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Profile: Convention Against Torture

Convention Against Torture was a participant or observer in the following events:

The US Senate ratifies the international Convention Against Torture, originally proposed by the United Nations in 1985. The treaty bans any officials from signatory nations from inflicting “torture and other cruel, inhuman, or degrading treatment or punishment” on prisoners in order to gain information. It also establishes the UN Committee against Torture (UNCAT). The ban is absolute and cannot be waived: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification of torture.” [United Nations High Commissioner for Human Rights, 12/10/1984; Savage, 2007, pp. 155] The treaty also forbids signatory nations from sending detainees to other countries if there is a reasonable expectation that they may be tortured. [United Nations High Commissioner for Human Rights, 12/10/1984; Human Rights Web, 1/25/1997]

Entity Tags: United Nations Committee against Torture, Convention Against Torture, United Nations

Timeline Tags: Civil Liberties

Two psychologists, James Mitchell and Bruce Jessen, draft a paper on the use of harsh interrogations to break suspected al-Qaeda terrorists. Mitchell, a retired Air Force psychologist, and Jessen, the senior psychologist in charge of the Joint Personnel Recovery Agency (JPRA)‘s Survival, Evasion, Resistance, and Escape (SERE) training program, will soon begin consulting for both the Pentagon and a variety of US intelligence agencies on the harsh methods—torture—they advocate. Jessen proposes an interrogation program similar to those later adopted by the CIA and Pentagon. His proposal recommends creating what he calls an “exploitation facility,” off-limits to outside observers including journalists and representatives of the International Committee of the Red Cross, the agency detailed to ensure that captives in the custody of other nations are being treated properly in accordance with the Geneva Conventions. In the “exploitation facility,” interrogators would use such tactics as sleep deprivation, physical violence, and waterboarding to break the resistance of captured terrorism suspects. JPRA officials will later add their own suggestions to Jessen’s initial list, including sexually provocative acts by female interrogators and the use of military dogs. Most of these techniques are considered torture under the Geneva Conventions and the Convention Against Torture. [Washington Post, 4/22/2009]

Entity Tags: Geneva Conventions, Bruce Jessen, Central Intelligence Agency, Convention Against Torture, Joint Personnel Recovery Agency, James Elmer Mitchell, US Department of Defense, International Committee of the Red Cross

Timeline Tags: Torture of US Captives

Captured al-Qaeda operative Abu Zubaida (see March 28, 2002), after recovering somewhat from three gunshot wounds inflicted during his capture, is transferred to a secret CIA prison in Thailand, presumably the revamped Vietnam War-era base in Udorn. [Weiner, 2007, pp. 297; Washington Post, 4/22/2009] In late 2006, after being transferred to Guantanamo, Zubaida will tell representatives of the International Committee of the Red Cross the story of his interrogation in Thailand (see October 6 - December 14, 2006). Zubaida becomes what CIA interrogator John Kiriakou will later call “a test case for an evolving new role… in which the agency was to act as jailer and interrogator of terrorism suspects” (see September 17, 2001).
New Tactics To Be Used - Officials from the military’s Survival, Evasion, Resistance, and Escape (SERE) program are involved in Zubaida’s interrogations. SERE officials have prepared a program of so-called “harsh interrogation methods,” many of which are classified as torture under the Geneva Conventions and the Convention Against Torture (see December 2001 and July 2002). A 2009 Senate report (see April 21, 2009) will find: “At some point in the first six months of 2002, JPRA [the Joint Personnel Recovery Agency] assisted with the preparation of a [redacted name], sent to interrogate a high-level al-Qaeda operative.” Further investigation will prove that the person whose name will be redacted is, indeed, Zubaida. According to a June 20, 2002 memo, the SERE officials’ participation in the Zubaida interrogation is “training.” JPRA psychologist Bruce Jessen, one of the authors of the JPRA torture methodology (see January 2002 and After), suggests that “exploitation strategies” be used against Zubaida. Jessen’s collaborator on the torture proposal, James Mitchell, is present for Zubaida’s torture; Mitchell plays a central role in the decision to use what the CIA calls an “increased pressure phase” against Zubaida. [Washington Post, 4/22/2009]
First Weeks Shackled and Sleep-Deprived - Zubaida will begin his narrative after his initial, and successful, interrogation by FBI agents (see Late March through Early June, 2002). He spends the first weeks of his captivity shackled to a chair, denied solid food, and kept awake. In Zubaida’s words: “I woke up, naked, strapped to a bed, in a very white room. The room measured approximately [13 feet by 13 feet]. The room had three solid walls, with the fourth wall consisting of metal bars separating it from a larger room. I am not sure how long I remained in the bed. After some time, I think it was several days, but can’t remember exactly, I was transferred to a chair where I was kept, shackled by [the] hands and feet for what I think was the next two to three weeks. During this time I developed blisters on the underside of my legs due to the constant sitting. I was only allowed to get up from the chair to go [to] the toilet, which consisted of a bucket. Water for cleaning myself was provided in a plastic bottle. I was given no solid food during the first two or three weeks, while sitting on the chair. I was only given Ensure [a nutrient supplement] and water to drink. At first the Ensure made me vomit, but this became less with time. The cell and room were air-conditioned and were very cold. Very loud, shouting type music was constantly playing. It kept repeating about every 15 minutes, 24 hours a day. Sometimes the music stopped and was replaced by a loud hissing or crackling noise. The guards were American, but wore masks to conceal their faces. My interrogators did not wear masks. During this first two to three week period I was questioned for about one to two hours each day. American interrogators would come to the room and speak to me through the bars of the cell. During the questioning the music was switched off, but was then put back on again afterwards. I could not sleep at all for the first two to three weeks. If I started to fall asleep one of the guards would come and spray water in my face.” In 2009, author Mark Danner will write: “One can translate these procedures into terms of art: ‘Change of Scenery Down.’ ‘Removal of Clothing.’ ‘Use of Stress Positions.’ ‘Dietary Manipulation.’ ‘Environmental Manipulation.’ ‘Sleep Adjustment.’ ‘Isolation.’ ‘Sleep Deprivation.’ ‘Use of Noise to Induce Stress.’ All these terms and many others can be found, for example, in documents associated with the debate about interrogation and ‘counter-resistance’ carried on by Pentagon and Justice Department officials beginning in 2002. Here, however, we find a different standard: the [proposed regulations say], for example, that ‘Sleep Deprivation’ is ‘not to exceed four days in succession,’ that ‘Dietary Manipulation’ should include ‘no intended deprivation of food or water,’ that ‘removal of clothing,” while ‘creating a feeling of helplessness and dependence,’ must be ‘monitored to ensure the environmental conditions are such that this technique does not injure the detainee.’ Here we are in a different place.”
CIA Team Moves In - The first weeks of Zubaida’s captivity are maintained by a small team of FBI agents and interrogators, but soon a team from the CIA’s Counterterrorism Center takes over. As Kiriakou will later recall: “We had these trained interrogators who were sent to his location to use the enhanced techniques as necessary to get him to open up, and to report some threat information.… These enhanced techniques included everything from what was called an attention shake, where you grab the person by their lapels and shake them, all the way up to the other end, which is waterboarding.” After the initial period of captivity, Zubaida is allowed to sleep with less interruption, stretched out naked and shackled on the bare floor. He is also given solid food for the first time in weeks—rice. A female doctor examines him and asks why he is still naked; he is, he will recall, “provided with orange clothes to wear.” The clothes only last a day, though: “[G]uards came into my cell,” Zubaida will recall. “They told me to stand up and raise my arms above my head. They then cut the clothes off of me so that I was again naked and put me back on the chair for several days. I tried to sleep on the chair, but was again kept awake by the guards spraying water in my face.”
Alternating Harsh and Lenient Treatments - For the next few weeks, Zubaida’s treatment veers from abusive to almost lenient. Mostly he is kept naked and confined to his cell, often suffering from intense cold in the frigid air-conditioned environment. One official later tells the ICRC that often he “seemed to turn blue.” Clothing is provided, then taken away. Zubaida will tell ICRC officials: “When my interrogators had the impression that I was cooperating and providing the information they required, the clothes were given back to me. When they felt I was being less cooperative the clothes were again removed and I was again put back on the chair.” For a time he is given a mattress to sleep on; sometimes he is “allowed some tissue paper to use when going to toilet on the bucket.” A month goes by with no interrogations. He will recall: “My cell was still very cold and the loud music no longer played but there was a constant loud hissing or crackling noise, which played 24 hours a day. I tried to block out the noise by putting tissue in my ears.” Then, “about two and half or three months after I arrived in this place, the interrogation began again, but with more intensity than before.” Danner will write that he isn’t sure if the wild swings in procedures are intentional, meant to keep Zubaida off-guard, or, as he will write, “resulted from disputes about strategy among the interrogators, who were relying on a hastily assembled ‘alternative set of procedures’ that had been improvised from various sources, including scientists and psychiatrists within the intelligence community, experts from other, ‘friendly’ governments, and consultants who had worked with the US military and now ‘reverse-engineered’ the resistance training taught to American elite forces to help them withstand interrogation after capture.” Danner notes that some CIA documents going back to the 1960s advocate subjecting the captive to sensory deprivation and disorientation, and instilling feelings of guilt, shame, and helplessness. The old CIA documents say that captives should be kept in a state of “debility-dependence-dread.” [New York Review of Books, 3/15/2009]
Justice Department's 'Ticking Bomb' Scenario - The August 2002 “golden shield” memo from the Justice Department (see August 1, 2002) will use what is often called the “ticking bomg scenario”—the supposition that a terror attack is imminent and only torture can extract time-critical information from a terrorist detainee to give US officials a chance to stop the attack—to justify Zubaida’s torture. According to CIA reports, Zubaida has information regarding “terrorist networks in the United States” and “plans to conduct attacks within the United States or against our interests overseas.” But Brent Mickum, who later becomes one of Zubaida’s attorneys, will say that he believes the Justice Department memo retroactively approved coercive tactics that had already been used. “If torture occurred before the memo was written, it’s not worth the paper it’s written on, and the writing of the memo is potentially criminal,” Mickum will note. [Washington Post, 4/22/2009]
Interrogations Continue in June - Sometime in June, Zubaida will once again be interrogated (see June 2002).

Entity Tags: Mark Danner, John Kiriakou, James Elmer Mitchell, Bruce Jessen, Al-Qaeda, Abu Zubaida, Bush administration (43), Central Intelligence Agency, Convention Against Torture, George Brent Mickum, Geneva Conventions, Federal Bureau of Investigation, Joint Personnel Recovery Agency, International Committee of the Red Cross

Timeline Tags: Torture of US Captives, Complete 911 Timeline

John Yoo, a lawyer with the Office of Legal Counsel (OLC), sends a classified memo to White House counsel Alberto Gonzales. The memo’s contents will remain secret, but the American Civil Liberties Union (ACLU) will learn that the memo regards the 1984 Convention Against Torture. According to the memo, the first fifteen articles of the Convention, ratified by the United States almost a decade before, “are non-self executing and place no affirmative obligations on the executive branch.” Furthermore, international law in general “lacks domestic legal effect, and in any event can be overridden by the president,” the memo states. In essence, Yoo concludes that the Convention can be ignored by the president. Yoo will cite this memo in his 2003 memo concerning the military interrogation of so-called enemy combatants (see March 14, 2003). [United Nations High Commissioner for Human Rights, 12/10/1984; American Civil Liberties Union [PDF], 1/28/2009 pdf file; ProPublica, 4/16/2009]

Entity Tags: John C. Yoo, Alberto R. Gonzales, American Civil Liberties Union, Convention Against Torture, Bush administration (43), US Department of Justice, Office of Legal Counsel (DOJ)

Timeline Tags: Civil Liberties

Justice Department lawyer John Yoo, of the Office of Legal Counsel (OLC), signs off on a secret opinion that approves a long, disturbing list of harsh interrogation techniques proposed by the CIA. The list includes waterboarding, a form of near-drowning that some consider mock execution, and which has been prosecuted as a war crime in the US since at least 1901. The list only forbids one proposed technique: burying a prisoner alive (see February 4-5, 2004). Yoo concludes that such harsh tactics do not fall under the 1984 Convention Against Torture (see October 21, 1994 and July 22, 2002) because they will not be employed with “specific intent” to torture. Also, the methods do not fall under the jurisdiction of the International Criminal Court because “a state cannot be bound by treaties to which it has not consented”; also, since the interrogations do not constitute a “widespread and systematic” attack on civilian populations, and since neither Taliban nor al-Qaeda detainees are considered prisoners of war (see February 7, 2002), the ICC has no purview. The same day that Yoo sends his memo, Yoo’s boss, OLC chief Jay Bybee, sends a classified memo to the CIA regarding the interrogation of al-Qaeda members and including information detailing “potential interrogation methods and the context in which their use was contemplated” (see August 1, 2002). [US Department of Justice, 8/1/2002; Washington Post, 6/25/2007; American Civil Liberties Union [PDF], 1/28/2009 pdf file] Yoo will later claim that he warns White House lawyers, as well as Vice President Cheney and Defense Secretary Donald Rumsfeld, that it would be dangerous to allow military interrogators to use the harshest interrogation techniques, because the military might overuse the techniques or exceed the limitations. “I always thought that only the CIA should do this, but people at the White House and at [the Defense Department] felt differently,” Yoo will later say. Yoo’s words are prophetic: such excessively harsh techniques will be used by military interrogators at Guantanamo, Abu Ghraib, and elsewhere. [Washington Post, 6/25/2007]

Entity Tags: US Department of Defense, Richard (“Dick”) Cheney, Bush administration (43), Central Intelligence Agency, Convention Against Torture, Donald Rumsfeld, Office of Legal Counsel (DOJ), US Department of Justice, John C. Yoo

Timeline Tags: Torture of US Captives, Civil Liberties

An unnamed US law enforcement official tells the Wall Street Journal, “[B]ecause the [Convention Against Torture—see October 21, 1994] has no enforcement mechanism, as a practical matter, ‘you’re only limited by your imagination.’” A detainee “isn’t going to be near a place where he has Miranda rights or the equivalent of them,” the official says. “God only knows what they’re going to do to him. You go to some other country that’ll let us pistol whip this guy.” [Wall Street Journal, 3/4/2003; Human Rights Watch, 5/7/2004]

Entity Tags: Convention Against Torture

Timeline Tags: Torture of US Captives

A working group appointed by the Defense Department’s general counsel, William J. Haynes, completes a 100-page-plus classified report justifying the use of torture on national security grounds. The group—headed by Air Force General Counsel Mary Walker and including top civilian and uniformed lawyers from each military branch—consulted representatives of the Justice Department, the Joint Chiefs of Staff, the Defense Intelligence Agency, and other intelligence agencies in drafting the report. It was prepared for Secretary of Defense Donald Rumsfeld and was meant to respond to complaints from commanders working at the Guantanamo Bay base in Cuba who claimed that conventional interrogation tactics were inadequate. The conclusions in the report are similar to those of an August 1, 2002 memo (see August 1, 2002) drafted by the Justice Department’s Office of Legal Counsel (OLC). The OLC is said to have also contributed to this report. [US Department of Defense, 3/6/2003; Wall Street Journal, 6/7/2004; Los Angeles Times, 6/10/2004] The report notes that both Congress and the Justice Department will have difficulty enforcing the law if US military personnel could be shown to be acting as a result of presidential orders. [Washington Post, 6/8/2004]
President's Authority During War Gives Power to Order Torture, Supersede Law - One of the main conclusions of the report is that the president’s authority as commander-in-chief permits him during times of war to approve almost any physical or psychological interrogation method—including torture—irrespective of any domestic or international law. The report finds, “[I]n order to respect the President’s inherent constitutional authority to manage a military campaign… [the 1994 law banning torture] must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority.” The draft report clearly states that neither Congress, the courts, nor international law has jurisdiction over the president’s actions when the country is waging war. The report asserts that “without a clear statement otherwise, criminal statutes are not read as infringing on the president’s ultimate authority” to wage war. Furthermore, “any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution’s sole vesting of the commander-in-chief authority in the president.” According to the document, the federal Torture Statute simply does not apply. “In order to respect the president’s inherent constitutional authority to manage a military campaign… (the prohibition against torture) must be construed as inapplicable to interrogations undertaken pursuant to his commander-in chief authority,” the report states (The parenthetical comment is in the original document). A career military lawyer will later tell the Wall Street Journal that many lawyers disagreed with these conclusions, but that their concerns were overridden by the political appointees heading the drafting of the report. The lawyer explains that instead, military lawyers focused their efforts on limiting the report’s list of acceptable interrogation methods. [Wall Street Journal, 6/7/2004; Washington Post, 6/8/2004]
Guantanamo Bay Not Covered under Torture Restrictions - The report also finds that the 1994 law barring torture “does not apply to the conduct of US personnel” at Guantanamo Bay, nor does it apply to US military interrogations that occurred outside US “maritime and territorial jurisdiction,” such as in Iraq or Afghanistan. [Washington Post, 6/8/2004]
Legal Arguments to Defend against Torture Charges Conflict with International Statutes - The draft report lists several possible arguments that US civilian or military personnel might use to defend themselves against charges of torture or other war crimes. According to the administration’s lawyers, one argument would be that such actions were “necessary” in order to prevent an attack. However, this rationale seems to ignore very clear statements in the Convention Against Torture (see October 21, 1994) which states that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Another line of defense, the report says, would be to claim that the accused had been acting under “superior orders” and that therefore no “moral choice was in fact possible.” Likewise, the report cites a Justice Department opinion, which the draft report says “concluded that it could not bring a criminal prosecution against a defendant who had acted pursuant to an exercise of the president’s constitutional power.” This also contradicts the Convention against Torture, which states that orders from superiors “may not be invoked as a justification of torture.” The authors of the report also suggest in the draft report that accused officials could argue that they had “mistakenly relied in good faith on the advice of lawyers or experts,” adding, “Good faith may be a complete defense.” The memo also argues that the International Covenant on Political and Civil Rights (ICCPR), to which the US is a party, “does not apply outside the United States or its special maritime and territorial jurisdiction (SMTJ), and that it does not apply to operations of the military during an international armed conflict,” as the US “has maintained consistently.” Since the “Guantanamo Bay Naval Station (GTMO) is included within the definition of the special maritime and territorial jurisdiction of the United States,” the ICCPR does not apply to Guantanamo Bay. The authors are also convinced that officials would not be prosecutable under US law, concluding that “constitutional principles” precluded the possibility that officials could be punished “for aiding the president in exercising his exclusive constitutional authorities” and neither Congress nor the courts had the authority to “require or implement the prosecution of such an individual.” [Wall Street Journal, 6/7/2004]
Defining Parameters of Interrogation Methods - The document attempts to define the parameters of lawful interrogation methods in terms of the degree of pain or psychological manipulation they cause. The report states that the infliction of physical or mental suffering does not constitute torture. To violate Section 2340 A of the US Code, prohibiting physical torture, suffering must be “severe,” the lawyers advise, noting that according to a dictionary definition, this would mean that the pain “must be of such a high level of intensity that… [it] is difficult for the subject to endure.” It must also be “inflicted with specific intent,” they say, meaning that the perpetrator expressly intends to cause severe pain and suffering. But if the defendant simply used pain and suffering as a means to an end, such specific intent would not exist. Under certain circumstances, the lawyers explain, the US would be justified in resorting to illegal measures like torture or homicide. They argue that such measures should be considered “self-defense” in cases where officials “honestly believe” that such actions would prevent an imminent attack against the US. “Sometimes the greater good for society will be accomplished by violating the literal language of the criminal law,” the draft document asserts. “In sum,” the panel determines, “the defense of superior orders will generally be available for US Armed Forces personnel engaged in exceptional interrogations except where the conduct goes so far as to be patently unlawful.” Civil law suits, the panel notes, by a foreign victim of torture will not apply to the US government. [US Department of Defense, 3/6/2003; Wall Street Journal, 6/7/2004]
Report May Not Define Practices, Pentagon Implies - A Pentagon spokesman later says the memo represents “a scholarly effort to define the perimeters of the law,” and notes: “What is legal and what is put into practice is a different story.” [Washington Post, 6/8/2004]

Entity Tags: US Department of Justice, US Department of Defense, Office of Legal Counsel (DOJ), International Covenant on Political and Civil Rights, Joint Chiefs of Staff, Convention Against Torture, Defense Intelligence Agency, Donald Rumsfeld, Mary L. Walker, William J. Haynes

Timeline Tags: Torture of US Captives, Civil Liberties

Deputy Solicitor General Paul Clement appears before the Supreme Court to argue for the administration in Hamdi v. Rumsfeld (see June 28, 2004). Clement argues that the Court has no role in the White House’s decision to hold suspected terrorists designated as “enemy combatants” without trial or charge. During oral arguments, several of the justices ask Clement if the Bush administration considers itself bound by the Convention against Torture (see October 21, 1994). Clement replies, “The United States is signatory to conventions that prohibit torture and that sort of thing, and the United States is going to honor its treaty obligations.” He continues: “I wouldn’t want there to be any misunderstanding about this. It’s also the judgment of those involved in this process that the last thing you want to do is torture somebody or do something along those lines.” That evening, CBS’s 60 Minutes II airs the first photos of tortured prisoners at Abu Ghraib (see April 28, 2004). [Oral Arguments, Hamdi v. Rumsfeld, 4/28/2004 pdf file; Savage, 2007, pp. 188-189]

Entity Tags: Convention Against Torture, Paul Clement, US Supreme Court, Bush administration (43)

Timeline Tags: Civil Liberties

The CIA’s inspector general completes a lengthy, secret report on the interrogation of detainees in US custody. The report, based on over 100 interviews, a review of the CIA’s videotapes of interrogations (see November 2005), and some 38,000 pages of documents, will remain secret throughout the Bush administration and into the first year of the Obama administration. Some portions will be made public over the years. The report includes evidence that US interrogators used harsh tactics—torture—against detainees who were not withholding information. Officials familiar with the report will say that it concludes some of the techniques used violate the UN Convention against Torture (see October 21, 1994). According to a declassified summary of the report later made public, the report finds that “it is difficult to determine conclusively whether interrogations have provided information critical to interdicting specific imminent attacks.” The threat of such an imminent attack was cited by the Justice Department in its numerous authorizations of torture. The report prompts CIA general counsel John Rizzo to request new statements from the Justice Department confirming the legality of CIA interrogation methods (see May 10, 2005 and May 30, 2005). [Washington Post, 5/9/2009]

Entity Tags: US Department of Justice, Bush administration (43), Central Intelligence Agency, Obama administration, John Rizzo, Convention Against Torture

Timeline Tags: Torture of US Captives

The CIA’s inspector general, John Helgerson, releases a highly classified report from his office that examines allegations of torture from the time period between September 2001 (after the 9/11 attacks, when the CIA first began detaining suspected terrorists and informants) and October 2003. In the report, Helgerson warns that some aggressive interrogation techniques approved for use by the CIA since early 2002 (see Mid-March 2002) might violate some provisions of the international Convention Against Torture (see October 21, 1994). The report doubts the Bush administration position that the techniques do not violate the treaty because the interrogations take place overseas on non-US citizens. It will be released, in heavily redacted form, to the public in August 2009 (see August 24, 2009). From what becomes known of the report’s contents, the CIA engaged in a number of illegal and ethically questionable tactics on the part of its interrogators. Some of these tactics include the use of handguns, power drills, threats, smoke, and mock executions. Many of the techniques used against detainees were carried out without authorization from higher officials. The report says that the CIA’s efforts to provide “systematic, clear, and timely guidance” to interrogators were “inadequate at first” and that that failure largely coincided with the most significant incidents involving the unauthorized coercion of detainees, but as guidelines from the Justice Department accumulated over several years, oversight “improved considerably.” The report does not conclude that the techniques reviewed constitute torture, but it does find that they appear to constitute cruel, inhuman, and degrading treatment under the Convention. [Central Intelligence Agency, 5/7/2004 pdf file; New York Times, 11/9/2005; MSNBC, 8/24/2009; Washington Post, 8/24/2009]
Physical Abuse - The report defines torture as an act “intended to inflict severe physical or mental pain and suffering.” It then begins detailing such acts. Incidents of physical abuse include:
bullet One incident caused the death of an Afghani detainee. According to the report: “An agency independent contractor who was a paramilitary officer is alleged to have severely beaten the detainee with a large metal flashlight and kicked him during interrogation sessions. The detainee died in custody.” [Central Intelligence Agency, 5/7/2004 pdf file; New York Times, 8/24/2009; Washington Post, 8/24/2009; MSNBC, 8/25/2009] In a 2009 statement, Helgerson will write: “In one extreme case, improvisation took a disastrous turn when an agency contractor in rural Afghanistan—acting wholly outside the approved program and with no authorization or training—took it upon himself to interrogate a detainee. This officer beat the detainee and caused his death. Following an investigation of the incident, this contract employee was convicted of assault and is now in prison.” [Central Intelligence Agency, 5/7/2004 pdf file; Washington Post, 8/24/2009]
bullet Waterboarding was routinely used, in a manner far exceeding previously issued guidelines. Interrogators “continuously applied large volumes of water,” and later explained that they needed to make the experience “more poignant and convincing.” The CIA interrogators’ waterboarding technique was far more aggressive than anything used in military survival training such as the SERE program (see December 2001). Eventually, the agency’s Office of Medical Services criticized the waterboarding technique, saying that the “frequency and intensity” with which it was used could not be certified as “efficacious or medically safe.” [Central Intelligence Agency, 5/7/2004 pdf file; New York Times, 8/24/2009; Washington Post, 8/24/2009] The report refers in particular to the treatment of 9/11 mastermind Khalid Shaikh Mohammed (KSM), who was reportedly waterboarded more than once (see Shortly After February 29 or March 1, 2003). Waterboarding is considered torture and is illegal in the US. The report also raises concern that the use of these techniques could eventually cause legal troubles for the CIA officers who used them. [New York Times, 11/9/2005]
Helgerson will write: “We found that waterboarding had been utilized in a manner that was inconsistent with the understanding between CIA and the Department of Justice. The department had provided the agency a written legal opinion based on an agency assurance that although some techniques would be used more than once, repetition would ‘not be substantial.’ My view was that, whatever methodology was used to count applications of the waterboard, the very large number of applications to which some detainees were subjected led to the inescapable conclusion that the agency was abusing this technique.” [Central Intelligence Agency, 5/7/2004 pdf file; Washington Post, 8/24/2009]
bullet In July 2002, a CIA officer used a “pressure point” technique “with both of his hands on the detainee’s neck, the officer manipulated his finger to restrict the detainee’s carotid artery.” The carotid artery supplies the brain with oxygenated blood; such “manipulat[ion]” could lead to unconsciousness or even death. A second officer “reportedly watched his eyes to the point that the detainee would nod and start to pass out. Then the officer shook the detainee to wake him. This process was repeated for a total of three applications on the detainee.”
bullet A technique routinely used by CIA interrogators was the “hard takedown,” which involves an interrogator grabbing a detainee and slamming him to the floor before having the detainee moved to a sleep-deprivation cell. One detainee was hauled off his feet by his arms while they were bound behind his back with a belt, causing him severe pain.
bullet Another routinely used technique is “water dousing,” apparently a variant of waterboarding, in which a detainee is laid on a plastic sheet and subjected to having water sluiced over him for 10 to 15 minutes. The report says that at least one interrogator believed the technique to be useful, and sent a cable back to CIA headquarters requesting guidelines. A return cable explained that a detainee “must be placed on a towel or sheet, may not be placed naked on the bare cement floor, and the air temperature must exceed 65 degrees if the detainee will not be dried immediately.”
- - Detainee Abd al-Rahim al-Nashiri, suspected of plotting the 2000 bombing of the USS Cole (see October 12, 2000), was repeatedly “bathed” with hard-bristled scrub brushes in order to inflict pain. The brushes caused abrasions and bleeding. [Central Intelligence Agency, 5/7/2004 pdf file; New York Times, 8/24/2009; Washington Post, 8/24/2009; MSNBC, 8/25/2009]
Helgerson will write: “Agency officers who were authorized to detain and interrogate terrorists sometimes failed in their responsibilities. In a few cases, agency officers used unauthorized, threatening interrogation techniques. The primary, common problem was that management controls and operational procedures were not in place to avoid the serious problems that arose, jeopardizing agency employees and detainees alike.” [Central Intelligence Agency, 5/7/2004 pdf file; Washington Post, 8/24/2009]
Mental Abuse - Numerous instances of mental and emotional abuse were also documented.
bullet In 2002, interrogators staged a mock execution to intimidate a detainee. CIA officers began screaming outside the room where the detainee was being interrogated. When leaving the room, he “passed a guard who was dressed as a hooded detainee, lying motionless on the ground, and made to appear as if he had been shot to death.” The report says that after witnessing this performance, the detainee “sang like a bird.”
bullet Handguns and power drills were used to threaten detainees with severe bodily harm or death. One such instance involved al-Nashiri. An American, whose name is not released but who is identified as not being a trained interrogator and lacking authorization to use “enhanced methods,” used a gun and a power drill to frighten him. The American pointed the gun at al-Nashiri’s head and “racked” a round in the chamber. The American also held a power drill near al-Nashiri and revved it, while al-Nashiri stood naked and hooded. [Central Intelligence Agency, 5/7/2004 pdf file; New York Times, 8/24/2009; MSNBC, 8/24/2009; MSNBC, 8/25/2009]
In 2009, reporter David Ignatius will say he finds the “image of a CIA interrogator standing with a power drill next to somebody he’s interrogating… particularly horrific, because that’s a technique that’s been used in torturing people in Iraq.” [PBS, 8/24/2009]
bullet A CIA interrogator told al-Nashiri that if he did not cooperate with his captors, “we could get your mother in here” and “we can bring your family in here.” The report says that the interrogator wanted al-Nashiri to infer for “psychological” reasons that his female relatives might be sexually abused. The interrogator has denied actually threatening to sexually abuse al-Nashiri’s mother or other relatives.
bullet An interrogator threatened the lives of one detainee’s children. According to the report, an “interrogator said to Khalid Shaikh Mohammed that if anything else happens in the United States, quote, ‘we’re going to kill your children.’” According to the report, the debriefer was trying to exploit a belief in the Middle East that interrogation techniques included sexually abusing female relatives in front of the detainees. It was during these same interrogation sessions that Mohammed was waterboarded 183 times in a single month (see April 16, 2009). [Central Intelligence Agency, 5/7/2004 pdf file; New York Times, 8/24/2009; MSNBC, 8/24/2009; MSNBC, 8/25/2009]
Fear of Recriminations - According to the report, there was concern throughout the agency over the potential legal consequences for agency officers. Officers “expressed unsolicited concern about the possibility of recrimination or legal action” and said “they feared that the agency would not stand behind them,” according to the report. [Central Intelligence Agency, 5/7/2004 pdf file; New York Times, 8/24/2009] According to the report, CIA personnel “are concerned that public revelation” of the program will “seriously damage” personal reputations as well as “the reputation and effectiveness of the agency itself.” One officer is quoted as saying he could imagine CIA agents ending up before the World Court on war crimes charges. “Ten years from now, we’re going to be sorry we’re doing this,” another officer said. But “it has to be done.” [Central Intelligence Agency, 5/7/2004 pdf file; Washington Post, 8/24/2009] Helgerson will write: “This review of the agency’s early detention and interrogation activities was undertaken in part because of expressions of concern by agency employees that the actions in which they were involved, or of which they were aware, would be determined by judicial authorities in the US or abroad to be illegal. Many expressed to me personally their feelings that what the agency was doing was fundamentally inconsistent with long established US government policy and with American values, and was based on strained legal reasoning. We reported these concerns.” [Central Intelligence Agency, 5/7/2004 pdf file; Washington Post, 8/24/2009]
Recommendations - The report lists 10 recommendations for changes in the treatment of detainees, but it will not be reported what these are. Eight of the recommendations are apparently later adopted. Former CIA assistant general counsel John Radsan will later comment, “The ambiguity in the law must cause nightmares for intelligence officers who are engaged in aggressive interrogations of al-Qaeda suspects and other terrorism suspects.” [New York Times, 11/9/2005]
Approval, Contradictory Statements by Attorney General - The report says that Attorney General John Ashcroft approved all of these actions: “According to the CIA general counsel, the attorney general acknowledged he is fully aware of the repetitive use of the waterboard and that CIA is well within the scope of the DOJ opinion that the authority given to CIA by that opinion. The attorney general was informed the waterboard had been used 119 times on a single individual.” In 2009, reporter Michael Isikoff will say that the contents of the report “conflict… with the public statements that have been made over the years by Bush administration officials and CIA directors.” In 2007, then-CIA Director Michael Hayden will tell the Council on Foreign Relations that the agency’s detention and interrogation program was “very carefully controlled and lawfully conducted—has been carefully controlled and lawfully conducted.” Isikoff will say, “It’s kind of hard to square that with… what was in the CIA inspector general report that had been presented five years ago in 2004.” [Central Intelligence Agency, 5/7/2004 pdf file; MSNBC, 8/25/2009]
Questions of Effectiveness - The report does document that some interrogations obtained critical information to identify terrorists and stop potential plots, and finds that some imprisoned terrorists provided more information after being exposed to brutal treatment (see August 24, 2009). It finds that “there is no doubt” that the detention and interrogation program itself prevented further terrorist activity, provided information that led to the apprehension of other terrorists, warned authorities of future plots, and helped analysts complete an intelligence picture for senior policymakers and military leaders. But whether the harsh techniques were effective in this regard “is a more subjective process and not without some concern,” the report continues. It specifically addresses waterboarding as an illegal tactic that is not shown to have provided useful information. “This review identified concerns about the use of the waterboard, specifically whether the risks of its use were justified by the results, whether it has been unnecessarily used in some instances,” the report reads, and notes that in many instances, the frequency and volume of water poured over prisoners’ mouths and noses may have exceeded the Justice Department’s legal authorization. In the instance of detainee Abu Zubaida, the report finds, “It is not possible to say definitively that the waterboard is the reason for Abu [Zubaida]‘s increased production [of intelligence information], or if another factor, such as the length of detention, was the catalyst.” In 2009, Isikoff will note that the effectiveness of torture is not clarified by the report. “As you know, Vice President [Dick] Cheney and others who had defended this program have insisted time and again that valuable intelligence was gotten out of this program. You could read passages of this report and conclude that that is the case, that they did get—some passages say important intelligence was gotten. But then others are far more nuanced and measured, saying we don’t really know the full story, whether alternative techniques could have been used.” [Central Intelligence Agency, 5/7/2004 pdf file; New York Times, 8/24/2009; MSNBC, 8/24/2009; Washington Post, 8/24/2009; MSNBC, 8/25/2009]
Cheney Blocked Report's Completion - Reporter Jane Mayer later learns that Cheney intervened to block Helgerson from completing his investigation. Mayer will write that as early as 2004, “the vice president’s office was fully aware that there were allegations of serious wrongdoing in the [interrogation] program.” Helgerson met repeatedly and privately with Cheney before, in Mayer’s words, the investigation was “stopped in its tracks.” She will call the meetings “highly unusual.” In October 2007, CIA Director Michael Hayden will order an investigation of Helgerson’s office, alleging that Helgerson was on “a crusade against those who have participated in controversial detention programs.” [Public Record, 3/6/2009]

Entity Tags: Office of Medical Services (CIA), International Criminal Court, Jane Mayer, John Helgerson, David Ignatius, John Radsan, John Ashcroft, Convention Against Torture, Abu Zubaida, Bush administration (43), US Department of Justice, Richard (“Dick”) Cheney, Central Intelligence Agency, Michael Hayden, Abd al-Rahim al-Nashiri, Khalid Shaikh Mohammed, Michael Isikoff

Timeline Tags: Torture of US Captives, Complete 911 Timeline

Al Gore speaks to the Liberty Coalition and the American Constitution Society.Al Gore speaks to the Liberty Coalition and the American Constitution Society. [Source: American Constitution Society]Former Vice President Al Gore delivers a long, impassioned speech on civil liberties and constitutional issues to the Liberty Coalition and the American Constitution Society. Gore joins former Representative Bob Barr (R-GA) in speaking out against the Bush administration’s infringement on American civil liberties. Gore and Barr have what Gore calls a “shared concern that America’s Constitution is in grave danger.”
Patently Illegal Domestic Surveillance - Gore’s speech is sparked by recent revelations that the NSA has been spying on American citizens for years (see December 15, 2005), and in response, the administration “has brazenly declared that it has the unilateral right to continue without regard to the established law enacted by Congress precisely to prevent such abuses.” As the Foreign Intelligence and Surveillance Act (FISA) is perfectly sufficient, there was no need for the Bush administration to circumvent that law. “At present, we still have much to learn about the NSA’s domestic surveillance,” Gore says. “What we do know about this pervasive wiretapping virtually compels the conclusion that the president of the United States has been breaking the law, repeatedly and insistently. A president who breaks the law is a threat to the very structure of our government.” Gore says he agrees with Bush on the threat of terrorism, but disagrees that the US has to “break the law or sacrifice our system of government” to protect itself, as this will make it “weaker and more vulnerable.” In addition, he says, “once violated, the rule of law is itself in danger,” and, “Unless stopped, lawlessness grows, the greater the power of the executive grows, the more difficult it becomes for the other branches to perform their constitutional roles.” It is patently obvious that the Bush administration has broken the law in conducting and approving its warrantless wiretaps, Gore says, regardless of what arguments and defenses administration officials may put forth (see September 12-18, 2001 and Early 2002). So, Gore says, “When President Bush failed to convince Congress to give him the power he wanted when this measure was passed, he secretly assumed that power anyway, as if Congressional authorization was a useless bother. But as [Supreme Court] Justice [Felix] Frankfurter once wrote, ‘To find authority so explicitly withheld is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between the president and the Congress.‘… And the disrespect embodied in these apparent mass violations of the law is part of a larger pattern of seeming indifference to the Constitution that is deeply troubling to millions of Americans in both political parties.”
Illegal Seizure of American Citizens - Gore notes that Bush has declared that he has “a heretofore unrecognized inherent power to seize and imprison any American citizen that he alone determines to be a threat to our nation, and that notwithstanding his American citizenship that person in prison has no right to talk with a lawyer, even if he wants to argue that the president or his appointees have made a mistake and imprisoned the wrong person” (see November 13, 2001 and March 5, 2002). He says: “The president claims that he can imprison that American citizen—any American citizen he chooses—indefinitely, for the rest of his life, without even an arrest warrant, without notifying them of what charges have been filed against them, without even informing their families that they have been imprisoned.” Gore then says: “No such right exists in the America that you and I know and love. It is foreign to our Constitution. It must be rejected.”
Specious Authority to Torture - Neither does the executive branch have the right to authorize torture, Gore says. After citing horrific examples from Guantanamo and Abu Ghraib, he calls it “a shameful exercise of power that overturns a set of principles that you’re nation has observed since General George Washington first enunciated them during our Revolutionary War. They have been observed by every president since then until now. They violate the Geneva Conventions, the International Convention Against Torture, and our own laws against torture.”
Unlawful Kidnapping of Foreign Citizens - The president has no right to have foreign citizens kidnapped from their homes and brought to the US for interrogation and imprisonment, or worse, delivered to other nations for harsh interrogations and torture, says Gore. The closest allies of the US have been shocked by such claims.
No Restraint in the Constitution? - Gore asks whether the president really has such powers under the Constitution and, if so, “are there any acts that can on their face be prohibited?” He quotes the dean of Yale’s law school, Harold Koh, who said, “If the president has commander in chief power to commit torture, he has the power to commit genocide, to sanction slavery, to promote apartheid, to license summary execution.” Gore is “deeply troubl[ed]” that “our normal American safeguards have thus far failed to contain this unprecedented expansion of executive power.” He cites the numerous usage of “signing statements” by Bush that signal his intent “not to comply” with particular legislation (see December 30, 2005). When the Supreme Court struck down Bush’s indefinite detention of “enemy combatants” (see June 28, 2004), “the president then engaged in legal maneuvers designed to prevent the court from providing any meaningful content to the rights of the citizens affected.”
Historical Cycles - Since the founding of America, Gore says, the country has abrogated its citizens’ rights in one circumstance or another, and cites numerous examples. But those abrogations were always rectified to some degree in a repeated cycle of what he calls “excess and regret.” Gore is worried that the country may not be in such a cycle now. Instead, he says, the US may be on a path to permanent, state-sanctioned authoritarianism, with the constitutional safeguards American citizens have come to expect eroded and undermined to the point of irretrievability. Gore specifically cites the administration’s support for the so-called “unitary executive” theory of government, which he says “ought to be more accurately described as the unilateral executive.” That theory “threatens to expand the president’s powers until the contours of the Constitution that the framers actually gave us become obliterated beyond all recognition.”
Stark Authoritarianism - Why are Bush and his top officials doing this? Gore says that “[t]he common denominator seems to be based on an instinct to intimidate and control. The same pattern has characterized the effort to silence dissenting views within the executive branch, to censor information that may be inconsistent with its stated ideological goals, and to demand conformity from all executive branch employees.” Gore continues: “Intellectually, it is possible to carry on this process for an indefinite time. The only check on it is that, sooner or later, a false belief bumps up against solid reality, usually on a battlefield. Two thousand two hundred American soldiers have lost their lives as this false belief bumped into a solid reality.”
Gutting Congress - Though serious damage has been done to the judicial branch, Gore acknowledges, “the most serious damage in our constitutional framework has been to the legislative branch. The sharp decline of Congressional power and autonomy in recent years has been almost as shocking as the efforts by the executive to attain this massive expansion of its power.… [T]he legislative branch of government as a whole, under its current leadership, now operates as if it were entirely subservient to the executive branch.… [T]he whole process is largely controlled by the incumbent president and his political organization” (see February 1, 2004). Gore says each member of Congress, Republican and Democrat, must “uphold your oath of office and defend the Constitution. Stop going along to get along. Start acting like the independent and co-equal branch of American government that you are supposed to be under the Constitution of our country.”
We the People - The American people still, for the moment, have the power to enforce the Constitution, Gore says, quoting former President Dwight Eisenhower, who said, “Any who act as if freedom’s defenses are to be found in suppression and suspicion and fear confess a doctrine that is alien to America.” Gore continues: “Fear drives out reason. Fear suppresses the politics of discourse and opens the door to the politics of destruction.… The founders of our country faced dire threats. If they failed in their endeavors, they would have been hung as traitors. The very existence of our country was at risk. Yet in the teeth of those dangers, they insisted on establishing the full Bill of Rights. Is our Congress today in more danger than were their predecessors when the British army was marching on the Capitol? Is the world more dangerous than when we faced an ideological enemy with tens of thousands of nuclear missiles ready to be launched on a moment’s notice to completely annihilate the country?” [Congressional Quarterly, 1/16/2006; American Constitutional Society, 1/16/2006]

Entity Tags: National Security Agency, Liberty Coalition, US Supreme Court, Harold Koh, George W. Bush, Albert Arnold (“Al”) Gore, Jr., American Constitution Society, Bush administration (43), Convention Against Torture, Felix Frankfurter, George Washington, Geneva Conventions, Foreign Intelligence Surveillance Act, Robert “Bob” Barr

Timeline Tags: Civil Liberties

Justice Department official Patrick Philbin testifies in a closed session of the House Intelligence Committee on the subject of interrogation tactics. Philbin testifies that each of the 24 approved interrogation tactics used by US personnel to interrogate terrorist suspects are “plainly lawful.” He notes that laws such as the Military Extraterritorial Jurisdiction Act and the Uniform Code of Military Justice define, to an extent, what is and is not torture, and prohibit excessive interrogation methods that might come under that rubric. He also notes that the US is a signatory to the Convention Against Torture (see October 21, 1994), which defines torture broadly as the intentional infliction of “severe pain or suffering” by anyone acting in an official capacity. He insists the US has done nothing to violate this treaty, nor the War Crimes Act, the Geneva Conventions, or Fifth and the Eighth Amendments to the US Constitution. Although terrorist organizations such as al-Qaeda and “extragovernmental” organizations such as the Taliban do not fall under the protection of the Geneva Conventions, Philbin argues that the US continues to follow its guidelines in its treatment of prisoners from those groups “to the extent consistent with military necessity…” [House Intelligence Committee, 7/14/2007 pdf file] However, in 2004, a classified report by the CIA’s Inspector General concluded that some of the interrogation techniques used by the CIA probably did violate the Convention Against Torture (see May 7, 2004).

Entity Tags: War Crimes Act, US Department of Justice, Uniform Code of Military Justice, Patrick F. Philbin, Geneva Conventions, Convention Against Torture, Al-Qaeda, Taliban, House Intelligence Committee, Military Extraterritorial Jurisdiction Act

Timeline Tags: Torture of US Captives, Civil Liberties

In a blistering editorial, the New York Times lambasts both the Bush administration and the Democratic leadership in the Senate for allowing Michael Mukasey, the new attorney general, to slide through the confirmation process with so little challenge (see November 8, 2007). The only thing left in the Senate’s traditional responsibility of “advice and consent” is the “consent” part, the editors write. The editorial continues: “Once upon a time, the confirmation of major presidential appointments played out on several levels—starting, of course, with politics. It was assumed that a president would choose like-minded people as cabinet members and for other jobs requiring Senate approval. There was a presumption that he should be allowed his choices, all other things being equal. Before George W. Bush’s presidency, those other things actually counted. Was the nominee truly qualified, with a professional background worthy of the job? Would he discharge his duties fairly and honorably, upholding his oath to protect the Constitution? Even though [he or] she answers to the president, would the nominee represent all Americans? Would he or she respect the power of Congress to supervise the executive branch, and the power of the courts to enforce the rule of law? In less than seven years, Mr. Bush has managed to boil that list down to its least common denominator: the president should get his choices.” The Times observes that in the first six years of Bush’s rule, he had an enthusiastically compliant set of Republican allies in Congress, but during that time, minority Democrats “did almost nothing… to demand better nominees than Mr. Bush was sending up. And now that they have attained the majority, they are not doing any better.” The editors focus particularly on two issues: Mukasey’s refusal to answer straightforward questions on whether waterboarding is torture, and the Democrats’ refusal to filibuster the Senate vote. The Times notes that Mukasey passed confirmation with a 53-40 vote. Democrats have made what the Times calls “excuses for their sorry record” on a host of issues, and first and foremost is the justification that it takes 60 votes to break a filibuster. “So why did Mr. Mukasey get by with only 53 votes?” the Times asks. “Given the success the Republicans have had in blocking action when the Democrats cannot muster 60 votes, the main culprit appears to be the Democratic leadership, which seems uninterested in or incapable of standing up to Mr. Bush.” The editors do not accept the rationale of Mukasey supporters like Charles Schumer (D-NY), who argued that by not confirming Mukasey, the path would be clear for Bush to make an interim appointment of someone far more extreme. The Times calls this line of argument “cozy rationalization,” and by Mukasey’s refusal to answer questions about his position on waterboarding, he has already aligned himself with the extremist wing of the administration. For the record, the Times notes, “Waterboarding is specifically banned by the Army Field Manual, and it is plainly illegal under the federal Anti-Torture Act, federal assault statutes, the Detainee Treatment Act (see December 30, 2005), the Convention Against Torture (see October 21, 1994), and the Geneva Conventions.” Therefore, “[i]t is hard to see how any nominee worthy of the position of attorney general could fail to answer ‘yes.’” The Times speculates that Mukasey was not permitted to answer the question by the White House because a “no” answer “might subject federal officials who carried out Mr. Bush’s orders to abuse and torture prisoners after the 9/11 attacks: the right answer could have exposed them to criminal sanctions.” All in all, the Times is appalled by “the Senate giving the job of attorney general, chief law enforcement officer in the world’s oldest democracy, to a man who does not even have the integrity to take a stand against torture.” [New York Times, 11/11/2007]

Entity Tags: Michael Mukasey, New York Times, Geneva Conventions, Bush administration (43), Charles Schumer, George W. Bush, Convention Against Torture, Detainee Treatment Act

Timeline Tags: Civil Liberties

In an interview for the German television program Frontal 21, broadcast on ZDF, Professor Manfred Nowak, the United Nations rapporteur responsible for torture, states that with George W. Bush’s head of state immunity now terminated, the new government of Barack Obama is obligated by international law to commence a criminal investigation into Bush’s torture practices. “The evidence is sitting on the table,” Nowak says. “There is no avoiding the fact that this was torture.” Nowak cites the Convention Against Torture (see October 21, 1994), which obligates a signatory country such as the US to criminally prosecute anyone who tortures a person, or extradites a person to a country which will torture him. “The government of the United States is required to take all necessary steps to bring George W. Bush and Donald Rumsfeld before a court,” Nowak says. Nowak headed a 2006 study of conditions at Guantanamo that concluded the practices used at that facility and approved by the Bush administration violated human rights norms and constituted torture. ZDF also interviews attorney Wolfgang Kaleck, who brought charges against former Defense Secretary Donald Rumsfeld before German prosecutors. The Obama administration is “off to a good beginning” with its explicit renunciation of torture, Kaleck says, but has yet to show how it will hold Bush, Rumsfeld, and others accountable for their crimes, nor has it demonstrated its legally obligated duty to provide compensation to torture victims. Lastly, law professor Dietmar Herz confirms that Bush bears personal responsibility for the introduction and use of torture. Herz confirms that once Bush lost his immunity from prosecution as a head of state, the US is obligated to prosecute him for crimes against humanity. [Harper's, 1/21/2009]

Entity Tags: Wolfgang Kaleck, Donald Rumsfeld, Barack Obama, Convention Against Torture, Dietmar Herz, Manfred Nowak, George W. Bush, United Nations

Timeline Tags: Civil Liberties

Baltasar Garzon.Baltasar Garzon. [Source: Presidency of Argentina]A Spanish court begins preliminary work towards opening a criminal investigation into allegations that six former top Bush administration officials may be guilty of war crimes related to torture of prisoners at Guantanamo. Spanish law allows the investigation and prosecution of people beyond its borders in the case of torture or war crimes. Investigative judge Baltasar Garzon, who ordered the arrest of Chilean dictator Augusto Pinochet and has overseen the prosecution of numerous terrorists and human rights violators, wants to prosecute former US Attorney General Alberto Gonzales, former Justice Department lawyers John Yoo and Jay Bybee, former Defense Department officials William Haynes and Douglas Feith, and David Addington, the former chief of staff to then-Vice President Cheney. Many legal experts say that even if Garzon’s case results in warrants being issued, it is highly doubtful that the warrants would ever be served as long as the six potential defendants remain in the US. Spain has jurisdiction in the case because five Spanish citizens or residents have claimed to have been tortured at Guantanamo; the five faced charges in Spain, but were released after the Spanish Supreme Court ruled that evidence obtained through torture was inadmissible. Garzon’s complaint rests on alleged violations of the Geneva Conventions and the 1984 Convention Against Torture (see October 21, 1994). The complaint was prepared by Spanish lawyers with the assistance of experts in Europe and America, and filed by the Association for the Dignity of Prisoners, a Spanish human rights group. Lawyer Gonzalo Boye, who filed the complaint, says that Gonzales, Yoo, and the others have what he calls well-documented roles in approving illegal torture techniques, redefining torture, and ignoring the constraints set by the Convention Against Torture. “When you bring a case like this you can’t stop to make political judgments as to how it might affect bilateral relations between countries,” Boye says. “It’s too important for that.” Boye adds: “This is a case from lawyers against lawyers. Our profession does not allow us to misuse our legal knowledge to create a pseudo-legal frame to justify, stimulate, and cover up torture.” The US is expected to ignore any extradition requests occuring from the case. [New York Times, 3/28/2009; Associated Press, 3/28/2009]

Entity Tags: William J. Haynes, Jay S. Bybee, David S. Addington, John C. Yoo, Geneva Conventions, Convention Against Torture, Gonzalo Boye, Association for the Dignity of Prisoners, Alberto R. Gonzales, Baltasar Garzon, Bush administration (43)

Timeline Tags: Civil Liberties

New York Times editor Clark Hoyt, in a column entitled “Telling the Brutal Truth,” writes of the lengthy discussions among Times editors and staffers on using the term “torture” in their reports and editorials. Hoyt writes that the term is not used in news reports, though it is in editorials. “Until this month,” he writes, “what the Bush administration called ‘enhanced’ interrogation techniques were ‘harsh’ techniques in the news pages of the Times. Increasingly, they are ‘brutal.’” He characterizes the decision to use, or not use, the word “torture” as an example of “the linguistic minefields that journalists navigate every day in the quest to describe the world accurately and fairly.” He notes that the final decision—to rely on the adjective “brutal”—“displeas[es] some who think ‘brutal’ is just a timid euphemism for torture [as well as] their opponents who think ‘brutal’ is too loaded.”
Reader Criticism - Hoyt notes that some readers have criticized the Times for its lack of “backbone” in not using the term “torture” in its reporting, with one writing that by refusing to use the term, “you perpetuate the fantasy that calling a thing by something other than its name will change the thing itself.” Others say that even using the word “brutal” is “outrageously biased.”
'Harsh' Not Accurately Descriptive - Hoyt notes that in the process of editing an April 10 news report on the CIA’s closing of its network of secret overseas prisons (see April 10, 2009), reporter Scott Shane and editor Douglas Jehl debated over the wording of the first paragraph. Jehl had written that the interrogation methods used in the prisons were “widely denounced as illegal torture,” a phrase Jehl changed to “harshest interrogation methods.” Shane argued that the term “harshest” was not strong enough, and the two agreed to use the word “brutal.” After reading the recently released Justice Department torture memos (see April 16, 2009), managing editor Jill Abramson said a new and stronger term needed to be used. “Harsh sounded like the way I talked to my kids when they were teenagers and told them I was going to take the car keys away,” she says. She, too, came down in favor of “brutal” after conferring with legal experts and Washington bureau chief Dean Baquet. But senior editors have all agreed that the word torture will not be used except in quoting others’ descriptions of the methods. “I have resisted using torture without qualification or to describe all the techniques,” Jehl says. “Exactly what constitutes torture continues to be a matter of debate and hasn’t been resolved by a court. This president and this attorney general say waterboarding is torture, but the previous president and attorney general said it is not. On what basis should a newspaper render its own verdict, short of charges being filed or a legal judgment rendered?” [New York Times, 4/25/2009]
Accusation of Bias, Semantic Games - Media critic Brad Jacobson accuses Hoyt and the Times staff of engaging in meaningless semantic wordplay instead of labeling torture as what it is, and notes that Hoyt seems to admit that public opinion, not journalistic standards, has determined what terms the Times will and will not use. Jacobson writes: “1) If the Times called techniques such as waterboarding torture in its reporting, which it should based on US and international law, legal experts, historians, military judges, combat veterans, and human rights organizations, and described, however briefly, what that torture entailed, then the use of modifying adjectives such as ‘harsh’ or ‘brutal’ would not only be superfluous but, in a news story, better left out; and 2) isn’t the Times (along with any news outlet that has failed to report these acts as torture) directly responsible in some way for inspiring the kind of response it received from readers [who objected to the term ‘brutal’]? If readers are not provided the facts—a) waterboarding is torture and b) torture is illegal—while Times editors are simultaneously ascribing arbitrary descriptors to it like ‘brutal’ or ‘harsh,’ then the Times is not only denying its readers the necessary information to understand the issue but this denial may also lead directly to accusations of bias.” He also notes that Jehl censored Shane’s story to eliminate the reference to the methods being “widely denounced as illegal torture,” and asks why Abramson discussed the matter with legal experts rather than determining if waterboarding, physical assaults, and other techniques do indeed qualify as torture under the Geneva Conventions, the Convention Against Torture (see October 21, 1994), and other binding laws and treaties. [Raw Story, 4/26/2009]

Entity Tags: Douglas Jehl, Central Intelligence Agency, Brad Jacobson, Clark Hoyt, Dean Baquet, Scott Shane, Convention Against Torture, Jill Abramson, Geneva Conventions, US Department of Justice, New York Times

Timeline Tags: Torture of US Captives

Former Bush National Security Adviser and Secretary of State Condoleezza Rice, who has returned to Stanford University to teach political science and serve as a senior fellow at the university’s conservative Hoover Institute [Stanford University News, 1/28/2009] , refuses to take any responsibility for the Bush administration’s torture policies. All she ever did, she tells students, was “convey… the authorization of the administration” (see Late 2001-Early 2002, April 2002 and After, Mid-May, 2002, July 17, 2002, September or October 2002, Summer 2003, May 3, 2004, and April 9, 2008). However, Rice adds, since President Bush authorized the torture program, it was by definition legal, no matter what domestic law or international treaties stipulated. “The president instructed us that nothing we would do would be outside of our obligations, legal obligations under the Convention Against Torture” (see October 21, 1994), she says. “So that’s—and by the way, I didn’t authorize anything. I conveyed the authorization of the administration to the agency, that they had policy authorization, subject to the Justice Department’s clearance. That’s what I did.” Asked if waterboarding constitutes torture, Rice responds: “I just said, the United States was told, we were told, nothing that violates our obligations under the Convention Against Torture. And so by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture.” Ali Frick, a reporter with the progressive news Web site Think Progress, writes in response: “Rice is attempting to hide her central role in approving torture.… Rice’s opinion that a presidential authorization—‘by definition’—grants something legality is deeply disturbing. In fact, the United States—and its president—are bound by US statute and international treaties that ban the use of cruel, humiliating, degrading treatment, the infliction of suffering, and the attempt to extract coerced confessions. Memo to Rice: Bush may have been ‘the Decider,’ but he didn’t have the authority to make an illegal act magically legal.” [Think Progress, 4/30/2009] In the same conversation, Rice seems to say that al-Qaeda poses a greater threat to the US than did Nazi Germany, and again denies that the US ever tortured anyone. A student asks, “Even in World War II facing Nazi Germany, probably the greatest threat that America has ever faced—” and Rice interjects, “Uh, with all due respect, Nazi Germany never attacked the homeland of the United States.” “No, but they bombed our allies—” the student replies, and Rice once again interrupts: “No, just a second, just a second. Three thousand Americans died in the Twin Towers and the Pentagon [referring to the 9/11 attacks].” The student observes, “500,000 died in World War II—” to which Rice replies, “Fighting a war in Europe.” The student continues, ”—and yet we did not torture the prisoners of war.” Rice says, “We didn’t torture anybody here either.” [Think Progress, 4/30/2009]

Entity Tags: US Department of Justice, Bush administration (43), Ali Frick, Al-Qaeda, Convention Against Torture, George W. Bush, Condoleezza Rice

Timeline Tags: Torture of US Captives

Former Nixon White House counsel John Dean says that former Secretary of State Condoleezza Rice may have unwittingly admitted to being part of a criminal conspiracy in regards to the Bush administration’s torture policies. Rice recently told students at Stanford University that she did not authorize any torture policies, she merely forwarded the authorization for them from higher up (see April 28, 2009). Dean tells MSNBC talk show host Keith Olbermann that she may have admitted to a criminal conspiracy. Dean calls Rice’s comments “surprising,” and says she has mired herself in the possibility of legal proceedings. “She tried to say she didn’t authorize anything, then proceeded to say she did pass orders along to the CIA to engage in torture if it was legal by the standard of the Department of Justice,” Dean says. “This really puts her right in the middle of a common plan, as it’s known in international law, or a conspiracy, as it’s known in American law, and this indeed is a crime. If it indeed happened the way we think it did happen.… These kinds of statements are going to come back and be interesting to any investigator.” Dean says that President Obama will stand in violation of the Geneva Conventions if he refuses to prosecute those found responsible for the torture policies. “He is indeed in violation if the United States does not undertake investigation of this, or ultimately prosecution, if that’s necessary,” Dean says. “It’s not only the Geneva Convention, the Convention Against Torture (see October 21, 1994) also requires this. There are no exceptions with torture. There are no real things like ‘torture light.’ The world community I think is going to hold the United States responsible, and if we don’t proceed, somebody is going to proceed.” [Raw Story, 5/1/2009; MSNBC, 5/1/2009]

Entity Tags: Geneva Conventions, Barack Obama, Bush administration (43), John Dean, Condoleezza Rice, Keith Olbermann, Convention Against Torture

Timeline Tags: Torture of US Captives

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