Exactly 16 Years Ago, George W. Bush Opened the Floodgates to Torture at Guantánamo

7.2.18

George W. Bush and one of the iconic images of prisoner abuse from Abu Ghraib in Iraq.

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Since the terrible elevation of the grotesquely inadequate figure of Donald Trump to the position of President of the United States, there has been a bizarre propensity, on the part of those in the center and on the left of US political life, to seek to rehabilitate the previous Republican president, George W. Bush.

So let’s nip this in the bud, shall we? Because unless you’ve been away from the planet for the last 20 years, you must be aware that it was George W. Bush who initiated the US’s brutal and thoroughly counter-productive “war on terror” in the wake of the terrorist attacks of September 11, 2001, which involved authorizing the CIA to set up a secret detention and torture program, establishing a prison outside the law at Guantánamo Bay, Cuba, establishing deportation and surveillance programs within the US, invading one country (Afghanistan) in response to the attacks, where US troops remain to this day, despite having long ago ”snatched defeat from the jaws of victory,” as the author Anand Gopal once explained to me, and invading another country (Iraq) that had nothing to do with 9/11 or al-Qaeda, but which was nevertheless destroyed, along the way serving as the crucible for the creation of a newer threat, Daesh, or Islamic State, as it is more colloquial known in the West, a kind of turbo-charged reincarnation of al-Qaeda.

Today, February 7, is the 16th anniversary of one particularly sinister and misguided development in Bush’s “war on terror” — a memorandum, entitled, “Humane Treatment of Taliban and al Qaeda Detainees,” which was sent to just a handful of recipients including Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld, Secretary of State Colin Powell, Attorney General John Ashcroft, CIA director George Tenet, and General Richard B. Myers, the Chairman of the Joint Chiefs of Staff.

As I explained in an article marking the 10th anniversary of the issuing of the memorandum, in February 2012, on the day itself the only mention of it came from Andrew Cohen in the Atlantic, who reminded readers that the heading of the memo “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.”

As I proceeded to explain in my article:

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, 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, 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.

16 years on, February 7, 2002 remains a grim day in the modern American calendar, and one that, I think, should be marked every year, along with other key dates — August 1, 2002, for example, when the “torture memos,” seeking to redefine torture so that it could be used by the CIA, were issued by the Justice Department’s Office of Legal Counsel, written by John Yoo and approved by his boss, Jay Bybee, and December 2, 2002, when Donald Rumsfeld approved his own specific torture program for use at Guantánamo, which was initially intended for use on just one prisoner, Mohammed al-Qahtani, but which ended up being used on one in six of the prisoners, according to a former interrogator who spoke to Neil A. Lewis for a New York Times article in January 2005.

It is also important to remember that the torture and abuse that Bush unleashed in his memo of February 7, 2002 remained US policy for nearly four and half years, until the Supreme Court reminded the president, in Hamden v. Rumseld, on June 29, 2006, that Common Article 3 of the Geneva Conventions apply to all prisoners held by the US, whatever their location (theoretically, Common Article 3 was reinstated in the Detainee Treatment Act of 2005, but critics have suggested that that legislation, introduced by John McCain, had numerous loopholes that sidestepped its intended prohibition on the use of torture). Within three months of Hamdan v. Rumsfeld, on the other hand, demonstrating the Supreme Court’s influence, Bush emptied the CIA’s “black sites,” bringing 14 “high-value detainees” to Guantánamo, where all but one of them remain to this day.

That wasn’t quite the end of the US torture program, as a handful of other “high-value detainees” eventually washed up at Guantánamo, and, as Jeffrey Kaye in particular has noted, torture techniques remain in the Army Field Manual despite the fact that President Obama issued an executive order banning the use of torture when he took office in January 2009.

Significantly, in December 2014, a major step was taken against the use of torture, when the Senate Intelligence Committee issued the 500-page executive summary of a scathing 6,200-page report about both the brutality and the pointlessness of the CIA’s torture program. Stung by this, almost the entire US establishment turned on Donald Trump when, during his first weeks in office, a draft executive order was leaked indicating that he wanted to revive the use of torture and of CIA “black sites,” as well as officially keeping Guantánamo open.

That said, torture is less of an option than it used to be, as, under Barack Obama, the US moved away from the messy business of detention, embracing assassinations instead — through drone attacks, which are, to be frank, as legally dubious as the Bush administration’s rendition and torture program was. With hindsight, the immediate aftermath of the 9/11 attacks was a time when, as it was throughout the Clinton years, assassination had fallen out of favor, but it is now back with a vengeance, and the drone program is being enthusiastically pursued by Donald Trump.

And while it remains significant that Donald Trump seems to be getting away with his enthusiasm for killing people in drone attacks, it is also worth remembering, on this baleful anniversary, that, when it comes to torture, although the US establishment has generally retreated from endorsing its use (through recognizing how close they came to prosecutions, if not because of their recognition of the uselessness of torture), the US public, through shows like ’24’ and films like the disgraceful ‘Zero Dark Thirty,’ is not so well-informed.

As Donald Trump took office, 48% of Americans said that “there are some circumstances under which the use of torture is acceptable in US anti-terrorism efforts.” Encouragingly, 49% disagreed, but it remains, i believe, a sign of the enduring power of the Bush administration’s bellicose pro-torture maneuverings in the wake of the 9/11 attacks that torture remains so popular, just as, with Guantánamo, the dark propaganda of the priosn’s early days — as a place which, allegedly held “the worst of the worst” — has proven alarmingly durable, despite relentless efforts by campaigners, myself included, to demonstrate its almost complete groundlessness.

Cross-posted on Common Dreams.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Donald Trump No! Please Close Guantánamo initiative, launched in January 2017), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — 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. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

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34 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    Here’s my latest article, a reminder of how, exactly 16 years ago, George W. Bush introduced torture as official US policy by issuing a presidential memorandum confirming that al-Qaeda and Taliban prisoners seized in the “war on terror” were not protected by the Geneva Conventions. Common Article 3 prohibits “cruel treatment and torture,” and “outrages upon personal dignity, in particular humiliating and degrading treatment,” and by revoking these protections, Bush allowed torture to be practiced at Guantanamo and elsewhere. It remained official US policy until the Supreme Court reminded the president, in Hamdan v. Rumsfeld , in June 2006, that Common Article 3 applies to ALL prisoners in US custody. I think today, February 7, should be a national day of mourning in the US calendar, and I also hope those who think George W. Bush should be rehabilitated somehow, because of the transparent awfulness of Donald Trump, will think twice and reflect on Bush’s truly horrendous record, and the crimes for which he has not been held accountable.

  2. Andy Worthington says...

    Natalia R Scott wrote:

    Thank you, Andy, because there has to be a reminder of the monster Bush is and what he did! Now apparently everyone forgot about that and even love him and applaud his paintings!!!

  3. Andy Worthington says...

    Yes, exactly, Natalia. No rewriting of history! Bush remains an unindicted war criminal, like Cheney, Rumseld and so many others in his administration.

  4. Andy Worthington says...

    Brigid Mary Oates wrote:

    Thank you Andy… xx

  5. Andy Worthington says...

    You’re welcome, Brigid. Thanks for caring.

  6. Andy Worthington says...

    Brigid Mary Oates wrote:

    Always x

  7. Andy Worthington says...

    Susan Neece wrote:

    Thank you, Andy.

  8. Andy Worthington says...

    You’re welcome, Susan. Good to hear from you.

  9. Andy Worthington says...

    Ann Alexander wrote:

    It all just makes me sick, Andy – keeps me awake at nights.

  10. Andy Worthington says...

    And isn’t that a profound condemnation of what Bush and his colleagues wrought all those years ago, Ann – and also how Tony Blair did what he could to follow up on it.

  11. Andy Worthington says...

    Natalya Wolf wrote:

    aarrghhhhhh

  12. Andy Worthington says...

    An appropriate response, Natalya, sadly.

  13. Andy Worthington says...

    Lorraine Barlett wrote:

    Our nation has been going downhill ever since.

  14. Andy Worthington says...

    Sad but true, Lorraine. A permanent state of war. Indefinite detention without charge or trial so normalized that few people even care when Trump issues an idiotic executive order keeping open a prison that only he can close anyway.

  15. Andy Worthington says...

    When my friend Amy Phillips shared this, she wrote:

    Another American-Atrocity Milestone. Here’s its history and implications for our bleak future under Trump by Andy Worthington.

  16. Andy Worthington says...

    Thanks for sharing – and for caring, Amy!

  17. Andy Worthington says...

    My band The Four Fathers’ call for those responsible for the torture to be held accountable is here: https://thefourfathers.bandcamp.com/track/81-million-dollars

  18. Andy Worthington says...

    Mary Shepard wrote:

    What we are reminded of is the tremendous power a president has to play fast and loose with the law. In other words, if the laws don’t serve his agenda, he changes the laws, or their interpretation, to suit his objectives.

  19. Andy Worthington says...

    Which is exactly why we must continue to insist that these senior officials – up to and including the president – must not be allowed to get away with their crimes, Mary, however long it takes to establish that no one is above the law.

  20. Andy Worthington says...

    Mary Shepard wrote:

    Remember what happened to Habeas Corpus?

  21. Andy Worthington says...

    Barbara Cummings wrote:

    Mary, I remember it very well, but the same people who now support Trump gave it a huge yawn.

  22. Andy Worthington says...

    Unfortunately, Barbara, no one cared enough about habeas corpus – neither Democrats nor Republicans. My band The Four Fathers have a song about the importance of habeas – 803 years old this year! https://thefourfathers.bandcamp.com/track/equal-rights-and-justice-for-all-2

  23. Andy Worthington says...

    And my detailed list of all the Guantanamo habeas cases is here, Mary and Barbara: http://www.andyworthington.co.uk/guantanamo-habeas-results-the-definitive-list/

  24. Andy Worthington says...

    Dessie Harris wrote:

    Andy how old were the children at Guantanamo, about 12 years old or so???

  25. Andy Worthington says...

    The youngest weren’t even teenagers, Dessie. Here’s a very powerful documentary from 2015 by Sonia Verma for Al-Jazeera, about Asadullah Rahman, who was just ten years old when he was first seized, working as a tea boy for a warlord: https://www.youtube.com/watch?v=d_Os6zU4cAU
    http://www.aljazeera.com/programmes/aljazeeracorrespondent/2015/10/growing-guantanamo-asadullah-rahman-151007111308336.html

  26. Andy Worthington says...

    Also check out my article about Guantanamo’s children, Dessie: http://www.andyworthington.co.uk/2011/06/11/wikileaks-and-the-22-children-of-guantanamo/

  27. Andy Worthington says...

    Beverly Spicer wrote:

    It is a sickening formula: parade out a new ogre to villify so by comparison the people will glorify the last one.

  28. Andy Worthington says...

    Yes, exactly, Beverly. As though there can only be the possibility of one criminal president or ex-president at a time, rather than a whole collection of them!

  29. Tom says...

    Not to intentionally trigger anyone. But when Bush wanted to torture detainees, some of his assistants pointed out that this would violate the Constitution. His response? I don’t give a shit! It’s a goddamn piece of paper! Now, over 50% of the public have a positive view of him.

    There’s a “custom” in the US that Presidents follow. They never prosecute the previous President for crimes. Why? Because it’s too “divisive”. Too disruptive. Tell that to the over 1 million innocent people who died in Iraq and Afghanistan. Why do Congressional Democrats always give Trump more defense money than he asked for? Because they’re terrified of being labeled as “weak on terrorism”.

  30. Andy Worthington says...

    Sadly, a tendency to idolize leaders, and the lack of a firm moral code are revealed through the insights in your comments above, Tom. It seems we cannot have a just world when people in general won’t hold their leaders – or ex-leaders – to account for their failings, and when they prove so malleable about what ought to be unwavering lines that mustn’t be crossed – like torture, for example, or illegal wars in which hundreds of thousands of people are killed. It’s very sad, and it doesn’t augur well for people properly resisting Donald Trump and the supposedly charismatic, racist far-right bullshit he stands for.

  31. Andy Worthington says...

    Gillian Caine wrote:

    War crimes. He should stand trial along with Blair and the rest.

  32. Andy Worthington says...

    Thanks, Gillian. Yes, exactly!

  33. Andy Worthington says...

    Mary Shepard wrote:

    Not only a reminder of the hideousness of the Bush administration but of the fact that we are still a country that tramples on the human rights of people not even charged with a crime. I am reminded that I did not vote to re-elect Obama in 2012 because of his illegal and immoral use of drones, including the extrajudicial assassination of Anwar Al Awlaki, an American citizen who was never formally charged with a crime. As long as we are willing to turn our eyes away and close our hearts to state crimes, we are all vulnerable. Our country is no longer ours. We cannot operate under the premise that some lives don’t matter.

  34. Andy Worthington says...

    Thanks for your comments, Mary. A very powerful reminder of how the use of drones is not acceptable, and how the US under Obama extrajudicially murdered a US citizen in a country with which the US was not at war – and, I must add, then extrajudicially murdered his 16-year old son, to make sure he wasn’t radicalized by his father’s murder.
    I would wear “We cannot operate under the premise that some lives don’t matter” on a T-shirt!

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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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