America’s detention policy debacle turns ten

The legacy of torture and cruel treatment in detention operations has not been expunged under US president Obama.

The detention policy debacle has played an under-analysed role in the ascendance of kill operations [GALLO/GETTY]

Days after the terrorist attacks of September 11, 2001, the Bush administration started making decisions that led to the official authorisation of torture tactics, indefinite incommunicado detention and the denial of habeas corpus for people who would be detained at Guantanamo, Bagram, or “black sites” (secret prisons) run by the CIA, kidnappings, forced disappearances and extraordinary rendition to foreign countries to exploit their torturing services.

While some of those practices were canceled when Barack Obama took office in January 2009, others continue to characterise US detention policy in the “war on terror”. Even the policies that have been cancelled continue to stain the record because there has been a total failure to hold the intellectual authors of these illegal practices accountable or to provide justice for the victims of American torture and extraordinary rendition.

This five-part series traces the detention policy debacle as it has evolved over the last ten years.

Part 5: Kill Operations and the Torture Legacy

The detention policy debacle has played a powerful but under-analysed role in the ascendance of kill operations in the ongoing and ever more global war on terror. People suspected of being terrorist operatives who once might have been targeted for arrest by the military or the CIA in order to interrogate them for intelligence are now likely to be targeted by predator drones.

Today, the CIA and Joint Special Operations Command (JSOC) pursue suspected terrorists with deadly force in Afghanistan as well as in a number of countries not at war with the US, notably Pakistan, Yemen and Somalia.

Of course killing was always one of the responses to the 9/11 attacks. But it was not the preferred strategic option at the outset. On the ten-year anniversary of 9/11, it behooves us to recall the original goal that made interrogation and detention so central to the war on terror: to capture people alive in order to gather vital intelligence about terrorist threats and plans, and to prosecute those responsible for these attacks. Although tens of thousands of people have been imprisoned by the US over the last decade, no one directly responsible for the 9/11 attacks has faced justice in a court of law.

The decision to subject detainees to torture and abuse was not a necessity but a choice. This fated decision left a permanent stain on detention operations. Ten years on, there is no consensus in America about where and how to detain terror suspects, where to try them, and what interrogation techniques to use.

A vocal constituency takes every opportunity to advocate a restoration of the Bush policies. Kill operations, by contrast, are largely insulated from the kinds of partisan disagreements that have made detention operations such a political minefield.

Raising the stakes of detention

The preference to kill rather than capture some suspected terrorists and militants started picking up in 2006, a period when detention operations were coming under increasing judicial scrutiny at home and attracting more negative publicity as well as criminal investigations abroad.

Two of the pillars of the Bush administration’s detention policy were the assertion that people classified as “unlawful enemy combatants” are rightless, and that the Geneva Conventions do not apply to the war on terror. These claims were refuted in June 2006 when the Supreme Court ruled in Hamdan v. Rumsfeld that such detainees have, at minimum, the right to humane treatment enshrined in Common Article 3.

Preference to kill rather than capture suspected terrorists started picking up in 2006 [GALLO/GETTY]]
Preference to kill rather than capture suspected terrorists started picking up in 2006 [GALLO/GETTY]]

In the Military Commissions Act (MCA) passed in October 2006, Congress included a clause to grant ex post facto immunity for US officials and agents who may have violated the federal War Crimes Act.

This was an egregious affront to the rule of law because war crimes cannot be immunised. That provision was not eliminated when the MCA was revised in 2009, and thus remains law in the books.

But violations of Common Article 3 are international crimes. When those responsible for serious war crimes are not prosecuted in their own country or in the country where the crime(s) occurred, prosecution in a foreign court becomes possible and, arguably, obligatory: The Geneva Conventions incorporate a deterrence-through-retributive justice approach by imposing an internationalised obligation on every state party to the Geneva Conventions – which, since the turn of the 21 st century, includes every state in the world – to seek extradition of accused war criminals or at least to avail its courts for such prosecutions ( aut dedere aut judicare ).

The vast majority of war crimes committed in conflicts around the world go unpunished. But for two reasons, torture lends itself more readily to prosecution than other types of war crimes. The first reason is the absolute and universal reach of the prohibition, which applies under all circumstances, including in the context of war, conflict or any type of national emergency. Ensuring that there would be no exceptions or gaps in unconventional wars is one of the purposes of Common Article 3.

The second reason is the clarity that arises from the custodial relationship. Being in custody is the condition that triggers every human being’s right not to be tortured. Custodians are entirely responsible for the well being and safety of prisoners.

The prohibition of torture is so strong because the captive condition is one of extreme vulnerability; prisoners are deprived of any capacity to protect or defend themselves if their custodians purposefully subject them to physical or psychological pain and suffering. (The prohibition of torture excludes pain and suffering arising from lawful, court-ordered punishments.)

Other types of war crimes, such as the use of indiscriminate weaponry, excessive force, or the deliberate targeting of civilians, are no less illegal than torturing a person in custody. But the so-called “fog of war” makes it more difficult to ascertain and prove that those ordering or executing a military operation in which civilians are killed did so intentionally. Unintentional killing of civilians in a legitimate military operation targeting combatants is not a war crime; rather, it bears the cold label “collateral damage”.

In the last decade of the 20 th century, there was a demi-revolution in the enforceability of international criminal law. New institutions were established, starting with the UN ad hoc tribunals for Rwanda and the former Yugoslavia, and including the creation of an International Criminal Court which came into being in 2002. There were also innovative uses of international criminal law to prosecute the perpetrators of gross crimes in the national courts of foreign countries on the basis of universal jurisdiction.

The landmark case in contemporary universal jurisdiction was against former Chilean dictator Augusto Pinochet in the United Kingdom, which started in 1998 when a Spanish judge issued an indictment requesting his extradition from Britain to stand trial in Spain for crimes of state perpetrated during his reign. Although some of the charges in the indictment did not survive the British legal process to determine whether he was extraditable, the crime of torture did.

The “Pinochet precedent” was a landmark that signaled there is no sovereign immunity for torture and even a former head of state could be prosecuted abroad. Although Pinochet was able to avoid extradition to Spain because of a political determination that he was too frail to withstand trial, when he returned to Chile he was stripped of the immunity he had granted himself on the grounds that it violates the constitution. The Pinochet precedent inspired a number of countries, mainly in Europe, to create or expand their own universal jurisdiction laws.  

Pinochet’s shadow

Following the publication of the Abu Ghraib photos in April 2004, there was a rising tide of publicly available information that torture and cruel treatment of detainees in US custody were pervasive and systematic. In June 2004, the publication of the first batch of “torture memos” (legal memoranda and policy documents concerning interrogation and detention) constituted evidence of official sanction for unlawful interrogation practices.

The publication of photos of tortured Abu Ghraib detainees in April 2004 was some of the first uncensored information the public saw of the US detention policy [GALLO/GETTY]
The publication of photos of tortured Abu Ghraib detainees in April 2004 was some of the first uncensored information the public saw of the US detention policy [GALLO/GETTY]

Nevertheless, the Bush administration resiliently denied any official wrong doing, and officials rebuffed domestic demands that those up the chain-of-command should be investigated and brought to justice.

The administration’s posture was epitomised in the 2005 National Security Strategy of the United States that includes the following assertion: “Our strength as a nation-state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes and terrorism.”  

In Europe, however, the situation was rather different. The Council of Europe and the European Parliament conducted investigations into criminal conduct by US agents on the continent and published reports (in 2006 and 2007, respectively). Germany has one of the strongest laws allowing national courts to be used for the prosecution of gross crimes under international law.

In 2006, German lawyers affiliated with the European Center for Human Rights, working in close collaboration with the New York-based Center for Constitutional Rights, filed a criminal complaint against Secretary of Defense Donald Rumsfeld and other civilian and military officials who had designed and administered the torture policy.

The complaint contained substantial information that had come to light over the previous two years about the torture of Muhammad al Qahtani and other Guantanamo prisoners. It also pointed out that there was no domestic investigation in the US, let alone criminal procedures against the accused. German prosecutors have the discretion to decide whether to pursue a criminal complaint. Intense diplomatic and political pressure by the US resulted in a political decision by the German government not to pursue indictments. But future indictments remain a possibility.

On October 26, 2007, after Rumsfeld was out of office, efforts were made to indict him while he was in Paris. His movement was being tracked by non-governmental organisations and a criminal complaint had been prepared.

When Rumsfeld learned of the complaint, he fled through a side door of the building where he was giving a speech to avoid lawyers and reporters who were waiting for him outside.

Italy successfully prosecuted, albeit in absentia, CIA agents who had engaged in a kidnapping to torture operation that began in Milan. In Spain, there is an ongoing criminal investigation of six Bush administration lawyers, including former White House counsel and then Attorney General Alberto Gonzales, who are accused of conspiring to develop the torture policy. Spanish nationals were among those tortured and abused at Guantanamo.

In November 2010, former President George W Bush published his memoir, Decision Points . In it and in subsequent media interviews, he readily admitted that he had authorised waterboarding and other so-called “enhanced” interrogation tactics that are universally regarded, at least beyond US shores, as torture. In February 2011, Bush canceled his plans to travel to Switzerland to speak at a gala benefit because a criminal complaint had been filed against him in Geneva.

While none of these initiatives has led to an arrest, the fact that there have been so many and that some are ongoing highlights the point that, among gross crimes under international law, torture is particularly susceptible to criminal procedures.

Read the rest of Lisa Hajjar’s five-part series:
Part 3: The ‘War on Terror’ goes to court

In contrast, there have been few effort to pursue criminal complaints in Europe or elsewhere for other types of alleged war crimes arising out of military or covert operations. The Pinochet precedent is instructive here, too: The original Spanish indictment also included charges of extra-judicial executions. But the British Law Lords rejected those as extraditable offenses because, unlike torture, they contended that killing in the context of a conflict – even one as unconventional as the “war on communism” that waged across the Southern Cone – is not clearly a violation of customary international law.

The kill policy

In the US, assassination operations had been prohibited by executive orders issued by every president since 1977.

Assassinations differ from other types of kill operations in that they involve the clandestine targeting of specific individuals for a political purpose. The term “assassination” has a vernacular appeal but is probably inappropriate to describe kill operations in the context of war. Better suited to war and violent conflicts are the terms “targeted killings” or “extra-judicial executions.” Nevertheless, what they have in common is that the killings are undertaken at a time when targeted individuals do not pose an imminent threat, meaning that they are not actively engaged in combat or other types of violence.

Israel has engaged in targeted killings by undercover units since the late 1980s, adding drones to its arsenal in the 1990s. In these operations, hundreds of civilian “bystanders” have been killed. The policy was officially and publicly acknowledged for the first time in November 2000, two months into the second Intifada.

Although the US government criticised Israel’s policy in 2001 (prior to 9/11), subsequently it came to serve as a model for US policy makers both in terms of practice and legal rationales.

In 2002, the US government began employing the tactic of targeted killing in the war on terror when Ali Qaed Sinan al Harithi and five others (including a US citizen) were killed by a drone bombing strike while they were driving in a car in Yemen. Officials proclaimed that because Harithi was allegedly a member of al-Qaeda, because the US was at war with al-Qaeda, and because an operation to arrest him was impossible, killing him in this manner was legitimate under the Authorisation To Use Military Force.

In Afghanistan and Iraq, the US used “decapitation strikes” in an attempt to liquidate the top leadership of al-Qaeda, the Taliban and members of the regime of Saddam Hussein. The use of targeted killings started to accelerate in 2006. In January, drones bombed three houses in Pakistan’s North West Province, acting on information that Osama bin Laden’s lieutenant, Ayman al-Zawahiri, was there. He was not, but the strikes killed eight civilians, mostly women and children.

The numbers and percentages of civilians killed or injured in these operations are hotly disputed. According to a study by The New America Foundation (NAF), between 2004 and 2008, there were 42 US drone strikes in Pakistan.

Kill operations escalated dramatically when Barack Obama became president and expanded the war in Afghanistan and into tribal areas of northwest Pakistan [EPA]]
Kill operations escalated dramatically when Barack Obama became president and expanded the war in Afghanistan and into tribal areas of northwest Pakistan [EPA]]

Kill operations escalated dramatically when Barack Obama became president and expanded the war in Afghanistan and into the tribal areas of northwest Pakistan. Between 2009 and August 26 2011, there were 227 strikes.

The CIA, which runs the predator drone operations, recently claimed that since May 2010, 600 militants had been killed in Pakistan and not a single civilian-a perfect record.

But according to the Bureau of Investigative Journalism at London’s City University, at least 218 of the 1,842 people killed by drone strikes in Pakistan since 2009 may have been civilians.

President Obama has exceeded his predecessor’s kill policy in other ways, too. His administration has authorised the extra-judicial execution of US citizens overseas. The first name on the government’s secret list was Anwar al Awlaki, an American-born Muslim cleric who is accused of being a leader of al-Qaeda in the Arabian Peninsula (AQAP) and is assumed to be residing somewhere in Yemen. Al Awlaki was implicated as an instigator of the Fort Hood shooting by a US soldier, Maj. Nidal Malik Hasan, on November 9 2009, that killed 12 and wounded 31 people, and an inspiration for the failed underpants bombing attempt on a transatlantic flight bound for Detroit on December 25 2009, by Umar Abdulmutallab.

If the allegations against al Awlaki are true, he would seem to be a prime candidate for arrest, interrogation and prosecution in the US. Critics claim that the presidential authorisation to execute him constitutes a death sentence without trial. The fact that he is a US citizen has elevated debates about the legality of targeting him in this manner.

In 2010, when the government admitted adding the names of other US citizens to the kill list, the ACLU sued to compel disclosure of the standard used to assign people to this list. The Obama administration invoked state secrets in its refusal to comply. On May 6, 2011, the US launched a drone attack to kill al Awlaki in Yemen. The mission failed to kill him but two others were.

Kill/capture in the longest war

Under the Obama administration, the size of the detainee population in Afghanistan has more than tripled in conjunction with the surging war in that country. But this has not produced or, arguably, even contributed to something that could be sold to the public as a “victory” and clear the path for exit from what has become America’s longest war. The Taliban is resurgent, and August 2011 was the deadliest month for US troops since the country was invaded in 2001.

The abuse and degradation of prisoners, past and present, has had a confounding effect on the “hearts and minds” agenda of counter-insurgency proponents like General David Petraus, who recently assumed the new position as CIA director.

While Petraus was commander of the Afghanistan theater of operations, he urged both more interrogations at forward operating bases to elicit immediately actionable military intelligence, and more transparency and humane treatment to win the trust and goodwill of Afghans. But night raids, indiscriminate arrests, incommunicado and protracted detention that have continued under the Obama administration have ineluctably damaged the latter.

In 2009, then-commander General Stanley McChrystal ordered that only JSOC, not the regular military, would conduct night raids. According to PBS Frontline’s documentary, Kill/Capture , they have increased six-fold in the last two years. These raids have aggrieved local communities and have boosted support for the Taliban in some areas.

Even more damaging to the Taliban-defeating hearts and minds goals of counter-insurgents has been the escalated use of predator drones.

Like night raids, targeting mistakes in drone strikes have had a high toll of civilian casualties. Taliban violence has increased in concert with the escalation of kill/capture operations. Although Petraus claimed that the ability to kill so many Afghan militants has been effective in stimulating defections, and enabling militants who switch sides to become part of “reintegration” programmes, he admitted that less than 1,000 have done so in the last two years. The killing of top and mid-level Taliban commanders has allowed the promotion of lower level fighters. Kill/capture operations are a source of constant tension between the US and Afghan governments.

The Osama bin Laden operation

The domestic political fallout and enduring debates around interrogation and detention, which President Obama described in a May 2009 speech to the nation as a “legal mess” that he had inherited, has become more intense over the last two years. This political rancor has complicated and compromised executive branch decision making on the arrest of new suspects.

I would assume the enhanced interrogation program we put in place produced some of the results that led to bin Laden's ultimate capture.

by Dick Cheney , Former VP

The most illustrative example of the shifting preference to kill rather than arrest and detain “high value” terror suspects is the May 2, 2011, operation that took out Osama bin Laden. Under the direction of the CIA, Navy SEALS from JSOC killed the al-Qaeda leader in his compound in Abbottabad, Pakistan. Afterward, President Barack Obama addressed the nation: “Today, justice has been done.”

Killing rather than capturing bin Laden was not a foregone outcome.

On February 16, 2011, then-CIA director Leon Panetta (who recently became Secretary of Defense) was asked by the Senate Intelligence Committee what the Obama administration would do if bin Laden or al-Qaeda’s second in command, Ayman al-Zawahiri, were captured. “We would probably move them quickly into military jurisdiction at Bagram for questioning and then eventually move them probably to Guantánamo,” Panetta responded.

At the time, Panetta’s statement seemed both wishful and oddly dissonant in light of the fact that Obama maintained his desire to close Guantánamo. Imprisoning bin Laden there would give the facility and the Bush record vast new legitimacy. Unknown to the public at the time, the CIA had been able to track one of bin Laden’s couriers to the compound in Abbottabad. From mid-2010 onward, secret discussions were underway about what to do with the information.

In April 2011, President Obama authorised a “kill or capture” operation to get bin Laden, which was launched on a moonless night on May 1. Bin Laden was not captured and taken to into military jurisdiction for questioning; he was killed by two bullets (“double-tapped”) at close range during the raid on the compound.

His body was removed and flown back to Afghanistan, then buried at sea.

Most Americans, including many experts in the laws of war, accept that the kill operation was legal because bin Laden was a legitimate military target. But after the operation, the CIA announced that troves of valuable intelligence were seized in the operation, including information about planning of future attacks. What intelligence-gathering opportunity was lost to the deep sea with bin Laden’s dead body?

That was not the question that consumed the public in the aftermath of the operation, however. Rather, it was whether torture had provided the information that led to bin Laden’s hideout. The White House was reportedly shocked that waterboarding enthusiasts had so quickly and thoroughly-and, as it turns out, erroneously-seized the moment to proclaim this as a victory for waterboarding.

Hours after the operation, former Vice President Dick Cheney was interviewed on Fox News: “I would assume the enhanced interrogation program we put in place produced some of the results that led to bin Laden’s ultimate capture … We need to keep in place those policies that made it possible for us to succeed in this case.”

Panetta and the White House were compelled to respond to these waterboarding-got-bin Laden claims by explaining that, in fact, the information that led to the courier and then to bin Laden had come from conventional interrogation tactics and old-fashioned spying on the ground as well as satellite and drone intelligence.

Given the nature of the operation, especially the fact that the Pakistani government was not informed ahead of time, the difficulty of getting bin Laden out of the country alive was certainly a factor in President Obama’s decision making. But the principled idea that bin Laden should have faced justice in a court of law for 9/11 has been, at least rhetorically, a stated goal in the war on terror.

Administration officials maintained that he would have been arrested had he surrendered. During the months leading up to the operation, his capture for interrogation and future trial had been a considered possibility, as Panetta’s February statement about moving him to Bagram and then Guantanamo had attested. But the taint of torture and the ignominious state of the US detention policy would have made that option a political disaster.


The use of torture and cruel treatment has been pervasive and systematic in detention operations in the war on terror. Although President Obama took important steps to halt such practices, the legacy has not been expunged. Nor can it be as long as there is no full public accounting for what has been done to the tens of thousands of people who have been detained by the US over the last ten years.

Rather, secrecy, punitive attacks on whistleblowers who bring illegal behavior to light, and unaccountability for officials responsible for torture, as well as an escalation in kill operations are the ways in which the Obama administration has dealt with this legacy.

The American people have failed to exercise their vaunted and fearsome democratic rights responsibly by demanding that their state abides by the rule of law, to which the prohibition of torture is one of the cornerstones. Worse than that, many people have bought into the spurious claims that torture was a necessary and effective means of keeping the nation safe. 

Public indifference, apathy or ignorance about torture and other rights violating practices of a state is common in many societies and has many causes, some unavoidable (state secrecy being a prime example). But the more representative a state claims to be, and the more people believe themselves to be represented by the state that rules them, the greater their responsibility for crimes of state. Torture by a military regime is deplorable, but torture by a democracy is inexcusable.

Lisa Hajjar is a professor of sociology at the University of California – Santa Barbara. her research and writing focus on the laws of war and conflict, human rights, and torture. She is the author of Courting Conflict: The Israeli Military Court System in the West Bank and Gaza . She is also co-editor of Jadaliyya and serves on the editorial committees of Middle East Report and Journal of Palestine Studies. Hajjar is currently working on a book about anti-torture lawyering in the US.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.