By Kenneth Eade
After the recent release of six long-term detainees in indefinite detention from the Guantanamo Bay Detention Camp to Uruguay and the release of the CIA Torture Report, we are reminded once again of the abuses that our own government has committed in the so-called “War on Terror.”
The Government, under George W. Bush, took the position that the U.S. Constitution had no effect either in CIA prisons out of the United States or at Guantanamo Bay. It also believed that the Geneva Conventions of 1949 did not apply to any prisoners captured in the wars in Afgahnistan or Iraq. The Geneva Conventions provide protections for any enemy soldier captured in fighting. Article 3 of the Geneva Conventions prohibits detention practices that are cruel, degrading, or humiliating.” Revelations of anal intrusions, sexual assault, waterboarding, and the like are serious violations of the Conventions, equivalent to war crimes. But it is most important to note that the torture exposed in the CIA Torture Report was sanctioned at the highest levels of the United States Government, under the watchful eye of former Secretary of Defense Donald Rumsfeld and former Vice President Dick Cheney, who once commented that detainees were not made to hold stress positions long enough.
After September 11, 2001, torture was official U.S. policy under George Bush – authorized at the highest levels of government. Evidence of its continued and systematic practice continues to surface to this day. On September 17, 2001, George Bush signed a secret finding empowering the CIA to capture, kill, or interrogate al-Qaeda Leaders.” It also authorized establishing a secret global network of facilities to detain and interrogate them without guidelines on proper treatment. Around the same time, Bush approved a secret “high-value target list” of about two dozen names. He also gave CIA free reign to capture, kill and interrogate terrorists not on the list.
On November 13, 2001, the White House issued a Military Order regarding the “Detention, Treatment, and Trial of Certain Non-Citizens in the War on Terror.” It determined that “an extraordinary emergency exists for national defense purposes that this emergency constitutes an urgent and compelling government interest and that issuance of this order is necessary to meet the emergency.” It defined targeted individuals as al Qaeda and others for aiding or abetting acts of international terrorism or harboring them. These individuals were to be denied access to U.S. or other courts and instead tried by military commission with the power to convict by the concurrence of two-thirds of its members.
On December 28, 2001, Deputy Assistant Attorney Generals Patrick Philbin and John Yoo, sent a Memorandum to General Counsel, Department of Defense, and William Haynes II entitled: “Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba.” It said that federal courts have no jurisdiction over and cannot review Guantanamo detainee mistreatment or mistaken arrest cases. It further stated that international laws don’t apply in the “War on Terror.” This laid the groundwork for abuses in all U.S. military prisons.
On January 18, 2002, Bush himself issued a “finding” stating that prisoners suspected of being al Qaeda or Taliban members are “enemy combatants” and unprotected by the Third Geneva Convention. They were to be denied all rights and treated “to the extent….consistent with military necessity.” Torture was thus authorized. The 2006 Military Commissions Act (also known as the “torture authorization act”) later created the Geneva-superseded category of “unlawful enemy combatant” to deny them any chance for judicial fairness. International law expert Francis Boyle stated that “this quasi-category created a universe of legal nihilism where human beings (including US citizens) can disappear, be detained incommunicado, denied access to attorneys and regular courts, tried by kangaroo courts, executed, tortured, assassinated and subjected to numerous other manifestations of State Terrorism” on the pretext of as protecting national security.
On January 19, 2002 Donald Rumsfeld sent a memo to the Joint Chiefs of Staff entitled: “Status of Taliban and al Qaeda.” It stated that these detainees “are not entitled to prisoner of war status for purposes of the Geneva Conventions of 1949.” It gave commanders enormous latitude to treat prisoners “to the extent appropriate with military necessity” as they saw fit.
On January 25, 2002, Alberto Gonzales issued a memo to George Bush, which called the Geneva Conventions “quaint” and “obsolete” and said the administration could ignore them in interrogating prisoners. He also outlined plans to try prisoners in military commissions and to deny them all protections under international law, including due process, habeas corpus rights, and the right to appeal. In December 2002, Donald Rumsfeld concurred by approving a menu of interrogation practices allowing anything short of what would cause organ failure. On February 7, 2002, the White House issued an Order “outlining treatment of al-Qaeda and Taliban detainees.” It stated that “none of the provisions of the Geneva Conventions apply to our conflict with al-Qaida or the Taliban in Afghanistan “or elsewhere throughout the world.”
A plethora of similar memos followed covering much the same ground, allowing all measures that had been banned under international and U.S. law, including the 1994 Torture Statute and the Torture Act of 2000, and the 1996 War Crimes Act, which imposes a penalty of up to life in prison or death for persons convicted of committing war crimes within or outside the US. Torture is a high war crime, the highest after genocide.
Two other memos were written by John Yoo, Alberto Gonzales, Jay Bybee (now a federal court of appeals justice in the Ninth Circuit) and David Addington, Dick Cheney’s former legal counsel. One was for the CIA on August 2, 2002. It argued that interrogators should be free to use harsh measures amounting to torture. It said federal laws prohibiting these practices don’t apply when dealing with al-Qaeda because of the presidential authorization to use force during wartime. It also denied that U.S. or international law applies in overseas interrogations. It essentially “legalized” anything in the “War on Terror” and authorized lawlessness and supreme presidential power.
On March 14, 2003, the group issued another memo entitled, “Military Interrogation of Alien Unlawful Combatants Held Outside the United States.” This became known as “the Torture Memo” because it swept away all legal restraints and authorized military interrogators to use extreme measures amounting to torture. It also gave the President as Commander-in-Chief “the fullest range of power….to protect the nation.” It stated he “enjoys complete discretion in the exercise of his authority in conducting operations against hostile forces.”
Military law expert and Yale University lecturer, Eugene Fidell, called it “a monument to executive supremacy and the imperial presidency, and a road map for the Pentagon to avoid any prosecutions.” It denied that due process was applicable as well as virtually all other constitutional protections. It argued against any prohibition banning “cruel and unusual treatment.” In 2004, the head of the Office of Legal Counsel, Jack Goldsmith, rescinded the Memorandum, saying it showed an “unusual lack of care and sobriety in legal analysis and seemed more an exercise of sheer power than reasoned analysis.” Nevertheless, other administration documents authorized continued use of practices generally reflecting Yoo’s and Bybee’s views. They authorized the infliction of “intense pain or suffering” short of what would cause “serious physical injury so severe that death, organ failure, (loss of significant body functions), or permanent damage” may result.
The President’s July 20, 2006 Executive Order was one such document, entitled “Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency.” It pertained to “a member or part of or supporting al Qaeda, the Taliban, or associated organizations who may have information that could assist in detecting, mitigating, or preventing terrorist attacks….within the United States or against its Armed Forces or other personnel, citizens, or facilities, or against allies or other countries cooperating in the war on terror….” It authorized the Director of CIA to determine appropriate interrogation practices. Based on what is now known, they included sleep deprivation, waterboarding or simulated drowning, stress positions (including painfully extreme ones), prolonged isolation, sensory deprivation and/or overload, beatings, electric shocks, induced hypothermia, and other measures that can cause irreversible physical and psychological harm, including psychoses.
In a secret 2007 report, the International Committee of the Red Cross concluded that CIA interrogators had tortured high-level al Qaeda prisoners. Abu Zubaydah was one, a reputed close associate of Osama bin Laden and a Guantanamo detainee. He was confined in a box “so small (that) he had to double up his limbs in the fetal position” and stay that way. He and others were also “slammed against the walls,” waterboarded to simulate drowning, and given other harsh and abusive treatment.
The report also said Khalid Shaikh Mohammed, the alleged chief 9/11 planner, was kept naked for over a month – “alternately in suffocating heat and in a painfully cold room.” Most excruciating was a practice of shackling prisoners to the ceiling and forcing them to stand for as long as eight hours. Other techniques included prolonged sleep deprivation, “bright lights and eardrum-shattering sounds 24 hours a day.”
The CIA Torture Report thus comes about seven years too late, but it is not too late to punish Bush administration officials who were instrumental in bringing about these heinous crimes. The next step should be a Congressional inquiry into the actions of George W. Bush, Dick Cheney, Donald Rumsfeld and other high ranking Bush officials who sanctioned this despicable conduct, to assure that this dark time in the history of our country is never repeated.
Kenneth Eade is an attorney and the best-selling author of A Patriot’s Act, the fictional story of a naturalized U.S. citizen, captured in Iraq and held indefinitely at Guantanamo, which can be found here: http://amzn.com/B00MQ9TK0O