of what torture is and is
not." (A military official explaining the approach of the team writing the
above memo, Jess Bravin, Pentagon Report Set Framework For Use of Torture,
The Wall Street Journal)
"It's a very cowboy kind of affair." (Lt. Col. Steven L. Jordan,
who controlled the Joint Interrogation and Debriefing Center at Abu Ghraib
prison, speaking of the actions of the CIA unit there, R. Jeffrey Smith,
Soldier Described White House Interest, the Washington Post)
Room 101
For his dystopia, 1984, his classic novel of totalitarianism,
George Orwell created Room 101, an interrogation room where a prisoner's
deepest fears were to be realized and applied. Tier 1 in Iraq's Abu Ghraib
prison, as the now-infamous photos indicate, was the Bush administration's
Room 101 for the "Arab mind," and so the crown jewel of its global
interrogation facilities; just as Guantanamo was the "crown jewel" of the
prison camps in its global Bermuda Triangle of injustice; just as the new
appointed "interim government" hidden within the ever-more fortified Green
Zone in Baghdad and led by a prime minister and former CIA asset whose exile
organization, we learned this week, once set off car bombs in downtown
Baghdad, is now the crown jewel of "freedom and democracy" in the Middle
East. This is our "war against terrorism." Talk about an Orwellian world.
As it happens, from the heart of Abu Ghraib's interrogation
rooms and the acts of, as our President and other administration officials
have repeatedly said, "a few people" or even "a few hillbillies," the nature
of, extent of, knowledge about, and responsibility for such acts has been
rapidly spreading outwards across the imperium, upwards into the highest
reaches of our government, and backwards in time. We now know, for instance,
that, to the various acts of horror caught on camera in Abu Graib, we must
add murder (or rather numerous murders) in Afghanistan as well as Iraq, and
the use of electric shocks on prisoners, as the Marine Corps Times reported
recently.
As for the acts we saw in the photographs, they too have
"spread" and knowledge of them reaches ever higher: To take but two
examples, Nakedness is now reported to have been used as a tool of
humiliation not just in Iraq but in Afghanistan and at Guantanamo, as it was
used in one of the earliest acts of American inhumanity in the war against
terrorism, the interrogation of John Walker Lindh in Afghanistan back in
2001; while the "technique" of menacing prisoners with dogs -- "an apparent
violation of the Geneva Conventions and the Army's field manual" -- has now
been well documented at Abu Ghraib by the Washington Post ("On Jan. 13,
Spec. John Harold Ketzer, a military intelligence interrogator, saw a dog
team corner two male prisoners against a wall, one prisoner hiding behind
the other and screaming, he later told investigators. 'When I asked what was
going on in the cell, the handler stated that he was just scaring them, and
that he and another of the handlers was having a contest to see how many
detainees they could get to urinate on themselves.'"); but it was also
evidently employed at Guantanamo, according to the Wall Street Journal.
In the meantime, responsibility for such actions has moved
inexorably upwards. We know now that interest in information gleaned from
interrogations, ranging from that of John Walker Lindh to those in Iraq was
requested at the highest official levels (not so surprising, since our
offshore mini-gulag was a pet project of top officials in this
administration): "The head of the interrogation center at the Abu Ghraib
prison in Iraq told an Army investigator in February that he understood some
of the information being collected from prisoners there had been requested
by 'White House staff,' according to an account of his statement obtained by
The Washington Post." Far more specifically, R. Jeffrey Smith and Josh White
of the Post reported this Saturday that, despite his denials to Congress, in
the fall of 2003, "Lt. Gen. Ricardo S. Sanchez, the senior U.S. military
officer in Iraq, borrowed heavily from a list of high-pressure interrogation
tactics used at the U.S. detention center in Guantanamo Bay, Cuba, and
approved letting senior officials at a Baghdad jail use military dogs,
temperature extremes, reversed sleep patterns, sensory deprivation, and
diets of bread and water on detainees whenever they wished, according to
newly obtained documents."
In turn, thanks to Jess Bravin and Greg Jaffe of the Wall Street
Journal, we now know that in December 2002 Donald Rumsfeld approved a very
similar list of "interrogation techniques" right down to those dogs for
Guantanamo: "U.S. military interrogators at Guantanamo Bay, Cuba, could put
prisoners in 'stress positions' for as long as four hours, hood them and
subject them to 20-hour-long interrogations, 'fear of dogs' and 'mild
non-injurious physical contact,' according to [a] list of techniques Defense
Secretary Donald Rumsfeld approved in December 2002." (The list was later
rejiggered not because of any qualms Rumsfeld had but due to complaints from
military officers about the severity of the methods suggested. The present
list of approved techniques remains classified, but will undoubtedly soon be
leaked to the press.)
The above can be traced back farther yet. According to
"documents, read to The [Los Angeles] Times by two sources critical of how
the government handled the Lindh case," writes journalist Richard Serrano,
"After American Taliban recruit John Walker Lindh was captured in
Afghanistan, the office of Defense Secretary Donald H. Rumsfeld instructed
military intelligence officers to 'take the gloves off' in interrogating
him. In the early stages, his responses were cabled to Washington hourly,
the new documents show. What happened to Lindh, who was stripped and
humiliated by his captors, foreshadowed the type of abuse documented in
photographs of American soldiers tormenting Iraqi prisoners at Abu Ghraib."
This, of course, takes us not only to the top of the
administration, but back to the brink of the -- if I dare put it this way --
Ur-moment in the setting up of what would become our offshore mini-gulag,
those months right after the 9/11 attacks when the Bush administration began
to set their system in place on the fly and, as Suzanne Goldenberg of the
British Guardian reported recently, on key issues without initially even
consulting White House or Pentagon lawyers.
"In one instance, President George Bush's military order of
November 13 2001, which denies prisoner-of-war status to captives from
Afghanistan and allows their detention without charge or access to a lawyer
at Guantánamo, was issued without any consultations with Pentagon lawyers, a
former Pentagon official said. The military order issued by Mr Bush in
November 2001 was the first such directive since the second world war, and
the administration's failure to seek the Pentagon's advice on what would
emerge as the entire system of detention at Guantánamo surprised Pentagon
officials."
Add it all up -- only what's been revealed so far -- and you
have a global system of injustice and torture, purposely mounted in the
moral and legal darkness, beyond the reach or oversight of anyone but the
President, vice-president, secretary of defense and associated officials,
meant to extract information (and take revenge), meant as in Kafka's
fictional penal colony to write the sentence these men had passed on the
bodies of America's captives.
And talk about paper trails! If you need any evidence of the
combination of arrogance, incompetence, and plain stupidity of the Bush
administration, it now sits unavoidably before our eyes. Didn't they know
anything about deniability? Didn't they know that you can get so much done
without committing anything to paper? Didn't they know that you can signal
what you want from the top without issuing orders, making direct demands, or
demanding supporting opinions on paper?
Note two things here: That almost all of the above, this whole
little global shop of horrors, is already documented -- quite literally in
papers pouring out of the bowels of this administration. These documents are
leaking daily from an administration that seems to have split open along
many angry rift lines. The British Telegraph this week, writing of the
leaking of a legal document on torture to the Wall Street Journal commented,
for example:
The leak appears to be part of an extraordinary civil war in
the Pentagon between civilian officials and uniformed officers appalled by
what they have described as moves by political appointees to shroud the war
on terrorism in an 'environment of legal ambiguity'.
Some in the military, the intelligence community, the State
Department, administration legal offices, and possibly even the Justice
Department opposed the creation of our mini-gulag and the kinds of
interrogations and conditions planned for it; some simply feared what the
illegality might do to them or their careers, including evidently Joint
Chiefs of Staff Chairman Gen. Richard Myers who fretted that he might become
"a target for prosecution under laws governing prisoner treatment"; some are
undoubtedly settling scores; others protecting tattered reputations; but
it's now close to open season on the administration from within.
Only today, the Los Angeles Times reported that, in a nearly
unprecedented act in our country, 26 ex-military and senior diplomatic
officials, "several appointed to key positions by Republican Presidents
Ronald Reagan and George H.W. Bush, plan to issue a joint statement this
week arguing that President George W. Bush has damaged America's national
security and should be defeated in November." And retired officials almost
invariably are speaking for larger constituencies within the government --
all those potential leakers and mutterers -- who fear speaking out publicly
themselves.
Addressing an Asian security conference on the administration's
"war on terror," Donald Rumsfeld recently commented : "[T]he reality is that
today we remain closer to the beginning of this struggle than to its end."
The same might be said of the uncovering of responsibility for our own
global terror system. There will be so much more to learn. Already, when it
comes to Abu Ghraib, Iraq, and Afghanistan, the Pentagon keeps heaping
investigations on top of one another, each subsequent one led by a figure
with a higher rank and so more capable of investigating responsibility at
higher levels, and I think it can be said with certainty that this will only
get worse -- worse probably than anything we now imagine. After all, to take
but the smallest of examples, CBS news reports that "of the 20 U.S.-run
jails in [Afghanistan], the Red Cross has only been allowed to visit one in
Kabul. Now one in Kandahar is being opened." Imagine what's been happening
at those other 18.
A world of tortured definitions
Here's what's clear. In the wake of the 9/11 attacks, the "tough
guys" of Bush's world promptly battened down the hatches and began preparing
for the war, and warfare state, of their dreams. Using the analogy of the
almost four-decade-long Cold War, which was their lifetime experience (and
with movie images of World War II dancing in their heads), they announced
that we were in a global war not against any state (though they were already
itching to hit Saddam's Iraq), but against "terrorism" itself, an amorphous
force -- actually, of course, a tactic employed by scattered bands of
Islamic fanatics (some initially funded by men in this administration back
when we were fighting the Soviets by proxy in Afghanistan). This new "war,"
they announced with a certain élan and self-satisfaction would, like the
previous cold one, last decades if not a lifetime. With Americans in shock
and fearful, they then began planning a no-holds-barred, bring-'em-on style
of warfare filled with acts of pitiless, unilateral vengeance to be launched
by the most powerful state on the planet in the way of which nothing should
get.
This was a war to be fought, to use a common Cold War
catchphrase, "in the shadows," and the shadows would soon enough include a
global imprisonment system that stretched from holding cells on aircraft
carriers to facilities in Afghanistan to Saddam's old prisons to Guantanamo
to military brigs in the United States and unnamed jails in "friendly"
foreign countries. In those shadows, beyond the eyes of anyone, they had
every intention of employing the sort of tactics that they imagined would
break the back of terrorism. These acts of "information extraction" would be
torture -- terror, that is -- by another name or no name at all.
Looking back, it's curious how much of this was a war of words,
a redefinitional journey involving linguistic and legalistic contortions of
the most remarkable sorts. The first of these contorted definitions was of
"war" itself. We did not actually declare war. After all, who was war to be
declared against? We were simply defined as being "at war." And from this, a
series of other definitions followed. Perhaps the most important had to do
with the people captured in this "war."
It might seem apparent that, having declared yourself at war,
the people you thereafter captured might indeed be prisoners of war. But
this presented a problem since the rights of POWs were so clearly defined
internationally in treaties signed by the U.S. government. So the
administration simply redefined those captured in this redefined war as
"unlawful combatants" or "illegal combatants." This and other terms used for
them came out of a new Devil's dictionary; for once we had defined them
thusly, they could then enter our offshore world of imprisonment -- at least
in the minds of Bush administration officials - as the sorts of captives to
whom a whole new series of definitions could be applied.
The third definitional problem was where to hold these
prisoners, so that the holding itself (without charge or trial, potentially
to eternity) could not be challenged either by the prisoners themselves
through any legal representation or through the courts of our own country.
The administration needed a place where it could publicly practice its new
definitional privacy - and that turned out to be our military base at
Guantanamo, which was redefined for the purposes of the moment as under
"Cuban sovereignty," though this was obviously a brazen fiction. But even
this wasn't satisfactory for them. Guantanamo, off-limits as it was, still
turned out to be far too "public" for what they planned to do to their
"highest value" captives and so, for them, they developed a special, CIA-run
system of imprisonment that stepped beyond definition itself. As Human
Rights Watch puts it in an invaluable recent report on our global torture
system:
Among the most disturbing cases, perhaps unprecedented in U.S. history, are the detainees who have simply been 'disappeared.' Perhaps out of concern that Guantánamo will eventually be monitored by the U.S. courts, certainly to ensure even greater secrecy, the Bush administration does not appear to hold its most sensitive and high-profile detainees there. Terrorism suspects like Khalid Sheikh Mohammed, accused architect of the September 11 attacks, and Abu Zubaydah, a close aide of Osama bin Laden, are detained by the United States instead in 'undisclosed locations,' presumably outside the United States, with no access to the ICRC, no notification to families, no oversight of any sort of their treatment, and in most cases no acknowledgement that they are even being held. Human Rights Watch has pieced together information on 13 such detainees, apprehended in places such as Pakistan, Indonesia, Thailand, Morocco, and the United Arab Emirates, who have 'disappeared' in U.S. custody.
At the same time, the administration was attempting to redefine
presidential power in such a way that the once normal Congressional and
court checks and balances of an American republic no longer applied. In his
power as commander-in-chief (again note that all other redefinitions were
based on the redefinition of "war"), the President was, in various legal
briefs meant for the highest officials in this administration, pronounced to
be beyond any control by Congress or the courts in his acts. (See the
initial quote above.)
Finally, having redefined the nature of war, the powers of the
president, the nature of captivity, and the places of imprisonment, it was
the most natural thing in the world to redefine "information extraction"
within such a system so that neither international treaties like the Geneva
Conventions, nor congressionally passed laws, nor the Constitution itself
was applicable to them. In this sense, from the earliest days after the 9/11
attacks, the Bush administration was focused on, above all else, setting up
a global torture system by another name.
Much of this has recently become clearer as a series of internal
documents produced by White House, Pentagon, and Justice Department lawyers
have leaked out in recent weeks. To offer a Vietnam analogy, you might say
that in the Vietnam era, The Pentagon Papers, that revelatory secret study
ordered up by Secretary of Defense Robert McNamara and slipped to the New
York Times by one brave whistleblower, Daniel Ellsberg, were the private,
confessional equivalent of liberal guilt over the war; in the Bush era,
these unbelievable lawyers' memos, some also ordered up in the privacy of
the administration by the present Secretary of Defense, are the neocon
equivalent of a (legalistic) guilty conscience. They are, in some perverse
fashion, deeply confessional documents, and in the future, they will read
that way.
There were two parallel struggles here: One was to establish the
war they wanted to fight and this they largely did before they turned to the
lawyers; the other was to clear the decks legally for it. This week - even
while Ronald Reagan ruled -- Jess Bravin of the Wall Street Journal produced
a hard-hitting piece based on one of these leaked documents that began a
process not likely to go away soon. He led off:
Bush administration lawyers contended last year that the president wasn't bound by laws prohibiting torture and that government agents who might torture prisoners at his direction couldn't be prosecuted by the Justice Department. The advice was part of a classified report on interrogation methods prepared for Defense Secretary Donald Rumsfeld after commanders at Guantanamo Bay, Cuba, complained in late 2002 that with conventional methods they weren't getting enough information from prisoners. at its core is an exceptional argument that because nothing is more important than 'obtaining intelligence vital to the protection of untold thousands of American citizens,' normal strictures on torture might not apply. The president, despite domestic and international laws constraining the use of torture, has the authority as commander in chief to approve almost any physical or psychological actions during interrogation, up to and including torture, the report argued.
As Bravin reported:
The report was compiled by a working group appointed by the
Defense Department's general counsel, William J. Haynes II. Air Force
General Counsel Mary Walker headed the group, which comprised top civilian
and uniformed lawyers from each military branch and consulted with the
Justice Department, the Joint Chiefs of Staff, the Defense Intelligence
Agency and other intelligence agencies. It isn't known if President Bush has
ever seen the report. A military lawyer who helped prepare the report said
that political appointees heading the working group sought to assign to the
president virtually unlimited authority on matters of torture -- to assert
'presidential power at its absolute apex.'
Though the report has now been much quoted, it should be read in
full. Its flavor can hardly be grasped in tidbits. It may, in fact, be one
of the most tortured "legal" pieces ever written -- certainly ever written
in a democracy -- on the subject of redefining acts of inhumanity and
torture as something other than acts of inhumanity and torture. (If your
computer can handle pdf files, you can click here to find it.) In it,
Orwell's "doublethink" meets the lawyers and judges of Kafka's The Trial
head on, revealing a dark landscape of legalistic legerdemain.
The report had two main purposes, as best I understand it -- to
place presidential power (in the form of the powers of the
commander-in-chief to prosecute war) outside any legal boundaries
whatsoever, thus removing from George Bush and his subordinates of any
responsibility for acts he may have ordered committed; and to redefine
torture so narrowly that it becomes the definitional property of the
torturer.
It's worth spending a little time with some of this document
just to get a feel for it. The lawyer-authors, for instance, expend much
effort acting as if they were part of a panel for a new edition of some
dictionary ("The word 'profound' has a number of meanings, all of which
convey a significant depth. Webster's New International Dictionary 1977 [2nd
ed. 1935 defines profound as...]") and, where necessary, they don't hesitate
to take up the role of psychiatrist either. "We likewise think," they write
at one point, considering what might disrupt "profoundly the senses or
personality" and so be considered torture, "that the onset of
obsessive-compulsive disorder behaviors would rise to this level...
Moreover, we think that pushing someone to the brink of suicide [which could
be evidenced by acts of self-mutilation], would be a sufficient disruption
of the personality to constitute a 'profound disruption.'")
Their purpose in each case is to narrow drastically some
previous legal definition of torture. They spend much time, for instance,
considering how to define various parts of the well-accepted phrase "severe
physical or mental pain or suffering," always emphasizing the word "severe"
and then defining it in the most severe possible way:
In order to prove 'severe mental pain or suffering,' the
statute requires proof of 'prolonged mental harm' that was caused by or
resulted from one of four enumerated acts... [T]he development of a mental
disorder such as posttraumatic stress disorder, which can last months or
even years, or even chronic depression... might satisfy the prolonged harm
requirement... [I]f a defendant [interrogator] has a good faith belief that
his actions will not result in prolonged mental harm, he lacks the mental
state necessary for his actions to constitute torture. A defendant could sho
w that he acted in good faith by taking such steps as surveying professional
literature, consulting with experts, or reviewing evidence gained from past
experience... Because the presence of good faith would negate the specific
intent element of torture, good faith may be a complete defense to such a
charge.
In other words, the harm to a prisoner from what might
ordinarily be considered acts of inhumanity and torture must be "severe"
indeed -- proof of that severity could even take several months to
develop -- and in addition it would have to be proved that the interrogator
actually meant to create a state of, say, posttraumatic stress disorder. In
other words, the act of torture is not, in fact, torture if the intent to
torture is not there -- and, since it's a matter of "good faith," the only
person who could affirm that torture had taken place would, in essence, be
the torturer.
But even that's not enough. According to this administration's
best legal minds, even knowing in a general sense what ill results might
come from your acts does not necessarily make you a torturer, not if you did
not mean to cause such results. What must be proven is "specific intent to
cause pain," a phrase they then spend much space redefining. They write:
As a theoretical matter, therefore, knowledge alone that a
particular result is certain to occur does not constitute specific intent...
if causing such harm is not his objective, he lacks the requisite specific
intent... A defendant is guilty of torture only if he acts with the express
purpose of inflicting severe pain or suffering on a person within his
custody or physical control... Where a defendant acts in good faith, he acts
with an honest belief that he has not engaged in the proscribed conduct.
This is, of course, but the briefest glimpse into the bizarre
and twisted definitional thinking that fills this 56-page document, much of
it focused on the problem of potential future "prosecutions arising out of
the exercise of the president's express authority as Commander-in-Chief" to
create what is essentially a torture regime abroad. (Strangely enough, in
the light of day this dark document reads like a witness for the prosecution
in any future war-crimes-style trials of the members of this
administration.) Just to give a tiny flavor of this aspect of the document,
here's an almost random passage:
Any effort by Congress to regulate the interrogation of
unlawful combatants would violate the Constitution's sole vesting of the
Commander-in-Chief authority in the President. There can be little doubt
that intelligence operations, such as the detention and interrogation of
enemy combatants and leaders, are both necessary and proper for the
effective conduct of a military campaign. Indeed such operations may be of
more importance in a war with an international terrorist organization than
one with the conventional armed forces of a nation-state, due to the
former's emphasis on secret operations and surprise attacks against
civilians. It may be the case that only successful interrogations can
provide the information necessary to prevent the success of covert terrorist
attacks upon the United States and its citizens. Congress can no more
interfere with the President's conduct of the interrogation of enemy
combatants than it can dictate strategy or tactical decisions on the
battlefield. Just as statutes that order the President to conduct warfare in
a certain manner or for specific goals would be unconstitutional, so too are
laws that seek to prevent the President from gaining the intelligence he
believes necessary to prevent attacks upon the United States.
Finally, the authors of this document invoke the "superior
orders" doctrine (made famous at Nuremberg) commenting that:
In sum, the defense of superior orders will generally be
available for U.S. Armed Forces personnel engaged in exceptional
interrogations except where the conduct goes so far as to be patently
unlawful.
Of course, that wonderfully turned phrase "exceptional
interrogations" means "torture" (except that, by this point in the document,
torture itself no longer means torture); and while I'm no lawyer, the
concept of "patently unlawful" seems a curious one to me. I'd like to see
that brought into an everyday court of law. (The defendant throws himself on
the mercy of the court: "I did it, judge, and it was definitely unlawful,
but I plead innocent since it was not patently so.")
The Wall Street Journal "opinion" is but one of a series of
internal memorandums we now know about, written between January 2002 and
early this year, which seem to have much in common. For instance, in an
earlier legal memorandum, written in August 2002 by the Justice Department
for the CIA, "signed by Assistant Attorney General Jay S. Bybee," addressed
to White House counsel Alberto Gonzalez, and leaked to the Washington Post,
the writers also chewed over the issue of how much pain constitutes torture.
They wrote that the "inflicting [of] moderate or fleeting pain does not
necessarily constitute torture. Torture, the memo says, 'must be equivalent
in intensity to the pain accompanying serious physical injury, such as organ
failure, impairment of bodily function, or even death.'" (Otherwise,
assumedly, you just scream.) Similarly, the writers suggest: "For purely
mental pain or suffering to amount to torture. it must result in significant
psychological harm of significant duration, e.g., lasting for months or even
years."
Let's remember that of the legal minds responsible for these
"opinions," Bybee is now a judge on the U.S. 9th Circuit Court of Appeals in
San Francisco; the Defense Department's general counsel, William J. Haynes
II has been nominated to be an appellate judge, in the U.S. 4th Circuit in
Richmond, Va.; and John Yoo, author of some of the earliest of these
memorandum, has returned to a professorship at the University of California,
Berkeley, where, in response to student protests, he said: "I think the
calls for my resignation are misguided and don't show an understanding of
the job of a lawyer."
And in this he's probably right. As the CIA produced the kited
"intelligence" the administration needed to go to war in Iraq, so its
various legal groups produced the memorandum it needed - again and again and
again - to imprison beyond the rule of law and torture those whom it
pleased. As Phillip Carter, a former U.S. Army officer, put it in Slate:
"[N]o amount of caveating can save the latest Defense Department memorandum
on the legality of torture. from being construed as what it is: a cookbook
on how to conduct illegal torture and get away with it."
These are, in fact, documents of shame, symbolic of a kind of
bureaucratic lawlessness let loose at the heart of our government. They are
intent on creating a pseudo-legal basis for replacing the rule of law with
the rule of a commander-in-chief. As Robert Kuttner put it in the Boston
Globe, "For nearly three years, the Bush administration has resorted to the
most preposterous fictions to define either locales or categories of people
to whom the law does not apply. If you connect the dots, the torture at Abu
Ghraib is part of a larger slide toward tyranny as the Bush administration
tries to exempt itself from the rule of law." As justifications for torture,
these are the sorts of documents one can imagine finding in the files of
some grim third world dictatorship or maybe the former Apartheid regime of
South Africa. As the Washington Post editorial page put it recently,
speaking of the authors of such memos and their masters, "Theirs is the
logic of criminal regimes." Were it ever to be made the law of the land, our
republic, such as it is, would quite literally be ended and we would face
some kind of one-party dictatorship. Were its definitions of torture ever
made the law of the land, every torturer on earth would shout hosannas to
it.
Part II: On our global torture system, its
history, future presidential defenses, and the rise of the Nazi analogy.]