The dust had barely settled on lower Manhattan and the Pentagon when Dick Cheney and his legal advisors set out to remake U.S. law. Just five days after 9/11, the vice president gave Meet the Press’s audience insight into his thinking, arguing for the need to work on “the dark side,” in “the shadows of the intelligence world,” “quietly, without any discussion,” getting “mean, dirty and nasty” with “any means at our disposal.”
No one, however, could have guessed the depths to which the administration would descend into “the dark side.” Following the invasion of Afghanistan in October 2001, the Army distributed leaflets offering locals “enough money to take care of your family, your village, your tribe for the rest of your life” in exchange for “Al-Qaida and Taliban murderers.” War lords responded by rounding up hundreds of people to turn over to Americans for cash. As Sen. Arlen Spector said later, we imprisoned almost 500 people “based on the flimsiest sort of hearsay.”
Shafiq Rasul, a 24-year-old British citizen on vacation, was one such prisoner. Another, Yaser Esam Hamdi, was a U.S. citizen. Almost immediately, prisoners were treated as not just criminals, but as less than human. As seen in this picture, soldiers snapped trophy shots as the prisoners chained together with bags over their heads are hauled toward a plane. After being transferred to Kandahar, another prisoner, Jumah al-Dossari, told Amnesty International in 2005, “Soldiers… started beating us and took pictures of us on a camera.”
What these prisoners could not know was that this was just the beginning, and that back in Washington, Cheney and his self-proclaimed War Council were planning to strip them of any rights. On November 13, at his weekly lunch with Cheney, President Bush signed Cheney’s memo authorizing indefinite detention and preventing habeas corpus for the detainees. Prisoners, it said, “shall not be privileged to seek any remedy or maintain any proceeding… in any court.” The military could, if it chose, review cases, meting out “penalties provided under applicable law, including life imprisonment or death.”
The following day, Cheney defended this new “justice” system. “Now some people say, ‘Well, gee, that’s a dramatic departure from traditional jurisprudence in the United States,’” he said, admitting that, well, “it is,” but that “we think it guarantees that we’ll have the kind of treatment of these individuals that we believe they deserve.” The “kind of treatment” he thought they deserved would soon become very clear.
“Such as organ failure, impairment of bodily function, or even death…”
On January 9, 2002, Assistant Deputy Attorney General (AG) John Yoo drafted a legal memo justifying the use of what the administration later called “enhanced interrogation.” Yoo wrote that “customary international laws of armed conflict do not bind the President” with regard to al Qaeda and Taliban. Not all Bush officials agreed. “The most important factual assumptions on which your draft is based and its legal analysis are seriously flawed,” William Taft, advisor to State Secretary Colin Powell, wrote to John Yoo on January 11. It “raises a risk of future criminal prosecution for U.S. civilian and military leadership and their advisers, by other parties to the Geneva Conventions.”
Nonetheless, on January 25, 2002, White House Counsel Alberto Gonzales sent the president legal advice, probably penned by Cheney aides David Addington and Tim Flannigan authorizing torture. 9/11, it said, “renders obsolete Geneva’s strict limitations on questioning of enemy prisoners.” By finding that the convention no longer applied, the president would, the memo claimed, “substantially reduce the threat of domestic criminal prosecution under the War Crimes Act.”
Meanwhile, prisoners had been transferred in hoods and shackles from Kandahar to Guantanamo Bay, Cuba. The “War Council” chose the site because it was the “legal equivalent of outer space,” as one Bush official put it that June, and because sites in the Pacific would have fallen under the “often-liberal” 9th Circuit Appeals Court. “These are among the most dangerous, best trained vicious killers on the face of the earth,” declared Defense Secretary Donald Rumsfeld. Secret documents obtained by WikiLeaks in 2011 revealed that more than 150 obviously-innocent farmers, chefs, and cabbies were being held at the time.
Despite opposition from Powell (“reverse over a century of U.S. policy”) and the military, Bush went with Cheney and Yoo on February 7. “None of the provisions of Geneva apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world,” Bush declared.
Whether the reasoning was sound or not, all of the justifications provided by Bush, Yoo, and others for jettisoning Geneva shows that no one thought that the conduct would not normally be prohibited under the treaty. Article 3 specifically bans “at any time and in any place whatsoever, violence to life and person, in particular… mutilation, cruel treatment and torture [and] outrages upon personal dignity, in particular humiliating and degrading treatment.”
Before the White House could get the CIA to cooperate with disregarding Geneva, it demanded a second memo explaining how it was that these activities were legal under U.S. laws that banned torture. “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,” explainedYoo in a memo signed by Assistant Attorney General Jay Bybee August 1. “For purely mental pain or suffering to amount to torture… it must result in significant physiological harm of significant duration e.g. lasting for months or even years.”
After the Justice Department sucked the meaning out of “torture,” the CIA went to work at Guantanamo Bay and recently-established “black sites” (unofficial CIA prisons) around the world. The CIA began to use techniques typical of Medieval times. One such technique—called strappado by the Inquisition, its “most usually employed instrument of torture,”—involved chaining the prisoner’s hands over his head as depicted here—also a common technique by the Viet Cong. “I saw people who literally were no longer able to physically sustain that position and just hung off limp,” British-born detainee Moazzam Begg stated in a 2009 documentary.
“If the detainee dies…”
Not good enough for Cheney, he sent his legal team led by Addington and Defense Dept. General Counsel Jim Haynes to Guantanamo on September 26 to convince them to turn up the pressure. Immediately after, CIA’s Jonathan Fredman briefed interrogators on October 2, 2002 on the use of practices derived from the military’s torture survival program known as SERE. According to paraphrased meeting notes, he said something* to the effect that “if the detainee dies, you’re doing it wrong.”
On October 11, Major General Mike Dunlavey specifically requested to use a laundry list of “enhanced” techniques at GTMO. With only the approval of the Officer in Charge (OIC), interrogators could use softer methods like “stress positions,” “standing for up to four hours,” “isolation” for up to 30 days, “deprivation of light and auditory stimuli,” “hoods,” “removal of clothing,” “using detainee’s individual phobias (such as fear of dogs),” and “20-hour interrogations.” With approval from the Commanding General, they could use “scenarios designed to convince the detainee that death… [is] imminent for him and/or his family,” “exposure to cold weather or water,” and “use of a wet towel and dripping water to induce misperception of suffocation.”
Secretary Rumsfeld approved the requested methods. In an ode to his cruelty and perhaps incapability to understand how dangerous these methods were when used in combination, headded in a handwritten note, “I stand for 8-10 hours a day. Why is standing limited to 4 hours? D.R.”
The techniques were immediately applied to the “20th hijacker,” Mohammed al-Qahtani. Guantanamo (GTMO) interrogation logs reveal that Qahtani was “stripped,” but “after approximately five minutes of nudity the detainee ceased to resist.” He was “forced to wear a bra” and “had a thong placed on his head.” Interrogators then taught “lessons such as stay, come, and bark to elevate his social status up to that of a dog.” Hours later, “Dog tricks continued.” A visiting FBI Agent witnessed an agent “applying lotion” to the detainee, fondling him and “grabbing his genitals.” (Al Jazeera journalist Sami al Haji also reported sexual assault during his 8 years at GTMO).
Qahtani was kept awake for 48 of 54 consecutive days in an isolation cell “flooded with light,” threatened with dogs, and doused with water. “By late November,” the FBI report stated in 2004, “[Qahtani] was evidencing behavior consistent with extreme psychological trauma (talking to non-existent people, reporting hearing voices, crouching in a corner of the cell covered with a sheet for hours on end).” On December 7, Qahtani was pushed near death, supposedly Yoo’s line for torture. His legs were swollen, and his pulse was so low he was taken to the hospital and had a CT scan done on his brain. Just over a day later, he returned to the interrogation room, hooded and shackled.
Qahtani’s treatment was not an isolated incident. One month earlier, U.S. forces raided the Pakistani home of Ghairat Baheer, a physician, capturing him and his friend and patient, Gul Rahman. The two were flown to a CIA prison north of Kabul, Afghanistan known as the “Salt Pit.” Rahman was interrogated, beaten, and stripped naked. Loud speakers blared music day and night. His hands were shackled over his head. He was doused with cold water and left to sleep in frigid conditions. The morning of November 20, 2002, after weeks of torment, guards found Rahmanfrozen to death, naked from the waist down. Rahman’s name was not made public until 2005. His body was buried in an unmarked grave.
The same week as Qahtani’s near-death experience, U.S. interrogators in Bagram, Afghanistan killed two prisoners, Mullah Habibullah and Dilawar of Yakubi, an Afghani taxi driver. Dilawar had been chained for weeks hanging limp from the ceiling. The day of his death, his legs were beaten, and although clearly in need of medical attention, Specialist Joshua Claus mocked his inability to hold a water bottle, spraying it in his face, yelling “drink!” When they returned him to his room, army investigators found, Claus said, “Leave him up.”
As Capt. Christopher Beiring explained, “There was a policy that detainees were hooded, shackled and isolated for at least the first 24 hours, sometimes 72 hours of captivity.” Habibullah, the brother of a Taliban leader, was also beaten on arriving at Bagram on November 30 for insubordination. Interpreter Ali M. Baryalai said prisoners were beaten for “noncompliance,” often because “they have no idea what the M.P. is saying.”
By December 2, he couldn’t stand, his foot swollen and legs unable to bend. In the interrogation room, Habibullah spit up phlegm, said interpreter Ebrahim Baerde. “They were laughing and making fun of him.” On December 3, Habibullah hung completely limp, and when aroused, spit up more. Specialist Brian Cammack exploded, “Don’t ever spit on me again!” He kneed him repeatedly and left. When he returned, Habibullah was dead.
More than 100 other detainee deaths have occurred while in U.S. custody, according to a review of cases by Human Rights First. Jamal Nasser, for example, a member of the Afghan Army who was wrongfully arrested, was killed in March 2003. Nasser was subjected to “repeated beatings, immersion in cold water, electric shocks, being hung upside down and toenails being torn off.” The ACLU has listed dozens of autopsy reports that conclude things like the prisoner “was hooded, sleep deprived, and subjected to hot and cold environmental conditions, including the use of cold water on his body and hood.” (Some are posted here).
“The person believes they are being killed…”
Even as the bodies of Habibullah and Dilawar went into the ground, General Geoffrey Miller, now in charge of Guantanamo (GTMO) interrogations, issued on December 10 “standard operating procedure” for SERE interrogation—interrogation based on the military’s torture training. Based on Rumsfeld’s memos, Miller instituted “degradation” and “physical debilitation tactics.” The order describes in revolting detail in what ways detainees should be slapped, stripped, “stressed,” hooded, manhandled, or “walled.”
Miller described how nudity could be a two-for-one torture tactic. “In addition to degradation of the detainee, stripping can be used to demonstrate the omnipotence of the captor or to debilitate the detainee,” he wrote. Miller listed five stress positions, “kneeling position,” “Worship-the-Gods,” “sitting” against a wall without a chair, “standing” with arms extended, and one where the detainee is shackled and made to lean so his “weight is brought to bear on… his head.”
Other prisoners were waterboarded, another revitalized Inquisition-era method in which the prisoner is subjected to controlled drowning. Abu Zubaydah, al Qaeda’s travel agent, was subjected to the procedure 83 times. Khalid Sheikh Mohammed, mastermind behind 9/11, was drowned 183 times. Abd al-Rahim al-Nashiri was also waterboarded. As John Sifton of Human Rights Watchtold ABC News, “The person believes they are being killed, and as such, it really amounts to a mock execution, which is illegal under international law.” The U.S. had prosecuted Japanese and Korean soldiers for war crimes due to the use of waterboarding. Tapes that showed the waterboarding of al-Nashiri and Zubaydah were destroyed by the CIA in 2005.
In a secret 2005 memo, the Bush administration seemed to admit that the waterboarding victims were proned to lose consciousness. In theCIA’s “limited experience,” the memo stated, “extensive sustained use of the waterboard can introduce new [possibly lethal] risks… the subject may simply give up, allowing excessive filling of the airways and loss of consciousness.”
After Alberto Mora, General Counsel for the Navy, threatened to expose the program in July 2004, Sec. Rumsfeld suspended the harshest techniques, pending further legal review. That review, of course, was provided by John Yoo. Yoo came back with a mammoth legal opinion, arguing that the methods were legal and even added new ideas of his own, such as “drugging a prisoner” as long as it wasn’t “fundamentally altering his personality.” Likewise, to violate the prohibition on “maiming,” the “defendant’s method of maiming must be one of the types the statute specifies – i.e. cutting, biting, slitting… —and the injury must be to a body part the statute specifies—i.e. the nose, ear, lip, tongue, eye, or limb.”
Mora went to talk to Jim Haynes, General Counsel for the Pentagon under Rumsfeld, with his concerns about Yoo. Haynes listened to him, but without telling Mora, he went ahead with Yoo’s report, which offered anyone following the president’s orders immunity from prosecution. Sec. Rumsfeld in April 2003 authorized the use of 24 harsh tactics. As described in a 2008 report by the FBI, its agents were instructed to “write up any potential ‘war crimes’ allegations” for the “war crimes case files in the FBI office at GTMO.”
Agents reported that detainees “were chained hand and foot in a fetal position” and that “most times they had urinated or defecated on themselves.” In another occasion, a prisoner was found “almost unconscious on the floor, with a pile of hair next to him. He had apparently been literally pulling his hair out throughout the night.” On a different day, a female interrogator “put her hand on [the detainee’s] genitals” and “wiped [what he thought was menstrual] blood from her body on his face and head.”
In July 2004, the Supreme Court ruled in Hamdi v. Rumsfeld that U.S. citizens designated as enemy combatants must still be given due process rights and cannot be held indefinitely without charges. In June, it had ruled in Rasul v. Bushthat the right of habeas corpus applies to any detainee in any dominion under the control of the U.S. government, including Guantanamo Bay. In response to the decisions, the Bush administration freed more than 200 detainees, including Yaser Esam Hamdi. Nevertheless, The New York Timesreported at the time that of the more than 600 detainees, only about a dozen detainees were “Qaeda members or other militants able to elucidate the organization’s inner workings.”
Also in June 2004, the Red Cross was granted access to the prison on the condition that their findings remain confidential. The resulting report, which was leaked to The New York Times in November, found the treatment received by prisoners was “tantamount to torture.” It witnessed persistent loud music, prolonged cold, and “some beatings.” Prisoners were subjected to “humiliating acts, solitary confinement, temperature extremes, [and] use of forced positions.”
Abu Ghraib’s Torture and Murder
In the months after the invasion of Iraq, demand for local intelligence grew, and Sec. Rumsfeld transferred General Miller from GTMO to Iraq to interrogate prisoners. According to Brigadier General Janis Karpinski, he said he was there “to make Abu Ghraib ‘the interrogation center for all of Iraq;’ he was going to GITMOIZE the operation.” In September 6, 2003, as reported by The Washington Post’s Dana Priest, Rumsfeld visited Abu Ghraib, selected by General Miller as the site for a Guantanamo-style Iraqi prisoner of war camp.
One week later, Lt. Gen. Ricardo Sanchez authorized General Miller to use the same methods, almost verbatim, that Rumsfeld had approved at GTMO. Because Abu Ghraib had higher turnover and was less secure than GTMO, the story got out quickly. Within two months, the AP picked upthe story. “They don’t respect anyone, old or young. They humiliate everybody,” Rahad Naif, who was imprisoned after a domestic dispute, said after his release.
Charles Graner, posing over the body of Manadel al-Jamadi in November 2003
The story changed nothing. Manadel al-Jamadi was one of the thousands of prisoners sent to Abu Ghraib. He was apprehended after a bomb attack. On November 4, interrogators stripped him, tied his hands behind his back, and hung him, strappado-style, as they questioned him for a half an hour. When they pulled him down, he was dead. His death became public after photos of his murderers were leaked, showing them giving thumbs up signs over his corpse, but it was not until February 2005 that the details of the murder became known.
Real outcry only began when CBS News delivered America the picture-proof of how widespread the abuse was. “Military intelligence has encouraged and told us ‘Great job,’” Army Reserve Staff Sgt. Chip Frederick, whose family handed over the incriminating photos and who was later prosecuted, told CBS’s 60 Minutes. As CBS reported, the Army had concluded internally that “interrogators asked reservists working in the prison to prepare the Iraqi detainees, physically and mentally, for questioning.” But Frederick said, “I kept asking my chain of command for certain things…like rules and regulations. And it just wasn’t happening.”
Even after being exposed, the Bush administration pushed the blame to low level Army reservists, not the interrogators, the CIA, or higher level officials. Immediately after Alberto Gonzales replaced Ashcroft in February 2005, Gonzales issued throughAssistant AG Stephen Bradbury another secret Justice Department memo in May, justifying the same tactics again, concluding that “none of these techniques considered individually, would violate the prohibition” on torture.
In the fall of 2005, despite a veto threat from the White House, Congress—led by John McCain—passed a new torture ban, requiring only the methods in the Army Field Manual to be used.President Bush, cowed by the overwhelming vote, opted to sign the ban, but in his signing statement December 10, 2005, indicated he would “construe” the Act “in a manner consistent with the [President’s] constitutional authority… as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.”
But to President Bush, Yoo, and Cheney, the White House has the Constitutionally-protected authority to do what they want with “illegal combatants.” Thus, as a senior Bush official toldThe Boston Globe in January 2006, “the president intended to reserve the right to use harsher methods in special situations involving national security.” In December 2005, the Pentagon attempted torewrite the Army Field Manual’s section on interrogation techniques, including a new 10 page classified section. The LA Times reported in June 2006 that it would leave out at least the section on “humiliating and degrading treatment.” Ultimately, the effort was abandoned.
In June 2006, the Supreme Court ruled in Hamdan v. Rumsfeld that military tribunals fail to meet the requirements of Article 3 of the Geneva Conventions. Congress responded to the decision by passing the Military Commissions Act (MCA), which authorized military detention and prosecution, removing the tribunals for the jurisdiction of the Supreme Court. As importantly, it granted immunity to all those who took part in the torture regime and said that “the president, not the Supreme Court, has final authority to decide what [war crimes] mean – and whether they even apply.”
President Obama Takes Over
In July 2007, President Bush issued an executive order requiring limited compliance with Geneva. On June 12, 2008, the Supreme Court in Boumediene v. Bush struck down the sections of the MCA that remove the right of habeas corpus from prisoners.
Despite an executive order from President Obama to use only the Army Field Manual’s approved interrogation techniques, reports ofprisoner abusecontinued well into 2009. President Obama also called whistleblower Bradley Manning’s treatment “appropriate and meeting our basic standards” despite Manning having been stripped of his clothes each night and forced to sleep without pillows or sheets in solitary confinement.
President Obama first refused to pursue prosecution against any officials who engaged in torture. Then, as WikiLeaks revealed, he fought to stop investigations by foreign governments. Heabandoned all efforts to prosecute anyone for CIA-related murders last year. The president has also managed to have civil cases against Bush officials tossed out, using state secrets privileges. Finally, he has established indefinite detention (or “prolonged detention“) as a permanent feature of U.S. law.
More than 500 prisoners have been released from Guantanamo Bay prison without explanation. The population has dwindled from 779 to 166. More than half of the others have been cleared for release, but remain behind bars. The Obama administration has labeled 46 prisoners ”indefinite detainees” who will never be brought up for trial or released. Currently, 45 of the 104 who remain on hunger strike are force-fed daily.
Postscript on Guantanamo “Suicides”
Nine prisoners have died at Guantanamo Bay. All of these deaths have been ruled suicides.
In the night of June 9, 2006, three prisoners diedin Guantanamo—the deaths were quickly ruledsuicides. The camp’s commander called the deaths “an act of asymmetrical warfare.” In a heavily-redacted 2008 report, NCIS cleared the military of wrongdoing, concluding that prisoners had bound themselves by the hands and feet,covered their faces with a mask, and stuffed cloths and nylon socks in the back of their throats“well past the point which would have inducted involuntary gagging,” and while gagging, leapt to their deaths. Even stranger, rigor mortis set in (about 2 hours) before their bodies were found, despite scheduled 10 minute checks of their cells. Strangest of all, one was about to be released from Guantanamo Bay in less than 3 weeks.
In 2010, Scott Horton published a story in Harper’s in which other guards testified that they were initially told that the prisoners “had died because they had rags stuffed down their throats, and that one of them was severely bruised.” Moreover, the guards said that on the night in question, they saw a van take 3 prisoners to an unofficial prison outside the official prison limits for questioning. When it returned, it backed into the medical facility. A guard stationed near the supposed-location of the deaths said he saw no one moved from there to the medical facility.
Another prisoner, Shaker Aaamer, testified that on the night of June 9, he was also beaten and asphyxiated with a mask over his face—despite being cleared for release in 2009, he remains at the prison. A prisoner held in South Carolina’s Charleston detention facility, Ali Saleh Kahlah al-Marri,testified in court in 2008 that “on several occasions, interrogators stuffed Mr. Almarri’s mouth with cloth and covered his mouth with heavy duct tape,” causing him to choke. This assertion was not contested by the military at Al-Marri’s sentencing.
These accounts have led Horton and others to conclude that the three prisoners could have died during “enhanced interrogation.” Subsequent lies from military officials reinforce this impression. The Obama administration has blocked inquiries into the deaths and argued that lawsuits brought by their families to be dismissed on the grounds that it “could aid future terrorists in their attempts to attack the United States.”
* Fredman disputes the wording of the now-infamous quote, but not that the notes were taken at the meeting. And other statements prior to the comment seem to be verbatim relays of the Yoo memo: “Severe physical pain is described as anything causing permanent damage to major organs or body parts. Mental torture is described as anything leading to permanent, profound damage to the senses or personality.” In fact, Fredman’s later denial even stated that he “emphasized… that comprehensive investigations must be conducted should a detainee pass away,” which practically acknowledges the risk of death from such practices.