Collateral Damage

U.S. treatment of detainees deplored

PORTSMOUTH, England — When a conservative talk-show host from radio station WDAY in Fargo, N.D., recorded an interview with Vice President Cheney in late October 2006, the broadcaster was just a small fish in a vast ocean of airwaves. Big scoops rarely came his way. Scott Hennen had interviewed Cheney several times for his weekday “Hot Talk” program but never before in the West Wing of the White House during the run-up to major midterm elections.

Cheney sat at a corner of his large desk as Hennen held out a microphone bearing WDAY’s logo. They talked easily about the elections, Iraq and “dunking a terrorist in water.” Hennen concluded the interview with a folksy question about the vice president’s fondness for pheasant hunting: “There’s some great bird hunting in North Dakota. Is this going to be the year you come up and do a little bird hunting in North Dakota?”

Whether either man fully grasped what the vice president had acknowledged — that al Qaeda detainees had received “a dunk in water” — may never be known. Cheney had let slip something that no other member of the U.S. government had dared confirm. The significance of his words became clear the next day when the Washington bureau of the McClatchy News Service obtained a transcript and ran a story saying, “Vice President Dick Cheney has confirmed U.S. interrogators subjected captured senior al-Qaeda suspects to a controversial interrogation technique called ‘waterboarding,’ which creates the sensation of drowning.”

Hennen had casually introduced the subject, claiming on behalf of his listeners: “We’re all for it, if it saves American lives.” Seconds later, he asked Cheney outright: “Would you agree a dunk in water is a no-brainer if it can save lives?”

Cheney responded: “It’s a no-brainer for me, but for a while there, I was criticized as being the vice president ‘for torture.’ We don’t torture. That’s not what we’re involved in. We live up to our obligations in international treaties that we’re party to and so forth. But the fact is you can have a fairly robust interrogation program without torture, and we need to be able to do that.”

After the McClatchy story set off a media stir, the White House went into denial mode. Officials said Cheney had not referred to waterboarding, a practice the U.S. first prosecuted a century ago during the Spanish-American War. As they have before, they refused to answer questions about which interrogation techniques the CIA used on terrorist detainees.

Waterboarding has long been denounced

One of the earliest incidents of waterboarding emerged during the Spanish-American War, when a U.S. Army major was sentenced to 10 years of hard labor for using it on a prisoner in the Philippines. A Japanese interrogator who used water torture on American airmen in World War II was tried for war crimes, and the practice was banned by the U.S. military during the Vietnam War; the Army warned soldiers against “dunking [a prisoner’s] head into a barrel of water, or putting a plastic bag over his head to make him talk. … No American soldier can commit these brutal acts, nor permit his fellow soldiers to do so.” It was the same in the mid-1990s; during U.S. military operations in Haiti, prisoners were treated in accordance with the Geneva Conventions and the Army’s Field Manual. An update of the Army Field Manual published last fall expressly prohibits some techniques, including waterboarding.

The rules all changed after the September 11, 2001, terrorist attacks. President Bush decided that the Geneva Conventions did not apply to members of al Qaeda or Taliban prisoners captured in Afghanistan, all of whom he designated enemy combatants; in 2006 the U.S. Supreme Court ruled that standards and procedures of the military commission convened to try such combatants did not comply with the applicable policies of the Geneva Conventions. The previous year, when Congress voted on an amendment to ban “cruel, inhuman, or degrading treatment” of prisoners, it was Cheney who lobbied hard on Capitol Hill for the CIA to be exempted. The amendment ultimately passed without an exception for the CIA, but President Bush issued a “signing statement” — a statement explaining the executive branch’s interpretation of the new law — noting that the President would view the new restrictions within the broad context of his powers as commander in chief, the implication being that the President might be free ignore the intent of Congress in extreme cases.

The issue of detainee treatment had come to the forefront in 2004 with publication of photographs showing prisoners at the Abu Ghraib prison in Iraq being systematically abused. The photos had a shocking impact on world opinion. A U.S. Army investigation noted that high-value detainees — those believed to have knowledge of al Qaeda’s inner workings — at Abu Ghraib were indeed kept hidden from the outside world. The CIA was able to interrogate these detainees, known as “ghosts” by their guards, without any oversight by the International Committee of the Red Cross, which never knew of their existence, according to a declassified Army investigative report. What was happening surprised even FBI agents working at interrogation centers overseas. They complained to their Washington headquarters that prisoners were routinely being abused and that the abuse tainted evidence the agents were supposed to gather for criminal prosecutions of terrorists. It meant, they said, that some senior al Qaeda members could never be prosecuted, according to FBI e-mails obtained by the American Civil Liberties Union under a Freedom of Information Act request.

U.S. redefines ‘torture’

With the war in Iraq going badly and pressure growing on the administration to come clean, President Bush confirmed in September 2006 that some of al Qaeda’s top hierarchy had been kept in secret prisons outside the United States under a special CIA program; he said the prisons had been emptied and the detainees moved to the U.S. Naval Base at Guantánamo Bay, Cuba. The president also acknowledged that an “alternative set of procedures” had been used on al Qaeda detainees and that the techniques had forced them to divulge vital intelligence, preventing further attacks. ABC News quoted a CIA source as saying that 9/11 mastermind Khalid Sheikh Mohammed lasted 2½ minutes under waterboarding before cooperating (a duration the CIA was impressed with).

The president would not specify what the “alternative set of procedures” were, arguing that disclosing the techniques would aid al Qaeda. But Bush ran the risk of indicating that the U.S. had violated the Geneva Conventions, if they are deemed to apply to such practices. A chorus of sources have said such techniques as hooding, sleep deprivation and forced hyperthermia were regularly used on al Qaeda suspects by both the CIA and the U.S. Army. Some CIA officers expressed serious concerns and stated that they refused to take part. Others reportedly consulted lawyers or took out insurance to cover legal fees and civil judgments in case they were charged with crimes under international or domestic law.

Nonetheless, the U.S. and various governments within the European Union have vehemently denied sanctioning torture or breaches of international law.

The U.S. government’s insistence that the U.S. “does not torture” is based on a series of new interpretations from administration lawyers seeking to adjust U.S. policy to a post-9/11 security environment.

Lawyers in the Justice Department’s Office of Legal Counsel and the Pentagon redefined what constituted torture. Under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, torture is, “any act by which severe pain or suffering, physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession…” But a Pentagon working group argued that inflicting pain or suffering per se, whether physical or mental, was insufficient to amount to torture. Instead, the term “severe” was invoked to imply that the “pain or suffering must be of such a high level of intensity that the pain is difficult for the subject to endure.”

The rationale advanced for this radical shift was military necessity, but critics spoke up inside the State Department and among retired officers for all three branches of the armed services. One skeptic was the then-general counsel of the Navy, Alberto J. Mora. Naval Criminal Investigative Service agents had reported to him grave abuses of detainees under interrogation at Guantánamo Bay. The “gloves off” approach, he argued, would potentially negate the Geneva protections offered to American soldiers. Giving the president the right to authorize the abuse of detainees was “unlawful, dangerous and erroneous,” Mora wrote in an internal Department of Defense memo.

Mora, a civilian who held a rank equivalent to that of a four-star admiral, was convinced there had been serious failure of legal analysis that meant “cruel, inhuman or degrading treatment could be inflicted on the Guantánamo detainees with near impunity.” “Without restraint,” he wrote, “the methods authorized could produce effects reaching the level of torture … which was prohibited by the Geneva Convention and UNCAT [a U.N. convention against torture] without exception.”

Mora later told The New Yorker, “If everything is permissible, and almost nothing is prohibited, it makes a mockery of the law. … I wondered if they were even familiar with the Nuremberg Trials — or with the laws of war, or with the Geneva conventions. They cut many of the experts on those areas out. The State Department was not on the back of the bus, it was left off the bus.”

Today, evidence gathered around the world through police investigations, judicial and governmental inquiries and by human rights organizations and the news media provides an ever-growing body of evidence that captives in the war on terror have been subjected to inhuman and degrading treatment in secret CIA prisons after being kidnapped and flown to foreign countries, under a process known as “extraordinary rendition.”

The White House remains deeply averse to discussing either extraordinary renditions or harsh interrogation techniques; the CIA refuses to comment on either except to reaffirm that its agents “don’t torture.” In the run-up to the midterm elections in October 2006, White House spokesman Tony Snow tried to keep a lid on the whole subject at a press briefing. A reporter asked about secret prisons.

     Snow: Again, we’re not going to — what you’re trying to do is question me about something that we don’t talk about. So —

     Reporter: That’s the point. If it’s secret, you’re going to keep it secret.

     Snow: That is correct.

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