Of torture and torture memos in the US

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Like the chicken and egg question, what came first: the torturers or torture memos? Despite the mounting evidence, for years, officials in the Bush administration brazenly maintained: “The United States does not do torture.” This was not stated merely by low level officials. Starting from former US President George Bush down, everyone had memorized this mantra about torture. But when exactly did this torture business begin and what can one expect now that the US government has been forced to release four torture memos–one from 2002 and three from 2005–following a court challenge mounted by the American Civil Liberties Union (ACLU) under the Freedom of Information Act?

President Barack Obama’s administration is in damage control mode to ensure that people do not get carried away by demanding the trial of those involved in ordering such acts and those acting on them. Obama has condemned what he called a “dark and painful chapter in our history” and said that the interrogation techniques would never be used again. But he also repeated his opposition to a lengthy inquiry into the program, saying that “nothing will be gained by spending our time and energy laying blame for the past.”

Instead, he says he wants to look ahead because dealing with the past through an investigation into the practices of torture or putting those on trial who indulged in it would be “divisive” and damaging to US interests. The Austrian law professor Manfred Nowak, the Geneva-based United Nations Human Rights Council’s top torture investigator, disagrees: “President Barack Obama’s decision not to prosecute CIA operatives who used questionable interrogation practices violates international law.”

Speaking to about 1000 CIA officers on April 20, Obama specifically ruled out any trial of those who had participated in torture. “I will be as vigorous in protecting you as you are in protecting the American people,” he said. “What makes the United States special and what makes you special is precisely the fact that we are willing to uphold our values and ideal even when it’s hard,” (emphasis added) Obama told CIA employees. “So, you’ve got a harder job, and so do I and that’s okay … Over the long term, that’s why I believe we will defeat our enemies: because we’re on the better side of history.”

Even while being forced to release the memos under a court challenge that revealed detainees had been horribly tortured, Obama continued to prattle about the US being “special” and upholding “our values and ideals.” True, some former officials, including former vice president Dick Cheney, arguably the most evil character in the Bush administration, still insist that torture was necessary because it had “yielded useful information”, the fact is, torture is illegal under international law. Two other officials, former CIA director Michael Hayden and former attorney general Michael Mukasey, co-writing an opinion piece in The Wall Street Journal, warned that the public release of the memos “assures that terrorists are now aware of the absolute limit of what the US government could do to extract information from them.” Mukasey was the judge who presided over the trial of Shaykh Omar Abdul Rahman, the blind Egyptian alim, who was sentenced to 140 years in prison for his alleged role in blasts at the World Trade Centre in February 1993. Shaykh Omar is reported to be in extremely poor health, suffering from heart ailment and diabetes. Given that he has been held in solitary confinement all these years has worsened his condition.

American officials of every stripe and in every administration have a peculiar sense of right and wrong. The wrongs, real or imagined, of others can never be forgotten or forgiven but America’s wrongs are mere aberrations, the works of “rogue elements” that must be quickly forgotten to move on. For years, officials in the Bush administration including defence secretary Donald Rumsfeld and former CIA director, George Tenet, publicly and repeatedly denied torturing detainees even as suspects were subjected to waterboarding, prolonged sleep and food deprivation, slammed into walls or kept in stress position including hanging from the ceiling for prolonged periods of time. When told about keeping detainees standing for prolonged periods, Rumsfeld rubbished the concern by scribbling in the margin of one report: “I stand working for 7 to 8 hours daily.” Exactly five years ago (April 2004), even after horrible pictures of torture and sexual abuse of detainees at Abu Ghraib were sent to his office, Rumsfeld blatantly lied before a Senate committee that these were the works of a few “rogue soldiers”. Rumsfeld had sent the notorious torturer, general Jeffrey Miller, from Guantanamo to Abu Ghraib in August 2003 to apply some of the “exotic methods” the general had developed and practised on detainees in the illegally US occupied island naval base in Cuba.

As noted, Cheney has been the most vocal proponent of torture and has admitted that it was necessary to extract information from detainees to prevent further attacks. In an interview with Fox News TV he berated Obama for jeopardising American security by ordering an end to the practice of waterboarding that attorney general Eric Holder has categorized as “illegal torture”. After the memos were released following the ACLU court challenge, Cheney went on another Fox News program to demand that other memos he claims he saw that showed useful intelligence was obtained from detainees following torture, should be released. “One of the things that I find a little bit disturbing about this recent disclosure is they put out the legal memos, the memos that the CIA got from the Office of Legal Counsel, but they didn’t put out the memos that showed the success of the effort,” Cheney told the rightwing Fox News. “I haven’t talked about it, but I know specifically of reports that I read, that I saw, that lay out what we learned through the interrogation process and what the consequences were for the country. I’ve now formally asked the CIA to take steps to declassify those memos so the American people have a chance to see what we obtained and what we learned and how good the intelligence was.” Cheney’s brazenness is in a class of its own.

What exactly is waterboarding? The officially prescribed method is described as follows: It involves strapping a prisoner to a gurney inclined at an angle of “10 to 15 degrees” with the head down and water is poured over a cloth covering his nose and mouth “from a height of approximately 6 to 18 inches” for no more than 40 seconds at a time. But a footnote to a 2005 memo made clear that the rules were not always followed. Waterboarding was used “with far greater frequency than initially indicated” and with “large volumes of water” rather than the small quantities in the rules, one memo says, citing a 2004 report by the CIA’s inspector general. It creates a sensation of imminent drowning causing deep convulsions and coughing. Two individuals in particular, Abu Zubaydah and Khalid Shaikh Muhammad, were subjected to waterboarding 83 times (in August 2002) and 183 times (in March 2003) respectively, often four or five times a day even after they had given all the information they had, according to CIA officials present in the torture sessions. One CIA analyst told Vanity Fair magazine, 90 % of what Khalid Shaikh Muhammad revealed was rubbish (he used typically foul language but that cannot be repeated here). Even his children were not spared; they were tortured by swarming them with insects and bees, forcing Khalid Shaikh Muhammad to give himself up in Pakistan. The former Pakistani military dictator, General Pervez Musharraf was also in on the act and received millions of dollars in bounty from the American kidnappers and torturers.

After the Second World War, Japanese officials were prosecuted for war crimes for waterboarding and inflicting other forms of torture on captives. America cannot claim exceptionalism and be above the law. The torture memos were written by lawyers working for the Bush administration between 2002 and 2005. Four memos are at the centre of the controversy that provided legal justification for torture. Two lawyers working for the Office of Legal Counsel (OLC) wrote the memos although others were accessories to the criminal enterprise. The two lawyers were: Jay Bybee, currently serving as a judge in San Francisco, and his assistant John Yee, currently professor of law at a Florida University (previously professor of law at University of California at Berkeley), and the third, Stephen Bradbury who worked for the CIA. Alberto Gonzales, legal advisor to President Bush who later appointed him attorney general, had given a legal opinion in August 2002 that the Geneva Conventions did not apply to detainees captured in Afghanistan. He devised a new term for them: “enemy combatants” and shipped them to the black hole called Guantanamo Bay where they were subjected to horrible torture.

In one of his rare interviews, Bush told Fox News that he was given various options to consider how information could be extracted from detainees. Lawyers from the OLC in the Justice Department came up with these options and he said he “decided”. It would be well to take a glimpse at what these lawyers wrote in one of the memos: “We conclude that – although sleep deprivation and use of the waterboard present more substantial questions in certain aspects under the statute and the use of tile waterboard raises the most substantial issue – none of these specific techniques, considered individually, would violate the prohibition in sections 134:0–¢2340A.”

Philip Zelikow, who was Secretary of State Condoleezza Rice’s policy representative to the National Security Council Deputies Committee and also served as the executive director of the 9/11 Commission, gave the follow opinion in Foreign Policy (April 21, 2009): “Weakest of all is the May 30 [2005] opinion, just because it had to get over the lowest standard –”‘cruel, inhuman, or degrading’ in Article 16 of the Convention Against Torture. That standard was also being codified in the bill Senator John McCain was fighting to pass. It is also found in Common Article 3 of the Geneva Conventions, a standard that the Supreme Court ruled in 2006 does apply to these prisoners. Violation of Common Article 3 is a war crime under federal law (18 U.S.C. section 2441), a felony punishable by up to life imprisonment. (The OLC opinions do not discuss this law because in 2005 the administration also denied the applicability of Common Article 3.)

“The OLC holds, rightly, that the United States complies with the international standard if it complies with the comparable body of constitutional prohibitions in US law (the 5th, 8th, and 14th Amendments). Many years earlier, I had worked in that area of the law. I believed that the OLC opinions (especially the May 30 one) presented the US government with a distorted rendering of relevant US law.”

While claiming that he circulated “an opposing view of the legal reasoning” at the time, his bureaucratic position, as counselor to the secretary of state, “didn’t entitle him to offer a legal opinion.” However, Zelikow, like other Bush officials, did not resign even after they became aware of the clearly illegal nature of those memos. The reason is that Bush and his minions wanted to prove any link between Saddam Husain and al-Qaeda to justify a pre-emptive strike against Iraq. Long before Bush became president, the warriors at the Project for the New American Century (PNAC) had called for just such a war in 1997 to maintain US pre-eminence in the world by not allow any rival to emerge. People like Paul Wolfowitz, who became Rumsfeld’s deputy, Douglas Feith, Bill Kristol and other American fascists were calling for endless wars and “full-spectrum dominance”. Torturing a few al-Qaeda “terrorists” was a minor affair in this grand design.

But we must turn to the more weighty question of whether Obama would have the courage to prosecute the war criminals in America. Under pressure he has opened a crack that the attorney general must consider whether those that wrote the torture memos could be prosecuted, he knows going down that route would mean, as Pepe Escobar wrote in the Asia Online (April 27, 2009) “the whole Washington establishment would literally collapse – a Tower of Babel of scum and corruption…That would mean in practice burying the American empire..”

Obama was not elected by the establishment to do that. He would not dare do that. All the talk about the rule of law is just that: talk.

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