Column: After 9/11
On the television programme ‘Meet the Press’ on September 16, 2001, five days after the 9/11 terrorist attacks, vice president Dick Cheney said: “We’ll have to work … the dark side, if you will. We’ve got to spend time in the shadows in the intelligence world. A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies — if we are going to be successful.” The following day, president George W. Bush signed a memorandum of understanding granting the CIA authority to establish a secret detention and interrogation operation overseas.
By December 2001, Pentagon officials were exploring how to “reverse engineer” SERE (survival, evasion, resistance, extraction) techniques that had been developed during the Cold War to train US soldiers to withstand torture in case they were captured by regimes that don’t adhere to the Geneva Conventions. The Clinton-era rendition programme of sending detainees captured abroad to foreign states for trial was revamped as “extraordinary rendition” to permit the CIA to kidnap people from anywhere in the world and disappear them into secret prisons, euphemised as “black sites,” where they could be held as “ghost detainees” — i.e., with no record of their identities or whereabouts and no access to monitors from the International Committee of the Red Cross (ICRC) — or transferred extra-legally to other states for interrogation.
Cheney and other officials in the Bush administration devised a “new paradigm” according to which the president, as commander-in-chief, has unfettered powers to wage war. On November 13, 2001, president Bush issued a military order declaring that captured terror suspects were “unlawful combatants,” a heretofore non-existent category conceived to place such prisoners outside of the law. Anyone taken into US custody could be designated an unlawful combatant by presidential fiat rather than on the basis of any status review by a tribunal, and could be held incommunicado indefinitely. Bush also declared that such detainees could be prosecuted in a new kind of military commission whose rules would admit coerced confessions, hearsay and secret evidence.
On February 7, 2002, president Bush issued a secret memorandum to his national security team endorsing the claim that the Geneva Conventions are too “quaint” to apply to this novel form of global war against stateless enemies, and asserted that captured terror suspects have no legal rights but would be treated humanely as “a matter of policy,” with the caveat that interrogation and detention policy would prioritise “military necessity.”
Interrogators working in Afghanistan were under intense pressure from Washington for actionable intelligence about Al Qaeda and the Taliban. People who wound up in US custody included fighters captured on the battlefields or fleeing military strikes, and other men and boys who were picked up in sweeps through villages, sold to the US for bounty, or turned over by allied Afghan warlords or the Pakistani security services. Because most US interrogators lacked the requisite language skills and knowledge about the region to accurately assess the intelligence value of detainees or the veracity of their statements, the tendency was to err on the side of caution, and virtually every captured non-Afghani was shipped off to GTMO for more intensive and protracted interrogation.
In the division of interrogational labour, the CIA was vested with primary responsibility for “high value detainees” (HVDs) — people assumed to be terrorist leaders or planners of 9/11, or to have knowledge about terrorist operations and plots. On March 28, 2002, the first HVD, Abu Zubaydah (nom du guerre for Zayn al-Abidin Muhammad), was captured in Pakistan and transported to a black site in Thailand. The escalating harshness of Abu Zubaydah’s treatment was due to contractor interrogators’ frustration that he was not providing the actionable intelligence he was assumed to possess.
But contrary to the initial claim that he was a “top Al Qaeda strategist,” in fact he was more like a receptionist who had been responsible for moving people in and out of training camps in Afghanistan. The brutal and dehumanising methods authorised for Abu Zubaydah, which included waterboarding him 83 times and placing him in a coffin-like “confinement box,” set the stage for the CIA’s secret interrogation programme.
By mid-summer 2002, some agents were growing anxious about their vulnerability to future prosecution under federal laws. In response, justice department lawyers produced two memos dated August 1, 2002. One interpreted the applicable definition of physical torture to exclude anything less than “the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” and opined that cruel, inhuman or degrading treatment would not constitute mental torture unless it caused effects that lasted “months or even years.” The second memo provided legal cover for tactics already in use. The White House forwarded these memos to the Pentagon, which was seeking a solution to military interrogators’ frustrated efforts to get actionable intelligence out of GTMO detainees. A three-course menu of reverse-engineered SERE tactics was authorised by secretary of defence Donald Rumsfeld in December 2002. Top military lawyers protested that the use of tactics that contravene the Uniform Code of Military Justice (which enshrines the Geneva Conventions) would expose soldiers to the risk of court martial, but their dissent was silenced by the Pentagon.
This confluence of radical legal reasoning and the ideologically driven presumptions that all detainees are terrorists and that torture is effective in obtaining actionable intelligence meant that US military interrogators, CIA agents and government-hired contractors were, in effect, licensed by the Bush administration to utilise methods that were no longer regulated by the laws of this nation or the world. But the Bush administration never officially authorised “torture.” Rather, “torture” became the euphemism for anything that was not authorised by the US government.
What was authorised included stripping prisoners naked, short-shackling them to the floor for protracted periods of time, forcing them to defecate and urinate on themselves; subjecting prisoners to days or weeks of sleep deprivation by bombarding them with constant light and / or excruciatingly loud music or grating sounds and / or extremes in temperature; weeks, months or even years of isolation; stress positions such as “long time standing” and “wall hanging” prisoners from hooks on the wall or ceiling; “walling,” which refers to bashing prisoners into walls; and waterboarding to induce the feeling and fear of death by drowning.
The Bush administration’s decision to take the ‘war on terror’ to Iraq had to be sold to the American public and skeptical allies. In early 2003, the CIA and military interrogators were under intense pressure to produce evidence that the Saddam Hussein regime had an active weapons of mass destruction (WMD) programme, and that there was a link between Iraq and 9/11. The “actionable intelligence” that the administration presented to make the case for war included claims about Iraq’s attempts to import tons of yellowcake uranium from Niger, and a statement by a Libyan prisoner, Ibn al-Shaykh al-Libi, that Iraq had provided training in chemical weapons to members of Al Qaeda. (Al-Libi subsequently recanted the false claim which he had made to stop the torture, and revelations that the Niger uranium deal was based on falsified documents later devolved into a scandal and the conviction of Cheney’s chief of staff, Lewis “Scooter” Libby.)
The invasion of Iraq began on March 20, 2003. In August, the Pentagon sent GTMO commander Major General Geoffrey Miller to Iraq to provide advice on how to “set the conditions” to get actionable intelligence from the thousands of people — including women and children — who were being taken into custody. Lt. Gen. Ricardo Sanchez, commander of the Iraq theatre of operations, signed off on a policy to “GTMO-ise” Iraqi prisons, despite the fact that up to 90 per cent of detainees were picked up in military sweeps or as a result of intra-Iraqi score-settling and had no connection to the insurgency, let alone to Al Qaeda.
On April 28, 2004, shocking photos of naked, abused, humiliated, bloodied and dead prisoners from the Abu Ghraib prison in Iraq were published on CBS’s ‘60 Minutes II’. The context was provided by the simultaneously-published New Yorker exposé by Seymour Hersh on the leaked (“not meant for public release”) report by Maj. Gen. Antonio Taguba which concluded that prisoner abuse was “systematic” and “wanton,” and that unlawful interrogation tactics linked Iraq to Afghanistan and Guantánamo. The Bush administration’s initial reaction to the Abu Ghraib scandal was to blame “bad apples” ostensibly acting autonomously.
However, the pressure for information about the government’s secretive interrogation and detention programme mounted. In June 2004, the first batch of legal memos and policy documents pertaining to military and CIA interrogations was declassified or leaked to the public. These “torture memos” were, in their own way, at least as shocking as the Abu Ghraib photos because they exposed a sanctioned and pervasive disregard for the law. Cheney and other officials defended the practices authorised in the memos as necessary and effective means of combating terror.
On September 6, 2006, Bush publically acknowledged the existence of CIA black sites and the authorisation of waterboarding and other “alternative” interrogation tactics, which he characterised as “tough,” “safe,” “lawful” and “necessary.” He announced that 14 HVDs were being transferred from black sites to GTMO, including self-proclaimed 9/11 planner Khalid Sheikh Muhammad (KSM) who had been in CIA custody since 2003 (during which he was waterboarded 183 times). In October 2006, Congress passed the Military Commissions Act (MCA), one feature of which provided ex post facto immunity for any US officials and agents who violated the Geneva Conventions in order to block future accountability under the 1996 War Crimes Act.
The authorisation for “enhanced interrogation methods” endured to the end of Bush’s second term in 2008. Thousands of people who were interrogated and detained in the ‘war on terror’ were affected by the torture policy. The overwhelming majority was innocent of ties to terror organisations, and many continued to be interrogated harshly long after their innocence or lack of intelligence value was known by officials. Under torture some people revealed some information about Al Qaeda’s structure and operations, but there is abundant evidence that many statements were false. Indeed, the American experience has verified the ageless truism that many people will say anything they believe their interrogators want to hear to make the torture stop; a worst case example is al-Libi’s false claims about a connection between the regime of Saddam Hussein and Al Qaeda that the Bush administration used to advance the cause for war against Iraq, a tortured lie that has cost tens of thousands of lives and a trillion of dollars.
The day after Barack Obama assumed the office of president in January 2009, he signed executive orders to end torture and shutter the CIA’s black sites, to suspend the GTMO military commissions, and to close that prison within one year. But his administration quickly realised that getting out of the torture business was more complex and daunting than anticipated.
The ongoing national debate about torture, terror and the law intensified following the 2009 Christmas day attempt by Umar Farouk Abdulmutallab, a Nigerian, to detonate a bomb in his underwear while travelling on a transatlantic flight bound for Detroit. Critics excoriated the Obama administration for not subjecting him to “enhanced” interrogation or shipping him off to GTMO, despite the fact that the Bush administration had followed an identical course of action with Richard Reid, the “shoe bomber.”
The Obama administration’s “looking forward, not backward” posture includes refusal to investigate or acknowledge past crimes. To keep the lid on demands for accountability, the administration needs to rely on heavy-handed classification and other efforts to block public access to information deleterious or embarrassing to the US government. Moreover, the Obama administration emulated its predecessor’s strategies to bar judicial oversight of overseas detentions and to stymie legal redress for victims of torture. No victim of US torture has ever found justice in a US court and no official has ever been prosecuted for torture.
And what of the promises to end torture? On May 11, 2010, the ICRC confirmed the existence of a secret prison at Bagram in Afghanistan to which it has no access. When this news broke, defence department officials initially denied the existence of a secret detention facility, and then the administration asserted that the black jail is an “interrogation facility,” not a “detention site,” and therefore the ICRC has no right to access those held there nor do the regular rules apply.
As the ‘war on terror’ has morphed under the Obama administration, the military’s Joint Special Operations Command (JSOC) has assumed a leading role in interrogations and kill operations. Investigative journalist Jeremy Scahill’s comprehensive study of JSOC, Dirty Wars, attests that interrogational abuse has not ended, and that black sites and extraordinary renditions are not entirely a thing of the past. The implication is that America still fights dirty.
Lisa Hajjar is a Professor of Sociology at the University of California — Santa Barbara. Her research focuses on the laws of war and conflict, human rights and torture. She is the author of Torture: A Sociology of Violence and Human Rights