Last month was the 10th anniversary of the opening of the “war on terror” prison at Guantánamo, and as this year progresses it is appropriate to remember that there will be other grim 10-year anniversaries to note.
Last week, one of those 10-year anniversaries passed almost unnoticed. On February 7, 2002, as Andrew Cohen noted in the Atlantic, in the only article marking the anniversary:
President George W. Bush signed a brief memorandum [PDF] titled “Humane Treatment of Taliban and al- Qaeda Detainees.” The caption was a cruel irony, an Orwellian bit of business, because what the memo authorized and directed was the formal abandonment of America’s commitment to key provisions of the Geneva Convention. This was the day, a milestone on the road to Abu Ghraib, that marked our descent into torture — the day, many would still say, that we lost part of our soul.
This is no exaggeration. Depriving prisoners seized in wartime of the protections of the Geneva Conventions was a huge and unprecedented step, and thoroughly alarming. And yet, despite criticism from Secretary of State Colin Powell (PDF), the administration pushed forward remorselessly towards the creation of an America that practiced arbitrary detention and torture.
Powell had been included in the paper trail that led to President Bush’s memorandum of February 7, 2002, and he was particularly upset by a memo on January 25, 2002 (PDF), signed by White House Counsel Alberto Gonzales, but written by Vice President Dick Cheney’s legal counsel, David Addington, which claimed that the “new paradigm,” which, it was claimed, the “war on terror” presented, “renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.”
In his memorandum, just two weeks later, President Bush declared that “none of the provisions of Geneva apply to our conflict with al-Qaeda in Afghanistan or elsewhere through the world, because, among other reasons, al-Qaeda is not a High Contracting Party to Geneva.” He added, “I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva. I note that, because Geneva does not apply to our conflict with al-Qaeda, al-Qaeda detainees also do not qualify as prisoners of war.”
This was the rationale for holding prisoners neither as criminal suspects or as prisoners of war, but as a third category of human being, without any rights, which was disturbing enough, but it also paved the way for the use of torture, as people with no rights whatsoever had no protection against torture and abuse, and to this end the most alarming passage in the memorandum is the President’s claim that “common Article 3 of Geneva does not apply to either al-Qaeda or Taliban detainees because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to ‘armed conflict not of an international character.’”
President Bush claimed that the prisoners would be “treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva,” but it was a meaningless addition. By refusing to accept that everyone seized in wartime must be protected from torture and abuse, and by removing the protections of common Article 3 from the prisoners, which prohibit “cruel treatment and torture,” and “outrages upon personal dignity, in particular humiliating and degrading treatment,” President Bush opened the floodgates to the torture programs that were subsequently developed, both for use by the CIA, and at Guantánamo.
As the months pass in this 10th anniversary year, a handful of astute journalists will remember some of these other events and their 10th anniversaries — the notorious “torture memos” of August 1, 2002, for example, also known as the Bybee memos, which were written by John Yoo, an attorney in the Justice Department’s Office of Legal Counsel (and another member of Dick Cheney’s inner circle), and signed by Yoo’s boss, Jay S. Bybee. These two memos, notoriously, sought to redefine torture so that torture techniques like waterboarding could be used by the CIA.
Later, on December 2, 2002, defense secretary Donald Rumsfeld approved his own torture program for use at Guantánamo (PDF). This was apparently intended for use on just one prisoner, Mohammed al-Qahtani, whose torture is the only example of Bush’s torture program admitted to by a senior Pentagon official (Susan Crawford, who oversaw the military commissions under George W. Bush). However, as Neil A. Lewis reported for the New York Times in a powerful article in January 2005:
Interviews with former intelligence officers and interrogators provided new details and confirmed earlier accounts of inmates being shackled for hours and left to soil themselves while exposed to blaring music or the insistent meowing of a cat-food commercial. In addition, some may have been forcibly given enemas as punishment.
While all the detainees were threatened with harsh tactics if they did not cooperate, about one in six were eventually subjected to those procedures, one former interrogator estimated. The interrogator said that when new interrogators arrived they were told they had great flexibility in extracting information from detainees because the Geneva Conventions did not apply at the base.
Bush’s memo opening the floodgates to torture did not become public knowledge until 2004, when, after the Abu Ghraib scandal broke, other damaging documents — including one of the “torture memos” — were also released. By June 2006, the torture program officially came to an end, when the Supreme Court ruled, in Hamdan v. Rumsfeld, that common Article 3 applied to all prisoners held by US forces. Three months later, Bush’s secret CIA torture prisons were emptied, and the last of the “high-value detainees” held were moved to Guantánamo.
Nevertheless, the 10-year anniversary of Bush’s original “torture memo” remains enormously significant, because President Obama has refused to hold any Bush administration officials accountable for their actions, and because 171 men are still held at Guantánamo, and many — if not most of them — continue to be held because of deeply unreliable information extracted through the use of torture or other forms of coercion in the four years and four months that America refused to acknowledge that it had any obligation to treat prisoners humanely, and not to torture them.
That failure to pursue accountability, and that acceptance of Guantánamo’s continued existence has led to the depressing situation recorded last Tuesday — on the largely ignored 10th anniversary of Bush’s “torture memo” — when, as the Washington Post reported, a poll showed that, when kept in ignorance and stoked with permanent fearmongering, 70 percent of Americans “approve of Obama’s decision to keep open the prison at Guantánamo Bay.”
Ten years after Guantánamo opened, this kind of polling shows only that the need to provide education about the prison, and for the President to provide strong, moral and just leadership, remains stronger than ever.
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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and please also consider joining the new “Close Guantánamo campaign,” and, if you appreciate my work, feel free to make a donation.
As published exclusively on the website of the Future of Freedom Foundation.
“…that we lost part of our soul? scratch “part”… Just as you don’t get a little bit pregnant, you don’t partially sell your soul.
That was quick, Trojan Horus. And yes, it’s a spot-on analysis. I was quoting Andrew Cohen; otherwise, I wouldn’t have used that particular phrase. I agree with you absolutely — it was a full-on decent into an immoral hellhole, and the refusal to hold anyone accountable will not make it acceptable.
On Facebook, Kevin M Benderman wrote:
This memo should be enough to prosecute him with. It states his intentions to disregard the law.
David McGrady wrote:
‘WAGING A WAR OF AGGRESSION’ against a country that did not attack the U.S. is a hanging offense according to the WWII Nuremberg Trials. German leaders were hung for it, why not U.S. leaders from Korea to today?
Hi Kevin and David,
Good to hear from you. The problem is that the Bush administration rewrote the law, and has been allowed to get away with it. The ways in which Yoo and Bybee were shielded from accountability for writing and signing off on the “torture memos” remains the most depressing example, but every block on accountability — in the administration, in Congress, and in the courts — is part of the same program, even though it all stinks and only perpetuates and compounds the original crimes.
Kevin M Benderman wrote:
Since congress, under the constitution, writes the laws and not some flunky lawyer of a criminally minded president, I kindly refute this assertion. Congress ratified the GC in 1950. The constitution states that any treaty ratified becomes the law of the land. The white house cannot nullify laws at will. This is the propaganda they want us to buy. I am not buying it.
No, I don’t blame you for not buying it, Kevin, but what are we to do when Congress, the courts and the executive all refuse to acknowledge that Bush, Cheney, Rumsfeld and their lawyers did anything wrong? Congress passed the Authorization for Use of Military Force, used to justify the detention of prisoners in the “war on terror,” and Congress shows no sign of wishing to repeal it – apart from the brave opposition of Barbara Lee and a few others. In fact, Congress has generally shown a willingness to love the AUMF so much that lawmakers made strenuous efforts to upgrade it last year, even after the death of Osama bin Laden. There appears to be no end to the folly, and unfortunately lawmakers are right at the heart of it.
Alces Acres wrote:
Thank You Kevin! This Will NOT Stand, or, the Great Experment IS Over.
The USA Has LOST So Much Respect in the World Because of This, It will Never Recover, till This IS Dealt With.
Kevin M Benderman wrote:
Andy, I agree with that statement. But those people are supposed to represemt the people of America, the employees of the people. If our employees are failing to perform their duties, we fire them. And do the job ourselves. I for one, don’t buy the notion that since they failed, that’s it. That’s the best we can do. I think if some the protest energy was spent on building a proscutable case and pushing it, en masse, it would gain traction.
Alces Acres wrote:
Its Likely to wait, Until it is Forced, Or the Members of the Congress & Senate, Both Parties, That Signed On to This Crime, are Retired, or Dead. If So, All the Governments Legitimacy is Over.
Alces Acres wrote:
Need an Attorney General with Balls, Male Or Female.
Rare Bird these days. I think more likely Foreign Govmnts Forcing it in Court. USA likely to become a Pariah Nation.
Alces Acres wrote:
None of This would have EVER Flown, if the WWII Vets were still Active, This is What WWII was Fought to STOP.
Harvey King wrote:
So, if I read it right, Bush gave permission to us, and our enemy, to treat captives in any manner they wish by rewriting parts of the Geneva Convention to fit his wants/needs. Not my meaning to stipulate that our enemies would, would not do it anyway. But in world courts, or what have you, it could be deemed that way?
Thanks again, Kevin — and Alces and Harvey. Kevin, yes, “If our employees are failing to perform their duties, we fire them.” The problem seems to be with building enough of a protest movement, otherwise Guantanamo would be closed, and certain former officials would have been in the dock for their crimes already, but as this is not the only area in which the employees of the people have failed to do their duties, I’d say that a bigger movement would be best — one that demands that they all be removed from their jobs, and replaced by lawmakers who respect the people of the United States and the Constitution of the United States.
And Harvey, I’m trying to grasp your point. Bush’s decision regarding the Geneva Conventions didn’t apply to how any other country behaves. And world courts are irrelevant too, as the US has refused to sign up to the International Criminal Court and is therefore off the hook on that front.
On Digg, anomaly100 wrote:
And the right wing cheered it on as patriotic.
And many liberals as well, sadly. That poll the other day finding that two-thirds of liberals approved of keeping Guantanamo open — some of that was wilful blindness, but some of it was honesty. The “get tough and stay safe” mentality that was fostered after 9/11 has sunk deep into America’s consciousness unfortunately.
Bush the torturer is still running around free.
This is a disgrace for all Americans.
Yes, Bush the torturer and Cheney the torturer and Rumsfeld the torturer — all feted on their book tours, and treated like celebrities by networks who don’t care if you’re a war criminal and a fugitive from justice when you’re a famous American. The only consolation to date is that most foreign travel is out for these bozos, as torture indictments are ready to be delivered if they set foot in any country that remembers that it signed the UN Convention Against Torture.
And the ignorance of facts adds to the misconceptions creating the attitudes.
Right now, there are only a very few journalists speaking truth on the issue. The government spin gets regurgitated or the entire topic gets buried.
A sad state for journalism and for America.
Thanks, cosmicsurfer. Yes, it really doesn’t help, does it? As you know, it’s possible to spend six years working full-time chipping away at the groundless allegation that Guantanamo held “the worst of the worst,” only to find that vast numbers of people have never even considered asking whether it was propaganda, and bore no relationship to the truth.
How ’bout a shout-out to Feith, who bragged to Philippe Sands about his role in convincing W that Geneva did not apply?
Yes, thanks for that — Douglas Feith, the Under Secretary of Defense for Policy from July 2001 until August 2005. A very important player in taking America down the road to torture, and one of the six Bush lawyers being investigated in one of the Spanish torture cases.
treehugger87 wrote (in response to 19 and 20, above):
Absolutely. The American people are woefully misinformed about Guantanamo.
cowicide wrote (in response to 18, above):
I really wished we would have impeached his ass. Or at the very least now try him and others in his administration as war criminals.
Doing this would make the USA safer and garner far more respect and cooperation in the war on terror. But conservative idiots are too stupid and chickenshit to understand that.
Read Vincent Bugliosi’s book. Having missed the opportunity to impeach him, that leaves plenty of avenues open. Took some 20 years for Pinochet too.
Back on Facebook, Genifer Kaye wrote:
They should all be arrested for war crimes and crimes against humanity; I wish it would have happened years ago.
Kevin M Benderman wrote:
Andy, I agree that more needs to be done towards prosecution. The problem I keep running into with people is, they automatically say it won’t work. But then they go back to protesting like that has accomplished anything. Over ten years worth of protests really haven’t changed much of anything, have they? If I could figure out a way to break the mental block to working on prosecution, I might get somewhere. The fear and propaganda spread by these criminals has worked very well.
Kevin M Benderman wrote:
The people of America gripe and moan, but they continue to take off their shoes at the airport. I even watched a newscast the other day and people were saying, it’s ok, I will take off my shoes because it makes me safe. I didn’t know whether to laugh, cry, or throw the t.v. out the damn window.
Alces Acres wrote:
Why It’s Going to Take Nations to Force it On the Agenda.
They Have ALL the Civil Servants Terrified to Speak, Or the Last Decade, have Weeded Out the Ones Who Would.
Hell, They’re All just Trying to Hang onto their Retirement!
Think the Nazi’s Would have Cleaned up their Own Mess when They Came to their Senses???
Thanks, Jenifer — and, again, Kevin and Alces. You make a very good point about how protest has not led to any prosecutions, Kevin, and I agree that it is worth trying to work out how to revive the call for the Bush administration criminals to be held accountable. Unfortunately, at present, the biggest success has been in scaring Bush & co. from embarking on any foreign trips, in case they get arrested for torture. It’s a start …
As for the security measures, on my recent visit I was distressed to find that US internal flights are the only place with more pointless and more paranoid security than the pointlessly paranoid UK. I took my shoes off a lot, and my belt, and stood in front of the irradiating machine with my arms up, and emptied all my loose change out of my pockets, and put my laptop through the x-ray machine separately, and none of it made me feel any safer, because I didn’t feel unsafe in the first place.
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