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.
[…] Truths About The CIA Torture Memos (Part Two) Posted on April 23, 2009 by dandelionsalad by Andy Worthington Featured Writer Dandelion Salad http://www.andyworthington.co.uk Originally posted at the Future of […]
This idea of men being “disappeared” is absolutely unacceptable. I cannot and I will not accept it. We have to find these men, even if we have to turn over every corner of the globe to do so. There’s no such thing as “disappeared.” If they’re alive, they have to be somewhere–a specific latitude and longitude plottable on a map of the globe. President Obama, we have eighty dots that need to be connected right now. Please assign someone capable to the leadership of this urgent errand. These issues are inseparable from our economic woes. America will not prosper in any meaningful sense until these men’s lives have been recovered. To think otherwise is to deny the spiritual realm entirely, something I know most Americans would never stand for.
[…] 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? (all April 2009). Also see the extensive archive of […]
I’m glad you mentioned Jack Goldsmith, because he is an essential element in unwinding the current Republican argument that investigating and prosecuting those responsible for the torture regime “who were just doing their jobs and giving their honest opinions…” indeed, John McCain tells us that PROSECUTING acts of torture committed by a prior regime makes us “no better than a banana republic” (we’ll try to suspend our grim laughter noting that countries that torture in the first place tend to ordinarily be considered “banana republics”… but I digress…)
What Goldsmith proves is that even among conservative Republicans (who could get jobs in the Bush Administration!) the torture memos weren’t, in fact, “honest opinions” at all, so much as creative rubber-stamping of pre-ordained indefensible policies, and anyone with any integrity at all wouldn’t, and didn’t have to, stand for it.
In the end, unless they tell us, we’ll never even know if John Yoo or Jay Bybee or Haynes or Flanigan or Gonzales (or even David Addington!) actually had opinions or views of their own on this: all simply believed that they were advancing the views of their client or sponsor (that would be Dick Cheney, and perhaps whoever he answers to), and none even dreamed of giving “their honest opinion” and saying “Hey, wait a minute… this is against the law,” because none even saw actual (as opposed to the appearance of) opining and researching the law as even part of their jobs.
And even if we assume for the sake of argument that the torture-memo lawyers were simply incompetent rubes and knaves (with law degrees and some with U.S. Supreme Court clerkships!) incapable of discerning right or wrong when laid out in front of them, then their “wrong advice” was the product of criminal recklessness, as they should have known better.
We’re over a week in, and this torture story seems to be picking up momentum despite the best efforts of the “regular” media (and the Obama Administration, let alone the Republicans) to kill it… this is no time for any letting up on this.
I like your comment about the spiritual realm, and its significance for Americans.
I also pledge to start looking into these stories as soon as possible — I realize that it’s not the same as the government pledging to do so, but it’s a start!
Just when I was beginning to feel a tad fatigued, up you roll with the exhortation, “this is no time for any letting up on this,” which instantly gave me a boost.
You know the right things to say, my friend.
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