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In the Penal Colony | The Nation

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In the Penal Colony

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Alberto Gonzales's nomination to succeed John Ashcroft as Attorney General put the Abu Ghraib torture scandal back on the front pages, since he was directly implicated, as White House counsel, in the formulation of policies authorizing and justifying the mistreatment of prisoners that paved the road to Abu Ghraib. During his confirmation hearing before the Senate Judiciary Committee, Gonzales was grilled about his judgment and views on torture. His responses were emblematic of the Bush Administration's "never say sorry" record: While he expressed the requisite abhorrence of torture, he refused to give Republican Senator Lindsey Graham and others what they wanted: a clear repudiation of the reasoning in the infamous "torture memos" that were declassified in the wake of the Abu Ghraib scandal.

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Lisa Hajjar
Lisa Hajjar, who teaches in the Law and Society Program at the University of California, Santa Barbara, is the author...

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Human rights organizations have coordinated an investigation into torture and an extensive defense of detainees, organizing lawyers who represent clients from nonprofits to oil and gas companies. But the issue of torture needs to transcend the legal world.

A good deal of credit for the political pressure to release the torture memos belongs to New Yorker writer Seymour Hersh. His April 30, 2004, report on the Abu Ghraib prison investigation by Maj. Gen. Antonio Taguba provided a deeper context for the shocking photos televised one day earlier on CBS's 60 Minutes II. Taguba had discovered not only deplorable conditions and chaos but unlawful interrogation tactics and patterns of prisoner treatment linking Iraq to Afghanistan and Guantánamo. Hersh's exposé jolted Congress into bipartisan--if short-lived--action; the Senate Armed Services Committee called for Bush Administration officials to do more than blame a few "bad apples," and the dissembling, evasiveness and, in Ashcroft's case, stonewalling merely increased pressure on the Administration to come clean. In June the first batch of secret memos was released, and multiple official investigations were tasked to report on detention and interrogation policies and practices. This documentary record failed to provide the vaunted cleansing, but it has substantially enriched our understanding of the history of the present.

That Hersh broke the Abu Ghraib story is no surprise, since he is unrivaled among American investigative journalists as a leak magnet for disgruntled insiders and whistleblowing frontliners. His book Chain of Command: The Road From 9/11 to Abu Ghraib, provides a clear-eyed and sweeping survey of the terrain of American policy and the dispositions and activities of its makers. The use of torture, Hersh argues, began in Afghanistan, where Pentagon civilians sought to transform what they viewed as an "overly cautious" military culture, and spread in the late summer of 2003 to Iraq, where a growing insurgency fed desperation for "actionable intelligence." The larger question that Hersh's book raises is: How did a small group of neoconservatives come to monopolize and radically reshape US policy, intimidate the press, mislead Congress and dominate the military?

Good question, but while neoconservatism may help explain much about American military and foreign policy after 9/11, it doesn't account for the legal reasoning that set the conditions for the torture scandal. For that, we need to look to the Federalist Society, an organization established by right-wing lawyers in the early 1980s to redress "liberal bias" in American law schools and the legal profession. The thinking and influence of Federalist Society types who dominate legal positions (and judicial appointments) in the Bush Administration are laid bare in the torture memos, which document the triumph of international law-averse officials in the Justice Department, the Pentagon and the White House over dissenting voices in the State Department and sectors of the professional military. The victors' most egregious mistake was to conflate international humanitarian law--the laws of war--with other bodies of international law, especially human rights law, which they loathe as constraints on US sovereignty.

The Torture Papers, edited by Karen Greenberg and Joshua Dratel, reproduces many of the torture memos as well as reports of four military investigations (Taguba, Mikolashek, Schlesinger and Fay-Jones) and a February 2004 report by the International Committee of the Red Cross (ICRC). Torture and Truth presents fewer memos and reports, but offers a collection of Abu Ghraib photos, affidavits of some Iraqi victims and editor Mark Danner's incisive analysis, which originally appeared in the New York Review of Books. Danner relates and compares the "logic of torture" in the current American wars to what happened in Vietnam, French Algeria, Northern Ireland and Israel/Palestine. Part of this history, he explains, entailed the evolution of torture tactics from sanguinary violence to methods that manipulate the body to break the mind but leave no marks.

The primary documents in these two collections--memos and interrogation policy directives--were written over the span of two years to guide and wage the "global war on terror" (or GWOT, the official acronym). The earliest memos, dating from late December 2001 and early January 2002, introduced the rationale for declaring the Geneva Conventions inapplicable and the advantages of Guantánamo as a prison and interrogation center. The principal intellectual author of these and many subsequent memos is John Yoo, a University of California, Berkeley, law professor who served in the Justice Department's Office of Legal Counsel from 2001 to 2003. Yoo and his OLC colleagues reasoned that the President has the constitutional authority to declare the Geneva Conventions irrelevant to the war in Afghanistan on the grounds that it is a "failed state," and to deny prisoner of war status to the Taliban and Al Qaeda as nonstate actors and terrorists who have no rights under international humanitarian law. Such a declaration would increase flexibility for harsh interrogation, reduce the risk that Americans could be prosecuted for torture or war crimes, and enable captives to be transported to Guantánamo (or other US-controlled secret detention facilities), where they would have no habeas corpus rights and could be held incommunicado indefinitely. While the OLC lawyers hedged their views as legal opinions, a January 25, 2002, memo from Gonzales to President Bush characterized their positions as "definitive," while noting that the State Department disagreed. (The Washington Post reported on January 5, 2005, that this memo was ghost-written by Vice President Dick Cheney's counsel David Addington.)

Gonzales counseled the President that there is no crime if there is no law, one good reason to declare the Geneva Conventions "obsolete." To drive home the point, he noted that the War Crimes Act of 1996, which gives domestic courts jurisdiction to prosecute Americans or anyone else for grave breaches of the Geneva Conventions, carries penalties up to the death penalty. He added, forebodingly: "It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on [the War Crimes Act]." Immediately after, Secretary of State Colin Powell sent a memo to Gonzales criticizing the faultiness and dangers of this reasoning. Perhaps with the "Pinochet precedent" (i.e., no sovereign immunity for torture) in mind, he warned that if the United States declined to adhere to the Geneva Conventions, the effect might be to "provoke some individual foreign prosecutors to investigate and prosecute our officials and troops."

Ashcroft weighed in with his own memo on February 1, presenting the President with two clear choices: A "presidential determination" that the Geneva Conventions are inapplicable (i.e., the OLC position) would have status as the law of the land, and this would insure that no court would be able to "entertain charges" against American military officers, intelligence agents or law-enforcement officials for any violations. A "presidential interpretation" that the Geneva Conventions apply, even if POW status was not extended to the Taliban (i.e., the State Department position), would put US officials and agents at risk because courts "occasionally refuse to defer to presidential interpretation." Ashcroft was goading the President with the bogyman of "activist judges," a Federalist Society obsession.

The prospect that the OLC's line of reasoning might prevail raised alarms at the State Department, evident in a February 2 memo by legal adviser William Taft IV to Gonzales: "A decision that the Conventions apply...demonstrates that the United States bases its conduct not just on its policy preferences but on its international legal obligations." Five days later, in a resounding defeat for the State Department, President Bush endorsed the OLC's analysis in a secret memorandum to his National Security team, while seeking to mollify the losers with the line that US forces "shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva." Since all these memos were classified at the time, the public was only aware of the outcomes--no Geneva Conventions, no prisoner status review hearings, no habeas corpus or judicial oversight--not the legal reasoning or ideological preferences and panics that produced them.

Almost immediately after the first US forces hit the ground in Afghanistan in October 2001, questions arose about whether prisoners would be tortured for information and what would constitute humane treatment. Public debate heated up with the publication in January 2002 of trophy-shot photos of the first group of hooded, bound and contorted prisoners being transported from Afghanistan and inside the Guantánamo prison. Defending their treatment at a Pentagon press conference on January 12, Gen. Richard Myers, chairman of the Joint Chiefs of Staff, characterized the detainees as people who "would gnaw through hydraulic lines at the back of a C-17 to bring it down."

Through the end of 2002, public information about interrogation tactics remained scant, and debates about torture were largely academic. Even supposedly "liberal" commentators, invoking the hypothetical ticking bomb scenario, railed against the absolute and universal prohibition of torture as immoral and dangerous. Harvard law professor Alan Dershowitz made a distinctive contribution to public debate by proposing that American judges issue "torture warrants," thus bringing torture "within the law." He also offered a tactical suggestion: sterilized needles under the fingernails. As he told Salon: "I want maximal pain, minimum lethality."

Dershowitz and other proponents of "torture lite" were not suggesting that the American government should forsake the principle that torture is illegal, but rather that the principle could be suspended in the GWOT on the grounds that torture is a lesser evil than terror, and that terrorists have no right not to be tortured. This echoed the rhetoric and policy that "unlawful combatants" were undeserving of inclusion in the universe of human beings covered by international and domestic laws that categorically prohibit torture. Human Rights Watch executive director Kenneth Roth and other critics of coercive interrogations argued that torture is an illegal, desperate and patently unreliable means of obtaining accurate information vital to national security, and that opening the door to it is a dangerous slippery slope.

Interestingly, the example of Israel was invoked by lesser evilers and slippery slopers alike. The latter pointed to the fact that torturing tens of thousands of Palestinians over the past few decades had neither ameliorated the conflict nor enhanced Israeli security; rather it had heightened Israeli insecurity and degraded the legal system. According to Yael Stein, a researcher at the Israeli human rights organization B'Tselem, "Israel's experience shows you can't stop the slippery slope: they tortured almost all the Palestinians they could.... The moment you start, you can't stop." Lesser evilers, including Dershowitz, argued that Israel had preserved its democratic character by legally regulating torture (euphemistically termed "moderate measure of physical pressure") and that its security services had averted many "ticking bombs." The 1999 Israeli High Court decision that prohibited the routine use of "pressure" but left open the possibility of using it in exceptional circumstances played both ways in the American debate on torture. An excellent cross-section of academic analyses of torture, as well as the text of the 1999 Israeli court decision, is presented in Sanford Levinson's Torture: A Collection, whose seventeen contributors include Dershowitz, Elaine Scarry, Judge Richard Posner and Michael Walzer.

Public knowledge of US interrogation practices was transformed by a December 26, 2002, article by Dana Priest and Barton Gellman in the Washington Post. Officials revealed that US security agents were utilizing "stress and duress" tactics in the interrogation of people captured in Afghanistan and elsewhere, and that detainees who could not be broken by such methods might be given mind-altering drugs or "rendered" to foreign governments with well-established records of torture, like Egypt and Morocco. According to Priest and Gellman, "While the US government publicly denounces the use of torture, each of the current national security officials interviewed for this article defended the use of violence against captives as just and necessary. They expressed confidence that the American public would back their view."

Several new books present a wealth of detail about interrogation in Afghanistan and Guantánamo, including firsthand descriptions of protracted hooding, deprivation of sleep and toilet facilities, forced nakedness and recurrent cavity searches, position abuse such as chaining and tying prisoners to chairs or hooks in the floor, and manipulation of lighting, sound, temperature, food and medicine. The Interrogators: Inside the Secret War Against al-Qaeda, by Sergeant First Class Chris Mackey (a pseudonym), written with Los Angeles Times reporter Greg Miller, is an account of interrogation at Kandahar and Bagram during the first year of the GWOT. Mackey describes his training as a military interrogator at Fort Huachuca, the deployment of his reserve unit after 9/11 and how he wrestled with his conscience and his colleagues about how to balance Geneva Convention rules with intense pressure from Washington for actionable intelligence. From his vantage point, this really was a "new kind of war" because military interrogation techniques devised in the cold war had to be rewritten to "break" the prisoners in Afghanistan. Mackey is bluntly critical of certain aspects of the war, acknowledging the difficulties in trying to distinguish members of Al Qaeda and the Taliban from innocents handed to US soldiers for bounty, as well as the risks of relying on privately contracted translators. Yet he seems unaware that threats to turn prisoners over to other countries for torture were not idle; he and his colleagues found this to be a successful "fear up harsh" tactic because it tapped into the anxieties of "conspiracy-obsessed Arabs." Among the prisoners he encountered were three from Britain, nicknamed by guards "the Beatles," whose accounts about how they had landed in Afghanistan and then in US custody he found "outrageous" and "comical."

These so-called Beatles were Asif Iqbal, Shafiq Rasul and Ruhal Ahmed, and their story is movingly told by David Rose in Guantanamo: The War on Human Rights. Mackey is half-right: Their experiences are outrageous. As the three men recounted to Rose, they had gone to Pakistan in September 2001 for Iqbal's arranged marriage and had ventured into Afghanistan in October, naïvely believing they could use their trip money to provide humanitarian aid for a country about to be attacked. When the war started, they were captured by Northern Alliance warlord Rashid Dostum's troops while trying to flee the country and were among the few to survive transport in truck containers to Shebargan prison. In late December 2001 they met ICRC representatives who reported their British identity to guards, at which point they were sent to the US-controlled prison in Kandahar. They were among the first to be sent to Guantánamo in early 2002, where they were interrogated hundreds of times and eventually released and repatriated to Britain in March 2004. Rose's Guantanamo combines a harrowing account of physical and psychological abuse from these and other former prisoners' perspectives with a finely honed analysis of the policies governing the lawless world of "Gitmo." As he explains, the degradation and desperation of prisoners gave rise, inevitably, to attempted suicides; by the end of September 2003, the official tally was thirty-two attempts, at which point they were reclassified as "manipulative self-injurious behavior."

Guantanamo: What the World Should Know, by Michael Ratner and Ellen Ray, also features the Britons. Two of the three are among the prisoners represented by Ratner, a human rights lawyer and president of the Center for Constitutional Rights (CCR). Written in the style of an interview, Ratner and Ray's book combines a primer on the history of Guantánamo and the laws of war with an insider's account of the legal battles that led eventually to the Supreme Court. It went to press before the June 2004 decision in the Guantánamo cases, but Ratner predicted correctly that a majority of Justices would not defer to executive power and permit indefinite incommunicado detention of prisoners without rights to a hearing.

The Interrogators and the two Guantanamos confirm the fraudulence of official pronouncements about humane treatment and commitment to the "spirit" of Geneva. They also substantiate revelations throughout 2003 and early 2004 by investigative journalists and human rights organizations that US agents were routinely subjecting prisoners to protracted hooding and isolation, stress positions and sleep deprivation, and more extreme tactics such as "waterboarding" against "high value targets." Before the Abu Ghraib scandal, however, when officials from the Pentagon and the White House were questioned about such tactics at press conferences, they answered in a manner that the sociologist Stanley Cohen characterized as "interpretive denial." Having concluded that these tactics did not constitute "torture" and were therefore not "illegal," they readily acknowledged and justified their use. The rationale for this conclusion lies in the most scandalous of all the torture memos, dated August 1, 2002, to Gonzales from then-Assistant Attorney General Jay Bybee (subsequently appointed as a federal judge to the Ninth Circuit Court). But credit for intellectual authorship goes to Yoo and the OLC.

The background to this memo was a request by the CIA for an opinion on the legality of interrogation tactics already in use against prisoners held in Afghanistan and elsewhere. Hence, the main issue to which the authors devoted themselves was where to draw the line between "torture" and "not torture" in accordance with Title 18 of the US Code Section 2340, which implements the UN Torture Convention (ratified by Congress in 1994). The criminality of torture looms so large in the analysis that the imagined subject is repeatedly referred to as "the defendant."

The August 1 memo reads like a Federalist Society lesson plan. Lesson 1: US sovereignty is paramount and US law is the only relevant reference. In defining torture, the authors ignored human rights literature and international jurisprudence on torture, opting instead to comb the US record, where the only reference to "severe pain" could be found in laws governing emergency medical care. Hence the assertion that "physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." For mental pain or suffering, the authors fixated on the term "prolonged" in the phrase "prolonged mental harm." Finding no reference to this phrase in US case law, they drew upon dictionaries and medical reference books to conclude that, to rise to the level of punishable torture, the "harm must cause some lasting, though not necessarily permanent, damage.... The development of a mental disorder such as posttraumatic stress disorder, which can last months or even years, or even chronic depression, which also can last for a considerable period of time if untreated, might satisfy the prolonged harm requirement."

The OLC lawyers also surveyed the record of judicial decisions in Torture Victims Protection Act (TVPA) cases, finding that federal courts had provided a civil remedy for victims who sued their foreign torturers for severe beatings, mock executions, burning with cigarettes, electric shocks, rape or sexual assault or injury to sex organs, and forcing a prisoner to watch the torture of others. But they added that these TVPA cases were not definitive for their own purposes because there are no US cases "that analyze the lowest boundary of what constitutes torture."

Since the "lowest boundary" would be, in their estimation, the line between "torture" and "not torture," between "crime" and "not crime," they turned for inspiration to two US allies: Britain and Israel. More specifically, they reproduced Israel's potted reasoning from the late 1980s that "moderate physical pressure" does not constitute "torture," which itself draws on the 1977 Ireland v. United Kingdom case before the European Court of Human Rights. However, the OLC lawyers did not acknowledge (because the Israelis hadn't, either) that Britain renounced the use of the "five techniques" on the grounds that they constitute cruel, inhumane and degrading treatment, and therefore are illegal.

Lesson 2: Adopt a formalistic approach to law and exalt original intent. The OLC lawyers interpreted Congressional intent in passing the federal torture statute to exclude cruel, inhumane and degrading treatment of foreign enemies as prosecutable offenses, making it, therefore, "legal." The memo then lays out two additional lines of reasoning on how the prohibition of torture could be skirted and prosecution avoided.

Lesson 3: The President's commander-in-chief powers vest him with unbridled discretion to wage war. The authors interpreted executive power to include the "right" to authorize torture. "Even if an interrogation method arguably were to violate Section 2340A, the statute would be unconstitutional if it impermissibly encroached on the President's constitutional power to conduct a military campaign." But just in case the "constitutional infringement" argument did not fly, they suggested a line of defense that Americans charged with torture could marshal if prosecuted. For this, they turned again to the Israeli model--circa 1987--to argue that national security necessitates, and therefore legitimizes, physical and psychological coercion in the interrogation of unlawful combatants. The memo's final statement reads: "Even if an interrogation method might violate Section 2340A, necessity or self-defense could provide justifications that would eliminate any criminal liability." Thus they not only ignored the 1999 Israeli High Court ruling repudiating this reasoning but tried to realize the right-wing fantasy of negating post-World War II international law limiting and regulating what states can do to people in wartime.

The Pentagon civilians apparently found the August 1 memo so persuasive that they adopted it for the development of interrogation guidelines for "counter-resistance techniques." In December 2002, responding to interrogators' frustrations about not getting good intelligence out of prisoners, Rumsfeld charged a working group with responsibility to clarify and categorize interrogation tactics for the GWOT. Some of the military lawyers assigned to this group protested that coercing prisoners would not only pose a threat to military culture but, if it became public, would diminish support for the war. Pentagon general counsel William Haynes (who has subsequently been renominated for a federal judgeship; his nomination last year was blocked by a filibuster) insisted that the working group accept the reasoning of the August 1 memo. Consequently, the April 2003 report of the working group, which is reprinted in The Torture Papers, includes sections of the memo verbatim, along with what amounts to a rebuttal of its reasoning as contrary to the Uniform Code of Military Justice, making the report itself legally "schizophrenic."

The April report, which became the official policy directive for interrogation, raised serious concerns among military lawyers in the office of the Judge Advocate General. As Seymour Hersh writes, in the summer of 2003 several members of the JAG corps met secretly with Scott Horton, then head of the human rights division of the New York City Bar Association, to consult about the legal implications of officially sanctioned torture. Although Horton preserved their confidentiality, he and other lawyers escalated a public campaign to call for transparency and legality in interrogation tactics. The Torture Papers includes a sharp legal analysis of the issues by Horton and others that was submitted in April 2004 to the NYC Bar Association.

By the late summer of 2003, the escalation of bombings, kidnappings and executions in Iraq had made a mockery of the President's claim in May that the mission had been "accomplished." In August the Pentagon sent Guantánamo commander Maj. Gen. Geoffrey Miller and a team to Iraq; their advice on how to "set the conditions" to soften and break prisoners inspired Lt. Gen. Ricardo Sanchez to sign off on a policy to "Gitmo-ize" Iraqi prisons, despite the fact that up to 90 percent of those in custody were picked up in military sweeps or as a result of intra-Iraqi score-settling and had no connection to the resistance, let alone to Al Qaeda. These events set the stage for the Abu Ghraib photos, taken between October and December 2003, and their publication caused the scandal that brought the torture memos to light and propelled the official investigations.

The "migration" of interrogation tactics authorized for Guantánamo and Afghanistan, where the Geneva Conventions putatively do not apply, to Iraq, where they indisputably do, are discussed in Hersh's and Danner's books, and are a key focus of the reports by James Schlesinger, who headed the Independent Panel to Review Defense Department Detention Operations, and Maj. Gen. George Fay, who investigated the 205th Military Intelligence Brigade serving in Abu Ghraib. The latter two are available in The Abu Ghraib Investigations, edited by Steven Strasser.

This documentary record debunks the "bad apple" theory and provides a cautionary tale of the national disgraces that can result when military policy is made under the sway of right-wing extremists who are ignorant about and hostile to international humanitarian law. Even a reluctant critic like Schlesinger chastised Rumsfeld for not entertaining a wider range of legal opinions and a more robust debate regarding the handling and interrogation of prisoners, which might provide some cold comfort for Colin Powell and other internal dissenters who were excluded, after February 2002, from the circles where these disastrous policies were made.

The American torture scandal, to paraphrase Faulkner, is not dead; it's not even past. Every day brings news of additional allegations and revelations. In recent weeks thousands of pages of military and FBI reports and prisoner affidavits about abuses in Afghanistan, Guantánamo and Iraq have become public, thanks to Freedom of Information requests by the American Civil Liberties Union. The Center for Constitutional Rights and other human rights organizations have mounted a multitude of lawsuits in the United States and elsewhere on behalf of victims of torture to challenge the impunity of Rumsfeld and others who should be held accountable for instituting and overseeing these illegal policies.

There is no reason to doubt that torture has been systemic and pervasive, or that authorization can be traced up the chain of command, or that this has seriously damaged not only the immediate victims but also our national institutions and America's image abroad. Yet top officials in the Bush Administration are still doing what torturing regimes do: denying the facts and blaming "rogue" officers. Despite the abundant evidence of torture, Congress refuses to challenge these denial tactics in any meaningful way, for example by refusing to confirm for high office those responsible. What we desperately need is public acknowledgment that torture is always and everywhere a crime, and an official policy that reflects this conviction.

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