The answer has to be that it would be hard to conceive of a neater example of how the military and the intelligence agencies — or the CIA, at least — are at the very heart of government.

The door that is shutting is the one that involves accountability for the many prisoners subjected to “extraordinary rendition,” torture, and, in some cases, murder, in the Bush administration’s “high-value detainee” program. This involved the creation of secret torture prisons in Thailand, Poland, Romania and Lithuania, and, for a while, in Guantánamo, as well as others in Afghanistan and Iraq, the rendition of prisoners between these facilities, and also to the dungeons of allies in Jordan, Egypt, Syria and Morocco.

The Bush administration’s program also involved the cynical crafting of memoranda purporting to redefine torture, so that it could be practiced by the CIA. These memos — which will be known forever as the “torture memos” — were written in the Justice Department’s Office of Legal Counsel (OLC) by John Yoo, and approved by his boss, Jay S. Bybee. Yoo was part of a team of lawyers clustered around Vice President Dick Cheney, who were responsible for finding ways to justify the torture program that also involved President Bush and defense secretary Donald Rumsfeld, as well as other senior officials, including Condoleezza Rice. The other lawyers were: David Addington, Cheney’s former chief of staff and legal counsel; William J. Haynes II, the Pentagon’s former general counsel; his deputy, Daniel Dell’Orto; former White House counsel (and later Attorney General) Alberto Gonzales; and his deputy, Tim Flanigan.

In President Obama’s America, in which Obama himself came to power declaring his “belief that we need to look forward as opposed to looking backwards,” none of these men have been held accountable for their actions. In fact, as I explained in an article last week, the President has done all in his power to make sure that those who authorised torture or attempted to justify its use have been shielded from accountability for their actions. As I wrote:

Obama stood by and watched as, in February last year, a four-year internal investigation into John Yoo and Jay S. Bybee, lawyers at the Justice Department’s Office of Legal Counsel, was cynically overturned by a DoJ fixer, David Margolis. Yoo had written the notorious “torture memos,” issued on August 1, 2002, that purported to redefine torture so that it could be used by the CIA, and Bybee had approved them, but when the investigation concluded that both men had been guilty of “professional misconduct,” Margolis decided instead that they had only exercised “poor judgment.”

Obama also stood by last September when five men subjected to “extraordinary rendition” and torture by the CIA, including the British residents Binyam Mohamed and Bisher al-Rawi, had their lawsuit against Jeppesen Dataplan Inc., a Boeing subsidiary that had functioned as the CIA’s travel agent, blocked by the administration, and by the 9th Circuit Court of Appeals, which agreed with Obama’s Justice Department that it was appropriate to use the little-known and little-used “state secrets” doctrine to block any attempt to expose the truth in any US court on the basis that it would endanger “national security” — a decision that was upheld by the Supreme Court last month.

Last December, we also discovered, via WikiLeaks, that the Obama administration had put pressure on the Spanish government to prevent the courts in Spain from pursuing an investigation into six former Bush administration lawyers — David Addington, William J. Haynes II, Alberto Gonzales, Jay Bybee, John Yoo and Douglas Feith, former undersecretary of defense for policy  — for “creating a legal framework that allegedly permitted torture.”

As a result, the news that special prosecutor John Durham has completed a two-year investigation into 101 cases involving the CIA’s treatment of detainees, and has concluded that just two deserve to proceed to criminal prosecutions, is truly depressing. President Bush, as we learned in February, is unable to travel outside the United States because, after he bragged in his autobiography that he had authorized torture (the waterboarding of Khalid Sheikh Mohammed) lawyers will serve him with a torture complaint wherever he goes, but in the US the only people to face a criminal prosecution are those whose actions are deemed to have exceeded the parameters laid down by John Yoo and Jay S. Bybee.

To be fair to John Durham, his investigation was hobbled from the very beginning, because of the limits imposed on him. As Eric Holder explained in a statement announcing Durham’s conclusions:

On August 24, 2009, based on information the Department received pertaining to alleged CIA mistreatment of detainees, I announced that I had expanded Mr. Durham’s mandate [from that of January 2008, when Bush Attorney General Michael Mukasey appointed him to investigate the destruction of videotapes showing the torture of "high-value detainees"] to conduct a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations. I made clear at that time that the Department would not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. Accordingly, Mr. Durham’s review examined primarily whether any unauthorized interrogation techniques were used by CIA interrogators, and if so, whether such techniques could constitute violations of the torture statute or any other applicable statute.

Those particular comments — that the Justice Department “would not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees” — is the key to the whitewash that has just occurred, and it is so important that it was repeated in August 2009 by White House press secretary Robert Gibbs, when the appointment of Durham was announced. Gibbs noted that “the President agrees with the Attorney General that those who acted in good faith and within the scope of legal guidance should not be prosecuted.”

What no one has yet explained is who authorized the revision to the conclusions reached by a four-year internal investigation into the “legal guidance” provided by Yoo and Bybee. As I noted above, that investigation concluded that Yoo and Bybee were guilty of “professional misconduct,” which would have allowed them to be investigated by their bar associations, and might have opened up a clear route to the White House, but veteran DoJ fixer David Margolis was allowed to override the investigation’s conclusions, with his excuse that the two lawyers had merely exercised “poor judgment.”

This was in January 2010, but Holder’s appointment of Durham in August 2009, and his comments at the time, as well as those of the White House, indicate that everyone involved already knew that the results of the OPR investigation would be rewritten so that Yoo and Bybee would be excused. The outstanding questions, therefore, are: did anyone put pressure on the Obama administration to whitewash Yoo and Bybee, and did it happen as part of an agreement between the administration and the CIA prior to April 17, 2009?

That was the date when the President released four previously classified OLC “torture memos” from 2002 and 2005 as part of a court case, but also stated, explicitly, “In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.”

For what it’s worth, the criminal prosecutions recommended by John Durham and approved by Eric Holder will investigate the November 2003 murder, in the notorious Abu Ghraib prison in Iraq, of Manadel al-Jamadi, also known as “the Iceman” (which was recently reported by Adam Zagorin of Time, as I discussed here), and the November 2002 murder, in the secret prison in Afghanistan known as the “Salt Pit,” of Gul Rahman. This story was first reported by Dana Priest in the Washington Post in March 2005, but it was not until March 2010 that Adam Goldman of the Associated Press uncovered his name and provided crucial details about the circumstances of his death.

In both cases, there are reasons for extremely cautious optimism that any prosecution will not just to sacrifice a few low-level operatives as “bad apples,” but will also look a few notches up the chain of command, as Marcy Wheeler has been reporting on FireDogLake. Overall, however, Eric Holder’s announcement is bad news for accountability, as it suggests that the process of “look[ing] forward as opposed to looking backwards” is almost complete, with just a few loose ends to be tied up before we are all obliged to move on, forever consigning to oblivion any outstanding demands we might have — including a full account of who was held in the “high-value detainee” program, and what happened to those who did not end up in Guantánamo, and, most importantly, another question, asked repeatedly until a satisfactory answer is given: how can it be that senior Bush administration officials and their lawyers broke the US torture statute, which requires torturers to be prosecuted, and got away with it?

June 30, 2011 will go down in history as a very bleak day indeed for US justice.

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, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

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

Neither of these developments had been reported prior to the release of the cables by WikiLeaks, and they are therefore extremely significant in establishing how long Bush administration officials were involved in fending off torture investigations overseas, and how eagerly Obama administration officials took up this role.

Suppression of a torture inquiry in Germany

In the first cable, sent to Secretary of State Condoleezza Rice from Berlin on February 6, 2007, by John M. Koenig, the senior career diplomat at the US Embassy in Berlin, following discussions with Rolf Nikel, the deputy national security advisor for Germany, Koenig explained how he emphasized to Nikel that “issuance of international arrest warrants would have a negative impact on our bilateral relationship.” In addition, he “reminded Nikel of the repercussions to US-Italian bilateral relations in the wake of a similar move by Italian authorities last year” (in the case of Abu Omar, discussed below), and “pointed out that our intention was not to threaten Germany, but rather to urge that the German Government weigh carefully at every step of the way the implications for relations with the US.”

What makes this thinly-veiled threat seem particularly harsh is the fact that El-Masri is the clearest case of mistaken identity in the whole of the “War on Terror.” Confused with another man of the same name who had liaised with the 9/11 kidnappers, he was seized in Macedonia as he tried to enter the country on a vacation on New Year’s Eve, 2002, and was then sent to the CIA’s notorious “Salt Pit” prison in Afghanistan, where he was “repeatedly beaten, drugged, and subjected to a strange food regime that he supposed was part of an experiment that his captors were performing on him” (as described by Scott Horton of Harper’s), until the CIA realized it had made a mistake, and reluctantly set him free, dropping him off in Albania and obliging him to make his own way home, and to try to put together the pieces of his shattered life.

Suppression of a torture inquiry in Spain

The second cable, dated April 17, 2009, and sent from Madrid, explained how US officials had manipulated Spanish officials to suppress an investigation into six former Bush administration lawyers — Attorney General Alberto Gonzales, David Addington, former chief of staff and legal adviser to Vice President Dick Cheney, William Haynes, the Pentagon’s former general counsel, Douglas Feith, former undersecretary of defense for policy, Jay Bybee, the former head of the Justice Department’s Office of Legal Counsel, and John Yoo, a former official in the Office of Legal Counsel — for “creating a legal framework that allegedly permitted torture.” A Spanish human rights group had filed the complaint the month before, contending that Spain had a duty to open an investigation under its “universal jurisdiction” law.

The cable reveals how US officials immediately began sounding out Spanish officials, and how, on April 15, an apparently unlikely figure for the Obama administration to embrace — Sen. Mel Martinez (R-Fla.), who had recently been chairman of the Republican Party — attended a meeting between the US embassy’s charge d’affaires and the acting Spanish foreign minister, Angel Lossada, at which the Americans, repeating the same threatening language used in Germany in 2007, “underscored that the prosecutions would not be understood or accepted in the US and would have an enormous impact on the bilateral relationship” between Spain and the United States.

As the cable decribed it, “Lossada responded that the [Spanish government] recognized all of the complications presented by universal jurisdiction, but that the independence of the judiciary and the process must be respected.” However, he added that the government “would use all appropriate legal tools in the matter,” and that, although “it did not have much margin to operate,” would advise the Spanish Attorney General, Cándido Conde-Pumpido, that “the official administration position was that the [government] was ‘not in accord with the National Court.’”

The next day, Attorney General Conde-Pumpido “publicly stated that prosecutors will ‘undoubtedly’ not support [the] criminal complaint,” adding that he would “not support the criminal complaint because it is ‘fraudulent,’ and has been filed as a political statement to attack past [US government] policies.” He added that, “if there is evidence of criminal activity by [US government] officials, then a case should be filed in the United States.” In the cable, officials at the US embassy in Madrid congratulated themselves for their successful involvement in the case, noting that “Conde Pumpido’s public announcement follows outreach to [Spanish government] officials to raise [the US government's] deep concerns on the implications of this case.”

This was not quite the end of the story, as Conde-Pumpido had specifically taken aim at Investigating Judge Baltasar Garzón, “a world-renowned jurist,” who, as David Corn explained in an article for Mother Jones, “had initiated previous prosecutions of war crimes and had publicly said that former President George W. Bush ought to be tried for war crimes.” Garzón pressed ahead with the prosecution in September 2009, but when he ran into domestic problems, triggered by his enthusiasm for investigating war crimes committed under General Franco, the case was assigned to another judge, and the trail has since gone quiet. As David Corn explained, “The Obama administration essentially got what it wanted. The case of the Bush Six went away.”

Supression of torture inquiries in the US — and an unexpected conviction in Italy

As a result of these revelations, it is clear that the US government — under Bush and Obama — has been largely successful in preventing the prosecution of anyone involved in the horrendous human rights abuses initiated in the “War on Terror,” not just abroad, but also in the US. In the last year, fulfilling his “belief that we need to look forward as opposed to looking backwards,” which he expressed in January 2009, the week before he took office, President Obama has presided over the whitewash of a damning internal Justice Department report into John Yoo and Jay S. Bybee (who wrote and approved the notorious “torture memos” of August 2002, which attempted to redefine torture, so that it could be used by the CIA), and has cynically resorted to manipulating the little known and little used “state secrets” privilege to prevent the merest whisper of evidence regarding the torture of foreign prisoners to be discussed in a US court.

One unexpected exception to this global clampdown is Italy, where 22 CIA operatives and a US Air Force Colonel were convicted in absentia, in November 2009, for their part in the kidnapping, in broad daylight in a street in Milan on February 17, 2003 of the cleric Abu Omar, who was then rendered to Egypt, where he was subjected to horrific torture. The US government, of course, refused to allow these operatives to be extradited to Italy to face justice, but the ruling remains a permanent black mark against the Bush administration, which can never be washed away or concealed, and the entire sordid story has recently been covered, in extraordinary detail, by Steve Hendricks in his book, A Kidnapping in Milan: The CIA on Trial.

Trouble ahead in Spain, Germany, Macedonia, Lithuania, Poland and the UK

Moreover, it may be that, despite the success of the US efforts in Germany and Spain, further troubles lie ahead in both countries. In May 2010, Spain picked up where Germany left off regarding the prosecution of the thirteen CIA agents responsible for the torture of Khaled El-Masri, when prosecutors attached to the Audiencia Nacional in Madrid asked a judge to issue an order for the agents’ arrest, and, as Scott Horton also reported at the time, “A criminal proceeding relating to the kidnapping and torture of El-Masri is also underway in Germany.”

In addition, in 2009, as Amrit Singh of the Open Society Justice Initiative explained in a recent article on the Huffington Post, the OSJI filed an application on El-Masri’s behalf against the Macedonian government before the European Court of Human Rights. Singh continued:

In October 2010, the European Court communicated the case to the Macedonian government. This is a significant development, as only about ten percent of all cases brought before the European Court get communicated. Perhaps even more significant is the fact that the European Court has asked the Macedonian government a set of pointed questions, including whether agents of the Macedonian government detained El-Masri and subjected him to torture or cruel inhuman or degrading treatment; whether Macedonian government agents handed him over to a CIA rendition team; whether the Macedonian government was aware that El-Masri faced a real risk of being subjected to torture or cruel inhuman or degrading treatment if transferred to the Salt Pit; and whether Macedonia had conducted an effective official investigation of this case.

In addition, it is possible that further problems — which seem already to have gone beyond the reach of US diplomatic bullying — relate to investigations in Lithuania, Poland and the UK.

As Amnesty International noted in its recent report, “Open secret: Mounting evidence of Europe’s complicity in rendition and secret detention,” Lithuania, whose role as the host of a secret CIA prison in Europe — along with Poland and Romania — was most recently exposed in a United Nations report on secret detention, “has admitted that two secret prisons existed.” Significantly, “The prisons were visited in June 2010 by a delegation from the European Committee for the Prevention of Torture, the first visit by an independent monitoring body to a secret CIA prison in Europe,” and a criminal investigation is ongoing.

Although Romania continues to deny hosting a secret prison, it is implicated in documents issued by Poland’s Border Guard Office in July 2010, which, as I explained in an article at the time, provided, for the first time, “details of the number of prisoners transferred by the CIA to a secret prison in Poland between December 5, 2002 and September 22, 2003, and, in one case, the number of prisoners who were subsequently transferred to a secret CIA prison in Romania.” The revelations led immediately to claims that former Prime Minister Leszek Miller and former President Aleksander Kwasniewski “may face war crime charges for agreeing to host the facility,” and in September, as Amnesty described it, “the prosecutor’s office confirmed that it was investigating claims by Abd al-Rahim al-Nashiri [one of 14 "high-value detainees eventually transferred to Guantánamo, in September 2006], that he was held in secret in Poland.” Moreover, al-Nashiri “was granted ‘victim’ status in October 2010, the first time a rendition victim’s claims have been acknowledged in this context.”

In the UK, British complicity in US torture has been acknowledged, through the deliberations of judges, since August 2008, when two high court judges, Lord Justice Thomas and Mr. Justice Lloyd Jones, found that the British government had been involved in “wrongdoing” in the case of Binyam Mohamed, a British resident who spent over two years being tortured in Pakistan, Morocco and the CIA’s “Dark Prison” in Kabul, before he was sent to Guantánamo. Mohamed was released in February 2009 — in the hope, shared by both the British and the American governments, that his release would shut down any further interest in his case — but in fact Lord Justice Thomas and Mr. Justice Lloyd Jones continued to fight against foreign secretary David Miliband’s refusal to allow them to release a summary of documents provided by the US, relating to Mohamed’s treatment by US agents in Pakistan.

Finally in February this year, 18 months after their initial ruling, the Court of Appeal ordered the documents to be released, and it was finally revealed that the summary described a range of techniques, which, in the judges’ opinion, “could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities,” including “continuous sleep deprivation,” combined with “threats and inducements,” including the threat of “disappearing.” As the judges also explained, “the stress brought about by these deliberate tactics” was “causing him significant mental stress and suffering,” to the extent that he was being “kept under self-harm observation.”

Although a Metropolitan Police investigation was launched into Mohamed’s allegations, this investigation recently concluded with an announcement that there was insufficient evidence to prosecute the MI5 officer, known as Witness B, “for any criminal offence arising from the interview of Binyam Mohamed in Pakistan on 17 May 2002.”

However, the larger picture of British complicity in torture has refused to go away. Three weeks ago, the British government announced that it had reached a substantial financial settlement with 15 former Guantánamo prisoners — and with one man, Shaker Aamer, who is still held — to staunch the flow of dangerous documents being released as part of a civil claim for damages brought by a number of former prisoners. These had already revealed uncomfortable truths about the complicity in torture of former Prime Minister Tony Blair and former foreign secretary Jack Straw, and although David Cameron, the Prime Minister of the new coalition government, hopes to prevent any further damning revelations emerging, by announcing that a judicial inquiry into British complicity in torture will be held, directed by Sir Peter Gibson, who was previously responsible for overseeing the conduct of the security services, it is by no means certain that the inquiry will be able to halt further revelations, some of which may well involve the US.

It may be that further documents in WikiLeaks’ cache of diplomatic cables deal with the torture problems encountered in the UK since 2008, and with some of the other cases mentioned above, and it is also worth reflecting that, for the foreseeable future, diplomats may find it harder than before to exert pressure to suppress evidence of US torture, having suffered something of a hammer blow to their credibility through the documents released to date.

As a result, this is probably a good time for those in other countries who wish to hold the US government accountable for torture to press ahead with their claims and their cases, and if this is so, then on this point alone WikiLeaks’ disclosures will have been invaluable.

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 and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation, as “Wikileaks: Suppressing the Investigation of Torture.” Cross-posted on The Public Record, The World Cant Wait and Uruknet. Also see the link on the website of the Center for Constitutional Rights.

In fact, after deliberating for five days, the jury found him guilty on one count of conspiracy to destroy US property and buildings, which carries a mandatory 20-year sentence, although the judge in his case, Judge Lewis Kaplan, can decide that a life sentence is appropriate.

Why, then, did Representative Peter King (R-NY), who is poised to become the chairman of the House Homeland Security Committee in January, exclaim, “This is a tragic wake-up call to the Obama Administration to immediately abandon its ill-advised plan to try Guantánamo terrorists” in federal civilian courts?

The reason is naked ideology, of a very damaging kind, as Rep. King revealed in the comment that followed. “We must treat them as wartime enemies,” he said, “and try them in military commissions at Guantánamo.”

For Rep. King and his fellow Republicans, who were queuing up to damn President Obama for his imperceptible failure, the naked truth is that they would have been even more dissatisfied if the jury had convicted Ghailani on the other 284 counts on which they found him not guilty, as it would have made it more difficult for them to attempt to justify their obsession with treating Ghailani — and all the other prisoners in Guantánamo — as “warriors” in the “War on Terror” launched by the Bush administration, for whom federal court trials are ideologically unsuitable.

Such is the blinkered obsession of these critics that they actively want information derived from torture to be used in the trials of alleged terrorists, and they blame Judge Kaplan for upholding the law by excluding from the trial the government’s alleged “star witness,” a Tanzanian named Hussein Abebe, whose name was revealed by Ghailani while he was being subjected to torture in a secret prison run by the CIA — part of a network of secret prisons in which he was held for two years and two months, after his capture in Pakistan in July 2004, until his transfer to Guantánamo, with 13 other alleged “high-value detainees,” in September 2006.

To these critics, it is irrelevant that information derived through the use of torture was excluded by Judge Kaplan because such information can never be used in federal court — and because the use of torture is a crime under domestic US law — just as it is irrelevant that Hussein Abebe’s testimony may also have been suspicious, as Marcy Wheeler pointed out in two articles on FireDogLake.

Nor, bizarrely, do they care that experts with deeper knowledge of the Commissions have pointed out that a military judge in a trial by Military Commission would also have excluded evidence derived through the use of torture, or that the Commissions themselves have a dismal record when it comes to successful prosecutions, having secured just five verdicts since their revival nine years ago: three through plea deals (in the cases of David Hicks, Ibrahim al-Qosi and Omar Khadr); one, in the case of Salim Hamdan, a driver for Osama bin Laden, after a trial in which the military jury threw out a charge of conspiracy; and another, in the case of Ali Hamza al-Bahlul, who produced a propaganda video for al-Qaeda, after a one-sided trial in which al-Bahlul refused to mount a defense.

With the exception of al-Bahlul, who is serving a life sentence (although this is being appealed), all these supposed victories have perished under scrutiny: in 2007, Hicks was freed almost immediately, to serve just seven months in Australia; Hamdan received a sentence of five and a half years, but the judge decided it included time already served, and he was a free man after just five months; al-Qosi, a sometime cook for al-Qaeda, is expected to serve two years; and Omar Khadr’s plea deal means he will be freed from Guantánamo in a year, with seven years ahead of him in a Canadian prison.

Also irrelevant to these advocates of torture and bent trials is the fact that federal courts have an enormously successful track record of prosecuting terrorists, and that the fate of Ghailani’s alleged co-conspirators in the 1998 bombings provides a salutary lesson regarding these successes, providing a ringing endorsement of federal court trials for terrorists, and — along the way — also providing a damning repudiation of the extralegal novelties of the “War on Terror.” Rather than being diverted into a network of secret prisons run by the CIA, where torture was making an ill-advised renaissance, Mohamed Rashed Daoud al-’Owhali, Khalfan Khamis Mohamed, Mohamed Sadeek Odeh and Wadih el-Hage were interrogated by FBI officials without the use of torture, were successfully convicted in a federal court in New York in May 2001, and were sentenced to life without parole in October 2001 — when the “War on Terror” had already begun.

All of the above is supposedly irrelevant to critics of the verdict in Ghailani’s trials because these cheerleaders for the Commissions — and for the use of information derived through the use of torture — want to ignore reality and return to the world envisaged by former Vice President Dick Cheney and his legal counsel David Addington in November 2001, when they first revived the Military Commissions, intending that they would be able to launder information derived through torture, and sentence supposed terrorist suspects to death without anything remotely resembling due process.

This is the system which, although still a second-rate system of justice, reserved for foreigners regarded as terrorist suspects, or as “alien unprivileged enemy combatants,” who are not allowed to raise arms against US forces under any circumstances, has been amended over the years, after the Supreme Court ruled it illegal in June 2006, demolishing Cheney’s dream so that information derived through the use of torture is banned, as it is in federal court trials. As a result, the only essential difference between the Commissions and federal court trials is that the military judges in the former can use their discretion to decide whether or not to allow the use of information that may have been derived through coercion rather than torture.

This may have made a difference in Ghailani’s case, but it seems unlikely, given the Commissions’ track record, that it would necessarily have led to a harsher sentence than the one Ghailani will receive after his federal court trial. In addition, it is worth considering that Ghailani’s trial took place with barely a mention of his treatment in secret CIA prisons or in Guantanamo, when the precedents from the Commissions indicate that military defense lawyers may have fought more tenaciously to raise it as an issue.

Once it becomes apparent that critics of the verdict in Ghailani’s trial are actually seeking a return to the lawless fantasy land envisaged by Dick Cheney and David Addington, and believe — contrary to the evidence — that US law is soft and useless, it also becomes apparent that the silence of President Obama and Attorney General Eric Holder in response to these complaints is deeply troubling.

The Obama administration needs to put down those who are insulting US law through the prism of their own warped ideology, or there is no telling where the rot will stop. Fortunately, for now, few critics have rallied behind a small group of other critics — Benjamin Wittes of the Brookings Institution, Jack Goldsmith, former Assistant Attorney General in the Justice Department’s Office of Legal Counsel, and law professor Robert Chesney — who have taken another troubling unconstitutional line, suggesting that Congress should enact legislation to hold terror suspects indefinitely without even bothering to think about putting them on trial.

However, without decisive action in support of US law and the Constitution on the part of the government, it may be that the idea of avoiding trials altogether for terrorist suspects will gain in strength. In this, Wittes, Goldsmith and Chesney may find that they are encouraged, disturbingly, by the Obama administration itself, which has already endorsed indefinite detention without charge or trial for 48 of the remaining 174 prisoners in Guantánamo, on the advice of the interagency Guantánamo Review Task Force, which was established by President Obama last year to review the cases of the remaining prisoners.

Moreover, in its apparent paralysis regarding trials either in federal court or by Military Commission for 34 prisoners (who were recommended for trial by the Task Force), the Obama administration is close to finding that it has enshrined indefinite detention without charge or trial as official US policy unless it acts immediately to put other Guantánamo prisoners on trial in federal court — starting, I suggest, with Khalid Sheikh Mohammed and his four alleged co-conspirators in the 9/11 attacks, whose federal court trial was announced by Eric Holder almost exactly a year ago.

If senior officials believe in the ability of federal courts to try terrorist suspects, they need to find the courage to say so, to say so boldly and with a courage that has been sadly lacking, and to follow through on their beliefs without caving in to criticism from opponents whose entire point of view is fueled by blind vengeance and a thorough disdain for 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) 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 and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation, as “The Rule of Law and the Ghailani Case.” Cross-posted on The Public Record, Cageprisoners and Uruknet.

The first memo (PDF), which sought to redefine torture, was leaked in the wake of the Abu Ghraib scandal in 2004, and remains shocking for its attempt to claim that the definition in the US anti-torture statute (an act “specifically intended to inflict severe physical or mental pain or suffering … upon another person within his custody or physical control”) could be redefined 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 e.g. lasting for months or even years.”

The memo was also noteworthy for its attempt to nullify the concept of “specific intent” by providing a defense for anyone whose actions were undertaken “in good faith,” and, in addition, for its endorsement of unfettered executive power, in the section in which Yoo (with Bybee’s backing) stated, “Even if an interrogation method arguably were to violate Section 2340A [the federal anti-torture statute], the statute would be unconstitutional if it impermissibly encroached on the President’s constitutional power to conduct a military campaign.”

In the second memo (PDF), Yoo and Bybee dealt specifically with requests for approval of a number of “enhanced interrogation techniques” — some of which were clearly torture techniques — for use on a specific “high-value detainee” in CIA custody. That man was Abu Zubaydah (who, it turned out, was not a high-ranking member of al-Qaeda, as initially supposed), and this was how I described the techniques approved for use on him in an article last April, when this second memo (and three later memos) were released:

The ten techniques — whose use is minutely micro-managed with a chillingly cold attention to detail — include a handful of physical tactics which, to my mind, seem mild compared to the widespread physical violence that accompanied detention in the “War on Terror” (“attention grasp,” “facial hold,” and “facial slap (insult slap)”), and a more insidious form of violence (“walling”), which involves repeatedly hurling prisoners against a false wall. Much more disturbing are the use of stress positions, sleep deprivation, confinement in small boxes, waterboarding [a form of controlled drowning, long recognized as a torture technique], and — straight out of George Orwell’s 1984 — a proposal to prey on Zubaydah’s fear of insects by placing an insect into his “confinement box.”

This latter technique was, apparently, never used, but the others all were, and the memo blithely attempted to dismiss long-standing proof that [most of these techniques] can be regarded as torture by being satisfied with time limits imposed on imprisonment in the “confinement boxes,” by declaring that the use of painful stress positions (on which no time limit seems to have been imposed) was only undertaken “to induce muscle fatigue,” and by claiming that the well-chronicled mental collapse that can result from sleep deprivation would, instead, only involve mild discomfort that “will generally remit after one or two nights of uninterrupted sleep,” even though, as Yoo and Bybee also noted, “You have orally informed us that you would not deprive Zubaydah of sleep for more than eleven days at a time.”

In January this year, Bybee and Yoo narrowly escaped being referred to their respective bar councils — and possibly being struck off — after a four-year internal Justice Department investigation into the memos, conducted by the Office of Professional Responsibility, concluded that Bybee “committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice,” and that Yoo “committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.”

At the last minute, however, Bybee and Yoo were saved when Associate Deputy Attorney General David Margolis, a career official who has worked at the DoJ for 17 years and has a history of shielding officials from allegations of misconduct, downgraded the report’s conclusions, asserting that Yoo and Bybee had only shown “poor judgment.”

In the 290-page transcript released by the House Judiciary Committee (PDF, with accompanying documents here), Bybee, over the course of a day’s questioning, demonstrated three particular responses to his role in approving the memos: shifting the blame for any criticism onto the CIA, shifting the blame for any criticism onto John Yoo, and defending the memos’ conclusions. The latter remains deeply troubling, as it confirms Bybee as an unrepentant torturer, who should be prosecuted according to US law, but it is, perhaps, his attempt to shift blame onto the CIA that is the most revealing aspect of the transcript, as it highlights a broad range of actions not approved by OLC, which, as a result, must be considered as potential crimes in their own right, without the dubious protection of the OLC’s “golden shield.”

Bybee attempts to shift blame onto the CIA

On the first point, Rep. Conyers stated in the press release announcing the release of the transcript, “Bybee made clear that OLC never approved a number of interrogation techniques that were reportedly used on CIA detainees.” In notes accompanying the release of the transcript (PDF), Conyers added, “These techniques include: Diapering a detainee or forcing a detainee to defecate on himself, forcing a detainee to wear blackout goggles, extended solitary confinement or isolation, hanging a detainee from ceiling hooks, daily beatings, spraying cold water on a detainee, and subjecting a detainee to high-volume music or noise.”

Rep. Conyers also stated that Bybee made clear “that the OLC memos did not permit ‘substantial repetition’ of even those techniques that were approved, such as waterboarding,” adding that Bybee “acknowledged that the CIA Inspector General [in his 2004 report (PDF)] had found that ‘the waterboard was used with greater frequency and it was used in a different manner’ than OLC had approved” (notoriously, as we learned last year, Khalid Sheikh Mohammed was waterboarded 183 times, and Abu Zubaydah was waterboarded 83 times).

There is some truth in Bybee’s comments, as Marcy Wheeler noted in her first analysis of the transcript, on Firedoglake, in which she referred readers to Spencer Ackerman’s comments on prolonged diapering as the eleventh technique not approved by the OLC, in an article last August, and also pointed out that she had “written extensively about how CIA tried to fudge approval for water dousing” (see the articles here and here, for example). She also pointed out that, as well as being used on “high-value detainees” who were eventually transferred from secret CIA prisons to Guantánamo, water dousing also led to the death of Gul Rahman, an Afghan held at the CIA’s “Salt Pit” prison, in November 2002.

Even so, it is not entirely encouraging that the man who signed off on a memo approving the use of waterboarding (which the Spanish Inquisition had the honesty to call tortura del agua) felt satisfied in quibbling about whether the torture techniques he approved were exceeded or augmented with others that had not been approved, although, as I explain below, by doing so, he may have opened up a path for the prosecution of those who did exceed or augment the approved techniques, which did not exist before.

Bybee attempts to shift the blame onto John Yoo

In an analysis by the ACLU, what emerged from the transcript above all was Bybee’s evasiveness. Jamil Dakwar, Director of the ACLU’s Human Rights Program, conducted an analysis in which he noted that Bybee said, “I don’t recall” 75 times, “I don’t know” 30 times, “I don’t remember” 9 times, “I don’t believe” 3 times, and “I am not aware” 3 times. As described above, he also sought to shift attention to the CIA, and, as Rep. Conyers noted in the press release announcing the release of the transcript, also sought to shift the focus of scrutiny onto John Yoo, noting that Yoo “never informed him of secret White House ‘war planning’ meetings and that, based on what he knows now, he is ‘worried’ that Yoo was too close to the White House.”

This, again, is a fair point, as Yoo, unlike Bybee, was a member of the “War Council” of lawyers who met regularly in the White House to plan and implement the legal strategies they wanted for the “War on Terror,” largely without any outside consultation. The “War Council” consisted of just six men: as well as John Yoo, there was David Addington, Vice President Dick Cheney’s Legal Counsel (and later Chief of Staff), Alberto Gonzales, White House Counsel (and later Attorney General), White House Deputy Counsel Tim Flanigan, William J. Haynes II, the Pentagon’s General Counsel, and his deputy, Daniel Dell’Orto.

Nevertheless, although Bybee was correct to point out that Yoo had connections that he did not, his position, as head of the OLC, meant that, if he had any doubts at the time, he should have expressed them. It is hardly anyone else’s fault that he not only failed to challenge Yoo, but also willingly signed his name to memos that, as is clear, were the result of specific requests emanating from the White House, which were fundamentally at odds with the OLC’s obligation to provide impartial legal advice.

Bybee defends the memos, requiring his prosecution for breaking the anti-torture statute

Despite Bybee’s attempts to shift the blame onto others for the outcome of the memos he signed, it remains fundamentally unacceptable that he still stands by a memo that authorized the use of ten techniques that included well-established forms of torture. As Rep. Conyers noted on the release of the transcript, “Despite the widespread, bipartisan criticism of the torture memos and the extreme view of presidential power that they represent, Bybee testified that ‘in terms of the analysis, I am going to stand by the memo.’”

This was not news, of course. In April 2009, Bybee told the New York Times, “I believed at the time, and continue to believe today, that the conclusions were legally correct,” and it is clear that he still stands by those views, even though there are never any excuses for attempting to justify the use of torture.

On the day the transcript was published, Bybee was still unrepentant, telling the New York Times that he was “proud of our opinions” at the Office of Legal Counsel, and calling them “well researched” and “very carefully written.” He also provided the following excuse for his actions: “We took a muscular view of presidential authority. We were offering a bottom line to a client who wanted to know what he could do and what he couldn’t do. I wasn’t running a debating society, and I wasn’t running a law school.”

This is undoubtedly how Bybee regards his work on the “torture memos” at the OLC, but unfortunately for him, the US anti-torture statute mentioned above (Title 18, Part I, Chapter 113C of the US Code, introduced in 1994) and the UN Convention Against Torture do not allow for any leeway when “offering a bottom line to a client who wanted to know what he could do and what he couldn’t do.”

The US anti-torture statute requires a fine, or 20 years’ imprisonment (or both) for “[w]hoever outside the United States commits or attempts to commit torture,” and a death sentence, or a prison sentence up to and including a life sentence, “if death results to any person from conduct prohibited by this subsection,” and the UN Convention Against Torture stipulates (Article 2.2), “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Moreover, the Convention also stipulates (Article 4. 1) that signatories “shall ensure that all acts of torture are offences under its criminal law” and requires each State, when torture has been exposed, to “submit the case to its competent authorities for the purpose of prosecution” (Article 7.1).

Why other prosecutions are required – and the OLC’s “golden shield” is no protection

With Bybee’s testimony released out of the blue, it is not possible to state with any certainty how the House Committee’s investigation is proceeding, although both Rep. Conyers and Rep. Jerrold Nadler (D-NY), one of the Committee members involved in questioning Bybee, made encouraging noises on the transcript’s release.

Between them, Conyers and Nadler focused on Yoo’s unhealthily close relationship with the White House and the ongoing investigation by veteran federal prosecutor John Durham into the activities of CIA operatives who went beyond the OLC’s guidelines. This investigation was launched by Attorney General Eric Holder last August, broadening the remit of Durham, who had already been assigned to investigate the CIA’s destruction of videotapes recording the “high-value detainee” interrogations by former AG Michael Mukasey.

Nadler noted that “the close relationship between John Yoo and the administration warrants further investigation,” adding, “Judge Bybee’s disclosures heighten the need for a special counsel to investigate the development and implementation of interrogation policies following the 9/11 attacks,” and Conyers noted, “These statements are highly relevant to the pending criminal investigation of detainee abuse [by John Durham] and I have provided the Committee’s interview to the Justice Department and directed my staff to cooperate with any further requests for information.” However, neither man mentioned that Bybee was still defending his authorization of torture, which is, of course, illegal, and should, by law, lead to his prosecution.

In addition, as Marcy Wheeler noted, what no one in a position of authority has mentioned at all is that Eric Holder announced a month ago that John Durham was close to completing his inquiry. As he stated at the time, “What I made clear is that for those people who acted in conformity with Justice Department opinions from the Office of Legal Counsel that said you could do certain things … people who acted in good faith in line with the Department of Justice guidance, will not be the people we are looking at or interested in. It’s a question of whether people went beyond those pretty far-out OLC opinions, people who went beyond that. That’s what we’re looking at.”

As Wheeler also noted, despite Holder’s words, there has been “not a squeak” about prosecuting those responsible for the death of Gul Rahman, which was obviously not authorized by the OLC memos. Perhaps even more crucially, Bybee’s testimony makes it clear that almost the entire “high-value detainee” program involved people who “went beyond those pretty far-out OLC opinions” — those who used the waterboard on KSM and Abu Zubaydah “with greater frequency” and “’in a different manner’ than OLC had approved,” and those who indulged in sessions that involved, in the Committee’s words, “Diapering a detainee or forcing a detainee to defecate on himself, forcing a detainee to wear blackout goggles, extended solitary confinement or isolation, hanging a detainee from ceiling hooks, daily beatings, spraying cold water on a detainee, and subjecting a detainee to high-volume music or noise.”

For those keeping count, it should be noted that, although the “high-value detainee” program involved 28 prisoners, 66 more were subjected to a variety of torture techniques — mainly in secret CIA prisons in Afghanistan — and many more were subjected to a version of the CIA program — which, at the very least, involved extended solitary confinement and the use of high-volume music or noise — that was introduced by defense secretary Donald Rumsfeld at Guantánamo.

The Obama administration can’t have it both ways: either the OLC memos provided a “golden shield” that the administration is unwilling to remove, but those who exceeded the authorized techniques will be held accountable, or the OLC memos were criminally inadequate, and everyone involved in authorizing torture, whether supposedly approved by the OLC or not, is culpable.

If, instead, we find that no one is to be held accountable for anything, even when guidelines were exceeded, and techniques without OLC approval were implemented with a wanton disregard for those guidelines, leading, in at least one case, to the death of a prisoner, then we really may as well forget about having any rules for anything, and openly assert that — although the rules may now have changed — the record from the Bush years establishes that the CIA can kill or torture anyone it wishes with impunity, and that the government doesn’t care.

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 and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners. Cross-posted on Common Dreams, Uruknet, Eurasia Review, The Public Record, The Smirking Chimp, War is a Crime, The World Can’t Wait, United Progressives and Rebel News.

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, 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), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA) (all May 2009) and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), UK Judges Compare Binyam Mohamed’s Torture To That Of Abu Zubaydah (November 2009), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Binyam Mohamed: Evidence of Torture by US Agents Revealed in UK (February 2010), Torture Whitewash: How “Professional Misconduct” Became “Poor Judgment” in the OPR Report (February 2010), Judges Restore Damning Passage on MI5 to the Binyam Mohamed Torture Ruling (February 2010), What Torture Is, and Why It’s Illegal and Not “Poor Judgment” (March 2010), Abu Zubaydah’s Torture Diary (March 2010), Seven Years of War in Iraq: Still Based on Cheney’s Torture and Lies (March 2010), Protests worldwide on Aafia Siddiqui Day, Sunday March 28, 2010 (March 2010), Abu Zubaydah: Tortured for Nothing (April 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), How Binyam Mohammed’s Torture Was Revealed in a US Court (May 2010), What is Obama Doing at Bagram? (Part One): Torture and the “Black Prison” (June 2010), New Report Reveals How Bush Torture Program Involved Human Experimentation (June 2010), UN Secret Detention Report (Part One): The CIA’s “High-Value Detainee” Program and Secret Prisons, UN Secret Detention Report (Part Two): CIA Prisons in Afghanistan and Iraq, UN Secret Detention Report (Part Three): Proxy Detention, Other Countries’ Complicity, and Obama’s Record (all June 2010), Abu Zubaydah and the Case Against Torture Architect James Mitchell (June 2010), The Torture of Abu Zubaydah: The Complaint Filed Against James Mitchell for Ethical Violations (June 2010), Calling for US Accountability on the International Day in Support of Victims of Torture (June 2010). Also see the extensive archive of articles about the Military Commissions.

No editorials or news broadcasts reminded Americans that “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture,” and that anyone responsible for authorizing torture must be prosecuted, and no one called for the prosecution of George W. Bush, Dick Cheney and Donald Rumsfeld or their supportive colleagues and co-conspirators, including, for example, John Yoo, Jay S. Bybee and Stephen Bradbury, the authors of the Office of Legal Counsel’s “torture memos,” or other key figures in Cheney’s “War Council” that drove the policies: David Addington, Cheney’s former Chief of Staff, Alberto Gonzales, the former Attorney general, and William J. Haynes II, the Pentagon’s former Chief Counsel.

Instead, two mainstream newspaper articles revealed the extent to which President Obama has, over the last 17 months, conspired with senior officials and with Congress to maintain the bitter fruits of the Bush administration’s torture program — and its closely related themes of arbitrary detention and hyperbole about the perceived threat of terrorism.

In the first of these two bleak stories, “US to repatriate Guantánamo detainee to Yemen after judge orders him to be released,” anonymous administration officials told the Washington Post that the President had generously decided to release a Yemeni prisoner in Guantánamo, Mohammed Hassan Odaini, whose release was ordered last month by a judge in the District Court in Washington D.C.

As I explained in an article following the judge’s May 26 ruling, it had been publicly known since November 2007 that the government had conceded in June 2005 that Odaini, a student, had been seized by mistake after staying the night with friends in a university guest house in Faisalabad, Pakistan on the night that the house was raided by Pakistani and US operatives, and that he had been officially approved for release on June 26, 2006 (ironically, on the International Day in Support of Victims of Torture).

Nevertheless, the Justice Department refused to abandon the case against him, and took its feeble allegations all the way to the District Court, where they were savagely dismissed by Judge Henry H. Kennedy Jr. When the judge’s unclassified opinion was subsequently released, an even grimmer truth emerged: that shortly after Odaini’s arrival at Guantánamo in June 2002, an interrogator recommended his repatriation (after he had been exploited for information about his fellow prisoners), and that, in April 2004, “an employee of the Criminal Investigative Task Force (‘CITF’) of the Department of Defense reviewed five interrogations of Odaini and wrote that ‘[t]here is no information that indicates [he] has clear ties to mid or high level Taliban or that he is a member of al-Qaeda.’”

Odaini was not subjected to specific torture techniques, but there are many people — myself included — who are happy to point out to the Obama administration that subjecting an innocent man to eight years of essentially arbitrary detention in an experimental prison camp devoted to the coercive interrogations of prisoners who were deliberately excluded from the protections of the Geneva Conventions is itself a form of torture, especially as, unlike the worst convicted criminals on the US mainland, no Guantánamo prisoner has ever been allowed a family visit, and many have never even spoken to their families by phone.

Moreover, the fact that the administration proceeded with his habeas case, despite knowing that he was innocent, and then refused to release him as soon as the judge delivered his ruling, confirms that, when it comes to lawlessness and cruelty, the Obama administration is closer in spirit to the Bush administration than it cares to admit.

On Saturday, via its anonymous spokesmen, the administration confirmed how far it has fallen from all notions of decency. The officials explained that the moratorium on any releases to Yemen that was issued by President Obama in January, in response to cynical hysteria whipped up in the wake of the failed plane bomb plot involving a Nigerian who had reportedly trained in Yemen, “remains in place,” but, as one of the officials stated:

The general suspension is still intact, but this is a court-ordered release. People were comfortable with this … because of the guy’s background, his family and where he comes from in Yemen.

In other words, a mouthpiece of the administration told a major US newspaper that Odaini, a patently innocent man whose release was ordered by a US judge, and whose ongoing detention was cynically sought by the Obama administration, was only being released because government officials were happy about his family background (his father, it transpires, is a retired security officer).

I shouldn’t really need to explain to the government that it’s unconstitutional to detain an innocent man, even if his father happened to be Osama bin Laden rather than a security officer, nor to point out how it would appear if this vetting procedure were to be applied to the criminal justice system in general, but in Obama’s world it is apparently necessary to point out these basic facts.

The second story that arrived in time to cast a mocking light on the International Day in Support of Victims of Torture — “Closing Guantánamo Fades as a Priority” — was published in the New York Times. Since President Obama failed to close Guantánamo by his self-imposed deadline of January 22 this year, the administration has failed to set a new deadline — and for a depressing reason, as Sen. Carl Levin explained to the Times.

“There is a lot of inertia” against closing the prison, “and the administration is not putting a lot of energy behind their position that I can see,” Sen. Levin said, adding that “the odds are that it will still be open” by the next presidential inauguration in 2013.

Sen. Levin had no doubt that this failure had come about because of a lack of political will on the part of the administration, which contrasts sharply with the rhetoric of Barack Obama in August 2007, when he was still a Senator. On that occasion, he spoke compellingly about how, “In the dark halls of Abu Ghraib and the detention cells of Guantánamo, we have compromised our most precious values. What could have been a call to a generation has become an excuse for unchecked presidential power.” However, since coming to power, as Sen. Levin explained, the administration has been “unwilling to make a serious effort to exert its influence.”

With a sharp eye for how principled rhetoric has not been followed up with any attempt whatsoever to persuade Congress of the importance of closing Guantánamo, Sen. Levin contrasted the administration’s “muted response to legislative hurdles to closing Guantánamo with ‘very vocal’ threats to veto financing for a fighter jet engine it opposes,” and added that last year the administration “stood aside as lawmakers restricted the transfer of detainees into the United States except for prosecution,” and also responded with silence just a month ago, when the House and Senate Armed Services Committees voted to block money for renovating a prison in Illinois to take the remaining prisoners in Guantánamo who have not been cleared for release.

“They are not really putting their shoulder to the wheel on this issue,” Sen. Levin concluded, adding, “It’s pretty dormant in terms of their public positions.”

“Dormant” is a good word, but something like “extinct” may be more appropriate, if, as Sen. Levin asserts, Guantánamo will still be open in January 2013. If that occurs, Guantánamo will have been open for 11 years, which doesn’t even bear thinking about. This is especially true because, as it stands now, nearly eight and half years after Guantánamo opened, the Obama administration’s refusal to take leadership on the issue, to drop its unacceptable moratorium on releasing Yemenis cleared by its own Task Force (and in some cases, like Mohammed Hassan Odaini, by the courts), and to abandon an unprincipled policy of continuing to hold men indefinitely without charge or trial demonstrates that senior officials, including the President, genuinely have no interest in bringing to an end a regime founded on torture and arbitrary detention. In most respects, their actions — or their inactivity — represent a ringing endorsement of their predecessors’ vile policies.

The “enhanced interrogation techniques” of the Bush years may have come to an end, but anyone doubting the baleful effects of long-term detention without charge or trial should recall what Christophe Girod of the International Committee of the Red Cross told the New York Times over six year and a half years ago: “The open-endedness of the situation and its impact on the mental health of the population has become a major problem.”

That was in October 2003, and I dread to think what the mental state of some of those prisoners must be by now. The very thought that, two and half years from now, some of these men might still be held because the Obama administration doesn’t care enough to do anything about it cannot be excused for reasons of political expediency. Instead, it confirms that, in failing to bring to an end key elements of the Bush administration’s program of torture and arbitrary detention, the Obama administration has lost its principles.

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 and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation. Cross-posted on Aletho News, Eurasia Review, New Left Project, Another World is Possible, United Progressives and The World Can’t Wait.

For an overview of all the habeas rulings, including links to all my articles, and to the judges’ unclassified opinions, see: Guantánamo Habeas Results: The Definitive List. Also see the archive of articles about Guantánamo and habeas corpus here. For articles about US torture, see the links following the article here, here and here, and the archive of articles here. For chronological lists of all my articles, with links, see here.

As UN Secretary-General Kofi Annan explained on June 26, 1998 (when the day was first marked), “This is a day on which we pay our respects to those who have endured the unimaginable. This is an occasion for the world to speak up against the unspeakable. It is long overdue that a day be dedicated to remembering and supporting the many victims and survivors of torture around the world.”

At the time, Kofi Annan lamented that, although over 100 States had ratified the Convention, the use of torture was “still reported” in many of those countries. Nevertheless, for the US and other supposed civilized countries, the creation of the International Day came at a time when, in general, the involvement of Western nations in torture was minimal.

The threat posed by Osama bin Laden had not yet manifested itself in the African embassy bombings of 1998, the attack on the USS Cole in 2000, and, finally, the attacks on the US mainland on September 11, 2001, which prompted the Bush administration to actively embrace torture. Within a year of the attacks, the President had secured memos purporting to redefine torture, prepared by lawyers in the Justice Department’s Office of Legal Counsel, which was supposed to provide the Executive branch with impartial legal advice.

President Clinton and “extraordinary rendition”

In retrospect, however, the Clinton administration had begun to pave the way for the torture regime that was developed in response to the 9/11 attacks by allowing — or tacitly encouraging — the CIA to become involved in a program of “extraordinary rendition” as early as 1995. Building on a long tradition of kidnapping foreign nationals and bringing them to the US to face justice (the original version of “rendition”), the “extraordinary rendition” program did away with the US courts, and allowed the CIA to kidnap terror suspects in various countries, and to dispose of them by sending them to Egypt.

The first known “extraordinary rendition” took place in September 1995, when Tal’at Fu’ad Qassim, also known as Abu Talal al-Qasimi, a purported Egyptian militant who had been living in exile in Denmark, was seized in Croatia by US forces and, reportedly, questioned aboard a US navy vessel and handed over to Egypt “in the middle of the Adriatic Sea.” He was executed in 2000.

Disturbingly, the plan to seize the next five targets of the “extraordinary rendition” program began on June 25, 1998 (the day before the first International Day in Support of Victims of Torture), when, as the Wall Street Journal explained in 2001, the Egyptian government “issued a prearranged arrest warrant” for Shawki Salama Attiya, who apparently “produce[d] fake visas and other bogus documents” for a cell of Egyptian Islamic Jihad members in Albania. That same day, Albanian police, with the co-operation of the CIA, seized Attiya. “Several days later,” the report continued, “he was taken, handcuffed and blindfolded, to [an] abandoned air base, north of Tirana,” and flown to Egypt, arriving on July 2, 1998. Over the next month, four other members of the alleged cell were kidnapped and flown to Egypt. Attiya later received a life sentence, while two others were hanged, and two others received 10-year sentences. In a bleak postscript, Egyptian Islamic Jihad (which, by this point, was intimately tied to the activities of al-Qaeda through the figure of Ayman al-Zawahiri) responded to the “extraordinary renditions” by vowing vengeance, and the bombings of the US embassies in Nairobi and Dar-es-Salaam, which killed 223 people and wounded over 4,000 others, took place on August 7, 1998.

Although President Clinton’s program, which apparently involved no more than 14 renditions, was tightly controlled and included a strict paper trail and a requirement that convictions in Egypt had already been obtained (however unreliable those convictions may have been), the program provided a ready-made template for the Bush administration.

Torture today

Twelve years after the original International Day in Support of Victims of Torture, the landscape has changed profoundly. Seizing on the “extraordinary rendition” program, the Bush administration involved other countries, including Jordan, Morocco and Syria, and established its own secret prisons in countries including Thailand, Poland, Romania and Lithuania, as well as indulging in the industrial-scale rendition of prisoners to Guantánamo. It has left in its wake malignant policies, whose effects have proven difficult to undo, not only at Guantánamo, but also at Bagram in Afghanistan.

This is in spite of the fact that, on his second day in office, President Obama issued an executive order upholding the absolute ban on torture. However, although this purported to mark a clean break with the Bush administration, its impact has been undermined by the refusal of President Obama — or of his Attorney General, Eric Holder — to order a thorough, independent investigation into the Bush administration’s torture program. This reluctance to address the crimes committed by the previous administration was signaled before Obama took office, when he explained his “belief that we need to look forward as opposed to looking backwards.”

The impact of President Obama’s torture ban has also been damaged by persistent allegations of torture in a secret prison at Bagram, and by the President’s inability to meet his self-imposed deadline of January 22, 2010 for the closure of Guantánamo, where, as critics rightly point out, the open-ended nature of detention is itself a form of abuse. Although the prisoners have had access to lawyers since 2004, and have been able to lodge habeas corpus petitions since June 2008, the underlying situation is not markedly different from how it was in October 2003, when, in a break with protocol, Christophe Girod of the International Committee of the Red Cross told the New York Times, “The open-endedness of the situation and its impact on the mental health of the population has become a major problem.”

Revelations of torture since President Obama took office

The Obama administration’s refusal to open an official investigation into its predecessor’s record has allowed admissions of torture to fester, unaddressed or cynically ignored, in almost every policy area relating to the detention of “War on Terror” prisoners. Just before Obama took office, for example, Susan Crawford, a close friend of Vice President Dick Cheney and a retired judge who served as the convening authority for the military commission trial system at Guantánamo, admitted that she had refused to press charges against Mohammed al-Qahtani, a Saudi prisoner subjected to a brutal program of “enhanced interrogation” in late 2002 and early 2003, because, as she stated bluntly in an interview with Bob Woodward, “We tortured Qahtani. His treatment met the legal definition of torture.”

Mohammed al-Qahtani was not the only prisoner at Guantánamo who was subjected to torture. According to an official who spoke to the New York Times for an article published in January 2005, as many as 1 in 6 of the prisoners held were subjected to “enhanced interrogation techniques.”

Moreover, in the last year and a half, President Obama’s inaction has been regularly challenged, in reports on the treatment in secret CIA prisons of 14 “high-value detainees” transferred to Guantánamo in September 2006, and in reports of the torture of other prisoners. These have surfaced in the District Court in Washington D.C., where judges have been delivering rulings on the prisoners’ habeas corpus petitions, and to date, have found for the prisoners in 36 out of 50 cases.

In April 2009, a confidential ICRC report on the 14 “high-value detainees,” delivered to the US government in 2007, was leaked to the New York Review of Books (PDF). The report, based on interviews with the 14 men at Guantánamo, described how they had been treated in the CIA’s secret prisons, and the men’s statements were so disturbing that the ICRC concluded:

The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture. In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel, inhuman or degrading treatment.

That same month, there was further bad news for Bush administration officials. In response to a court order, the Obama administration released four “torture memos,” written in August 2002 and May 2005 by lawyers in the Justice Department’s Office of Legal Counsel (John Yoo, Jay S. Bybee and Stephen Bradbury), which demonstrated a disturbing predilection for twisting the torture statute out of all recognizable shape in an attempt to redefine torture, so that it could be used by the CIA.

This was followed by an unclassified version of a damning 231-page Senate Armed Services Committee investigation into detainee abuse (PDF), which, although it managed to avoid the use of the word torture, nevertheless concluded that “senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.” Those held responsible included President George W. Bush, defense secretary Donald Rumsfeld, Vice President Dick Cheney’s legal counsel (and later chief of staff) David Addington, Pentagon general counsel William J. Haynes II, Gen. Richard Myers, the Chairman of the Joint Chiefs of Staff, White House general counsel (and later Attorney General) Alberto Gonzales, Guantánamo commanders Maj. Gen. Michael Dunlavey and Maj. Gen. Geoffrey Miller, and Lt. Gen. Ricardo Sanchez, the commander of coalition forces in Iraq.

Revelations of torture in the Guantánamo prisoners’ habeas petitions

In addition, other references to torture have steadily seeped out of the District Court in Washington D.C., in the judges’ rulings on the Guantánamo prisoners’ habeas corpus petitions. The first concerned Mohamed Jawad, an Afghan teenager seized after a grenade attack in Kabul in December 2002, who had been put forward for a trial by military commission under President Bush. In Jawad’s case, the government ignored the fact that Army Col. Stephen Henley, the military judge in his proposed trial by military commission, had ruled on two separate occasions in October and November 2008 that the crux of the government’s case against him — two “confessions” made on the day of his capture, the first in Afghan custody, and the second, just hours later, in US custody — were inadmissible because they had been obtained through treatment that constituted torture.

Without these confessions, the government essentially had no case, but the Justice Department persisted in pursuing his case before Judge Ellen Segal Huvelle, who granted Jawad’s habeas petition last July after repeatedly stressing that the government did not have a single reliable witness, and that the case was “lousy,” “in trouble,” “unbelievable,” and “riddled with holes.”

In September, Judge Colleen Kollar-Kotelly granted the habeas petition of Fouad al-Rabiah, a Kuwaiti prisoner, after discovering that his confessions about meeting Osama bin Laden and distributing supplies in Afghanistan’s Tora Bora mountains, during a showdown between al-Qaeda and US forces in December 2001, were completely false, and had been conjured up by al-Rabiah after he was subjected to prolonged sleep deprivation and other “enhanced interrogation techniques.”

In November, Judge Kollar-Kotelly granted the habeas petition of Farhi Saeed bin Mohammed, an Algerian, after she concluded that crucial elements of the government’s supposed evidence were unreliable, because they came from statements made by the British resident Binyam Mohamed, shortly after his arrival at Bagram in May 2004. Judge Kollar-Kotelly ruled that Mohamed’s statements were unreliable because, after he was seized in Pakistan in April 2002, he was sent by the CIA to Morocco, where he was reportedly tortured for 18 months, and was then held for another four months in the CIA’s notorious “Dark Prison” near Kabul.

To establish the unreliability of Mohamed’s evidence. Judge Kollar-Kotelly devoted much of her unclassified opinion to a harrowing analysis of his treatment, noting, in particular, that “The government does not challenge or deny the accuracy of Binyam Mohamed’s story of brutal treatment,” and reminding senior officials that the UN Convention Against Torture “requires that governments which are party to it ‘ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.’”

The month after the bin Mohammed ruling, Judge Ricardo Urbina granted the habeas petition of Saeed Hatim, a Yemeni, after crediting Hatim’s claims that, while held in the US prison at Kandahar, Afghanistan, before his transfer to Guantánamo:

he was severely mistreated, including being beaten repeatedly, being kicked in the knees and having duct tape used to hold blindfolds on his head. To this day, he cannot raise his left arm without feeling pain. The petitioner also alleges that he was threatened with rape if he did not confess to being a member of the Taliban or al-Qaeda. As a result, he claims that the inculpatory statements that he made in Kandahar were made only because of these threats. He further alleges that after being transferred to GTMO in 2002, he repeated those inculpatory statements in 2004 because he feared that he would be punished if he changed his story.

The most recent example of torture being exposed in the District Court came in February this year, when, in the case of Uthman Abdul Rahim Mohammed Uthman, a Yemeni, Judge Henry H. Kennedy Jr. granted his habeas petition, after refusing to accept the government’s central allegation — that Uthman had been a bodyguard for Osama bin Laden — because these allegations had been made by two men (Sharqwi Abdu Ali al-Hajj and Sanad Yislam Ali al-Kazimi) who were held in secret prisons before their transfer to Guantánamo, and because “there is unrebutted evidence in the record that, at the time of the interrogations at which they made the statements, both men had recently been tortured.”

The need for a thorough investigation

It should be apparent from these reports that the Obama administration will find it impossible to staunch the flow of torture stories, and, moreover, that attempts to do so will only end up destroying whatever lingering credibility the administration has regarding its purported respect for human rights. In January, the Justice Department cynically allowed a senior DoJ official, David Margolis, to override the conclusion of a four-year internal investigation into John Yoo and Jay Bybee, which had concluded that both men should face disciplinary measures for “professional misconduct,” by stating that they had only exercised “poor judgment.”

However, that same month, the United Nations issued a detailed report on secret detention, which, while cautiously endorsing the changes introduced by the Obama administration, pointedly asked what had happened to the many dozens of prisoners held in the CIA’s secret prisons, or rendered by the CIA to prisons in other countries, who had not ended up in Guantánamo. Moreover, just last week, a psychologist in Texas filed a complaint with the Texas State Board of Examiners of Psychologists regarding multiple ethical violations committed by Dr. James Mitchell, one of the architects of the Bush administration’s torture program.

With more revelations of torture expected in the District Court, President Obama would do well to reflect, on this particular day, that when Ronald Reagan signed the UN Convention Against Torture in 1988 he willingly accepted that there are “no exceptional circumstances whatsoever” justifying torture, and also accepted that all signatory countries are obliged to “ensure that all acts of torture are offenses under its criminal law” and “either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.”

In January this year, Glenn Greenwald noted that, when L. Paul Bremer, then the senior State Department official in charge of terrorism policies, described the Reagan administration’s official policy towards terrorists, he declared that “a major element of our strategy has been to delegitimize terrorists, to get society to see them for what they are — criminals — and to use democracy’s most potent tool, the rule of law against them.” Now, however, we have fallen so far from these ideals that, as Greenwald explained:

The express policies of the right-wing Ronald Reagan — “applying the rule of law to terrorists”; delegitimizing Terrorists by treating them as “criminals”; and compelling the criminal prosecution of those who authorize torture — are now considered on the Leftist fringe … In those rare cases when Obama does what Reagan’s policy demanded in all instances and what even Bush did at times — namely, trials and due process for accused Terrorists — he is attacked as being “Soft on Terror” by Democrats and Republicans alike.

On the International Day in Support of Victims of Torture, it is time for Americans who care about justice to demand that the Obama administration stops vacillating on torture, returns to Ronald Reagan’s “Leftist fringe,” and initiates a thorough investigation into the torture policies implemented by the Bush administration.

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 and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Truthout.

For an overview of all the habeas rulings, including links to all my articles, and to the judges’ unclassified opinions, see: Guantánamo Habeas Results: The Definitive List. Also see the archive of articles about Guantánamo and habeas corpus here. For articles about US torture, see the links following the article here, here and here, and the archive of articles here. For chronological lists of all my articles, with links, see here.

The actions of that official, David Margolis, were disgraceful, because bending the law out of shape in an attempt to justify the use of torture is clearly illegal, and is particularly distressing when the lawyers involved were working for the Office of Legal Counsel, the department within the Justice Department that is obliged to render impartial legal advice to the Executive branch. The report’s authors made it clear that Yoo “committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice,” and that Bybee “committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.”

However, they also indicated that Yoo and Bybee were not acting alone, as, for example, when they noted that they “found evidence” that the men “tailored their analysis to reach the result desired by the client” — in other words, former Vice President Dick Cheney, who is mentioned as putting “great pressure” on the OLC regarding three revised memos defending the use of torture, which were issued in May 2005 by Acting Assistant Attorney General Stephen Bradbury (who largely escaped censure in the report), and Cheney’s Legal Counsel, David Addington, and White House Deputy Counsel Tim Flanigan, who are mentioned in relation to the original “torture memos” of August 1, 2002. Unsurprisingly, these men were key players in what Philippe Sands (in his book Torture Team) identified as a “War Council” of lawyers who met regularly to plan and implement the legal strategies they wanted for the “War on Terror” — largely without any outside consultation — which consisted of just six men: Addington, Flanigan, Yoo, White House Counsel Alberto Gonzales, William J. Haynes II, the Pentagon’s General Counsel, and his deputy, Daniel Dell’Orto.

The complaint against Dr. James Mitchell

Last Wednesday, however, a new front in the search for accountability opened up, when Texan psychologist Jim L.H. Cox, Ph.D., assisted by Dicky Grigg, a lawyer in Austin, Texas, and Joe Margulies of Northwestern University School of Law in Chicago (who has been involved in the Guantánamo litigation since the prison opened in January 2002) filed a complaint to the Texas State Board of Examiners of Psychologists regarding another architect of the torture program, James Elmer Mitchell (PDF).

The complaint, which accuses Mitchell of numerous grave violations of his duties as a practicing psychologist, ought to be explosive, because Mitchell, along with a colleague, John “Bruce” Jessen, devised the horrendous experimental program that was used on Zubaydah, after his capture in Pakistan on March 28, 2002, and his subsequent rendition to a secret CIA facility in Thailand, which, on August 1, 2002, was ostensibly approved by John Yoo and Jay S. Bybee in their “torture memos.” Explaining Mitchell’s role in Zubaydah’s torture, the complaint stated:

[Mitchell] ordered that Zubaydah be chained to a chair for weeks on end; that he be whipped by the neck into concrete walls; that he be stuffed into a small, black box and left for hours; that he be hung naked from the ceiling; that he be kept awake for 11 consecutive days, and sprayed with cold water if he dozed. But the torture designed by Dr. Mitchell was about to pass to another level. It was time to implement the final stage of Dr. Mitchell’s program.

Abu Zubaydah lay strapped to a gurney specially designed to maximize his suffering. His feet were above his head, just as Dr. Mitchell had ordered. His hands, arms, legs, chest, and head were restrained by heavy leather straps. As Zubaydah lay helpless, Mitchell and his subordinates placed a black cloth over his face and began to pour water onto the cloth. Rivers of water ran up Zubaydah’s nose and down his throat. He could not breathe. Panic gripped him as he began to drown. And when Mitchell sensed that Zubaydah dangled on the precipice between life and death, he ordered that the board be raised. Zubaydah expelled the water in a violent, racking spasm of coughing, gurgling and gasping. But before Zubaydah could catch his breath, Dr. Mitchell repeated the experiment. Then he did it again. And again. According to the United States Government, Abu Zubaydah was waterboarded 83 times in August 2002 alone.

Mitchell’s purported expertise in interrogations came from his involvement as a psychologist in the US Air Force’s SERE program (Survival, Evasion, Resistance and Escape). Similar programs are run by the Army and the Navy, and, as the Senate Armed Services Committee explained in a damning report on the abuse of detainees, issued in December 2008 (PDF), they involve teaching US personnel “to withstand interrogation techniques considered illegal under the Geneva Conventions,” which are “based, in part, on Chinese Communist techniques used during the Korean war to elicit false confessions.” As the Committee proceeded to explain, the techniques used include “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, they also include waterboarding.

How the torture program was developed

James Mitchell retired from the SERE program in May 2001, after 13 years’ service, but, as the complaint noted, after the September 11 attacks, he “saw an opportunity to sell his independent consulting services to the CIA.” According to the CIA Inspector General’s “Special Review: Counterterrorism Detention and Interrogation Activities (September 2001 – October 2003),” another important document analyzing the perceived successes and failures of the torture program, which was issued in May 2004 but was only made publicly available (in a heavily redacted form) last August (PDF), Mitchell’s involvement in developing the program began in December 2001, when, in collaboration with a Department of Defense psychologist who also had SERE experience — John “Bruce” Jessen –  he was “tasked … to write a paper on Al-Qaeda’s resistance to interrogation techniques.”

As the New York Times explained last August, Jessen was the SERE psychologist at the Air Force SERE school in the 1980s, but when he “moved in 1988 to the top psychologist’s job at a parallel ‘graduate school’ of survival training, a short drive from the Air Force school,” Mitchell “took his place.” The two men became friends, but the Times profile noted that, although “many subordinates considered them brainy and capable leaders, some fellow psychologists were more skeptical.” Two colleagues recalled that, at an annual conference of SERE psychologists, Mitchell “offered lengthy put-downs of presentations that did not suit him,” and Jessen ran into trouble when he moved from being a supervising psychologist to a mock enemy interrogator. According to colleagues, he “became so aggressive in that role” that they “intervened to rein him in, showing him videotape of his ‘pretty scary’ performance.”

This should have been an early warning sign for Jessen of the dangers of what the Senate Armed Services Committee report identified as “behavioral drift, which if left unmonitored, could lead to abuse of students,” and which, in a real-world scenario, involving alleged threats to the national security of the United States, was even more likely to occur. However, Jessen and Mitchell failed to pay it any attention, and in December 2001, despite having no experience whatsoever of al-Qaeda or of real-life interrogations, the two men produced a paper entitled, “Recognizing and Developing Countermeasures to Al-Qaeda Resistance to Interrogation Techniques: A Resistance Training Perspective,” which clearly met with approval. As the CIA IG report continued, “Subsequently, the two psychologists developed a list of new and more aggressive EITs [“enhanced interrogation techniques”] that they recommended for use in interrogations.”

The techniques recommended by Mitchell and Jessen included slamming prisoners into walls, cramped confinement, the prolonged use of painful stress positions, sleep deprivation for up to 11 days at a time, and waterboarding, and, as the New York Times explained last August, by early 2002, Mitchell was consulting with the CIA’s Counterterrorist Center, where director Cofer Black, and chief operating officer Jose A. Rodriguez Jr. were “impressed by his combination of visceral toughness and psychological jargon.” One witness said Mitchell “gave the CIA officials what they wanted to hear,” and by the end of March, when Abu Zubaydah was seized, “the Mitchell-Jessen interrogation plan was ready.”

This was in spite of numerous criticisms identified in the complaint filed last week, and in the Senate Armed Services Committee report. One of Mitchell and Jessen’s most prominent critics is Air Force Colonel Steve Kleinman, described in the complaint as “a former colleague at SERE who was also a career military interrogator with training in intelligence.” Col Kleinman stated that:

[W]hen Dr. Mitchell and Dr. Jessen became involved in CIA interrogations, “that was their first step into the world of intelligence … Everything else was role-play.” “What [Dr. Mitchell and Dr. Jessen] failed to understand was they were stepping out of their area of expertise,” yet they nonetheless promoted themselves as offensive interrogation experts despite the “disconnect between the SERE model, a resistance model, and an actual interrogation for intelligence purposes.”

Col. Kleinman has also stated, “I think they have caused more harm to American national security than they’ll ever understand,” and other high-level criticism has come from Michael Rolince, the former section chief of the FBI’s International Terrorism Operations, who described the methods employed by Mitchell and Jessen as “voodoo science.”

The importance of the timing of Mitchell’s involvement

The exact timing of Mitchell and Jessen’s involvement in developing the program is crucial, although it is not addressed in the complaint, because it is clear from the Senate Armed Services Committee report into detainee abuse that, in December 2001, William J. Haynes II, the Pentagon’s General Counsel (and a protégé of Vice President Dick Cheney), had begun soliciting advice from the Joint Personnel Recovery Agency (the DoD agency responsible for the SERE program). As the New York Times reported last August, that same month Mitchell’s involvement seems to have begun when he was invited as a member of “a small group of professors and law enforcement and intelligence officers,” including CIA psychologist Kirk M. Hubbard, who “gathered outside Philadelphia at the home of a prominent psychologist, Martin E. P. Seligman, to brainstorm about Muslim extremism.” As the Times also explained, to the later horror of Seligman, who had pioneered the notion of “learned helplessness” — whereby animals were taught through mistreatment that resistance was futile — Mitchell told him how much he admired his work, which, of course, fed directly into his plans for terrorist suspects captured in the “War on Terror.”

The timing is central, because it is necessary to understand that Mitchell and Jessen — though fired up by their own enthusiasm for reverse engineering SERE techniques — were not acting alone, and were, in effect, exactly the kind of individuals that Haynes, other members of the “War Council” and Cheney were already looking for.

I stress this point because, otherwise, the impression given by the complaint filed last week may be that Mitchell and Jessen acted independently, when, like the lawyers in the Office of Legal Counsel, they were clearly part of a program that was endorsed at the highest levels of the administration.

Mitchell’s numerous ethical violations

Nevertheless, in dealing specifically with James Mitchell’s role as one of the two key architects of the torture program, the complaint filed last week is devastating. As the authors of the complaint explained, “Dr. Mitchell has sullied his profession by violating the standards demanded by the Psychologists’ Licensing Act and the Board’s Rules of Practice,” specifically because he “misrepresented his professional qualifications and experience to the Central Intelligence Agency” in order to “achieve his ultimate plan of implementing a brutal interrogation and torture regime”; because he “designed this torture regime only by ignoring the complete lack of a scientific basis for the regime’s safety and — assuming its safety — its effectiveness”; and, “most ominously,” because he “himself tortured prisoners held in US custody and directly supervised others who engaged in torture at his direction.”

The complaint is worth reading in its entirety, partly because of its detailed explanations of Mitchell’s unprofessional activities, as, for example, when the authors note that, “At no time prior to implementing these programs did Dr. Mitchell conduct experiments, publish research about offensive interrogation techniques, or subject his theories to peer-review in a publicly-available forum,” and that his “failure to verify his interrogation regime using scientifically sound, empirical methods therefore constitutes direct violations of the Board’s Rule of Practice requiring licensees to rely on scientifically and professionally derived knowledge when making professional judgments and the Rule requiring licensees to take reasonable steps to ensure the safety of others involved in emerging fields of study.”

Why this story is bigger than Dr. James Mitchell

Moreover, the complaint also covers extensively what was actually involved in the torture of Abu Zubaydah, beyond the short summary at the start of this article, and leaves some tantalizing unanswered questions regarding the involvement of the CIA in developing the program. According to the CIA Inspector General’s 2004 report, the CIA’s Office of Medical Services (OMS) “was neither consulted nor involved in the initial analysis of the risk and benefits of EITs,” and claimed that “the reported sophistication of the preliminary EIT review was exaggerated, at least as it related to the waterboard, and that the power of this EIT was appreciably overstated.” The OMS also stated that “there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators [Mitchell and Jessen] was either efficacious or medically safe.”

This sounds plausible, but it could indicate an explicit attempt by the CIA — or the OMS, at least — to distance itself from the program as early as 2004, given that the Inspector General concluded the report by stating, “The Agency faces potentially serious long-term political and legal challenges as a result of the CTC [Counterterrorism Center] Detention and Interrogation Program, particularly its use of EITs and the inability of the US Government to decide what it will ultimately do with terrorists detained by the Agency.”

In 2004, when Abu Zubaydah and 27 other supposed “high-value detainees” were held in secret CIA prisons, that last concern must have weighed heavily. It is no less significant now, even though 14 of the men in question, including Zubaydah, are now held in Guantánamo, and this is not only because the whereabouts of 13 others are unknown (and one, Ibn al-Shaykh al-Libi, died in mysterious circumstances last May, having been returned to Libya), but also because the Obama administration has no idea what to do with Abu Zubaydah, the “guinea pig” for the torture program, who, after his horrendous treatment, was revealed not as a significant al-Qaeda leader, but as a mentally-damaged training camp facilitator, whose relationship with al-Qaeda was, at most, minimal.

When it comes to passing the buck for implementing torture, however, the CIA is also on shaky ground. In the complaint filed last week, James Mitchell was rightly targeted for his deeply disturbing role as a psychologist who spurned his professional obligations when, as the authors state bluntly, he “tortured prisoners in US custody,” but as is clear from the complaint and from other reports mentioned above, those involved in the program included senior CIA officials — director George Tenet, CTC director Cofer Black, and CTC chief operating officer Jose A. Rodriguez Jr. — as well as former Vice President Dick Cheney and the members of his “War Council” — David Addington, Alberto Gonzales, Tim Flanigan, John Yoo, William J. Haynes II and Daniel Dell’Orto — and other senior administration officials identified in the Senate Armed Services Committee’s report into detainee abuse, including former President George W. Bush and former defense secretary Donald Rumsfeld.

If there is to be any accountability for those who played a part in the introduction of a widespread US torture program whose brutal inefficiency both started with and was demonstrated through the torture of Abu Zubaydah, the compliant filed last week against James Mitchell ought to revive demands for a thorough investigation. To paraphrase President Obama, an investigation would need to look backwards so that America can look forward again without having to hide the dark truth about torture that continues to infect the way America views itself, and the way it is perceived by other countries — and the only way to do that is to hold the Bush administration’s torturers to account.

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 and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners. Cross-posted on Common Dreams, Eurasia Review, The Public Record, The Smirking Chimp, Uruknet and The Mormon Worker.

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, 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), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA) (all May 2009) and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), UK Judges Compare Binyam Mohamed’s Torture To That Of Abu Zubaydah (November 2009), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Binyam Mohamed: Evidence of Torture by US Agents Revealed in UK (February 2010), Torture Whitewash: How “Professional Misconduct” Became “Poor Judgment” in the OPR Report (February 2010), Judges Restore Damning Passage on MI5 to the Binyam Mohamed Torture Ruling (February 2010), What Torture Is, and Why It’s Illegal and Not “Poor Judgment” (March 2010), Abu Zubaydah’s Torture Diary (March 2010), Seven Years of War in Iraq: Still Based on Cheney’s Torture and Lies (March 2010), Protests worldwide on Aafia Siddiqui Day, Sunday March 28, 2010 (March 2010), Abu Zubaydah: Tortured for Nothing (April 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), How Binyam Mohammed’s Torture Was Revealed in a US Court (May 2010), What is Obama Doing at Bagram? (Part One): Torture and the “Black Prison” (June 2010), New Report Reveals How Bush Torture Program Involved Human Experimentation (June 2010), UN Human Rights Council Discusses Secret Detention Report (June 2010), UN Secret Detention Report (Part One): The CIA’s “High-Value Detainee” Program and Secret Prisons (June 2010), UN Secret Detention Report (Part Two): CIA Prisons in Afghanistan and Iraq (June 2010), UN Secret Detention Report (Part Three): Proxy Detention, Other Countries’ Complicity, and Obama’s Record (June 2010). Also see the extensive archive of articles about the Military Commissions.

The report largely focuses on two memos dated August 1, 2002, and a third dated March 14, 2003. Widely known as the “torture memos,” these notorious documents sought to redefine torture so that it could be used by the CIA (and by the US military in the March 2003 memo), and the report concludes that the primary author of the memos, John Yoo, an OLC lawyer who is now a law professor at Boalt Hall, the University of California’s School of Law in Berkeley, and the senior official who signed the August 2002 memos, Assistant Attorney General Jay S. Bybee, who is now a judge in the Ninth Circuit Court of Appeals, were guilty of “professional misconduct.”

As the report explained, in no uncertain terms:

Based on the results of our investigation, we concluded that former Deputy AAG John Yoo committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.

We found that AAG Jay Bybee committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.

A footnote added, “Pursuant to Department policy, we will notify bar counsel in the States where Yoo & Bybee are licensed” — with the clear sub-text that these notifications would almost certainly lead to both men being disbarred, and that Bybee might find himself impeached. These actions might then have led to the possibility of prosecutions taking place for those who engineered America’s emergence, in the summer of 2002, as a nation that officially sanctioned the use of torture.

Unfortunately, as Newsweek reported three weeks ago, the devastating conclusions of the report — which took four years to complete — were swept aside by Associate Deputy Attorney General David Margolis, who downgraded the report’s conclusions. In a 69-page memo to Attorney General Eric Holder, dated January 5, 2010 (PDF), Margolis, a career official who has worked at the DoJ for 17 years and has a history of shielding officials from allegations of misconduct, asserted that Yoo and Bybee had only shown “poor judgment.” As a result, two slaps on the wrist are all that have emerged from an investigation into one of the darkest periods of modern American history.

This, of course, is disgraceful. One of the techniques approved by Yoo and Bybee was waterboarding, a form of controlled drowning that was referred to by the torturers of the Spanish Inquisition as “tortura del agua.” Even more significantly, both Barack Obama and Attorney General Eric Holder are on record as stating that waterboarding is torture. As I explained in an article last March:

In an interview with ABC News on January 11, [2009,] President-Elect Obama responded to a recent CBS interview with Dick Cheney, in which the then-Vice President had sounded his usual alarms abut the need for “extraordinary” policies to deal with terror suspects, by stating, “Vice President Cheney I think continues to defend what he calls extraordinary measures or procedures and from my view waterboarding is torture. I have said that under my administration we will not torture.”

Two days later, at his confirmation hearing, Eric Holder reinforced Obama’s opinion. Noting, as the New York Times described it, that waterboarding had been used to torment prisoners during the Inquisition, by the Japanese in World War II and in Cambodia under the Khmer Rouge, and adding, “We prosecuted our own soldiers for using it in Vietnam,” he stated unequivocally, “Waterboarding is torture,” and reiterated his opinion [on March 2, 2009], in a speech to the Jewish Council of Public Affairs in Washington. “Waterboarding is torture,” he said again, adding, “My Justice Department will not justify it, will not rationalize it and will not condone it.”

As a result of Margolis’ intervention, however, it now appears that, although torture was clearly authorized, no one is to be held accountable.

Moreover, although Margolis tried to claim in his memo that it was important to remember that Yoo and Bybee were working to prevent another major terrorist attack, which led him to claim, “Among the difficulties in assessing these memos now over seven years after their issuance is that the context is lost,” this is a pitiful argument. OPR lawyers are obliged to provide objective legal advice to the Executive branch on all constitutional questions, and, as OPR head Mary Patrice Brown explained in an earlier version of the report, “Situations of great stress, danger and fear do not relieve department attorneys of their duty to provide thorough, objective and candid legal advice, even if that advice is not what the client wants to hear.”

Even more significant is Mary Patrice Brown’s reference to “the client.” Although George W. Bush evades scrutiny in the report, former Vice President Dick Cheney is mentioned as putting “great pressure” on the OLC regarding revised memos issued in May 2005, and consultations with Cheney’s Legal Counsel, David Addington, and White House Deputy Counsel Tim Flanigan are mentioned in 2002. It is surely in the context of this relationship between the OLC and the White House that the report’s authors stated, damningly, “We also found evidence that the authors of the Bybee Memo and the Yoo Memo tailored their analysis to reach the result desired by the client.”

Anyone with any doubts regarding how closely Yoo worked with the White House should read Philippe Sands’ book Torture Team, which establishes that, following the 9/11 attacks, a “War Council” of lawyers met regularly to plan and implement the legal strategies they wanted for the “War on Terror” — largely without any outside consultation — and that this “War Council” consisted of just six men: Addington, White House Counsel Alberto Gonzales, Flanigan, Yoo, William J. Haynes II, the Pentagon’s General Counsel, and his deputy, Daniel Dell’Orto.

The report’s authors added that, “In many instances the authors [of the memos] exaggerated or misstated the significance of cited legal authority, failed to acknowledge or fairly present adverse authority, took inconsistent approaches to favor the desired result, and advanced convoluted or frivolous arguments.” They had no hesitation in concluding, as a result, that, when it came to tailoring their advice to a preordained outcome — rather than providing objective advice — Yoo and Bybee “violated their duty” under the OLC’s rules, “to provide a straightforward, candid and realistic assessment of the law.”

This was not all. Elsewhere in the report, the authors also expanded on the “numerous failures of scholarship and analysis,” which resulted in violations of the OLC’s rules. “While it may be that no single one of those failures, considered in isolation, would compel a finding of less than competent representation,” they wrote, “we concluded that the many instances of unsupported arguments, incomplete analysis, failure to discuss adverse authority, and mischaracterization of precedent compelled the conclusion that the authors of the Bybee Memo and the Yoo Memo failed to meet their obligations [under the OLC’s rules] and thus committed misconduct.”

Furthermore, the authors of the report also drew on damning criticisms made by Michael Mukasey, the Attorney General from November 2007 until Bush left office, and by other senior OLC officials, after Yoo and Bybee had left the department: in particular, Jack Goldsmith, the Assistant Attorney General from 2003 to 2004, who attracted the wrath of the White House by ordering the “torture memos” to be withdrawn; Daniel Levin, who served as Acting AAG from 2004 to 2005; and even Stephen Bradbury, the Acting AAG from 2005 to 2007 (and the senior appointed official overseeing the OLC until Bush left office), who managed to escape censure for his own role in the torture program, as the author of three vile memos endorsing “enhanced interrogation” in May 2005. As the authors explained, “Mukasey acknowledged that the Bybee Memo was ‘a slovenly mistake,’ even though he urged us not to find misconduct.” They also stated:

Our view that the memoranda were seriously deficient was consistent with the comments made by some of the former Department officials we interviewed, even though those individuals would not necessarily agree with some of our findings in this matter. Levin stated that when he first read the Bybee Memo, “[I had] the same reaction I think everybody who reads it has — ‘this is insane, who wrote this?’” Jack Goldsmith found that the memoranda were “riddled with error,” concluded that the key portions were “plainly wrong,” and characterized them as a “one-sided effort to eliminate any hurdles posed by the torture law.” Bradbury told us that Yoo did not adequately consider counter arguments in writing the memoranda and that “somebody should have exercised some adult leadership” with respect to Yoo’s section on the Commander-in-Chief powers [a section in which Yoo claimed that the President, as Commander-in-Chief, could override the federal law banning torture].

So what happens next? Both the New York Times and the Washington Post tried to claim at the weekend that the publication of the report spells the end of attempts to hold to account senior Bush administration officials and lawyers who turned American into a “Torture Nation.” The Post called it “the end of a 5-year internal battle” at the Justice Department, and the Times claimed that it “brings to a close a pivotal chapter in the debate over the legal limits of the Bush administration’s fight against terrorism and whether its treatment of Qaeda prisoners amounted to torture.”

This is nonsense, however. Margolis’ intervention may shield Yoo and Bybee in the short term, but he was unable to quash the report’s devastating findings, and it is clear that the DoJ will now find itself under close scrutiny. As soon as the report was issued, Rep. John Conyers (D-Mich.), the Chair of the House Judiciary Committee, who made the documents publicly available as soon as they were provided to him by the DoJ, stated:

For years, Bush administration officials who approved torture and abuse of detainees have hidden behind legal memos issued by the Department of Justice’s Office of Legal Counsel. Today’s report makes plain that those memos were legally flawed and fundamentally unsound. Even worse, it reveals that the memos were not the independent product of the Department of Justice, but were shaped by top officials of the Bush White House. It is nothing short of a travesty that prisoners in US custody were abused and mistreated based on legal work as shoddy as this. It is a blight on our national honor.

The Office of Legal Counsel has a proud tradition of providing independent, high-quality legal advice to the executive branch. Today’s report makes clear that the lawyers who wrote the torture memos did not live up that tradition, and dishonored their office and the entire Department of Justice. While the report concludes that the lawyers did not breach their minimum professional obligations, I certainly hold top lawyers at OLC to a higher standard than that, as all Americans should.

Conyers promised to hold hearings in the near future, but was beaten to it by Sen. Patrick Leahy (D-Vt.), of the Senate Judiciary Committee, who set a date for hearings on Friday (February 26). In a statement, Sen. Leahy explained:

The report from the Office of Professional Responsibility is a condemnation of the legal memoranda drafted by key architects of the Bush administration’s legal policy, including Jay Bybee and John Yoo, on the treatment of detainees. The deeply flawed legal opinions proffered by these former OLC officials created a “golden shield” that sought to protect from scrutiny and prosecution the Bush administration’s torture of detainees in US custody. In drafting and signing these unsound legal analyses, OLC attorneys sanctioned torture, contrary to our domestic anti-torture laws, our international treaty obligations and the fundamental values of this country.

I have serious concerns about the role each of these government lawyers played in the development of these policies. I have said before that if the Judiciary Committee, and the Senate, knew of Judge Bybee’s role in creating these policies, he would have never been confirmed to a lifetime appointment to the federal bench. The right thing to do would be for him to resign from this lifetime appointment.

As a United States Senator, as a former prosecutor, and as an American citizen, I am offended by the premeditated approach taken by former high-ranking officials in the Office of Legal Counsel in constructing the legal underpinnings of seriously flawed national security policies.

Clearly, then, we have not yet heard the end of this story, and unless the United States is to become a country in which torture was authorized, but no one was actually responsible, this is as it should be. It may take years, but those who authorized torture must be held accountable, and claims that cynical lawyers like John Yoo were responsible only for exercising “poor judgment” cannot be allowed to overrule the OPR Report’s far more damaging conclusions.

Note: As well as releasing the final report, “Investigation Into The Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of ‘Enhanced Interrogation Techniques’ on Terrorist Suspects,” dated July 23, 2009, and Margolis’ memo, the DoJ also released two earlier versions of the report, the first dated December 22, 2008 (PDF) and the second dated March 4, 2009 (PDF), as well as John Yoo’s responses to the second report (PDF) and the final report (PDF), and Jay Bybee’s responses to the second report (PDF) and the final report (PDF).

(‘’)

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 I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

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, 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), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA) (all May 2009) and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), UK Judges Compare Binyam Mohamed’s Torture To That Of Abu Zubaydah (November 2009), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Binyam Mohamed: Evidence of Torture by US Agents Revealed in UK (February 2010). 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), When Torture Kills: Ten Murders In US Prisons In Afghanistan (July 2009), US Torture Under Scrutiny In British Courts (July 2009), What The British Government Knew About The Torture Of Binyam Mohamed (August 2009), Torture in Bagram and Guantánamo: The Declaration of Ahmed al-Darbi (September 2009), UK Judges Order Release Of Details About The Torture Of Binyam Mohamed By US Agents (October 2009), “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition (December 2009), Dark Revelations in the Bagram Prisoner List (January 2010), 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), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), Torture In Guantánamo: The Force-feeding Of Hunger Strikers (June 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Torture And Futility: Is This The End Of The Military Commissions At Guantánamo? (September 2009), A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions (Fouad al-Rabiah, September 2009), UK Court Orders Release Of Torture Evidence In The Case Of Shaker Aamer, The Last British Resident In Guantánamo (December 2009), Shaker Aamer: UK Government Drops Opposition To Release Of Torture Evidence (December 2009), Afghan Nobody Faces Trial by Military Commission (January 2010), Murders at Guantánamo: Scott Horton of Harper’s Exposes the Truth about the 2006 “Suicides” (January 2010), Two Algerian Torture Victims Are Freed from Guantánamo (January 2010), and the extensive archive of articles about the Military Commissions.

In a letter dated November 20, Daniel P. Mulhollan, the director of CRS, told Col. Davis that he had not shown “awareness that your poor judgment could do serious harm to the trust and confidence Congress reposes in CRS,” and notified him that he would not be kept on after his one-year probationary period at CRS ends on December 21.

The ACLU immediately stepped in, sending a letter on Friday to Dr. Jim Billington, the Librarian of Congress, arguing that “CRS violated the First Amendment when it fired Davis for speaking as a private citizen about matters having nothing to do with his job there, and that CRS must reinstate Davis to his position in order to avoid litigation.”

Aden Fine, staff attorney with the ACLU First Amendment Working Group, said, “The First Amendment protects Col. Davis’s right to speak and write as a private citizen about issues on which he has personal knowledge. Col. Davis didn’t give up his right to express his opinions and first-hand knowledge about a matter of such public importance when he left the military commissions system and went to work at CRS.”

In correspondence over the weekend, Col. Davis reinforced the ACLU’s views, explaining:

I am the head of the Foreign Affairs, Defense, and Trade Division at the Congressional Research Service (one of five CRS research divisions) at the Library of Congress.  My division does not now nor has it ever had responsibility for providing Congress with advice on military commissions; that responsibility resides with the American Law Division … The Library of Congress has a regulation on outside activities for staff and it “encourages” outside writing and speaking on topics outside the staff member’s area of responsibility and the Congressional Research Service has a similar policy … In short, it was clear that I was prohibited from expressing my opinions publicly on matters within my area of responsibility, but I believe I retained the same right as all citizens to express opinions on matter outside the scope of my official duties.

He added:

The First Amendment guarantees the right of free speech and the Supreme Court has long recognized that public employment does not override that right (although regulation of speech is permissible when related to an employee’s official duty … and as noted, I have absolutely no official duty connected to military commissions). It is ironic that our offices are located in the James Madison Building, which is named for the “Father of the Constitution” and the primary architect of the Bill of Rights who led the effort to secure the right of free speech. I suspect Mr. Madison would be surprised to learn that the right he cherished is denied those working in the building that bears his name.

Morris Davis and the ACLU are right, of course, and I hope that Davis is reinstated. Even aside from the fact that he should be entitled to express his personal opinions under his First Amendment rights, it is difficult to see how his published comments could possibly be construed as demonstrating “poor judgment” that “could do serious harm to the trust and confidence Congress reposes in CRS.”

In his Wall Street Journal article on November 10, for example, Col. Davis stated only that the administration’s decision to try some prisoners in federal court and others in Military Commissions was “a mistake.” As he explained, “It will establish a dangerous legal double standard that gives some detainees superior rights and protections, and relegates others to the inferior rights and protections of military commissions. This will only perpetuate the perception that Guantánamo and justice are mutually exclusive.”

And in his letter to the Washington Post, he chided former AG Mukasey for claiming that the decision to try prisoners in federal courts “comes down to a choice between protecting the American people and showcasing American justice,” and also for implying that the Commissions were “essential to keep detainees from returning to terrorism.” As he added, “The Geneva Conventions permit detaining the enemy during armed conflicts to prevent them from causing future harm. Criminal trials punish past misconduct. Suggesting that the choice is either criminal prosecution or freedom is false.”

Ironically (given his subsequent treatment), Col. Davis’s comments about the Commissions were actually rather constructive, as he pointed out that the administration “could legitimately choose to prosecute detainees in either forum — federal courts or military commissions — and satisfy its legal obligations,” noting only that “The problem is trying to have it both ways.” He also explained, “It is not as if double-standard justice is required to keep suspected terrorists off our streets. Those detainees who cannot be prosecuted can still be detained under rules the administration approves — likely in the next several months — for the indefinite detention of those who pose a threat to us during this ongoing armed conflict.”

Jut as ironic is the fact that Davis’s dismissal follows nearly a year at CRS in which he has, in fact, been the soul of discretion regarding his former role as the Chief Prosecutor of the Commissions, the politicization that drove him to resign, and the comments he made in February 2008 that led to the immediate resignation of William J. Haynes II, the Pentagon’s Legal Counsel, even though countless journalists (myself included) would dearly love to talk to him about these matters.

Arguably, no one knew more — or, at least, felt more keenly — the politicization of the Commission process in 2007, after the system was revived by Congress in the fall of 2006 (following a Supreme Court ruling in June 2006, which found that it violated both the Geneva Conventions and the Uniform Code of Military Justice).

Detailed accounts of Davis’ resignation — and his subsequent explanations of his reasons for doing so, which strike at the heart of the Bush administration’s torture regime, and its attempts to prosecute the victims of torture over Davis’s objections — can be found, in particular, in my article, “The Dark Heart of the Guantánamo Trials,” but to conclude this account with a concise explanation, it is worth noting the following passages taken from that article:

[I]n a blistering op-ed in the Los Angeles Times, two months after his resignation, Col. Davis stated, “I was the chief prosecutor for the military commissions at Guantánamo Bay, Cuba, until Oct. 4, the day I concluded that full, fair and open trials were not possible under the current system. I resigned on that day because I felt that the system had become deeply politicized and that I could no longer do my job effectively or responsibly.”

[Col. Davis] explained that the particular trigger for his decision was [a] memo … informing him that he had been placed in a chain of command under Haynes. Stating that he resigned “a few hours after” being informed of this, he mentioned that “Haynes was a controversial nominee for a lifetime appointment to the US 4th Circuit Court of Appeals, but his nomination died in January 2007, in part because of his role in authorizing the use of the aggressive interrogation techniques some call torture.” He added, “I had instructed the prosecutors in September 2005 [shortly after taking the job] that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned.”

In February 2008, Col. Davis told Ross Tuttle of the Nation about a conversation he had with Haynes in August 2005:

“[Haynes] said these trials will be the Nuremberg of our time,” recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.

“I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Davis continued. “At which point, [Haynes's] eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions.’”

This, I’m sure you’ll agree, is far more explosive than Col. Davis’s op-ed and letter regarding the Military Commissions, but even had he chosen to talk about these matters, he should have been free to do so. The fact that he has not is a loss for those of us who wish to see the Bush administration held accountable for its crimes (and who are keen to follow the chain of command from Haynes, via Susan Crawford, the Commissions’ Convening Authority, to Dick Cheney and David Addington), but it also provides another demonstration that, when it came to exercising his freedom of speech whilst employed by the CRS, Col. Davis had no intention of demonstrating “poor judgment” at all.

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 I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

As published on the Huffington Post. Cross-posted on Common Dreams, The Public Record and Campaign for Liberty.

See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).

And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Predictable Chaos As Guantánamo Trials Resume (July 2009), David Frakt: Military Commissions “A Catastrophic Failure” (August 2009),
9/11 Trial At Guantánamo Delayed Again: Can We Have Federal Court Trials Now, Please? (September 2009), Torture And Futility: Is This The End Of The Military Commissions At Guantánamo? (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Military Commissions Revived: Don’t Do It, Mr. President! (November 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), Rep. Jerrold Nadler and David Frakt on Obama’s Three-Tier Justice System For Guantánamo (November 2009), Guantánamo: Idealists Leave Obama’s Sinking Ship (November 2009).

Yesterday, US District Court Judge Colleen Kollar-Kotelly struck another decisive blow to the credibility of the Bush administration’s detention policies at Guantánamo (and the continuation of those same policies by Obama’s Justice Department), granting the habeas corpus petition of the Kuwaiti prisoner Fouad al-Rabia, a 50-year old aeronautical engineer and a father of four, who had been accused of fundraising for Osama bin Laden and running a supply depot for al-Qaeda in Afghanistan’s Tora Bora mountains. Announcing her ruling, Judge Kollar-Kotelly ordered the US government “to take all necessary and appropriate diplomatic steps” to arrange his release “forthwith.”

Why the courts are more qualified than the government to appraise the Guantánamo cases

The ruling brings to 30 the number of habeas petitions granted in the wake of the Supreme Court’s ruling, in June 2008, that the Guantánamo prisoners have constitutionally guaranteed habeas rights. Just seven petitions have been refused (a success rate for the prisoners of 81 percent), and as the government dithers about what to do with the remaining 225 prisoners, these statistics confirm yet again — as I have been arguing since President Obama took office — that the courts and the prisoners’ lawyers, with their long history of dealing with the cases, are better qualified than the government to understand the extent to which those held at Guantánamo were, for the most part, subjected to extremely dubious post-capture intelligence-gathering, based primarily on the “confessions” of other prisoners, or of the prisoners themselves, in situations where coercion or bribery were prevalent.

Just two days ago, the New York Times revealed that the government’s interagency Guantánamo Task Force, established on Obama’s second day in office to work out whether to charge or release the prisoners, was struggling with the kind of decisions that the courts are already making, and which they will continue to make, as ordered by the Supreme Court. The Times explained that “About 80 detainees have been approved for resettlement in other countries,” and that “About 40 other detainees, including the Sept. 11 defendants, have been referred for prosecution in either a military or civilian criminal court,” but that “The cases of more than 100 of the remaining detainees are undergoing a second review by the prosecution teams, who so far have been unable to reach a consensus about whether these prisoners should be transferred to other countries or prosecuted.”

The story of Fouad al-Rabia, which I explain below, ought to demonstrate to the government that much of its caution is misplaced, and that the same applies to its optimism. Al-Rabia was very probably one of the 40 or so prisoners scheduled to face a trial, and, in addition, the allegations against him were regarded as more serious by the government than those against many — if not the majority — of the 110 or so prisoners who are facing a second government review.

The supposed case against Fouad al-Rabia

In the fantasy world of the “War on Terror,” anyone who met Osama bin Laden was a terrorist fundraiser, and anyone who passed through the Tora Bora mountains to escape the war in Afghanistan in December 2001 was a member of al-Qaeda and/or the Taliban, who had been involved in the inconclusive “final showdown” between al-Qaeda and the US.

There were reasons to doubt both allegations, because thousands of people had met bin Laden innocently (briefly introduced to him at religious gatherings or business meetings), and also because thousands of people — civilians as well as soldiers — had fled Afghanistan for Pakistan via the city of Jalalabad at the time of “the battle of Tora Bora.”

In addition, because Osama bin Laden (as well as other senior al-Qaeda figures, and a number of senior Taliban officials who had supported him) had safely escaped from Tora Bora, it was also worth considering that the majority of those who were captured were either civilians, caught up in the chaos, or simple foot soldiers who had been too slow or insignificant to have had an opportunity to escape. Most of the “martyrs” — those who stayed to fight to the death — had achieved their aim, as their corpses littered the mountains after the battle reached its anti-climactic end in mid-December.

For Fouad al-Rabia, sold to US forces by Afghan soldiers who had, in turn, bought him off members of the US-backed Northern Alliance (the Taliban’s opponents), his long years at Guantánamo, and the relentless interrogations to which he was subjected, led inexorably to both sets of allegations being leveled against him.

In November 2008, al-Rabia was put forward for a trial by Military Commission (the “terror trials” introduced by Dick Cheney in November 2001, and revived by Congress in 2006, after the Supreme Court ruled them illegal) and was charged with conspiracy and providing material support for terrorism. The government alleged that he had worked as a fundraiser for Osama bin Laden in Kuwait and had traveled to Afghanistan on several occasions between June and December 2001 “for the purpose of meeting with bin Laden,” and also alleged that he had been “in charge of an al-Qaeda supply depot at Tora Bora,” where he “distributed supplies to al-Qaeda fighters.”

As I explained at the time (in a version of the story that I described in greater detail in my book The Guantánamo Files):

The problem with this story is that al-Rabia has not denied meeting bin Laden or being present at Tora Bora, but has, over the years, provided detailed explanations of how both events were entirely innocent. As a good Muslim, he took time out every year to visit those less fortunate than himself and provide humanitarian aid. In 2001, his attention was drawn to Afghanistan, and when he visited in June he met various Taliban officials and was also introduced to Osama bin Laden, who, he said, explained that his mission was to force US troops to leave the Arabian Peninsula. He said that he was shocked that, when he pointed out that this might allow Saddam Hussein to invade Kuwait again, “Bin Laden said no problem. Let Saddam come in and then something would happen and control would come back.”

Al-Rabia said that he then returned to Kuwait and gained approval for a humanitarian mission from the Kuwaiti Joint Relief Council, but explained that his return to Afghanistan coincided with the start of the US-led invasion in October 2001. Trapped, like many others, he traveled from city to city in search of an escape route, and eventually … ended up in Jalalabad and joined the exodus into the mountains. Because of his age and experience, he said he was compelled by a senior figure in al-Qaeda to look after the “issue counter,” where supplies — food and blankets, rather than weapons — were being handed out.

Overweight and suffering from a variety of ailments, al-Rabia said that he was finally allowed to leave the mountains, traveling with a Palestinian, Mahrar al-Quwari, who is also held at Guantánamo [but was approved for release by a military review board under the Bush administration]. He added, however, that, after staying with an Afghan family for a week, they were betrayed to the Northern Alliance. The US allies then sold them to other Afghans, who imprisoned them in Kabul before turning them over to US forces.

As I also explained, it struck me as highly unlikely that al-Rabia would have been shepherded off the mountains and ultimately betrayed, had he really been associated with al-Qaeda, but in court his lawyers provided an explanation of his experiences in Tora Bora that was even more damning for the government. As Carol Rosenberg described it in the Miami Herald, his lawyers argued at a four-day hearing last month that “the US military had worn Rabia down through relentless and abusive interrogation to the point where he falsely confessed that he ran a supply depot in the Battle of Tora Bora in Afghanistan in December 2001.”

Rosenberg also explained that one of his lawyers, David Cynamon, argued that US interrogators had “learned of Rabia’s Arabic honorific, Abu Abdullah al-Kuwaiti, and confused him with another Kuwaiti who had the same nickname.” Cynamon explained that a man with that particular nickname (literally, the Kuwaiti who is the father of Abdullah) “did handle logistics and supplies” at Tora Bora, but was killed by US bombing. Speaking to the Miami Herald on Thursday, Cynamon added, “The government’s so-called case against Mr. al Rabia was based almost entirely on false ‘confessions’ wrung out of him by months of clearly improper and abusive interrogation techniques taken right from the playbook of the North Koreans and Chinese Communists. Our government should be ashamed of itself — first for using such tactics, then for defending them in court. This is why the writ of habeas corpus matters.”

Following Judge Kollar-Kotelly’s ruling, the Justice Department provided no comment, and did not indicate whether it will appeal the decision, but I sincerely hope that the government follows the judge’s advice and repatriates al-Rabia — and another Kuwaiti, Khalid al-Mutairi, whose habeas petition was granted in July — as swiftly as possible, as he has clearly suffered more than enough.

The abuse of Fouad al-Rabia in Guantánamo

The judge’s full opinion has not yet been made available, but Carol Rosenberg explained that the government’s case had relied on the fact that “military-intelligence agents had accurately concluded that Rabia was at Tora Bora,” and that it had also attempted to make inferences about the supposed threat he posed by noting that, as a younger man, he had “obtained a master’s degree from the Daytona Beach campus of Embry Riddle Aeronautical University.” To me, it sounds innocuous enough that an aeronautical engineer should have studied in the States, but in Guantánamo, anyone who had spent time in the US was regarded as a potential member of a sleeper cell, and, as a result, al-Rabia was subjected to brutal treatment.

Three British men released in March 2004 — the so-called “Tipton Three,” whose story was dramatized in the film “The Road To Guantánamo” — explained that al-Rabia, like dozens of other prisoners, was subjected to prolonged sleep deprivation, in the program known euphemistically as “the frequent flier program.” This involved moving prisoners from cell to cell every few hours, over a period of days, weeks or even months, supposedly to wear down their resistance (although in reality, as a recognizable form of torture, it was more likely to cause severe mental anguish and allied physical side-effects). The men reported that al-Rabia was moved every two hours, leaving him “suffering from serious depression, losing weight in a substantial way, and very stressed because of the constant moves, deprived of sleep and seriously worried about the consequences for his children.”

Al-Rabia was also subjected to the malign policy whereby medical staff at Guantánamo were co-opted as part of the interrogation process. His lawyers explained that, although he suffered from serious stomach pains, he was told that he “couldn’t receive medication unless he cooperated” with the interrogators. It is not known if this contributed to the false confessions identified in court, but despite the litany of cruelty and incompetence outlined above, the most startling fact concerning al-Rabia’s long detention and his final exoneration is that those overseeing Guantánamo were told in the summer of 2002, by a senior CIA intelligence analyst, who, almost uniquely, was also an Arabic expert, that al-Rabia had been wrongly detained.

What the CIA knew, and how it was ignored by David Addington

In The Dark Side, Jane Mayer explained how the analyst had conducted interviews with a random sample of the prisoners, and how his conclusion — that one-third of the men held at the time “had no connection to terrorism whatsoever” — was brushed off by David Addington, Cheney’s Legal Counsel, when John Bellinger, the Legal Advisor to the National Security Council, and General John Gordon, the NSC’s senior terrorism expert, learned of the agent’s report and tried to reveal the information to President Bush, to ask him to urgently review the cases of the men held at Guantánamo. According to two sources who told Mayer about the meeting, Addington dismissed their concerns by declaring, imperiously, “No, there will be no review. The President has determined that they are ALL enemy combatants. We are not going to revisit it!”

This, as Mayer noted, was the crux of the government’s position, as articulated by those who were dictating the policy from the Office of the Vice President. Mayer wrote, “The President had made a group-status identification, as far as he was concerned. To Addington, it was a matter of presidential power, not a question of individual guilt or innocence.”

One of the men who particularly suffered because of Addington and Cheney’s counter-productive arrogance was Fouad al-Rabia, who is the man described by the CIA analyst in an interview with Mayer as follows:

One man was a rich Kuwaiti businessman who took a trip to a different part of the world every year to do charity work. In 2001, the country he chose was Afghanistan. “He wasn’t a jihadi, but I told him he should have been arrested for stupidity,” the CIA officer recalled. The man was furious with the United States for rounding him up. He mentioned that every year up until then, he had bought himself a new Cadillac, but when he was released, he said, he would never buy another American car. He was switching to Mercedes.

This is another small piece of evidence to add to the burgeoning file of complaints against Dick Cheney and David Addington (the one that begins with torture and calls for prosecution, but also includes a whole section on arrogance and incompetence), but it amazes me that no one in the Justice Department, under President Obama, investigated the CIA analyst’s report, and, instead, stuck to the allegations put forward by military prosecutors in the Bush administration’s Military Commission system (overseen by the Convening Authority Susan Crawford, a protégée of Dick Cheney and a close friend of David Addington), and advanced mindlessly towards another humiliation in court.

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. Also see my definitive Guantánamo prisoner list, published in March 2009, and if you appreciate my work, feel free to make a donation.

As published on the Huffington Post, CounterPunch, Antiwar.com and ZNet. Cross-posted on The Public Record.

For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009), Guantánamo And The Courts (Part Two): Obama’s Shame (August 2009), Guantánamo And The Courts (Part Three): Obama’s Continuing Shame (August 2009), No Escape From Guantánamo: The Latest Habeas Rulings (September 2009), First Guantánamo Prisoner To Lose Habeas Hearing Appeals Ruling (September 2009).

Also see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights (July 2009), Bagram Isn’t The New Guantánamo, It’s The Old Guantánamo (August 2009), Obama Brings Guantánamo And Rendition To Bagram (And Not The Geneva Conventions) and Is Bagram Obama’s New Secret Prison? (both September 2009).