Will the Bush administration be held accountable for war crimes?

The answer ought to be yes, if the verdict of the Senate Armed Services Committee Inquiry into the Treatment of Detainees in US Custody is to mean anything.

The bipartisan report (see here, here or here, and see here for the hearings in June and September 2008), based on a two-year investigation and released on December 11 by Senators Carl Levin and John McCain, concludes that the torture and abuse of prisoners in US custody in the “War on Terror” is the direct result of policies authorized or implemented by senior officials within the current administration, including President George W. Bush, former defense secretary Donald Rumsfeld, Vice President Dick Cheney’s former legal counsel (and now chief of staff) David Addington, and former Pentagon general counsel William J. Haynes II.

Since the scandal of the abuse of prisoners at Abu Ghraib prison in Iraq broke in April 2004, over a dozen investigations have identified problems concerning the treatment of prisoners in Iraq, Afghanistan and Guantánamo, but until now no official report has gazed up the chain of command to blame senior officials for authorizing torture and instigating abusive policies, and the Bush administration has been able to maintain, as it did in the wake of the Abu Ghraib scandal, that any abuse was the result of the rogue activities of “a few bad apples.”

This is now untenable. As the report states,

The abuse of detainees in US custody cannot simply be attributed to the actions of “a few bad apples” acting on their own. The fact is 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 efforts damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority.

Though containing little new information, the report is damning in its revelation of how senior officials sought out and approved the reverse engineering of techniques taught in the US military’s SERE schools (Survival, Evasion, Resistance, Escape) for use on prisoners captured in the “War on Terror.” These, the authors note, 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, a notorious torture technique which involves controlled drowning.

After noting explicitly that these techniques are taught to train personnel “to withstand interrogation techniques considered illegal under the Geneva Conventions,” and that they are “based, in part, on Chinese Communist techniques used during the Korean war to elicit false confessions,” the authors lay out a compelling timeline for the introduction of these techniques, beginning with a crucial memorandum issued by President Bush on February 7, 2002. This stated that the protections of the Geneva Conventions, which, the authors note, “would have afforded minimum standards for humane treatment,” did not apply to prisoners seized in the “War on Terror.” The report adds that “the decision to replace well established military doctrine, i.e. legal compliance with the Geneva Conventions, with a policy subject to interpretation, impacted the treatment of detainees in US custody.”

Having established the President’s role as the initial facilitator of abuse, the report then implicates those directly responsible for implementing the torture of prisoners, explaining how Haynes began soliciting advice from the agency responsible for SERE techniques in December 2001, and how Addington, Justice Department legal adviser John Yoo and White House counsel Alberto Gonzales attempted to redefine torture in the notorious “Torture Memo” of August 2002, which claimed that the pain endured “must be equivalent to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death”.

The authors also note how Rumsfeld approved the use of SERE techniques at Guantánamo in December 2002 (after Haynes had consulted with other senior officials), and explain how the techniques migrated to Afghanistan in January 2003, and were implemented in Iraq by Lt. Gen. Ricardo Sanchez, the commander of coalition forces, in September 2003.

Even so, the report is not without its faults. The authors carefully refrain from ever using the words “torture” or “war crimes,” which is a considerable semantic achievement, but one that does little to foster a belief that the officials involved will one day be held accountable for their crimes. They also, curiously, omit all mention of Vice President Dick Cheney, and ignore the importance of the presidential order of November 2001, which authorized the capture and indefinite detention of “enemy combatants” and established the Military Commission trial system, even though the Washington Post’s Barton Gellman has established that Cheney played a significant role in this and all the other crucial documents that led to the torture and abuse of detainees.

Responses in the US media have been mixed. Oddly, most major media outlets chose to focus solely on Donald Rumsfeld’s responsibility for implementing abusive techniques (the Washington Post’s headline, for example, was “Rumsfeld Responsible for Detainee Abuse”), even though the report named at least 12 other senior figures involved in the approval and implementation of the policies.

More thoughtful commentators have questioned whether Barack Obama will pursue those responsible, noting that he will be unwilling to antagonize Republicans when he needs their support to tackle the economic crisis, and that many Democrats in Congress knew about the Bush administration’s policies, and in some cases were involved in approving them. An article in the Nation on December 17 noted that this complicity made “an unfettered review seem unlikely,” but the article also noted, more hopefully, “A growing body of legal opinion holds that Obama will have a duty to investigate war crimes allegations and, if they are found to have merit, to prosecute the perpetrators.”

As of December 17, those concerned with pursuing Bush administration officials for war crimes can at least be assured that the perpetrators now include Dick Cheney. In an interview with ABC News, the Vice President stuck to a now-discredited script, declaring, “we don’t do torture, we never have,” but admitting for the first time that he knew about the use of waterboarding on a handful of “high-value detainees,” and that he considered its use “appropriate.”

Only time will tell if Cheney’s admission will be regarded as a stalwart defense of national security, or as the last defiant gesture of a war criminal.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, 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 also see my definitive Guantánamo prisoner list, published in March 2009.

A version of this article was published exclusively in the Daily Star, Lebanon (as “Are US officials guilty of war crimes?”)

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), 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) (all May 2009), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA), and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009). Also see the extensive archive of articles about the Military Commissions.

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