A pending court case could expose the administration’s torture regime.
by James Bovard
From the first days after the Abu Ghraib photos hit the airwaves, the torture scandal has epitomized the worst of the Bush presidency. A timid media, a cowardly opposition party, and a refusal by most Americans to face the grisly facts has contained the damage since 2004. But the web of lies and lawlessness is rapidly unraveling. Leaks, foreign challenges, military officers revolting, and a pending Supreme Court case could set off a tidal wave of revulsion against the administration’s barbaric policies.
When President Bush was pressed by NBC’s Matt Lauer last September about the use of brutal interrogation methods, he replied, “Whatever we have done is legal. … We had lawyers look at it and say, ‘Mr. President, this is lawful.’” But Bush’s legal lackeys also proclaim that the president’s command is the highest law, and U.S. torture has been confirmed by FBI agents, former military interrogators, a DoD Inspector General report, and court cases around the globe.
Denial has been the Bush team’s first line of defense. From early 2005 onward, Bush repeatedly declared that the U.S. does not use rendition—the transport of terror suspects to other countries where they are tortured. He told the New York Times in January 2005 that “torture is never acceptable, nor do we hand over people to countries that do torture.” Doing so would be a federal crime.
But the evidence of CIA “torture taxis” secretly racing around the globe carrying gagged, sedated detainees to some of the most brutal regimes in the world proved too much for Bush to deny. He revised his defense in April 2005: “We operate within the law and we send people to countries where they say they are not going to torture people.” But then why would the U.S. go to the trouble of kidnapping people—Canadian Maher Arar, who was grabbed at JFK Airport and renditioned to Syria or Australian Mamduh Habib, seized in Pakistan and flown to Egypt, for instance—and turning them over to governments the U.S. has long denounced for using torture?
In June, the Council of Europe issued a report condemning the CIA’s exploitation of NATO military agreements to run secret prisons in Romania and Poland where detainees were tortured. The report called for banning “the Bush administration mindset” that says “if it is illegal for us to use such a practice at home or on our own citizens, let us export or outsource it so we will not be held to account for it.”
While Bush bears ultimate blame for the U.S. embrace of torture, Vice President Cheney’s team often drove the policy. The Washington Post reported on June 25 that starting in January 2002, “Cheney turned his attention to the practical business of crushing a captive’s will to resist. The vice president’s office played a central role in shattering limits on coercion in U.S. custody.” The Post noted, “Cheney and his allies … pioneered a novel distinction between forbidden ‘torture’ and permitted use of ‘cruel, inhuman or degrading’ methods of questioning.” The Geneva Conventions, which are binding under U.S. law, make no such distinction.
The key was a radical new understanding of torture spelled out in an Aug. 1, 2002 Justice Department memo that narrowed the definition to suffering “equivalent in intensity” to “organ failure … or even death.” Call it a license to almost kill.
Top military experts opposed the redefinition, but a few high-ranking civilian appointees at the Pentagon scorned the veterans. Cheney has been especially enthusiastic about simulated drowning of detainees known as waterboarding even though the U.S. government classified this as a war crime in 1947.
Though neoconservatives have always prided themselves on being more anti-Soviet than God, the U.S. government turned to an unlikely source for inspiration to fulfill Cheney’s vision of shattering detainees’ resistance. After 9/11, the Pentagon and CIA “reverse engineered” many Soviet interrogation techniques that the U.S. had long denounced as torture. Policymakers looked at the “Survival, Evasion, Resistance, and Escape” training American aviators received to endure Soviet interrogation for leads on how the U.S. could break the will of Muslim detainees. A 1956 Archives of Neurology and Psychiatry article entitled, “Communist Interrogation” described how the Soviets used “isolation, anxiety, fatigue, lack of sleep, uncomfortable temperatures” on their targets. The Bush administration adapted the same techniques at Guantanamo and the secret prisons scattered throughout the world, the New York Times reported last month.
The administration has an almost perfect record in its hearings over detainees at Guantanamo, but officers are increasingly refusing to carry out orders that they consider immoral or unjust. Lt. Col. Stuart Couch, a veteran Marine aviator, resigned from the prosecution of Mohamedou Ould Slahi because the U.S. had tortured the defendant. The Wall Street Journal recently summarized a Pentagon report on this case: “On July 17, 2003, a masked interrogator told Slahi he had dreamed of watching detainees dig a grave. … The interrogator said he saw ‘a plain, pine casket with [Slahi’s] identification number painted in orange lowered into the ground.’ Three days later, the interrogator told Slahi that his family was ‘incarcerated.’” Two weeks later, the Journal reported, “an interrogation chief visited the prisoner posing as a White House representative. … He gave the prisoner a forged memorandum indicating that Mr. Slahi’s mother was being shipped to Guantanamo, and that officials had concerns about her safety as the only woman amid hundreds of male prisoners…” Threatening Slahi, who was also physically brutalized, with the prospect of his mother’s rape was the final straw for Couch.
The torture of David Hicks, an Australian seized in Afghanistan and sent to Gitmo in early 2002, became an international cause célèbre. Hicks, who joined the Kosovo Liberation Army, a terrorist organization supported by the U.S. government, before fighting alongside the Taliban, was sexually assaulted, beaten with a rifle butt, kept in isolation in the dark for 244 days, prohibited from sleeping for long periods, threatened with firearms during interrogations, and psychologically tormented.
He was one of the first people tried by the Gitmo military tribunals. Though former Defense Secretary Donald Rumsfeld once called him one of the most dangerous terrorists in the world, after Hicks agreed to plead guilty to material support of terrorism, he was sentenced to nine months confinement—a typical sentence for a misdemeanor in most states. As part of his plea agreement, Hicks was obliged to declare that he “had never been illegally treated by any person or persons while in the custody and control of the United States” and to swear that his guilty plea was made voluntarily, despite all the beatings he had received.
From the start of the torture scandal, the Bush team has done whatever it can to suppress the facts and punish truth-tellers. The initial photos from Abu Ghraib would have had far less impact had it not been for a courageous report by Major Gen. Antonio Taguba detailing far worse abuses. Seymour Hersh recently revealed in the New Yorker how Taguba was vindictively forced into retirement by the Pentagon because of the report. Taguba said Rumsfeld deceived Congress in May 2004 when he portrayed himself as a blindsided victim of a leak when testifying shortly after the Taguba report and the Abu Ghraib photos were posted online. Rumsfeld claimed to have not seen Taguba’s report when they met the day before he first testified, even though Taguba had submitted more than a dozen copies to the Pentagon and elsewhere in the military command structure. Doug Feith, who set policy for detainees in Iraq, shotgunned an e-mail around the Pentagon prohibiting officials from reading the Taguba report. Feith also warned that Pentagon officials should not discuss the report with anyone, even family members. One Pentagon consultant declared that the Bush team’s “basic strategy was ‘prosecute the kids in the photographs but protect the big picture.’” Suppressing the worst evidence was key. Taguba told Hersh that he had seen “a video of a male American soldier in uniform sodomizing a female detainee.” This could not have been spun away as mere college fraternity hazing.
Taguba had been ordered to focus only on the actions of the military police at Abu Ghraib. He could not examine the responsibility of senior officers or the Pentagon for the atrocities he found. Col. Tom Pappas, the commander of the battalion that carried out the abuses photographed at Abu Ghraib, “was granted immunity in return for his testimony against a dog handler,” as author Andrew Cockburn derisively noted.
The torture regime rests on the notion that anyone labeled an enemy combatant deserves whatever harsh treatment he receives. Combatant Status Review Tribunals are used to confirm the guilt of people sent to Guantanamo as enemy combatants, but the tribunals routinely rely on tortured confessions and hearsay evidence, and almost any allegation can be sufficient to perpetuate detention. Candace Gorman, a Chicago attorney representing two Guantanomo detainees, noted that in one case “the [tribunal] darkly noted that the prisoner owned a Casio wristwatch (which could conceivably be used to time explosives). … Karate skills, knowledge of computers and participation in the pilgrimage to Mecca have also been considered factors supporting ‘continuing detention.’”
Lt. Col. Stephen Abraham, a 26-year Army veteran who had a pivotal role in gathering evidence for the tribunals, filed a sworn affidavit last month declaring that the process of identifying enemy combatants at Guantanamo was a sham and that officers were pressured to find defendants guilty. Abraham noted, “What purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence.” He noted that intelligence agencies refused to divulge exculpatory information that might clear the accused. The Pentagon conducted more than 500 hearings and found almost all the accused guilty, though sometimes a second or third panel of officers had to be summoned to convict. Abraham noted, “In very few instances would you find very specific information from which you could conclude he was an enemy combatant.”
In June 2006, the Supreme Court ruled that the administration was dead wrong in claiming that the Geneva Conventions did not apply to detainees in the war on terror. The Bush administration responded by railroading the Military Commissions Act through Congress last September. The MCA retroactively pardoned torturers and torture policymakers for war crimes committed after 9/11, rubber-stamped the administration’s Guantanamo tribunals, and blocked people labeled as enemy combatants from filing habeas corpus petitions in American courts. Bush pushed Congress to speedily pass the act because “as long as the War Crimes Act hangs over their heads, [CIA interrogators] will not take the steps necessary to protect” Americans.
As part of the procedure for establishing the “legal” limits of interrogation, the MCA requires the president to put in writing his definition of what constitutes “outrages upon personal dignity, in particular humiliating and degrading treatment.” The Senate Intelligence Committee insists that the new standards be reviewed by the Justice Department and that the review be provided to Congress. But the Bush team is refusing to divulge the Justice Department’s verdict on Bush’s latest revised definition of non-torture. The Washington Post noted, “Lawmakers will be asked to accept Bush’s assurance in the executive order [on new interrogation standards] that the program has been deemed lawful.” In the meantime, the CIA enhanced interrogation program remains in limbo despite Bush’s tub-thumping during the congressional election season about such interrogation “tools” were needed immediately.
Thus far, the Democrats have been among the least of Bush’s torture travails. From the time the first Abu Ghraib photos appeared, Democrats have portrayed themselves as the Party of Virtue that could never condone such indignities, but they have controlled Capitol Hill for six months and not issued a single subpoena on interrogation practices.
On June 19, Democrats had the perfect opportunity to showcase their superior values. The Senate Intelligence Committee held a hearing on the nomination of John Rizzo to become general counsel for the CIA. Rizzo, a 30-year CIA veteran, was acting general counsel in 2002 when the new torture rules were put in place and gave the CIA’s approval to the Bush administration’s 2002 redefinition of torture. Yet, as the New York Times noted, “no member of the Senate Intelligence Committee directly challenged the agency’s secret detention or harsh interrogation practices.” Only Sen. Dianne Feinstein voiced opposition to his confirmation. “Affable and calm, Rizzo rolled a pen between his fingers as he issued parsimonious replies to the five Democrats and two Republicans present,” the Washington Post reported. “Dapper, white-haired and bearded, he resembled a slimmed-down Santa Claus in civilian dress more than Hollywood’s version of a CIA consigliere.” Rather than following Bush-style interrogation guidelines, the senators apparently assumed that groveling was the best means to get the truth.
The Supreme Court may show a bit more resolve, prompted perhaps by Abraham’s affidavit. It had ruled in early April that it would not hear an expedited challenge to the MCA, but on June 29, the Court reversed itself and announced that it would hear two cases challenging the new law. Its decision was the first time in 60 years that the Court had reversed itself on granting a hearing to a case.
The MCA cases could provide a far brighter official spotlight on torture than ever before. Aziz Huq of the NYU Law School observes that the case will likely reveal how Gitmo hearings “relied on evidence gained by torture and abuse and how few safeguards they have against error.”
Bush torture policies were made in darkness by people who assumed that they would forever remain secret. As evidence leaked out, much of the world has been revolted at the U.S. government’s barbarism, but most Americans remain oblivious. The Supreme Court case could change that overnight. If the MCA is struck down, the get-out-of-jail-free card that the White House and Congress provided to torturers and their enablers will be null. And the Supreme Court cannot endorse the use of tortured confessions without destroying its own credibility.
The Bush administration was able to punish Taguba, muzzle Hicks, intimidate Congress, and browbeat much of the media, but its luck may have run out. The president’s approval ratings were his body armor against the torture revelations, but he is losing his immunity to criticism at the same time that CIA and military interrogators fear losing the de facto legal protection the president provided them since 2001. With each court or congressional battle, the administration is forced to embrace new absurdities or issue more falsehoods, and the number of people who could save their skins or their honor by telling the truth may now outnumber the diehard defenders of absolute executive power.
James Bovard is the author of Attention Deficit Democracy and eight other books.
