Archive for April, 2009

Normal service is resumed; the quest for accountability and justice continues

My apologies, to those who receive updates on new articles via my RSS feed, or anyone else who tried to get through to my site between around 10pm GMT on Wednesday evening, and 11.30 am GMT on Thursday morning. The site was down, due to a technical problem that has now been resolved.

For those of us working as independent journalists, largely on the Internet, it’s horribly stressful when your site goes down, although I’m aware, of course, given my subject matter, that this kind of stress is not actually very significant.

So welcome back. You may have missed my most recent article, “Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low” (the fifth in an ongoing series of articles following the release of the Office of Legal Counsel’s torture memos, and the publication of a Senate report into detainee abuse), but everything is still in place, and I look forward to continuing to chronicle the torture and abuse perpetrated by the Bush administration, as part of a movement of people determined to hold those responsible accountable for their crimes, and also, as President Obama marks his 100th day in office, to doing all I can to point out when and where he is either making a clean break with his predecessors, or, indeed, failing to do so.

The problem with an administration like that of George W. Bush and Dick Cheney — devoted, unconstitutionally, to securing and wielding unaccountable executive power — is, as the British historian Lord Acton stated in a letter in 1887 (in a phrase that is often slightly misquoted), “Power tends to corrupt, and absolute power corrupts absolutely.”

Note: I should also add that I’m continuing to monitor abuses of power in the UK, as outlined in a recent article for the Guardian’s Comment is free, “Taking liberties with our justice system,” because it’s clear that Bush and Cheney did not have a monopoly on confusing the need for security with the inclination to believe that they were above the law.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). See here for my definitive Guantánamo prisoner list, published in March 2009.

Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low

Since the publication last week of the Senate Armed Services Committee’s report into detainee abuse in Afghanistan, Iraq and Guantánamo (PDF), much has been made of a footnote containing a comment made by Maj. Paul Burney, a psychiatrist with the Army’s 85th Medical Detachment’s Combat Stress Control Team, who, with two colleagues, was “hijacked” into providing an advisory role to the Joint Task Force at Guantánamo.

In his testimony to the Senate Committee, Maj. Burney wrote that “a large part of the time we were focused on trying to establish a link between al-Qaeda and Iraq and we were not successful in establishing a link between al-Qaeda and Iraq. The more frustrated people got in not being able to establish that link … there was more and more pressure to resort to measures that might produce more immediate results.”

In an article to follow, I’ll look at how Maj. Burney — almost accidentally — assumed a pivotal role in the implementation of torture techniques in the “War on Terror,” but for now I’m going to focus on the significance of his comments, which are, of course, profoundly important because they demonstrate that, in contrast to the administration’s oft-repeated claims that the use of “enhanced interrogation techniques” foiled further terrorist attacks on the United States, much of the program was actually focused on trying to establish links between al-Qaeda and Saddam Hussein that would justify the planned invasion of Iraq.

Maj. Burney’s testimony provides the first evidence that coercive and illegal techniques were used widely at Guantánamo in an attempt to secure information linking al-Qaeda to Saddam Hussein, but it is not the first time that the Bush administration’s attempts to link a real enemy with one that required considerable ingenuity to conjure up have been revealed.

Ibn al-Shaykh al-Libi: the tortured lie that underpinned the Iraq war

In case anyone has forgotten, when Ibn al-Shaykh al-Libi, the head of the Khaldan military training camp in Afghanistan, was captured at the end of 2001 and sent to Egypt to be tortured, he made a false confession that Saddam Hussein had offered to train two al-Qaeda operatives in the use of chemical and biological weapons. Al-Libi later recanted his confession, but not until Secretary of State Colin Powell — to his eternal shame — had used the story in February 2003 in an attempt to persuade the UN to support the invasion of Iraq.

It’s wise, I believe, to resuscitate al-Libi’s story right now for two particular reasons. The first is because, when he was handed over to US forces by the Pakistanis, he became the first high-profile captive to be fought over in a tug-of-war between the FBI, who wanted to play by the rules, and the CIA — backed up by the most hawkish figures in the White House and the Pentagon — who didn’t. In an article published in the New Yorker in February 2005, Jane Mayer spoke to Jack Cloonan, a veteran FBI officer, who worked for the agency from 1972 to 2002, who told her that his intention had been to secure evidence from al-Libi that could be used in the cases of two mentally troubled al-Qaeda operatives, Zacarias Moussaoui, a proposed 20th hijacker for the 9/11 attacks, and Richard Reid, the British “Shoe Bomber.”

Crucially, Mayer reported, Cloonan advised his colleagues in Afghanistan to interrogate al-Libi with respect, “and handle this like it was being done right here, in my office in New York.” He added, “I remember talking on a secure line to them. I told them, ‘Do yourself a favor, read the guy his rights. It may be old-fashioned, but this will come out if we don’t. It may take ten years, but it will hurt you, and the bureau’s reputation, if you don’t. Have it stand as a shining example of what we feel is right.’”

However, after reading him his rights, and taking turns in interrogating him with agents from the CIA, Cloonan and his colleagues were dismayed when, in spite of developing what they believed was “a good rapport” with him, the CIA decided that tougher tactics were needed, and rendered him to Egypt. According to an FBI officer who spoke to Newsweek in 2004, “At the airport the CIA case officer goes up to him and says, ‘You’re going to Cairo, you know. Before you get there I’m going to find your mother and I’m going to f*** her.’ So we lost that fight.” Speaking to Mayer, Jack Cloonan added, “At least we got information in ways that wouldn’t shock the conscience of the court. And no one will have to seek revenge for what I did.” He added, “We need to show the world that we can lead, and not just by military might.”

In November 2005, the New York Times reported that a Defense Intelligence Agency report had noted in February 2002, long before al-Libi recanted his confession, that his information was not trustworthy. As the Times described it, his claims “lacked specific details about the Iraqis involved, the illicit weapons used and the location where the training was to have taken place.” The report itself stated, “It is possible he does not know any further details; it is more likely this individual is intentionally misleading the debriefers. Ibn al-Shaykh has been undergoing debriefs for several weeks and may be describing scenarios to the debriefers that he knows will retain their interest.”

Had anyone asked Dan Coleman, a colleague of Cloonan’s who also had a long history of successfully interrogating terrorist suspects without resorting to the use of torture, it would have been clear that torturing a confession out of al-Libi was a counter-productive exercise.

As Mayer explained, Coleman was “disgusted” when he heard about the false confession, telling her, “It was ridiculous for interrogators to think Libi would have known anything about Iraq. I could have told them that. He ran a training camp. He wouldn’t have had anything to do with Iraq. Administration officials were always pushing us to come up with links, but there weren’t any. The reason they got bad information is that they beat it out of him. You never get good information from someone that way.”

This, I believe, provides an absolutely critical explanation of why the Bush administration’s torture regime was not only morally repugnant, but also counter-productive, and it’s particularly worth noting Coleman’s comment that “Administration officials were always pushing us to come up with links, but there weren’t any.” However, I realize that the failure of torture to produce genuine evidence — as opposed to intelligence that, though false, was at least “actionable” — was exactly what was required by those, like Dick Cheney, Donald Rumsfeld, Paul Wolfowitz, “Scooter” Libby and other Iraq obsessives, who wished to betray America doubly, firstly by endorsing the use of torture in defiance of almost universal disapproval from government agencies and military lawyers, and secondly by using it not to prevent terrorist attacks, but to justify an illegal war.

Where are Ibn al-Shaykh al-Libi and the other 79 “ghost prisoners”?

In addition, a second reason for revisiting al-Libi’s story emerged two weeks ago, when memos approving the use of torture by the CIA, written by lawyers in the Justice Department’s Office of Legal Counsel in 2002 and 2005, were released, because, in one of the memos from 2005, the author, Principal Deputy Assistant Attorney General Steven G. Bradbury, revealed that a total of 94 prisoners had been held in secret CIA custody. As I noted at the time, what was disturbing about this revelation was not the number of prisoners held, because CIA director Michael Hayden admitted in July 2007 that the CIA had detained fewer than 100 people at secret facilities abroad since 2002, but the insight that this exact figure provides into the supremely secretive world of “extraordinary rendition” and secret prisons that exists beyond the cases of the 14 “high-value detainees” who were transferred to Guantánamo from secret CIA custody in September 2006.

Al-Libi, of course, is one of the 80 prisoners whose whereabouts are unknown. There are rumors that, after he was fully exploited by the administration’s own torturers (in Poland and, almost certainly, other locations) and by proxy torturers in Egypt, he was sent back to Libya, to be dealt with by Colonel Gaddafi. I have no sympathy for al-Libi, as the emir of a camp that, at least in part, trained operatives for terrorist attacks in their home countries (in Europe, North Africa and the Middle East), but if there is ever to be a proper accounting for what took place in the CIA’s global network of “extraordinary rendition,” secret prisons, and proxy prisons, then al-Libi’s whereabouts, along with those of the other 79 men who constitute “America’s Disappeared” (as well as all the others rendered directly to third countries instead of to the CIA’s secret dungeons), need to be established.

Torturing Abu Zubaydah “to achieve a political objective”

Al-Libi’s story is, of course, disturbing enough as evidence of the utter contempt with which the Bush administration’s warmongers treated both the truth and the American public, but as David Rose explained in an article in Vanity Fair last December, al-Libi was not the only prisoner tortured until he came up with false confessions about links between Saddam Hussein and al-Qaeda.

According to two senior intelligence analysts who spoke to Rose, Abu Zubaydah, the gatekeeper for the Khaldan camp, made a number of false confessions about connections between Saddam Hussein and al-Qaeda, above and beyond one particular claim that was subsequently leaked by the administration: a patently ludicrous scenario in which Osama bin Laden and Abu Musab al-Zarqawi (the leader of al-Qaeda in Iraq) were working with Saddam Hussein to destabilize the autonomous Kurdish region in northern Iraq. One of the analysts, who worked at the Pentagon, explained, “The intelligence community was lapping this up, and so was the administration, obviously. Abu Zubaydah was saying Iraq and al-Qaeda had an operational relationship. It was everything the administration hoped it would be.”

However, none of the analysts knew that these confessions had been obtained through torture. The Pentagon analyst told Rose, “As soon as I learned that the reports had come from torture, once my anger had subsided I understood the damage it had done. I was so angry, knowing that the higher-ups in the administration knew he was tortured, and that the information he was giving up was tainted by the torture, and that it became one reason to attack Iraq.” He added, “It seems to me they were using torture to achieve a political objective.”

This is the crucial line, of course, and its significance is made all the more pronounced by the realization that, as one of Bradbury’s torture memos also revealed, Zubaydah was subjected to waterboarding (an ancient torture technique that involves controlled drowning) 83 times in August 2002. The administration persists in claiming that this hideous ordeal produced information that led to the capture of Khalid Sheikh Mohammed and Jose Padilla, but we have known for years that KSM was seized after a walk-in informer ratted on him, and those of us who have been paying attention also know that, in the case of Padilla, the so-called “dirty bomber,” who spent three and a half years in solitary confinement in a US military brig until he lost his mind, there never was an actual “dirty bomb” plot. This was admitted, before his torture even began, by deputy defense secretary Paul Wolfowitz, who stated, in June 2002, a month after Padilla was captured, “I don’t think there was actually a plot beyond some fairly loose talk.”

All this leaves me with the uncomfortable suspicion that what the excessive waterboarding of Abu Zubaydah actually achieved — beyond the “30 percent of the FBI’s time, maybe 50 percent,” that was “spent chasing leads that were bullshit,” as an FBI operative explained to David Rose — were a few more blatant lies to fuel the monstrous deception that was used to justify the invasion of Iraq.

A single Iraqi anecdote, and a bitter conclusion

It remains to be seen if further details emerge to back up Maj. Burney’s story. From my extensive research into the stories of the Guantánamo prisoners, I recall only that one particular prisoner, an Iraqi named Arkan al-Karim, mentioned being questioned about Iraq. Released in January this year, al-Karim had been imprisoned by the Taliban before being handed over to US forces by Northern Alliance troops, and had been forced to endure the most outrageous barrage of false allegations in Guantánamo, but when he spoke to the review board that finally cleared him for release, he made a point of explaining, “The reason they [the US] brought me to Cuba is not because I did something. They brought me from Taliban prison to get information from me about the Iraqi army before the United States went to Iraq.”

However, even without further proof of specific confessions extracted by the administration in an attempt to justify its actions, the examples provided in the cases of Ibn al-Shaykh al-Libi and Abu Zubaydah should be raised every time that Dick Cheney opens his mouth to mention the valuable intelligence that was extracted through torture, and to remind him that, instead of saving Americans from another terror attack, he and his supporters succeeding only in using lies extracted through torture to send more Americans to their deaths than died on September 11, 2001.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

As published on CounterPunch (as “Cheney’s Twisted World”), Antiwar.com (as “Torture ‘to Achieve a Political Objective’”), the Huffington Post and ZNet.

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), Six in Guantánamo Charged with 9/11 Murders: Why Now? And What About the Torture? (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Guantánamo Trials: Another Torture Victim Charged (Abdul Rahim al-Nashiri, July 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, CIA Torture Began In Afghanistan 8 Months before DoJ Approval (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison, Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here) (all May 2009), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA), and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009). Also see the extensive archive of articles about the Military Commissions.

For other stories discussing the use of torture in secret prisons, see: An unreported story from Guantánamo: the tale of Sanad al-Kazimi (August 2007), Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), and also see the extensive Binyam Mohamed archive. And for other stories discussing torture at Guantánamo and/or in “conventional” US prisons in Afghanistan, see: The testimony of Guantánamo detainee Omar Deghayes: includes allegations of previously unreported murders in the US prison at Bagram airbase (August 2007), Guantánamo Transcripts: “Ghost” Prisoners Speak After Five And A Half Years, And “9/11 hijacker” Recants His Tortured Confession (September 2007), The Trials of Omar Khadr, Guantánamo’s “child soldier” (November 2007), Former US interrogator Damien Corsetti recalls the torture of prisoners in Bagram and Abu Ghraib (December 2007), Guantánamo’s shambolic trials (February 2008), Torture allegations dog Guantánamo trials (March 2008), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), Former Guantánamo Prosecutor Condemns “Chaotic” Trials in Case of Teenage Torture Victim (Lt. Col. Darrel Vandeveld on Mohamed Jawad, January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (Mohammed El-Gharani, January 2009), Bush Era Ends With Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Forgotten in Guantánamo: British Resident Shaker Aamer (March 2009), and the extensive archive of articles about the Military Commissions.

In the Guardian: The disturbing use of secret evidence in UK “terror courts”

For the Guardian’s Comment is free, “Taking liberties with our justice system” is an article I wrote about the largely overlooked plight of Britain’s untried “terror suspects,” a group of men — mostly foreign residents, but also including British nationals — who are imprisoned, or held under a strict form of house arrest, either on control orders or deportation bail, without ever having been charged or tried, on the basis of secret evidence.

The article, which provides a summary of the Labour government’s extraordinary disregard for the principles of justice on which this country prides itself, follows on from my recent series about “Britain’s Guantánamo,” which began with an article for the Guardian, “Torture taints all our lives,” and continued with two further articles in which I reported on a Parliamentary meeting chaired by Diane Abbott MP about the use of secret evidence, and compared the situation faced by these men to the detention regime implemented by the Bush administration at Guantánamo, and also reproduced five statements, made by the prisoners themselves, which were read out by actors at the parliamentary meeting (see the links below).

The trigger for the article, which features some particularly poignant insights made by Dinah Rose QC during the Parliamentary meeting, was an Early Day Motion tabled by Diane Abbott, calling for an end to the use of secret evidence, which I mentioned in an article on my site last week, and I urge anyone concerned by this despicable state of affairs to ask their MP to sign join Diane Abbott, and, at the latest count, 36 other MPs, in demanding an end to the use of secret evidence.

I did not have the space, in the Guardian article, to mention the alternatives to the ad hoc system invented in the wake of the 9/11 attacks, which, with every passing year, becomes more damaging to the mental health of those unjustly deprived of their liberty by a government that reacted with panic and paranoia to the perceived terror threat that followed the attacks, but I have written about these alternatives in previous articles — for example, “Abu Qatada: Law Lords and Government Endorse Torture,” published in February.

Essentially, what it involves is persuading the government to join the rest of the world in finding a way to use evidence from the intelligence agencies without compromising either their sources or their methods, so that the evidence against these men can be tested in an open court, and not in the secretive terror court — the Special Immigration Appeal Commission (SIAC) — which, at present, deals with their cases in a disturbingly opaque manner.

As Dinah Rose explained at the Parliamentary meeting, it is “hard to explain just how shocking an experience SIAC is for an advocate used to the basic norms of our legal system. It is the first principle of natural justice that a person has a right to know the case against them, so that they can respond to it. We take this principle for granted, from our earliest childhood, [but] this principle simply does not apply in SIAC.”

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

For other articles dealing with Belmarsh, control orders, deportation bail, deportations and extraditions, see Deals with dictators undermined by British request for return of five Guantánamo detainees (August 2007), Britain’s Guantánamo: the troubling tale of Tunisian Belmarsh detainee Hedi Boudhiba, extradited, cleared and abandoned in Spain (August 2007), Guantánamo as house arrest: Britain’s law lords capitulate on control orders (November 2007), The Guantánamo Britons and Spain’s dubious extradition request (December 2007), Britain’s Guantánamo: control orders renewed, as one suspect is freed (February 2008), Spanish drop “inhuman” extradition request for Guantánamo Britons (March 2008), UK government deports 60 Iraqi Kurds; no one notices (March 2008), Repatriation as Russian Roulette: Will the Two Algerians Freed from Guantánamo Be Treated Fairly? (July 2008), Abu Qatada: Law Lords and Government Endorse Torture (February 2009), Ex-Guantánamo prisoner refused entry into UK, held in deportation centre (February 2009), Home Secretary ignores Court decision, kidnaps bailed men and imprisons them in Belmarsh (February 2009), Britain’s insane secret terror evidence (March 2009), Torture taints all our lives (published in the Guardian’s Comment is free), Britain’s Guantánamo: Calling For An End To Secret Evidence, Five Stories From Britain’s Guantánamo: (1) Detainee Y, Five Stories From Britain’s Guantánamo: (2) Detainee BB, Five Stories From Britain’s Guantánamo: (3) Detainee U, Five Stories From Britain’s Guantánamo: (4) Hussain Al-Samamara, Five Stories From Britain’s Guantánamo: (5) Detainee Z, Britain’s Guantánamo: Fact or Fiction? and URGENT APPEAL on British terror laws: Get your MP to support Diane Abbott’s Early Day Motion on the use of secret evidence (all April 2009).

FAIR article: Dangerous Revisionism Over Guantánamo

Back in November, I took exception to the opening line in a New York Times front-page story, “Next President Will Face Test on Detainees” (published on the eve of the US election), which stated, “They were called the Dirty 30 — bodyguards for Osama bin Laden captured early in the Afghanistan war,” and contacted FAIR (Fairness and Accuracy in Reporting), the US media watch group, who commissioned me to write an article for the February edition of their magazine, Extra!.

The article, “Dangerous Revisionism Over Guantánamo: Citing dirty evidence to defend dubious detentions,” is now available on FAIR’s website, so you can find out why I was so appalled by the statement, but essentially it was because the Times failed to mention “well-documented claims that the allegations about the men being bin Laden’s bodyguards came from confessions made by Mohammed al-Qahtani,” one of Guantánamo’s most notorious torture victims, and also failed to note “complaints made at Guantánamo about the quality of the evidence against one of the so-called ‘Dirty 30,’ Farouq Saif.”

In 2006, Corine Hegland at the National Journal discovered that one of the allegations against Saif — that he had been seen at Osama bin Laden’s private airport in Kandahar, “carrying an AK-47 and wearing fatigues” — had been made by “a notorious liar,” according to an FBI memo that Saif’s Personal Representative (a military officer assigned in place of a lawyer) presented to his tribunal, and it was also noted that this same prisoner had made false allegations against another 59 prisoners.

I also mentioned that the Times might have noted complaints made by Lt. Col. Stephen Abraham, a veteran of US intelligence who worked on the tribunals, who explained in 2007 that the team responsible for compiling the summaries of evidence against the prisoners had little or no access to the intelligence agencies, and that, as a result, “most of the information collected … consisted … of information obtained during interrogations of other detainees,” casting further doubt on its reliability.

In February, I wrote another article, “Guantánamo: Lies, Damned Lies and Statistics,” following up on themes developed in my article for FAIR, and examining further difficulties in reporting accurately about Guantánamo, particularly in relation to claims made by Bush administration officials about the quality of the supposed evidence against the prisoners.

In this article, I chastised the Washington Post for uncritically allowing a “former senior official” to claim, with regard to the remaining 241 prisoners, “All but about 60 who have been approved for release are either high-level al-Qaeda people responsible for 9/11 or bombings, or were high-level Taliban or al-Qaeda facilitators or money people.” My concern stemmed from the unassailable fact that it has long been established that only between 35 and 50 are regarded by intelligence officials as connected in any meaningful way with al-Qaeda or other terrorist groups, and more recently, in fact, Lawrence Wilkerson, Colin Powell’s former Chief of Staff, put that figure at no more than 25.

I meant to write another article on this topic, when one of Guantánamo’s notorious liars — perhaps the very man who made false allegations against Farouq Saif and 59 other men — was profiled in the Washington Post (also in February), although I was unable to find the time. However, for those interested in questioning the quality of the government’s evidence against the Guantánamo prisoners, his story is particularly fascinating, and, although I can’t, of course, blame anyone held at Guantánamo for succumbing to pressure — whether through coercion or bribery — and making false confessions, it was noticeable, when a judge cleared this particular prisoner for release from Guantánamo at the end of March, that there was no hint, from either the Pentagon or the Justice Department, that the extent of his false allegations against other prisoners had been fully understood.

And yet, of course, these false allegations are of enormous concern to those prisoners still held in Guantánamo, who, over the years, have been accused of all manner of crimes by one or other of Guantánamo’s notorious liars, because their cases are currently being reviewed by the Obama administration, and what will happen to them depends, crucially, on the quality of the evidence against them.

I can only hope, therefore, after Attorney General Eric Holder recently declared that the administration was “relatively close” to making decisions about what to do with an initial group of Guantánamo prisoners, that he and his colleagues have also been paying attention to these important stories.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

In the Guardian: The 5th anniversary of the Abu Ghraib scandal

For the Guardian’s Comment is free, “Images that exposed the truth on abuse” is an article I wrote marking the 5th anniversary of the broadcast, on CBS News’ 60 Minutes II, of the first photos revealing the abuse of detainees — or, indeed, what the International Committee of the Red Cross described as treatment “that in some cases might amount to torture” — in Iraq’s Abu Ghraib prison.

I’ve taken the opportunity offered by this bleak anniversary to note how the Abu Ghraib photos still demonstrate, sadly, that pictures speak louder then words, and to lament that, after five years, we are still waiting for those who authorized the torture and abuse of prisoners — and in one case, a death that prompted the New Yorker‘s Jane Mayer to ask, “Can the CIA legally kill a prisoner?” — to be held accountable.

I am, however, reassured that the publication last week of the Senate Armed Services Committee report into detainee abuse (PDF) prompted chairman Carl Levin to state that the report was a “condemnation” of senior administration officials who “attempted to shift the blame for abuse such as that seen at Abu Ghraib, Guantánamo Bay and Afghanistan to low-ranking soldiers,” and, while remaining somewhat ambivalent about the extent to which serving soldiers should be prosecuted for following orders (even if that led to creative acts of sadism that shock the conscience), maintain that senior officials must now be investigated — preferably, I should add, by an independent prosecutor.

[Photo of Lyndie England with a prisoner on a leash removed following Google AdSense complaint about a “violation,” July 15, 2016. Have these people got nothing better to do? They are censoring photographic evidence of torture by US forces while claiming it is to protect Google’s users — from what? the truth? Sometimes the truth hurts, but it doesn’t mean it should be shied away from.]

If not, the imminent release of more photos — of prisoner abuse in Afghanistan, and elsewhere in Iraq — will almost certainly set off tremors of disgust that will test support for President Obama in the Muslim world, and will further challenge the resolve of those, in the United States and other Western countries, who believed that Obama represented “Change We Can Believe In.”

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (it’s free), and see here for my definitive Guantánamo prisoner list, published in March 2009.

For other articles on Abu Ghraib, see Remember Abu Ghraib? (a review of Mark Danner’s Torture and Truth), Former US interrogator Damien Corsetti recalls the torture of prisoners in Bagram and Abu Ghraib, and Film Review: Standard Operating Procedure (a review of Errol Morris’ challenging documentary about the scandal). And for other articles on Iraq, see Book Review: Road From Ar Ramadi: The Private Rebellion of Staff Sergeant Camilo Mejía, and Iraq’s refugees in Syria: Mike Otterman reports.

CIA Torture Began In Afghanistan 8 Months Before DoJ Approval

Last December, in a typically bullish defense of the Bush administration’s conduct in the “War on Terror,” Vice President Dick Cheney stated, “On the question of so-called ‘torture,’ we don’t do torture, we never have. It’s not something that this administration subscribes to. [W]e proceeded very cautiously; we checked, we had the Justice Department issue the requisite opinions in order to know where the bright lines were that you could not cross. The professionals involved in that program were very, very cautious, very careful, wouldn’t do anything without making certain it was authorized and that it was legal. And any suggestion to the contrary is just wrong.”

The “requisite opinions” referred to by Cheney consisted primarily of two memos issued in August 2002 by the Justice Department’s Office of Legal Counsel (OLC), whose lawyers interpret the law as it relates to the powers of the executive branch, which were issued in connection with the administration’s “high-value detainee” program.

The first of these memos (PDF), which has become known, simply, as the “torture memo,” was leaked in June 2004, in the wake of the Abu Ghraib scandal. Notorious for the attempts by its primary author, OLC lawyer John Yoo, to redefine torture as the infliction of physical pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” or the infliction of mental pain which “result[s] in significant psychological harm of significant duration,” it had been vilified by lawyers and human rights activists for nearly four and a half years by the time that Cheney made his pronouncement.

However, it was not until two weeks ago, when the Obama administration released the other memo — authorizing specific techniques, including waterboarding, an ancient torture technique that involves controlled drowning, to be used on a specific “high-value detainee,” Abu Zubaydah — that the “bright lines” so carefully delineated by Cheney began to blur uncontrollably.

The main problem with the memos, of course, is that they involve attempts to justify the use of torture that are, simply, unjustifiable. The US anti-torture statute defines torture as any act committed by an individual that is “specifically intended to inflict severe physical or mental pain or suffering … upon another person within his custody of physical control,” and further defines “severe mental pain or suffering” as “the prolonged mental harm caused by or resulting from” a variety of factors including “the intentional infliction or threatened infliction of severe physical pain or suffering.” Moreover, as the UN Convention Against Torture makes clear, “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 for torture.”

It is, therefore, abundantly clear that no amount of creative advice by canny lawyers, arguing that waterboarding, prolonged sleep deprivation and a host of other grotesque and outlawed techniques are somehow acceptable can sidestep this definition or overcome the absolute prohibition on the use of torture, however much the lawyers protested, as they did repeatedly, that “many of the key terms in the [anti-torture] statute (for example, ‘severe,’ ‘prolonged,’ ‘suffering’) are imprecise.”

However, even if we accept, for now, that the OLC memos provided the administration with the “golden shield” that it so desperately sought (and I fervently hope that a long-awaited internal DoJ report will confirm that no “golden shield” exists for those who creatively attempted to sanction the use of torture), the problem for Cheney and his fellow torturers right now is the existence of evidence that confirms that the torture of Abu Zubaydah actually began long before the OLC’s advice was issued, as I reported in an article last Friday, “Who Authorized The Torture of Abu Zubaydah?

“Extraordinary rendition” before August 2002

Moreover, although the OLC memos dealt specifically with a “high-value detainee” program that began with the capture of Abu Zubaydah on March 28, 2002, it’s also clear that the administration began working out how to deal with prisoners outside of existing legal frameworks within days of the 9/11 attacks. Most of this centered, at the time, on expanding the program of “extraordinary rendition” developed by the CIA under Bill Clinton in order to deliver “terror suspects” to third countries, where they could be interrogated by proxy torturers or even “disappeared.”

This in itself was enormously worrying, of course. The Clinton-era program occupied a horribly gray area, in which “terror suspects” — mostly Egyptians — were seized by the CIA and rendered to the custody of the Egyptian government, which was then free to kill them, torture them or imprison them after show trials, but it was at least a carefully controlled program, involving 13 prisoners between 1995 and 2000, according to research undertaken last year by Peter Bergen for Mother Jones, and a detailed paper trail that required the existence of a sentence by a court, even one handed down in absentia by a government with a disturbing human rights record.

After 9/11, however, all these restraints were abandoned. Within 12 days of the attacks on New York and Washington, a Yemeni named Jamal Mar’i, who worked for a Saudi charity in Pakistan, was kidnapped from his house in Karachi and rendered to Jordan, one of several countries with whom the Bush administration had swiftly established arrangements involving “extraordinary rendition” and torture. In the ten months that followed, before the OLC issued its indefensible opinions, at least 25 more prisoners were rendered to torture in Egypt, Jordan, Morocco and Syria, and we now know, from one of three more OLC memos released two weeks ago — written in May 2005 by Steven G. Bradbury, the Principal Deputy Assistant Attorney General, and revisiting the OLC’s August 2002 torture opinions — that, after the CIA brought torture in-house in August 2002, 94 prisoners in total were held in secret CIA custody.

CIA torture in Afghanistan from December 2001

However, while this entire half-submerged story needs to be exposed to the light, and with some urgency, it appears that, at least for now, the CIA can plausibly claim that it did not participate in the torture of any of the men rendered to prisons in third countries before August 2002. Last Thursday, however, lawyers for Rafiq Alhami, a Tunisian prisoner in Guantánamo, introduced another disturbing element to the narrative, which confirms without a shadow of a doubt that the CIA was torturing prisoners in Afghanistan from December 2001.

In his lawsuit, Alhami stated, as the Associated Press described it, that, from December 2001, he was held in three CIA “dark sites,” where “his presence and his existence were unknown to everyone except his United States detainers,” and where, at various times, he was “stripped naked, threatened with dogs, shackled in painful stress positions for hours, punched, kicked and exposed to extremes of heat and cold.” He also stated that his interrogators “sprayed pepper spray on his hemorroids, causing extreme pain.”

It’s likely that all of Alhami’s claims are true. In my book The Guantánamo Files, I wrote about him (identifying him, as the Pentagon had, as Rafiq al-Hami), noting, from the transcript of his tribunal at Guantánamo, that he stated that had been working in restaurants in Germany, and had traveled to Pakistan in 1999 to study with the vast missionary organization Jamaat-al-Tablighi.

Speaking of his experiences before his transfer to Guantánamo, Alhami explained, “I was in … Afghan prison[s] but the interrogation was done by Americans. I was there for about a one-year period, transferring from one place to another.” He added that one of the prisons was the “Dark Prison” near Kabul, which is known, in particular, from the story of the British resident Binyam Mohamed, released from Guantánamo two months ago, who spent four or five months there after being tortured for 18 months in Morocco. I have previously described the “Dark Prison” as “a medieval torture dungeon with the addition of ear-splittingly loud music and noise, which was pumped into the cells 24 hours a day,” based on accounts by prisoners who were held there, including Binyam Mohamed, who described his time there as “the worst days of his captivity” — worse than the 18 months in Morocco, where the CIA’s proxy torturers regularly sliced his genitals with a razorblade.

Alhami, who was 33 years old when he was seized, told his tribunal that he was tortured for three months in the “Dark Prison,” where, he said, “I was threatened. I was left out all night in the cold … I spent two months with no water, no shoes, in darkness and in the cold. There was darkness and loud music for two months. I was not allowed to pray … These things are documented. You have them.”

Rendered to torture from Iran

Shockingly, Alhami’s lawsuit reveals that he was actually seized in Iran, and transferred to CIA custody through an arrangement between the US and Iranian governments that has never been explained. He was, moreover, not the only one. Although I was unable to identify his country of capture while researching The Guantánamo Files, I was able to establish that at least four other prisoners seized in Iran had also been held in the “Dark Prison”, and described the stories of two of these men as follows:

Wisam Ahmed, a 25-year old Jordanian (released from Guantánamo in April 2004), ran a clothes shop in Jordan and traveled to Pakistan every year with a religious group. After getting married in 2000, he decided to take his wife and their newborn child to Pakistan for his visit in August 2001. In December, they were on a bus, traveling home, when they were stopped at a checkpoint in Iran, and Ahmed — under suspicion “because they associated [my] headdress with al-Qaeda and must have overlooked the fact that it was also my national dress” — was taken into custody. Rendered to Afghanistan on 1 March 2002, he was held in the “Dark Prison,” in [what he described as] “unimaginable conditions that cannot be tolerated in a civilized society,” and spent 77 days in a room that “was so dark that we couldn’t distinguish nights and days. There was no window, and we didn’t see the sun once during the whole time.” He was then moved to another secret prison — “Prison Number Three” — where the food was so bad that he lost a significant amount of weight, and was then moved to Bagram, where, in the 40 days before his transfer to Guantánamo, he was threatened by dogs, made to watch torture videos, and intimidated in other ways: “they used to start up an electric saw and while they were sawing we would hear cries of agony. I thought they would cut me into pieces sooner or later.”

Walid al-Qadasi, a 22-year old Yemeni (transferred to Yemeni custody from Guantánamo in April 2004) was also captured in Iran, and was rendered to Afghanistan in January 2002. Describing his time in [a prison that he identified as] the “Dark Prison” [but which was probably another secret prison instead], he said, “The Americans interrogated us on our first night which we coined as ‘the black night.’ They cut our clothes with scissors, left us naked and took photos of us before they gave us Afghan clothes to wear. They then handcuffed our hands behind our backs, blindfolded us and started interrogating us … They threatened me with death, accusing me of belonging to al-Qaeda.” After this initial interrogation, he said, “They put us in an underground cell measuring approximately two meters by three meters. There were 10 of us in the cell. We spent three months in the cell. There was no room for us to sleep so we had to alternate … It was too hot in the cell, despite the fact that outside the temperature was freezing (there was snow), because the cell was overcrowded.” He added that they were only fed once a day, that loud music was used as “torture,” and that one of his fellow detainees “went insane,” and pointed out that, when Red Cross representatives were allowed to visit, the most severely disturbed prisoners were secretly moved to another cell that was off-limits.

As is clear from these accounts, both men were clearly subjected to torture in facilities operated by the CIA between January and May 2002 (three months before the OLC memos were issued), and, in addition, many more prisoners who also ended up in Guantánamo were also held and tortured in the “Dark Prison” during the same timeframe. Many of these men were seized after the Tora Bora campaign, when US forces allowed Osama bin Laden and other senior figures in al-Qaeda and the Taliban to escape into Pakistan, and one of them, Mohammed Khusruf, a 60-year old Yemeni, told his tribunal that, after he was captured, he — and an unspecified number of wounded prisoners — were moved from a jail in Jalalabad to “an underground prison” in Kabul, where “they would interrogate and beat us.”

No excuses to avoid prosecution

I don’t know about you, but from my reading of this story, a number of the highest-ranking officials in the Bush administration need hauling up before the courts as soon as possible, and confronted with the evidence that, up to eight months before they secured a legal fig leaf for their abominable journey to the “Dark Side,” they had already authorized torture in a number of secret prisons in Afghanistan.

They will claim, no doubt, that everything that took place was supposedly covered by the “memorandum of notification” issued to the CIA by President Bush on September 17, 2001, which authorized the agency, in the broadest terms possible, to “to capture, detain and interrogate terrorism suspects.” If this is the case, then there was clearly no need to persuade lawyers at the OLC to come up with all their subsequent legal contortions to justify the use of torture. However, as is clear from the words of Dick Cheney, quoted at the start of this article, the Justice Department’s August 2002 opinions were essential for the administration “to know where the bright lines were that you could not cross,” and without them Cheney and his colleagues were nothing less than rogue torturers, operating outside the law.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

As published exclusively on the website of the Future of Freedom Foundation.

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), Six in Guantánamo Charged with 9/11 Murders: Why Now? And What About the Torture? (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Guantánamo Trials: Another Torture Victim Charged (Abdul Rahim al-Nashiri, July 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison, Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here) (all May 2009), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA), and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009). Also see the extensive archive of articles about the Military Commissions.

For other stories discussing the use of torture in secret prisons, see: An unreported story from Guantánamo: the tale of Sanad al-Kazimi (August 2007), Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), and also see the extensive Binyam Mohamed archive. And for other stories discussing torture at Guantánamo and/or in “conventional” US prisons in Afghanistan, see: The testimony of Guantánamo detainee Omar Deghayes: includes allegations of previously unreported murders in the US prison at Bagram airbase (August 2007), Guantánamo Transcripts: “Ghost” Prisoners Speak After Five And A Half Years, And “9/11 hijacker” Recants His Tortured Confession (September 2007), The Trials of Omar Khadr, Guantánamo’s “child soldier” (November 2007), Former US interrogator Damien Corsetti recalls the torture of prisoners in Bagram and Abu Ghraib (December 2007), Guantánamo’s shambolic trials (February 2008), Torture allegations dog Guantánamo trials (March 2008), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), Former Guantánamo Prosecutor Condemns “Chaotic” Trials in Case of Teenage Torture Victim (Lt. Col. Darrel Vandeveld on Mohamed Jawad, January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (Mohammed El-Gharani, January 2009), Bush Era Ends With Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Forgotten in Guantánamo: British Resident Shaker Aamer (March 2009), and the extensive archive of articles about the Military Commissions.

Who Authorized The Torture of Abu Zubaydah?

For the defendants of the use of torture by US forces — still led by former Vice President Dick Cheney — this has been a rocky few weeks, with the publication, in swift succession, of the leaked report by the International Committee of the Red Cross (PDF), based on interviews with the 14 “high-value detainees” transferred to Guantánamo from secret CIA prisons in September 2006, which concluded that their treatment “constituted torture” (and was accompanied by two detailed articles by Mark Danner for the New York Review of Books), the release, by the Justice Department, of four memos issued by the Office of Legal Counsel (OLC) in 2002 and 2005, which purported to justify the use of torture by the CIA, and the release of a 231-page investigation into detainee abuse conducted by the Senate Armed Services Committee (PDF).

The publication of the full Senate Committee report was delayed for four months, subject to wrangling over proposed redactions, but the Executive Summary, published last December, had already successfully demolished the Bush administration’s claims that detainee abuse could be blamed on “a few bad apples,” and, instead, blamed it on senior officials who, with the slippery exception of Dick Cheney, included George W. Bush, former defense secretary Donald Rumsfeld, Dick Cheney’s chief of staff David Addington, former Pentagon General Counsel William J. Haynes II, former Chairman of the Joint Chiefs of Staff General Richard Myers, former Attorney General Alberto Gonzales, former Justice Department legal adviser John Yoo, former Guantánamo commanders Maj. Gen. Michael Dunlavey and Maj. Gen. Geoffrey Miller, and Lt. Gen. Ricardo Sanchez, the former commander of coalition forces in Iraq.

Much of the fallout from the release of these memos and reports has, understandably, focused on the inadequacy of the legal advice offered to the CIA for its “high-value detainee” program by the OLC, whose lawyers have the unique responsibility of interpreting the law as it relates to the powers of the executive branch, and whose advice, therefore, provided the Bush administration with what it regarded as a “golden shield,” which would prevent senior officials from being prosecuted for war crimes. However, if it can be shown that the OLC’s advice was not only inadequate, but also tailored to specific requests from senior officials, then it may be that the “golden shield” will turn to dust.

This threat to the “golden shield” probably explains why Dick Cheney’s scaremongering has been shriller than usual in the last few weeks, but what has largely been overlooked to date is another question that poses even weightier challenges for the former administration: if the use of torture techniques on Abu Zubaydah, the first supposedly significant “high-value detainee” captured by the US (on March 28, 2002), was authorized by two OLC memos issued on August 1, 2002, then who authorized the torture to which he was subjected in the 18 weeks between his capture and the moment that Jay S. Bybee, the head of the OLC, added his signature to the OLC memos?

It’s clear that the major reason this question has been overlooked is because, as the ICRC report reveals, Zubaydah was not subjected to waterboarding (an ancient torture technique that involves controlled drowning) until after the memo was issued, but what is also apparent is that the treatment to which he was subjected before the waterboard was introduced also “constituted torture.”

The torture of Abu Zubaydah before August 2002

Zubaydah was severely wounded during his capture in Faisalabad, Pakistan, to the extent that, as President Bush explained in a press conference in September 2006, shortly after Zubaydah and 13 other “high-value detainees” had been transferred to Guantánamo from secret CIA prisons, “he survived only because of the medical care arranged by the CIA.” We don’t know if there is any truth to the allegation, made by Ron Suskind in his 2006 book The One Percent Doctrine, that medication was only administered in exchange for his cooperation (it seems likely, but has been officially denied), but we do know, from James Risen’s book State of War, that when CIA director George Tenet told the President that Zubaydah had been put on pain medication to deal with the injuries he sustained during capture, Bush asked Tenet, “Who authorized putting him on pain medication?” which prompted Risen to wonder whether the President was “implicitly encouraging” Tenet to order the harsh treatment of a prisoner “without the paper trail that would have come from a written presidential authorization.”

We also know that, shortly after his capture, Zubaydah was flown to Thailand, to a secret underground prison provided by the Thai government, where, as a New York Times article in September 2006 explained, “he was stripped, held in an icy room and jarred by earsplittingly loud music — the genesis of practices later adopted by some within the military, and widely used by the Central Intelligence Agency in handling prominent terrorism suspects at secret overseas prisons.”

The details of his treatment, “based on accounts by former and current law enforcement and intelligence officials,” were even more shocking. We have become somewhat inured, over the years, to stories of prisoners deprived of sleep for disturbing long periods of time, in which the use of loud, non-stop music — in this case, the Red Hot Chili Peppers — played an integral part.

This in itself is unacceptable, as the use of music is not simply a matter of being forced to listen to the same song over and over again at ear-splitting volume, but is, instead, a component in a program of sleep deprivation and isolation designed to provoke a complete mental breakdown. One of the major reference points for the CIA in the 1950s, when it was deeply involved in investigating the efficacy of psychological torture techniques, was research conducted by Donald Hebb, a Canadian psychologist, who discovered that, “if subjects are confined without light, odor, sound, or any fixed references of time and place, very deep breakdowns can be provoked,” and that, within just 48 hours, those held in what he termed “perceptual isolation” can be reduced to semi-psychotic states.

However, while some interpretation and empathy is required to understand the impact on Abu Zubaydah of his profound isolation in this period, in which, as the Times also reported, he was largely cut off from all human interaction, only occasionally punctuated by an interrogator entering his cell, saying, “You know what I want,” and then leaving, there is no denying the visceral impact of the following description. “At times, Mr. Zubaydah, still weak from his wounds, was stripped and placed in a cell without a bunk or blankets,” the Times explained. “He stood or lay on the bare floor, sometimes with air-conditioning adjusted so that, one official said, Mr. Zubaydah seemed to turn blue” (emphasis added).

Further information about Zubaydah’s treatment in Thailand has not emerged in great detail. In The Dark Side, Jane Mayer noted only that he was “held naked in a small cage, like a dog,” and the ICRC report focused instead on his detention in Afghanistan, from May 2002 to February 2003. What we do know, however, from the Senate Committee’s report, is that an FBI agent was so appalled by his treatment at the hands of CIA agents that he “raised objections to these techniques to the CIA and told the CIA it was ‘borderline torture,’” and that, sometime later, FBI director Robert Mueller “decided that FBI agents would not participate in interrogations involving techniques the FBI did not normally use in the United States.” We also know from Jane Mayer that R. Scott Shumate, the chief operational psychologist for the CIA’s Counterterrorist Center, left his job in 2003, apparently disgusted by developments involving the use of the “enhanced interrogation techniques,” and that “associates described him as upset in particular about the treatment of Zubaydah.”

Moreover, although the ICRC report dealt only with Zubaydah’s treatment in Afghanistan, it’s also clear that the techniques to which he was subjected in Afghanistan, in the approximately two and a half months before the OLC memos were signed, also “constituted torture.”

In his statement to the ICRC, Zubaydah explained how, even before the waterboarding began, he was strapped naked to a chair for several weeks in a cell that was “air-conditioned and very cold,” deprived of food, subjected to extreme sleep deprivation for two to three weeks — partly by means of loud music or incessant noise, and partly because, “If I started to fall asleep one of the guards would come and spray water in my face” — and, for the rest of the time, until the waterboarding began, was subjected to further sleep deprivation, and kept in a state of perpetual fear.

This array of techniques undoubtedly appears less dramatic than the “real torturing” that followed (in which the waterboarding was accompanied by physical brutality, hooding, the daily shaving of his hair and beard, and confinement in small boxes), but, again, it is critical to try to imagine what two to three weeks of chronic sleep deprivation actually means, and to recall that, by the time Steven G. Bradbury, the Principal Deputy Assistant Attorney General, revised the approval for torture techniques in May 2005, it was noted that it was only considered acceptable to subject a prisoner to 180 hours (seven and a half days) of sleep deprivation.

Tracking the torture trail

To understand how torture came to be used before it was officially approved, we need to return to the New York Times article of September 2006, which explained how, according to accounts by three former intelligence officials, the CIA “understood that the legal foundation for its role had been spelled out in a sweeping classified directive” signed by President Bush on September 17, 2001, which authorized the agency “to capture, detain and interrogate terrorism suspects.”

Significantly, this “memorandum of notification” did not spell out specific guidelines for interrogations, but as later research, and the latest reports have confirmed, the directive led to focused efforts by the CIA, and by William J. Haynes II, the Pentagon’s General Counsel (and a protégé of Dick Cheney), to contact foreign governments for advice on harsh interrogation techniques, and to begin a relationship with a number of individuals involved in the Joint Personnel Recovery Program (JPRA), the body responsible for administering the SERE program (Survival, Evasion, Resistance and Escape), which is taught at US military schools.

Designed to teach military personnel how to resist interrogation if captured by a hostile enemy, the SERE program uses outlawed techniques derived from techniques used on captured US soldiers during the Korean War to elicit deliberately false confessions, and includes, as the Senate Committee report explained, “stripping detainees of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures.” In some circumstances, the techniques also include waterboarding, and, as numerous sources — including the recently released reports and memos — have revealed over the last few years, the reverse-engineering of the SERE techniques constituted the bedrock of the administration’s interrogation program, from Afghanistan, Iraq and Guantánamo to the secret dungeons of the CIA.

As we also know, from the pioneering research conducted by Jane Mayer, by the time that the CIA took over Zubaydah’s interrogation from the FBI, in April 2002, the team included Dr. James Mitchell, a retired Air Force SERE psychologist. Thanks to the detailed timeline provided by the Senate Committee, we now know that it was Haynes who first inquired about the applicability of the SERE program to the interrogation of prisoners in December 2001, and we also know that, in April 2002, while “experienced intelligence officers were making recommendations to improve intelligence collection” — which, noticeably, included an assessment by Col. Stuart A. Herrington, a retired Army intelligence officer, that a regime based solely on punishment “detracts from the flexibility that debriefers require to accomplish their mission” — “JPRA officials with no training or experience were working on their own exploitation plan,” and a colleague of Mitchell’s, Bruce Jessen, a senior SERE psychologist, was providing recommendations for JPRA involvement in the “exploitation of select al-Qaeda detainees” in an “exploitation facility” to be established especially for the purpose — which, presumably, turned out to be the secret dungeon provided by the Thai government.

We also know from Mayer that discussions about the CIA’s proposed interrogation techniques, in April 2002, involved numerous other senior officials — beyond the key involvement of Haynes — in meetings in the White House’s Situation Room that were chaired by National Security Advisor Condoleezza Rice, and attended by Cheney, Rumsfeld, Tenet, Secretary of State Colin Powell, and Attorney General John Ashcroft, and, moreover, that the level of detail provided by Tenet appalled Ashcroft to such an extent that he lamented, “History will not judge us kindly.”

This is disturbing enough, but what makes it even more chilling is the realization that the tactics being discussed, which, it is clear, led swiftly to their enactment in actual interrogations, were some months away from being authorized by the OLC. As the Times article explained, in what was perhaps its most damning passage, “Three former intelligence officials said the techniques had been drawn up on the basis of legal guidance from the Justice Department, but were not yet supported by a formal legal opinion.”

Is no one responsible?

In my book, this means that, regardless of the validity of the OLC’s opinions, those who authorized the torture of Abu Zubaydah between March 28 and July 31, 2002 are not protected by the OLC’s supposed “golden shield,” and should be prosecuted for contravening the prohibition on the use of torture that, since 1988, has been enshrined in US law. This may not apply to all of those who attended the meetings in the White House (plus Haynes), but it’s inconceivable that the CIA began subjecting Abu Zubaydah to chronic isolation and sleep deprivation without receiving approval from somebody in high office.

It remains to be seen, however, whether the Obama administration is committed to abiding by the laws that President Obama praised so lavishly during his election campaign, or whether, instead, he and his administration are committed to reading from a different book: How To Torture With Impunity And Get Away With It, by former Vice President Dick Cheney and an array of associates, all intoxicated with the thrill of unfettered executive power, which concludes by claiming that you get away with breaking any damn law that you please, so long as you’re voted out of office at the end.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

As published on the Huffington Post, Antiwar.com, CounterPunch, AlterNet and ZNet. Also cross-posted on Common Dreams.

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), Six in Guantánamo Charged with 9/11 Murders: Why Now? And What About the Torture? (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Guantánamo Trials: Another Torture Victim Charged (Abdul Rahim al-Nashiri, July 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison, Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here) (all May 2009), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA), and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009). Also see the extensive archive of articles about the Military Commissions.

For other stories discussing the use of torture in secret prisons, see: An unreported story from Guantánamo: the tale of Sanad al-Kazimi (August 2007), Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), and also see the extensive Binyam Mohamed archive. And for other stories discussing torture at Guantánamo and/or in “conventional” US prisons in Afghanistan, see: The testimony of Guantánamo detainee Omar Deghayes: includes allegations of previously unreported murders in the US prison at Bagram airbase (August 2007), Guantánamo Transcripts: “Ghost” Prisoners Speak After Five And A Half Years, And “9/11 hijacker” Recants His Tortured Confession (September 2007), The Trials of Omar Khadr, Guantánamo’s “child soldier” (November 2007), Former US interrogator Damien Corsetti recalls the torture of prisoners in Bagram and Abu Ghraib (December 2007), Guantánamo’s shambolic trials (February 2008), Torture allegations dog Guantánamo trials (March 2008), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), Former Guantánamo Prosecutor Condemns “Chaotic” Trials in Case of Teenage Torture Victim (Lt. Col. Darrel Vandeveld on Mohamed Jawad, January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (Mohammed El-Gharani, January 2009), Bush Era Ends With Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Forgotten in Guantánamo: British Resident Shaker Aamer (March 2009), and the extensive archive of articles about the Military Commissions.

Ten Terrible Truths About The CIA Torture Memos (Part Two)

Andy Worthington, author of The Guantánamo Files, analyzes ten particularly disturbing facts to emerge from the four memos, purporting to justify the use of torture by the CIA, which were issued by the Justice Department’s Office of Legal Counsel (OLC) in August 2002 and May 2005, and released by the Obama administration last week. The first part of this two-part article, available here, looked at the background to the August 2002 memo and its disturbing contents, provided an overview of the three memos issued in May 2005, examined the use of the ticking time-bomb scenario as a justification for torture, and highlighted the excessive use of waterboarding on Abu Zubaydah and Khalid Sheikh Mohammed, and the crucial differences between the torture technique as practised by the CIA and in the military schools where it was used to train soldiers to resist interrogation when captured by a hostile enemy.

6: The 94 “ghost prisoners”

Another disturbing revelation of Bradbury’s May 2005 memos was the disclosure of the number of prisoners held in secret CIA custody — 94 in total — and the additional note that the agency “has employed enhanced techniques to varying degrees in the interrogations of 28 of these detainees.” What’s disturbing is not the number — CIA director Michael Hayden admitted in July 2007 that the CIA had detained fewer than 100 people at secret facilities abroad since 2002 — but the insight that this exact figure provides into the supremely secretive world of “extraordinary rendition” and secret prisons that exists beyond the cases of the 14 “high-value detainees” who were transferred to Guantánamo from secret CIA custody in September 2006.

It’s unlikely that the Obama administration intended to highlight the case of these other prisoners — who can rightly be regarded as “America’s Disappeared” — but it’s clear that, although their existence was barely mentioned in the mainstream media, the revelation of this official figure will only lead to calls for the administration to explain what happened to the other 80 prisoners.

7: Hassan Ghul

Whether “guilty” or not, the treatment of these men remains one of the dirtiest secrets in the “War on Terror.” Some (beyond the 14) may have also been transferred to Guantánamo, others are undoubtedly still held in Bagram, and others have been returned to the custody of their home countries — or, perhaps, to be disposed of in third countries. In addition, as a result of Obama’s executive order, in January, compelling the CIA to close all secret prisons, it also seems probable that, if any of the 80 were still in secret prisons at the time, they too have since been spirited away to the custody of other countries.

It’s clear, however, that justifying the disposal of these men without any accountability whatsoever would be intolerable even if they were all confirmed terrorists, and is only made more chilling because the “evidence” against them has never been made available at all, and because of the possibility that, as has been so prevalent in the “War on Terror,” grievous mistakes were made, and innocent men, or men with no significant connection with terrorism, were also swept up in the indiscriminating global dragnet that the Bush administration created in the wake of the 9/11 attacks.

A case in point, I believe, may be the only “ghost prisoner” mentioned by name in the Bradbury memos: “Gul,” who is clearly Hassan Ghul, one of 39 suspected “ghost prisoners” mentioned in “Off the Record” (PDF), a report by several human rights groups that was issued in June 2007. Seized in northern Iraq in January 2004, Ghul was touted by the administration as a significant figure in al-Qaeda on his capture, and the memos reveal how particular techniques were applied to him because the interrogation team believed he “maintain[ed] a tough, Mujahidin fighter mentality and ha[d] conditioned himself for a physical interrogation.”

Whether any of this was true or not is unknown. Although Ghul was listed as missing in “Off the Record,” a British citizen, Rangzieb Ahmed, who was convicted of terrorist offences in the UK in December 2008, after being tortured in Pakistani custody, reported to the British human rights group Cageprisoners (PDF) that, after two and a half years in secret CIA prisons, Ghul was transferred to Pakistani custody, and occupied the cell next to him in a prison in a safe house in Pakistan until January 2007, when he was moved to another unknown location.

From this brief report, it is impossible to know if Ghul was transferred to Pakistani custody because the CIA had downplayed his significance, or even if the US administration had mistaken him for someone else and wanted to get rid of him, or if the CIA was still involved with his imprisonment, but had simply moved him to a secret facility that was ostensibly under the control of the Pakistanis, as part of an ongoing process of shifting “black sites” into less noticeable locations. Either way, his story shines a much-needed light on a largely overlooked corner of the “War on Terror,” and its sudden resurfacing, in Steven Bradbury’s torture memos, will only increase calls for further investigations into the whereabouts of “America’s Disappeared.”

8: The important role of Jack Goldsmith in resisting the culture of torture

Now that these memos are out in the open, it is, I believe, important to look back at the role played by Jack Goldsmith, who took over from Bybee as the head of the OLC in October 2003. A supposedly “safe pair of hands,” who, with John Yoo, was regarded as “a leading proponent of the view that international standards of human rights should not apply in cases before US courts,” Goldsmith in fact turned out to be a nightmare for the administration, as he withdrew four pieces of legal advice — including the “torture memo” and a March 2003 memo approving the more general use of “enhanced interrogation techniques” — because he regarded them as “tendentious, overly broad and legally flawed.”

As Goldsmith explained in September 2007 to Jeffrey Rosen of the New York Times, he concluded that the “torture memo” contained advice that “defined torture far too narrowly,” and also took exception to the memo’s claim that “any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander in Chief authority in the President,” explaining that he believed that “this extreme conclusion” would “call into question the constitutionality of federal laws that limit interrogation, like the War Crimes Act of 1996, which prohibits grave breaches of the Geneva Conventions, and the Uniform Code of Military Justice, which prohibits cruelty and maltreatment.” He added that he “found the tone of both opinions ‘tendentious’ rather than cautious and feared that they might be interpreted as an attempt to immunize government officials for genuinely bad acts.”

When it came to withdrawing the “torture memo,” Goldsmith was acutely aware that it would anger the administration, because it “provided the legal foundation for the CIA’s interrogation program,” and, as Rosen described it,

he made a strategic decision: on the same day that he withdrew the opinion, he submitted his resignation, effectively forcing the administration to choose between accepting his decision and letting him leave quietly, or rejecting it and turning his resignation into a big news story. ”If the story had come out that the US government decided to stick by the controversial opinions that led the head of the Office of Legal Counsel to resign, that would have looked bad,” Goldsmith told me. ”The timing was designed to ensure that the decision stuck.”

Goldsmith made it clear that he did not think that those involved in creating the torture memos were criminally culpable. In his book The Terror Presidency, published shortly after the Times interview, he explained that “the poor quality of a handful of very important opinions” written by Yoo, who was a close friend, was “probably attributable to some combination of the fear that pervaded the executive branch, pressure from the White House and Yoo’s unusually expansive and self-confident conception of presidential power.” He also went out of his way to defend White House counsel (and later Attorney general) Alberto Gonzales and even David Addington, Dick Cheney’s legal counsel (and later his chief of staff), the two figures outside the OLC who were most closely associated with the torture policy, explaining, “They thought they were doing the right thing.” This was in spite of the fact that, as he also stated, “My conflicts” — and they were considerable conflicts, by his own account — “were all with Addington, who was a proxy for the vice president.”

It is, however, impossible to square Goldsmith’s opinions of these men with the significance of his actions. As Rosen stated, “In the past, the Office of Legal Counsel had occasionally changed its legal positions between presidential administrations to reflect different legal philosophies, but Goldsmith could find no precedent for the office withdrawing an opinion drafted earlier by the same administration — especially on a matter of such importance.”

With this in mind, what Goldsmith’s actions actually revealed was a desperate — and principled — need to withdraw opinions that were not just misguided, but fundamentally unlawful, and an equally desperate desire to shield Yoo, Gonzales, Addington — and, by extension, Dick Cheney — from the grave implications of his actions.

9: The importance of releasing the Justice Department’s OLC report

From the above, I believe it is clear that Jack Goldsmith’s attempts to prevent future war crimes while protecting those responsible for war crimes already committed was, and remains an untenable position, and this has been reinforced over the last few months, in reports about the results of a four-year investigation by the Justice Department’s Office of Professional Responsibility (OPR), which was charged with looking at whether the legal advice in the crucial interrogation memos “was consistent with the professional standards that apply to Department of Justice attorneys.”

According to Newsweek’s Michael Isikoff, who broke the story, a draft of the report, submitted in the final weeks of the Bush administration, caused anxiety among former Bush administration officials, because “OPR investigators focused on whether the memo’s authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted.” A former Bush lawyer, speaking anonymously, added that he “was stunned to discover how much material the investigators had gathered, including internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted.”

I maintain, as I last stressed a month ago, that the release of the OPR report is of critical importance (especially in light of recent reports that it has been rewritten, or is being rewritten, to reach a less stark conclusion of wrongdoing), as it seems clear that it is the key to securing concrete proof of the involvement of Dick Cheney, David Addington and Alberto Gonzales in the creation of the torture memos.

As for Bybee, who became a 9th Circuit judge after leaving the OLC, calls for his impeachment are completely justified, and both John Yoo and Steven Bradbury should also face prosecution, as all three men have demonstrated that they were prepared, at the request of their masters, to provide whatever legal contortions they thought they could get away with in an attempt to justify the unjustifiable: to pretend that torture was not torture, and to endorse its use, in defiance of US law.

10: Barack Obama must prosecute the torturers

And finally, although the Obama administration is to be congratulated for making the memos available, Barack Obama is, at present, in the same untenable position that Jack Goldsmith found himself in; that is to say, apparently committing himself to preventing future war crimes while protecting those responsible for war crimes already committed. It may indeed be appropriate for the administration to pledge, as Barack Obama did last week, that “those who carried out their duties relying in good faith upon legal advice from the Department of Justice … will not be subject to prosecution,” but this is only acceptable if those responsible for implementing the policies obeyed by those who were only following orders are themselves held responsible.

Laws were broken and men were tortured not by some act of God, but because certain individuals decided that they were above the law, and that the absolute prohibition on the use of torture was an inconvenience that could be bypassed through the use of creative legal advice. Unlike the Bush administration’s relentless semantic maneuvering, the words “absolute prohibition” — and the torture convention’s insistence 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 for torture” — are not negotiable.

Just as those who commit terrorist atrocities are criminals, and not warriors in a “Global War on Terror,” those who approve the use of torture — whatever its supposed rationale — are also criminals. Unlike Steven Bradbury, and John Yoo and Jay Bybee before him, law-abiding citizens will recognize that the newly released memos provide a glimpse into a horrendous world that “shocks the conscience,” in which torture seems to have become an end in itself, and in which 94 men — most of whom have never even been identified — were judged to be guilty without a trial, were tortured and have since disappeared, their whereabouts unknown.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

Both parts of this article were published exclusively on the website of the Future of Freedom Foundation, in four parts (click on the following for Part One, Part Two, Part Three and Part Four). Also cross-posted on Common Dreams and Dandelion Salad.

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), Six in Guantánamo Charged with 9/11 Murders: Why Now? And What About the Torture? (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Guantánamo Trials: Another Torture Victim Charged (Abdul Rahim al-Nashiri, July 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison, Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here) (all May 2009), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA), and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009). Also see the extensive archive of articles about the Military Commissions.

For other stories discussing the use of torture in secret prisons, see: An unreported story from Guantánamo: the tale of Sanad al-Kazimi (August 2007), Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), and also see the extensive Binyam Mohamed archive. And for other stories discussing torture at Guantánamo and/or in “conventional” US prisons in Afghanistan, see: The testimony of Guantánamo detainee Omar Deghayes: includes allegations of previously unreported murders in the US prison at Bagram airbase (August 2007), Guantánamo Transcripts: “Ghost” Prisoners Speak After Five And A Half Years, And “9/11 hijacker” Recants His Tortured Confession (September 2007), The Trials of Omar Khadr, Guantánamo’s “child soldier” (November 2007), Former US interrogator Damien Corsetti recalls the torture of prisoners in Bagram and Abu Ghraib (December 2007), Guantánamo’s shambolic trials (February 2008), Torture allegations dog Guantánamo trials (March 2008), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), Former Guantánamo Prosecutor Condemns “Chaotic” Trials in Case of Teenage Torture Victim (Lt. Col. Darrel Vandeveld on Mohamed Jawad, January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (Mohammed El-Gharani, January 2009), Bush Era Ends With Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Forgotten in Guantánamo: British Resident Shaker Aamer (March 2009), and the extensive archive of articles about the Military Commissions.

URGENT APPEAL on British terror laws: Get your MP to support Diane Abbott’s Early Day Motion on the use of secret evidence

Last month, as I reported in an article, Britain’s Guantánamo: Calling For An End To Secret Evidence, Diane Abbott MP chaired a meeting in a packed committee room in the House of Commons, in which politicians, lawyers and human rights campaigners came together to discuss how to both confront and publicize the British government’s increasing reliance on the use of secret evidence, and evidence obtained through torture.

As I explained at the time, “The meeting focused in particular on the cases of five men held under strict bail conditions or in prison, on the basis of secret evidence, who are facing deportation, even though they face the risk of torture, as a result of ‘diplomatic assurances’ agreed between the British government and the governments of their home countries. However, the use of secret evidence also affects other men, held under control orders, who cannot be deported either because they are British nationals, because the British government has failed to secure ‘diplomatic assurances’ that it regards as credible, or because, on occasion, the courts have intervened to prevent their deportation.”

As I also discussed in the article, the meeting had a number of aims, some of which are ongoing, but was, in the first instance, committed to securing the support of MPs for an Early Day Motion that has just been put forward by Diane. The text of the EDM, available here (with the names of those MPs who have signed up in support of the motion), is reproduced below:

Diane Abbott’s Early Day Motion on Secret Evidence

That this House believes the use of secret evidence in UK courts is fundamentally wrong;

notes that secret evidence is evidence held by the Home Office against an individual that neither the individual, nor their legal representation, may see;

further notes that in recent cases secret evidence has been used to detain individuals in prison for up to three years without charge or trial;

further notes that these individuals may also be put under a control order or severe bail conditions, greatly limiting their movements and ability to lead a healthy life;

believes that the use of secret evidence by the state against individuals runs entirely contrary to Habeas Corpus;

recognises the European Court of Human Rights’ ruling that detaining individuals on the basis of secret evidence is unlawful because detainees had not been able to effectively challenge the allegations against them;

and calls on the Government to begin an immediate independent review into the use of evidence that is not ever heard by the defendant or their lawyer but which is used to justify indefinite detention, severe bail conditions or control orders.

PLEASE, if you care about the rule of law, Britain’s crucial role in crafting habeas corpus and providing it to the rest of the world, the inviolable principles of the UN Convention Against Torture, and the fundamental right of anyone — whether a British citizen or a foreign national resident in the UK — to receive a fair and open hearing, and not to be imprisoned or subjected to draconian control orders or bail conditions based on secret evidence, ask your MP to sign the EDM.

If you don’t know the name of your MP, or would like an easy way of sending them a brief message asking them to sign the EDM, please visit They Work For You, an invaluable website dedicated to facilitating access to your MP and monitoring their activities. All you need is your postcode.

And after that, of course, please send the information to your friends, to mailing lists and to other websites. It’s time to bring this injustice to an end.

For further information, or to request a briefing document for your MP, please contact Caitlin Farrow, Media Officer and Researcher to Diane Abbott MP.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

For other articles dealing with Belmarsh, control orders, deportation bail, deportations and extraditions, see Deals with dictators undermined by British request for return of five Guantánamo detainees (August 2007), Britain’s Guantánamo: the troubling tale of Tunisian Belmarsh detainee Hedi Boudhiba, extradited, cleared and abandoned in Spain (August 2007), Guantánamo as house arrest: Britain’s law lords capitulate on control orders (November 2007), The Guantánamo Britons and Spain’s dubious extradition request (December 2007), Britain’s Guantánamo: control orders renewed, as one suspect is freed (February 2008), Spanish drop “inhuman” extradition request for Guantánamo Britons (March 2008), UK government deports 60 Iraqi Kurds; no one notices (March 2008), Repatriation as Russian Roulette: Will the Two Algerians Freed from Guantánamo Be Treated Fairly? (July 2008), Abu Qatada: Law Lords and Government Endorse Torture (February 2009), Ex-Guantánamo prisoner refused entry into UK, held in deportation centre (February 2009), Home Secretary ignores Court decision, kidnaps bailed men and imprisons them in Belmarsh (February 2009), Britain’s insane secret terror evidence (March 2009), Torture taints all our lives (published in the Guardian’s Comment is free), Britain’s Guantánamo: Calling For An End To Secret Evidence, Five Stories From Britain’s Guantánamo: (1) Detainee Y, Five Stories From Britain’s Guantánamo: (2) Detainee BB, Five Stories From Britain’s Guantánamo: (3) Detainee U, Five Stories From Britain’s Guantánamo: (4) Hussain Al-Samamara, Five Stories From Britain’s Guantánamo: (5) Detainee Z and Britain’s Guantánamo: Fact or Fiction? (all April 2009).

9/11 Commission Director Philip Zelikow Condemns Bush Torture Program

As regular readers know, I rarely cross-post other articles, but the following article by Philip Zelikow, former State Department counselor and the executive director of the 9/11 Commission, which was published today on Foreign Policy’s Shadow Government blog, is a particularly notable addition to the burgeoning literature about the release, last week, of four memos from the Justice Department’s Office of Legal Counsel (OLC), which purported to justify the use of torture on “high-value detainees” seized in the “War on Terror” — and in particular, Abu Zubaydah and Khalid Sheikh Mohammed.

Zelikow’s insight is not just relevant because the 9/11 Commission had well chronicled problems securing reliable information about the supposed intelligence obtained from the “high-value detainees” (as the first link below demonstrates), but also because he was one of only three State Department officials (the others being Condoleezza Rice and John Bellinger), who saw three of the four memos (the ones written by Steven Bradbury in May 2005, as opposed to the even more secret August 2002 memo, written by John Yoo and Jay S. Bybee) at the time of their release.

Prevented from commenting directly on the memos until now (although he has been critical of the Bush administration’s policies in the years since), Zelikow’s insights are particular interesting not just for his careful dissection of the torture program’s failings, but also for his revelations that the protestations that he made at the time to colleagues at other agencies, “warning them that other lawyers (and judges) might find the OLC views unsustainable,” led the White House to “attempt to “collect and destroy” all copies of his memo.

The OLC “torture memos”: thoughts from a dissenter
By Philip Zelikow

I first gained access to the OLC memos and learned details about CIA’s program for high-value detainees shortly after the set of opinions were issued in May 2005. I did so as Secretary of State Condoleezza Rice’s policy representative to the NSC Deputies Committee on these and other intelligence/terrorism issues. In the State Department, Secretary Rice and her Legal Adviser, John Bellinger, were then the only other individuals briefed on these details. In compliance with the security agreements I have signed, I have never discussed or disclosed any substantive details about the program until the classified information has been released.

Having been the executive director of the 9/11 Commission, I’m aware of what some of these captives did. The Commission wondered how captives were questioned (for details on that, see this previously disclosed report), and the matter is now the subject of a federal criminal investigation by special prosecutor John Durham. Nonetheless, the evidence against most — if not all — of the high-value detainees remains damning. But the issue is not about who or what they are. It is about who or what we are.

Based on what had earlier been released, I have offered some general views on “Legal Policy for a Twilight War.” With the release of these OLC memos, I can add three more sets of comments, each of which could be developed at much greater length.

1: The focus on waterboarding misses the main point of the program

Which is that it was a program. Unlike the image of using intense physical coercion as a quick, desperate expedient, the program developed “interrogation plans” to disorient, abuse, dehumanize, and torment individuals over time.

The plan employed the combined, cumulative use of many techniques of medically monitored physical coercion. Before getting to waterboarding, the captive had already been stripped naked, shackled to ceiling chains keeping him standing so he cannot fall asleep for extended periods, hosed periodically with cold water, slapped around, jammed into boxes, etc. etc. Sleep deprivation is most important.

2: Measuring the value of such methods should be done professionally and morally before turning to lawyers

A professional analysis would not simply ask: Did they tell us important information? Congress is apparently now preparing to parse the various claims on this score — and that would be quite valuable.

But the argument that they gave us vital information, which readers can see deployed in the memos just as they were deployed to reassure an uneasy president, is based on a fallacy. The real question is: What is the unique value of these methods?

For this analysis, the administration had the benefit of past US government treatment of high-value detainees in its own history (especially World War II and Vietnam) and substantial, painful lessons from sympathetic foreign governments. By 2005, the Bush administration also had the benefit of what amounted to a double-blind study it had inadvertently conducted, comparing methods that had evolved in Iraq (different Geneva-based rules, different kinds of teams) and the methods the CIA had developed, with both sets being used to against hardened killers.

Opponents should not overstate their side either. Had a serious analysis been conducted beforehand (it apparently was not), my rough guess is that it might have found that physical coercion can break people faster, with some tradeoff in degraded and less reliable results.

Which underscores the importance of moral analysis. There is an elementary distinction, too often lost, between the moral (and policy) question — “What should we do?” — and the legal question: “What can we do?” We live in a policy world too inclined to turn lawyers into surrogate priests granting a form of absolution. “The lawyers say it’s OK.” Well, not really. They say it might be legal. They don’t know about OK.

3: The legal opinions have grave weaknesses

Weakest of all is the May 30 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 [which became the horribly compromised Detainee Treatment Act of 2005]. It is also found in Common Article 3 of the Geneva Conventions, a standard that the Supreme Court ruled in 2006 [in Hamdan v. Rumsfeld] 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.

At the time, in 2005, I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn’t entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. My colleagues were entitled to ignore my views. They did more than that: The White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department’s archives.

Stated in a shorthand way, mainly for the benefit of other specialists who work these issues, my main concerns were:

the case law on the “shocks the conscience” standard for interrogations would proscribe the CIA’s methods;

the OLC memo basically ignored standard 8th Amendment “conditions of confinement” analysis (long incorporated into the 5th amendment as a matter of substantive due process and thus applicable to detentions like these). That case law would regard the conditions of confinement in the CIA facilities as unlawful.

the use of a balancing test to measure constitutional validity (national security gain vs. harm to individuals) is lawful for some techniques, but other kinds of cruel treatment should be barred categorically under US law — whatever the alleged gain.

The underlying absurdity of the administration’s position can be summarized this way. Once you get to a substantive compliance analysis for “cruel, inhuman, and degrading” you get the position that the substantive standard is the same as it is in analogous US constitutional law. So the OLC must argue, in effect, that the methods and the conditions of confinement in the CIA program could constitutionally be inflicted on American citizens in a county jail.

In other words, Americans in any town of this country could constitutionally be hung from the ceiling naked, sleep deprived, water-boarded, and all the rest — if the alleged national security justification was compelling. I did not believe our federal courts could reasonably be expected to agree with such a reading of the Constitution.

Philip Zelikow is the White Burkett Miller Professor of History at the University of Virginia. He was counselor at the Department of State, a deputy to Secretary Rice, from 2005-2007.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), Six in Guantánamo Charged with 9/11 Murders: Why Now? And What About the Torture? (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Guantánamo Trials: Another Torture Victim Charged (Abdul Rahim al-Nashiri, July 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison, Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here) (all May 2009), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA), and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009). Also see the extensive archive of articles about the Military Commissions.

For other stories discussing the use of torture in secret prisons, see: An unreported story from Guantánamo: the tale of Sanad al-Kazimi (August 2007), Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), and also see the extensive Binyam Mohamed archive. And for other stories discussing torture at Guantánamo and/or in “conventional” US prisons in Afghanistan, see: The testimony of Guantánamo detainee Omar Deghayes: includes allegations of previously unreported murders in the US prison at Bagram airbase (August 2007), Guantánamo Transcripts: “Ghost” Prisoners Speak After Five And A Half Years, And “9/11 hijacker” Recants His Tortured Confession (September 2007), The Trials of Omar Khadr, Guantánamo’s “child soldier” (November 2007), Former US interrogator Damien Corsetti recalls the torture of prisoners in Bagram and Abu Ghraib (December 2007), Guantánamo’s shambolic trials (February 2008), Torture allegations dog Guantánamo trials (March 2008), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), Former Guantánamo Prosecutor Condemns “Chaotic” Trials in Case of Teenage Torture Victim (Lt. Col. Darrel Vandeveld on Mohamed Jawad, January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (Mohammed El-Gharani, January 2009), Bush Era Ends With Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Forgotten in Guantánamo: British Resident Shaker Aamer (March 2009), and the extensive archive of articles about the Military Commissions.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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