Whenever I found myself at Dulles airport in Washington, D.C., between 2002 and 2008 surrounded by the screeching siren sounds of the “orange alert” periods, which made life unbearable for everybody in the splendid Eero Saarinen-designed terminal, I wondered how and why these so-called alerts were triggered. Would there really be any actual evidence of impending terrorist attacks to justify them? It was a pretty good way to keep the paranoia going, and it came in handy for the George W. Bush administration’s efforts to ratchet up the decibels in the so-called War on Terror, particularly around election time.
Perusing the evidence that has come to light describing the ways in which the Bush administration manipulated the legal justifications and rationalisations for engaging in torture practices of various sorts, I could not help but think my strong suspicions must have had some basis. What are modest (and, frankly, relatively inoffensive) “orange alerts” compared with the “scary memos” used by the Justice Department to justify the extension of whatever special powers the White House deemed it needed to continue with the warrantless wiretapping and massive surveillance programmes it engaged in?
The initial trickle of evidence about the many illegal ways in which Washington pursued its counterterrorist offensive from 2001 to 2008, first exposed by the pictures from Abu Ghraib in 2004, has turned into a veritable flood.
Not just torture (and overall prisoner mistreatment) but large-scale, domestic warrantless wiretapping, massive use of rendition (the delivery of detainees to foreign governments, in the full knowledge that many of them would be tortured and perhaps killed), extensive surveillance of large numbers of innocent citizens, and a Central Intelligence Agency (CIA) “hit-team programme” launched in 2001 (albeit never operationalised) to kill Al Qaeda leaders, but expressly kept from the knowledge of the relevant congressional oversight committees, are some of the questionable activities that have come to light in the course of the past few years, especially so since President Barack Obama took office on January 20.
To some extent, this was predictable. Part of the reason Obama was elected with such an overwhelming mandate last November was Abu Ghraib and Guantanamo. What transpired there, shown in graphic detail by the photographs taken by some of the enlisted men and women themselves, repelled vast sectors of public opinion in the United States.
Less easy to foresee was that the inhumane and degrading treatment of detainees would only be the tip of the iceberg of a much vaster pattern of actions designed to sidestep the law and engage in an extraordinary executive power grab, comprising illegal activities that would compromise the rights of not only foreigners abroad but also U.S. citizens at home.
During the 2008 campaign, Obama firmly denounced these violations. That and his opposition from the very first to the war in Iraq (in contrast to his main rival for the Democratic nomination, Hillary Clinton) gave his candidacy its distinct stamp and moral edge. His promise to close Guantanamo and to abolish the practice of torture was an important mobilising factor, especially among young voters.
’LOOK FORWARD, NOT BACKWARDS’
To his credit, announcing the closure of Guantanamo and the abolition of torture practices were among the very first measures taken by Obama after his inauguration.
Yet, what about the rest, that is, the whole panoply of additional tools used by the Bush administration to pursue the “War on Terror” (a term banned in the Obama White House) that according to many lawyers and civil libertarians went against the grain of what the U.S. is all about? That is, illegal abductions, extraordinary renditions, military commission trials and the permanent detention of civilians who cannot be brought to trial for various reasons.
These remain very much in place, albeit with the sorts of caveats that can only be considered somewhat disingenuous (like saying, as the CIA has, that renditions will be continued but only with countries providing guarantees that detainees will not be tortured or abused in any way). The reluctance of the incoming administration to discontinue the military commission trials system used in Guantanamo until now, and its refusal to substitute it for regular trials in federal court through which a number of terrorists have already been tried and convicted, has been especially disappointing. The same goes for the constitutionally questionable announcement to keep some detainees permanently locked up, without any charges formally filed against them.
As worrisome as this, if not more, is the unwillingness to come to terms with this “evil past” of unlawful behaviour, of which extensive torture practices, authorised, sanctioned and, some would say, directed, from the highest levels of the U.S. government, are the most egregious example.
After taking office, and contrary to the wishes of some of the leading Democrats on Capitol Hill, Obama said he was keen “to look forward, not backwards” and gave strong signals that he did not favour an exercise in any kind of public reckoning of the human rights violations and other illegal activities that might have taken place during the Bush administration. This is in keeping with his self-image as a healer rather than an avenger, as a centrist rather than a left-liberal, and as a leader who does not want to have his national security credentials questioned or be accused of being “soft” on terrorism.
It is not that Obama and his administration are not willing to take on big subjects. If anything, the opposite is true. It is precisely because he has such an ambitious programme, including reviving the economy, reforming health care, getting out of one war (Iraq) and winning another (Afghanistan), that he does not want to be distracted by such a potentially divisive issue.
This is understandable as far as it goes, and one can sympathise with his predicament. Congressional leaders such as Speaker Nancy Pelosi, Chairman of the U.S. Senate Judiciary Committee Patrick Leahy, and Chairman of the House Judiciary Committee John Conyers, who all favour moving ahead on some sort of public inquiry (Leahy is in favour of a truth commission; Conyers has submitted a Bill – H.R. 104 – to create a National Commission on Presidential War Powers and Civil Liberties to investigate these violations, though Senator Dianne Feinstein, who heads the Senate Select Committee on Intelligence, is opposed to it), have so far, reluctantly and somewhat grudgingly, gone along with the President’s position. Yet, the latter is becoming increasingly untenable.
More than six months have gone by since the question of a public reckoning of the past misdeeds of the Bush administration was mooted. The President has not changed his position one iota, though he has made some gestures towards greater public accountability – such as allowing the release of the infamous Office of Legal Counsel (OLC) “torture memos” – and backtracked on others – such as the release of photographs of detainees who had been submitted to “enhanced interrogation techniques”. But the issue refuses to go away.
The Senate Select Committee on Intelligence is preparing a report on the subject, to be ready by year end. The release to the public of the former CIA Inspector General’s report (the “Helgerson report”, after John Helgerson, its author), submitted in 2004, is awaited. The Department of Justice is preparing another report, on the ethics of the legal pronouncements on the torture issue, while another report in is the works on how and why 92 videotapes of detainees being interrogated were destroyed by the CIA.
As often happens with such matters, the issue has landed on the desk of Attorney General Eric Holder, who is considering the possibility of appointing a special prosecutor.
For Holder, a man personally close to Obama, with whom he shares a number of things (both are African-American lawyers, both are the sons of recent immigrants to the U.S. and both are Columbia graduates), this is not easy. From the beginning, he has also been reluctant to buy into the notion that a reckoning with the past is actually needed. But after locking himself up for two days in his office to read through the Helgerson report, he was so shocked that he had second thoughts.
Apparently, Holder’s idea would be to appoint a prosecutor from inside the department, as opposed to an outside lawyer. The task would be to focus on excesses committed by CIA interrogators, some of whom violated even the very lax and permissive guidelines of the “torture memos” (such as “waterboarding” one detainee 83 times). Obama himself has indicated that interrogators who stayed within the boundaries of the instructions of the OLC memos would not have any difficulties.
This assumes that the labours of a special prosecutor can be neatly contained and compartmentalised. A number of Presidents, from Richard M. Nixon to George W. Bush, have found out to their chagrin that this is not the case. The appointment of such prosecutors buys time and breathing space for administrations confronting complex, potentially law-breaking situations, but it does not create a “firewall” around them that ensures they stay within specified boundaries.
And the precedents are not reassuring. After the Abu Ghraib scandal broke (famously blamed by then Secretary of Defence Donald Rumsfeld on “a few bad apples”) – when a number of low-ranking men and women were made to pay the price for what were then called “excesses” but now turn out to have been government policy (down to the use of dogs to intimidate detainees) – only one contractor has been convicted for the abuse of those held in detention. From a strictly legal point of view, it turns out to be very difficult to prove that certain boundaries were crossed, given the redefinition of torture undertaken by John Yoo and other lawyers in the Justice Department’s OLC.
However encouraging Holder’s “second thoughts” may be, then, it may be too little, too late. The cat is out of the bag, and it turns out to be far larger and darker than anybody thought.
WHY NOT LET SLEEPING DOGS LIE?
Why has Obama been so reluctant to remain on the moral high ground that stood him so well in the campaign? It is true that, as the saying goes, you campaign in poetry and govern in prose, but when the disconnect between the two becomes too large, there is a problem.
As mentioned above, the standard argument against a truth commission, a special congressional investigation or a special prosecutor tasked with establishing whether any crimes were committed in the “War on Terror” has been the overly ambitious agenda the White House has on its plate. The last thing the President would want is to add another big item to it, especially one like investigating the previous administration’s human rights violations or, as some Republicans have put it, “to criminalise policy differences”. Once one administration starts investigating the previous one, or so the argument goes, there is no end in sight, and no President would want to walk down that road.
Moreover, it is by no means clear that any such investigation would be detrimental to the Republicans. National security is considered a bit of a Republican issue, and once former policymakers start wrapping themselves in the flag and in the overriding need “to protect American lives” to justify their actions, however nefarious, anything goes. The standard example is what happened to Colonel Oliver North, the key operative of the Iran-Contra scandal in the Ronald Reagan administration, who, despite breaking many laws, ended up as an American hero, and cashed in handsomely on that reputation.
Former Vice-President Dick Cheney, to whose office much of the torture paper trail can be traced, and who has been especially outspoken on this issue after leaving office (in marked contrast to his nominal boss), could thus end up as a latter-day Oliver North, or so it is said.
Yet, the issue refuses to go away. Why?
First of all, prosecuting crimes is not an option or a policy choice. If laws have been broken, the culprits must be brought to book. The issue is not one of “criminalising policy differences” but rather of terminating a situation in which torture itself became a policy option and, de facto, legalised. Not investigating (and, thus, sanctioning) such behaviour is to condone it.
Politically, the received wisdom on the subject and the allegedly wise counsels of “not to rock the boat” and “let sleeping dogs lie” are based on the assumption of “politics as usual” in the U.S. body politic. Yet, it could well be argued that the change from the Bush to the Obama administration has been anything but “normal politics”.
The Bush administration was not a dictatorship, and its human rights abuses were directed not against its own citizens but against foreigners suspected of terrorist activities or intentions. However, its legalisation of torture and the extensive application of it in a country whose history has such an abhorrence of these practices that more than two centuries ago it enacted legislation, the Alien Tort Act, that made it possible for U.S. courts to sue foreigners who committed torture anywhere (torture was considered a violation of “the law of nations”, making the torturer, like the pirate, hostis humani generis, an enemy of all men), meant a qualitative change from “normal” politics.
The shift from the Bush to the Obama administration is analogous in some ways to the transitional politics we have witnessed in so many parts of the world over the past four decades. The confronting of an “evil past” and what to do about it is a critical issue for the new regime and for society at large. Different nations have dealt with it in different ways; there is no standard recipe. What is evident is that, unless it is dealt with somehow, this “evil past” will not go away.
The notion that it is best to “forgive and forget” is an alluring but ultimately misleading one. In not coming to terms with such wounds to the democratic body politic and not giving formal, official recognition to these violations, these wounds continue to fester. In the words of the former Chilean President Ricardo Lagos upon launching Chile’s National Commission on Political Prisoners and Torture in 2003, “there is no tomorrow without yesterday”. Given no clean break with such abhorrent practices, they might very well be revived.
And this leads to the issue of not “frontloading” the agenda and thus avoiding putting too much on the President’s plate at the very beginning of his mandate. This dilemma, now confronted by Obama, is not new. In transitions from authoritarianism, newly emerging democratic governments have also had to confront the legacy of an evil past. Many countries in Africa, Asia, Latin America and Europe have faced the same dilemma. Given other priorities, it is tempting to sweep past human rights abuses under the rug. Much as Obama today, the new democratic regimes have had to face a demanding agenda, including institutional rebuilding, payment of the “social debt” and jump-starting economic growth.
The U.S. under Bush was not an authoritarian regime or an exclusionary democracy. But serious human rights violations were committed, and an elaborate legal scaffold for these violations was constructed, something especially serious in the oldest democracy.
History tells us that these issues cannot be swept under the rug so that we can pretend they never happened. Ironically, the person who put this in the starkest terms was Cheney himself, when he said, in his notorious May speech at the American Enterprise Institute:
“The administration seems to pride itself in searching for some kind of middle ground in policies addressing terrorism. They may take comfort in having disagreement from opposite ends of the spectrum. If liberals are unhappy about some decisions and conservatives are unhappy about other decisions, then it may seem to them that the President is on the path of sensible compromise. But in the fight against terrorism there is no middle ground, and half measures leave you half-exposed.”
To paraphrase Cheney, is it possible to stake out a middle ground on one of the great moral issues of our time – torture? It would seem not, and if it is attempted, the evidence indicates that it may very well backfire on one. The best example of that is what happened with Guantanamo.
FIASCO IN GUANTANAMO
Shutting down this detention camp should have been, in the expression of Obama’s favourite sport, a slam dunk. Bush tried to do it. In the presidential campaign, John McCain was as much in favour of it as Obama. As mentioned above, it was one of the first announcements made by Obama after taking office and received as proof that he meant what he said on the stump.
The detention camp, located on a U.S. naval base on Cuba’s southern coast (itself a remnant of the Spanish-American War), is a symbol of everything that went wrong in the U.S. “War on Terror”. Out of nearly 800 detainees, only three were convicted by the military commissions. Five hundred and twenty-five men had to be released without charges by the Bush administration. From the arrest, kidnapping and forcible removal to it of many suspected terrorists (most of whom turned out to be innocent civilians, merely guilty of having found themselves in the wrong place at the wrong time) to the torture practices applied on them, it became, with Abu Ghraib, an “American Gulag”, an embarrassment to the conscience of a nation proud of its civil liberties tradition. Gitmo had to go.
Yet, and here is the paradox, a few months later even Democrats in Congress opposed an $80-million-dollar item to close down the camp. The Senate vote on the Bill was 90 to 6 against it.
Quite simply, Guantanamo and all it entails has ceased to be an overriding moral issue for an administration not interested in “relitigating the past”. If torture and the legal memos that rationalised it are “politics as usual”, and the only valid question remaining is the utilitarian one as to whether they yielded “actionable intelligence”, and torture ceases to be a human rights concern and becomes a national security one (which is what Cheney’s speeches and interviews have managed to do), we are back to 9/11. If the moral issue of torture is sidelined in the interest of expediency, we return to the more mundane ways of doing politics.
Guantanamo’s closing thus ceases to be a moral imperative and becomes a logistical one. “Not in my backyard” (NIMBY) rules the roost. Democrats will not let themselves be outmanoeuvred by Republican demagogy and the catering to the baser instincts of the citizenry that rises to the fore on such occasions. Senate Majority Leader Henry Reid thus talked about a mysterious “release” of detainees (which would be unacceptable to him), as if they could not be transported directly from one penal facility to another. The U.S. has the largest prison system in the world, with over two million inmates (including several convicted international terrorists), with supermax penitentiaries from which no one has ever escaped. Yet, according to some western Senators and Representatives, much of the population west of the Rockies would be at risk if even a single Guantanamo detainee were to be housed in a western prison.
GETTING AWAY WITH TORTURE
This unwillingness to stand up against the implications of torture as a moral issue – something banned since the time of the Spanish Inquisition, and clearly outlawed both in U.S. and international law – becomes especially perplexing when one realises what actually took place in the CIA “black sites” as well as in Abu Ghraib and Gitmo.
For the uninitiated layman, the prevailing impression is that detainees in these camps lead the sort of lives that prisoners of any sort lead – constrained, locked up, perhaps in solitary confinement, and with all the limitations of the life led in entities that straddled the fence between correctional institutions and prisoner-of-war camps, but in the end with some semblance of predictability – though with the significant addition of frequent or regular “interrogation sessions” at which various techniques would be applied to extract information from them. Nothing could be further from the truth.
The picture that emerges from the various reports on the subject, of which one of the most helpful is the one by the International Committee of the Red Cross (ICRC), is that rather than being limited to specific “sessions”, the whole design of the interrogation programme was geared to make the 24-hour day of detainees a living hell – that is, the infliction of torture was not an off-and-on process but rather a permanent state of affairs. The list of techniques applied, as identified by the ICRC, gives an inkling of this .
A key instrument was sleep deprivation, identified in the OLC memos as providing the foundation for much of the rest – a “baseline” element of interrogation, as opposed to the more “coercive” ones. It was seen as the key to all the others – so much so that the CIA fought hard to keep it as an authorised interrogation method even after all the others were discontinued.
Abu Zubaydah, one of the most high-profile detainees and first believed to be Al Qaeda’s number 3, stated: “I could not sleep at all for the first two or three weeks. If I started to fall asleep, one of the guards would come and spray water in my face.” Another detainee was kept awake for 11 days in a row. A third stated that for two years he was exposed to high-decibel music 24 hours a day.
But that was only the beginning. The programme in its initial phase included interfering with all the basic life functions: access to solid food, bodily hygiene (no showers, no toilets – let alone soap or towels), sleep (no mattresses, no blankets), medical treatment (with intimations given the latter would only be available upon cooperation with the interrogators), facilities for exercise, and open air.
Some of the ideas considered by the interrogators verge on the grotesque. To make Abu Zubaydah talk, while detained in Bangkok, they talked about putting him in a room full of cadavers or surrounding him with naked women. But mostly, it seems like your basic sadism.
One detainee, Bin Attash, reports “that his artificial leg was sometimes removed by the interrogators to increase the stress and fatigue of his position”. Another states “that he was kept four and a half months entirely handcuffed” and that at one point his shackles had to be cut off from his legs since the mechanism ceased to function, having become rusty. One Al Nashir says that “he was threatened with sodomy and with the arrest and rape of his family”. Another was shaved partially, thus leaving some of the hair on his head and beard on. Several of them were kept without clothes for days and weeks in cold temperatures. Nude detainees were often exposed to female interrogators.
There is a method behind this seeming madness. The two psychologists who provided much of the framework and rationale for this kind of programme, Jim Mitchell and Bruce Jenssen, both with a background in the Air Force SERE (Survival, Evasion, Resistance, Escape) programme, are strong believers in the notion of “enforced helplessness” as a way of inducing detainee cooperation. Although this is considered doubtful by others, who argue that once a prisoner is reduced to such a state he will say whatever the interrogator wants him to say, this was the approach used by the CIA with the post-9/11 detainees. On the other hand, from the very beginning the Federal Bureau of Investigation was very critical of this approach. So much so that its Director, Robert Mueller, at one point threatened to resign if the legality of these techniques was not revoked by the White House.
Ironically, neither Mitchell nor Jenssen had any professional experience in interrogation methods. Their background was in training military personnel to resist torture were they to fall into enemy hands, a different field. But with Ph.Ds in psychology, an Air Force career and a keen sense of entrepreneurship, they managed to sell themselves to the CIA as “the right men at the right place”, and made a mint in so doing. At one point, the company they established employed 60 people. Mitchell built himself an $800,000 home in Florida.
In defending this programme, Cheney has said that it was “legal, essential, justified” and that “the intelligence officers who questioned the terrorists can be proud of their work and proud of the results”. It is difficult to prove the counterfactual, and we will probably never know for sure whether these “enhanced interrogation techniques” provided any sort of information that allowed the U.S. to avoid another 9/11. The burden of proof for that falls on those who need to make such a case, and so far no such evidence has surfaced. To the contrary, those assessments that have been made point in a different direction.
On the other hand, as the former U.S. Navy General Counsel Alberto Mora put it, “there are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq, as judged by the effectiveness in recruiting insurgent fighters into combat, are, respectively, the symbols of Abu Ghraib and Guantanamo”.
The paradox, then, is that a programme that has damaged the standing of the U.S. at home and abroad to such an extraordinary degree may have contributed little or nothing to what was its ostensible purpose.
But in the end, of course, this is not a matter of a utilitarian calculus. The post-9/11 U.S. torture programme may have been, as Philip Zelikow, the U.S. State Department Counsel to Secretary Condoleezza Rice, put it later, “a collective failure, and it was a mistake”, perhaps “a disastrous one”, but not only, or even mainly, because it did not work and did not produce the expected results – which is not surprising, given the faulty premises on which it was based. It was a collective failure and a mistake because it was wrong. This is not what the U.S. is supposed to do, period. The danger of “looking forward, and not backwards”, as Obama has put it, is that it avoids the necessary public reckoning of this tragic episode. If and when another terrorist attack is mounted against the U.S. in the not-too-distant future, as many observers think will inevitably happen, the right lessons will not have been drawn from this torture programme, and it might well be revived, even if in a different form.
Jorge Heine holds the Chair in Global Governance at the Balsillie School of International Affairs, Waterloo, Ontario, Canada, and is a Distinguished Fellow at The Centre for International Governance Innovation (CIGI), Waterloo.