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 Guantánamo, 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 cancelled when Barack Obama took office in January 2009, others continue to characterise US detention policy in the “war on terror”. Even the cancelled policies 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.
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This five-part series traces the detention policy debacle as it has evolved over the last ten years.
Part 1: Birth of a debacle
Initially, the driving force behind the Bush administration’s post-9/11 decision-making was the legitimate need to compensate for the dearth of intelligence about al-Qaeda, which had perpetrated one of the most deadly and destructive terrorist attacks in history, and to acquire information about possible future attacks. President George W Bush decreed the attacks an act of war, and responded in kind.
On September 14, 2001, Congress passed the Authorisation to Use Military Force (AUMF), which granted the president the authority to use all “necessary and appropriate force” against those whom he determined “planned, authorised, committed or aided” the 9/11 attacks, or who harboured said persons or groups. The AUMF did not delineate any territorial specificity or geographical limits.
As is common in asymmetrical wars when states fight non-state groups, the need for information about al-Qaeda elevated the importance of gathering “actionable intelligence” through interrogation of captured enemies. But the decision to endorse the use of violent and degrading methods (even before anyone had been taken into custody) was a choice, not a necessity.
Choosing to disregard the law
dark side… [and] use any means at our disposal.”]
He put into practice his ideological animus toward legal rules that might restrain “unitary executive” discretion, as well as his blithe disregard for the opinions of actual experts in interrogation who overwhelmingly maintain (on the basis of knowledge derived from experience) that coercion and violence are ineffective means of gathering true and accurate information.
On September 17, President Bush signed a memorandum of understanding giving the CIA authority to establish a secret detention and interrogation operation overseas. The Clinton-era rendition programme involving transfer of arrested terror suspects to third countries for trial was revamped as “extraordinary rendition” to permit the CIA to kidnap people from anywhere in the world and disappear them into secret prisons where they could be held as “ghost detainees”, or transferred extra-legally to other states for interrogation.
The global war on terror started in Afghanistan because the Taliban had sheltered Osama bin Laden and hosted al-Qaeda since the late 1990s. An aerial bombing campaign commenced on October 7, 2001 to destroy the Taliban regime and terrorist training facilities. In November, when large contingents of troops hit the ground, the mission was expanded to capture or kill members of al-Qaeda and the Taliban.
On November 13, President Bush, citing the AUMF, issued a military order entitled “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism” in which he declared that members of al-Qaeda and others involved in or who provided support for international terrorism could be detained by the US and prosecuted in a new kind of military commission.
The administration devised the label “unlawful enemy combatants” to denote that detainees would be regarded as neither combatants nor civilians under the 1949 Geneva Conventions. Moreover, detainees could be assigned this status on the basis of presidential decree rather than following a status review by a tribunal, which effectively conflated being in custody with an uncontestable presumption of guilt.
By December 2001, Pentagon officials were exploring how to “reverse engineer” SERE (survival, evasion, resistance, extraction) techniques that had been developed during the Cold War to train US soldiers to withstand torture in case they were captured by regimes that don’t adhere to the Geneva Conventions.
Pipeline to Guantánamo
The first US detention facility in Afghanistan was a makeshift structure at the Kandahar airbase. It was intended to be a site for quick questioning of prisoners captured from the front, some of whom would then be sent to the “rear” for longer-term questioning and custody. The rear, as decided in December, was 7,000 miles away at the US naval base on the south side of Cuba.
The first shipment of 20 prisoners arrived at Guantánamo on January 11, 2002. Although pictures of the detainees in sensory deprivation gear and stress positions were published by the Pentagon, their identities were classified.
By the end of January, growing numbers were being transferred to Kandahar from Pakistan, allegedly terrorists who had escaped across the border after the start of the bombing or had evaded capture during the battle of Tora Bora in late 2001. Others were arriving from across Afghanistan, captured on the battlefield, rounded up in village sweeps, or sold for bounty by the Northern Alliance.
The Pentagon’s criteria for determining who would be shipped from Afghanistan to Guantánamo included all al-Qaeda personnel; Taliban leaders; non-Afghan Taliban or other types of foreign fighters; and any others who may pose a threat to US interests, may have intelligence value, or may be of interest for US prosecution.
Most military interrogators lacked the requisite language skills and knowledge about the region to accurately assess the intelligence value of detainees or the veracity of their statements. The tendency was to err on the side of caution in determining who should be shipped off to Guantánamo for more intensive and protracted interrogation. In practice, every captured non-Afghan was likely to be sent to Cuba on the chance that he was in the region because he was a terrorist.
Interrogators were under enormous pressure from the Pentagon for actionable intelligence, including information that would lead to the capture of bin Laden, Mullah Omar and other top al-Qaeda and Taliban leaders. To elicit this information, prisoners were subjected to “counter-resistance” techniques to produce debility, disorientation and dread. Protracted hooding, sleep deprivation, forced nakedness and recurrent cavity searches, position abuse such as chaining and tying them to chairs or hooks on the floor or wall, and manipulation of lighting, sound, temperature, food and medicine, use of dogs, forcible shaving, and death threats became standard operating procedure to persuade captives that resistance was futile.
License to abuse
The critical step in unfettering interrogation operations from legal constraints was made, secretly, on February 7, 2002, when President Bush, acting on the advice of government lawyers, issued a directive to his national security team that the Geneva Conventions were inapplicable to the war on terror. This decision was responsive to anxieties that practices already being implemented with White House approval might lead to future war crimes prosecutions; the February directive sought to establish future immunity through a no-crime-without-law declaration from the commander-in-chief.
The tendency was to err on the side of caution in determining who should be shipped off to Guantanamo.
However, President Bush sought to mollify the State Department, which opposed the decision not to abide by the Geneva Conventions, with the line that US forces “shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva”.
The message moving down the chain of command from Washington to Afghanistan and Guantánamo was not the imperative of humane treatment but rather the license to harshly interrogate anyone in US custody as a potentially guilty font of valuable information. Prisoners’ remonstrations of innocence or ignorance were interpreted as signs of their deceptive skillfulness.
The centre of interrogation and detention operations in Afghanistan shifted in May 2002 from Kandahar to the old Soviet airbase at Bagram north of Kabul. Some people brought there had been arrested from as far afield as Europe, Southeast Asia and Africa, and some were transferred from CIA black sites or following extraordinary rendition to other foreign countries. Like Kandahar, Bagram served as a pipeline to Guantánamo.
At Guantánamo, intelligence officers were instructed to fill out a one-page form on every detainee certifying the president’s “reason to believe” that he was involved in terrorism. This was the complement to the president’s decision to deny detainees a status review; the forms were intended to provide some substantiation to official claims that everyone held there was “the worst of the worst”. Within weeks, the officers began reporting back that interrogations were not producing the information needed to fill out the forms. Pentagon and White House officials assumed the problem was that these hardened terrorists had been trained to dissemble.
A senior Arabic-speaking CIA analyst was dispatched to Guantanamo in August 2002 to do an assessment of the detainees. He concluded that at least half and probably a much higher percentage had no ties to or meaningful information about al-Qaeda or the Taliban. A meeting was scheduled with White House counsel Alberto Gonzales to discuss the analyst’s recommendations for a formal review process to determine who should be released and repatriated. But, as Jane Mayer reports in The Dark Side, David Addington, Cheney’s counsel, cancelled the meeting, declaring: “No, there will be no review. The President has determined that they are ALL enemy combatants. We are not going to revisit it.”
In the division of interrogational labour, the CIA was vested with primary responsibility for “high value detainees” (HVDs) – people assumed to be terrorist leaders or planners of 9/11, or to have knowledge about terrorist operations and plots. On March 28, 2002, the first HVD, Abu Zubaydah, was captured in Pakistan and transported to a black site in Thailand. His interrogation led to a showdown between professional Arabic-speaking FBI interrogators who used conventional methods with success and unskilled CIA contractors who were inspired and authorised to use violence. The CIA won, and the FBI stopped cooperating in black site interrogations.
The escalating harshness of Abu Zubaydah’s treatment was due to the amateur interrogators’ frustration that he was not providing the actionable intelligence he was assumed to possess. But, contrary to the initial claim that he was a “top al-Qaeda strategist”, he was in fact more like a receptionist who had been responsible for moving people in and out of various training camps in Afghanistan. The brutal and dehumanising methods authorised for Abu Zubaydah, which included waterboarding him 83 times and placing him in a coffin-like “confinement box”, set the stage for the CIA’s secret interrogation programme.
By mid-summer 2002, some CIA agents were growing anxious about their vulnerability to future prosecution under federal anti-torture laws. In response to the Agency’s questions about legal liability, government lawyers in the Office of Legal Counsel (OLC) produced two memos dated August 1, 2002. One memo interpreted the applicable definition of physical torture to exclude anything less than “the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death”, and opined that cruel, inhuman or degrading treatment would not constitute mental torture unless it caused effects that lasted “months or even years”. The second memo provided legal cover for tactics already in use.
Although these OLC memos were written for the CIA, the White House forwarded them to the Pentagon, which was seeking a solution to military interrogators’ frustrated efforts to get actionable intelligence out of Guantánamo detainees. A three-course menu of reverse-engineered SERE tactics was authorised by Secretary of Defense Donald Rumsfeld in December 2002.
When top lawyers in the Judge Advocate General (JAG) corps vetted this policy document in early 2003, they wrote memos to Rumsfeld protesting that the use of tactics that contravene the Uniform Code of Military Justice (which enshrines the Geneva Conventions) would expose soldiers to the risk of court martial. The Pentagon solicited a memo from the OLC justifying these methods (dated March 14, 2003), which was used to silence the JAGs’ dissent.
Torture and the Iraq War
|Lisa Hajjar explores the dark world of secret prisons in a five part series|
Part 3: The ‘War on Terror’ goes to court
The Bush administration’s decision to take the war on terror to Iraq had to be sold to the American public and skeptical allies. CIA and military interrogators were under intense pressure to produce evidence that the regime of Saddam Hussein had an active weapons of mass destruction (WMD) programme, and that there was a link between Iraq and 9/11. The Bush administration’s political will to justify war against Iraq caused a major spike in the use of the harshest interrogation methods in the weeks prior to the March 2003 invasion.
The “actionable intelligence” that the administration presented to make the case for war included claims about Iraq’s attempts to import tons of yellowcake uranium from Niger, and a statement by a Libyan prisoner, Ibn al-Shaykh al-Libi, that Iraq had provided training in chemical weapons to members of al-Qaeda. Al-Libi subsequently recanted the false claim which he had made to Egyptian interrogators to stop the torture. (Revelations that the Niger uranium deal was based on falsified documents later devolved into a scandal for the “outing” of CIA agent Valerie Plame and the conviction of Cheney’s chief of staff, Lewis “Scooter” Libby.)
The invasion of Iraq began on March 20, 2003, with a military campaign featuring “shock and awe” aerial bombing to shock the targeted state into confused submission. The strategy succeeded in tumbling the regime. But the Pentagon had no practical contingency for stabilising the occupied country (aside from the oil-producing facilities), nor did the war makers and cheerleaders anticipate the outbreak of what ultimately proved to be a long and complicated conflict against a shifting array of “insurgents”.
By the late summer of 2003, the failure to find the (non-existent) WMD, and the escalation of bombings, kidnappings and executions had made a mockery of President Bush’s claim in May that the Iraq mission had been “accomplished”. In August the Pentagon sent Guantánamo commander Maj. Gen. Geoffrey Miller to Iraq to provide advice on how to “set the conditions” to get actionable intelligence from the thousands of people – including women and children – who were being taken into custody.
Lt. Gen. Ricardo Sanchez, commander of the Iraq theater of operations, signed off on a policy to “GITMO-ize” Iraqi prisons, a euphemism for the use of dogs, sexual humiliation, stress positions, protracted sleep deprivation and isolation, and other forms of torture and cruel treatment, despite the fact that up to 90 per cent of detainees were picked up in military sweeps or as a result of intra-Iraqi score-settling and had no connection to the insurgency, let alone to al-Qaeda.
Thus, by the second anniversary of 9/11, US detention policy had become a concoction of willful ignorance and political recalcitrance dosed with a license to torture and topped off with a thick dollop of secrecy.
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 a 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 authors’ own and do not necessarily reflect Al Jazeera’s editorial policy.