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 canceled when Barack Obama took office in January 2009, others continue to characterise US detention policy in the “war on terror”. Even the canceled 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.
This five-part series traces the detention policy debacle as it has evolved over the last ten years.
Part 2: Exposing the dark side
For the first two years of the “war on terror”, the American public knew little about the Bush administration’s interrogation and detention policies because wartime decision making was clandestine and even memoranda from the Justice Department were classified. Except for visits from representatives of the International Committee of the Red Cross, prisoners in US custody were held incommunicado. Information about their identities and treatment were secret.
Meanwhile, in the public sphere during these first two years, the “hypothetical ticking bomb” scenario became a preoccupation of pundits and academics who opined and disagreed about whether torture should be used to extract innocent life-saving information from a recalcitrant terrorist in order to avert a catastrophic attack.
While the US government publicly denounces the use of torture, each of the current national security officials interviewed for this article defended the use of violence against captives as just and necessary. They expressed confidence that the American public would back their view.
Those staking out positions that torture of the non-maiming variety, euphemised as “torture lite”, might be necessary and, thus, legitimate under exceptional circumstances referenced the past unaverted death and destruction of 9/11 to rationalise the necessity of future torture. They tried to shame those who oppose torture under all circumstances by arguing that the latter were less concerned about the safety of innocent victims than the sanctity of legal principles and/or the rights of terrorists.
Most pro-torture interlocutors and even some conflicted torture opponents affirmed the consensus view that torture is unequivocally bad but might be justifiable as a lesser evil in the service of public safety and national security. The torture-and-the-ticking-bomb arguments filling the airwaves and opinion pages hinged on the spurious presumption that torture actually works to extract true and accurate information.
Cracks and challenges
There were, however, some fine early examples of investigative reporting by human rights monitors and journalists that served to crack the secrecy shrouding interrogation tactics and the detention policy. A December 26, 2002, article by Dana Priest and Barton Gellman in the Washington Post revealed that US security agents were utilising “stress and duress” tactics in the interrogation of people captured in Afghanistan and elsewhere, and that detainees who could not be broken by such methods might be given mind-altering drugs or dispatched to foreign governments with well-established records of torture, like Egypt and Morocco. According to Priest and Gellman, “While the US government publicly denounces the use of torture, each of the current national security officials interviewed for this article defended the use of violence against captives as just and necessary. They expressed confidence that the American public would back their view.”
Initially, the only people willing to proactively challenge the Bush administration’s detention policy were a handful of lawyers who were angry at President George W Bush’s military order of November 13, 2001, which denied the writ of habeas corpus . In February 2002, the New York City-based Center for Constitutional Rights, in alliance with several death penalty lawyers, filed habeas petitions in federal court on behalf of several British and one Australian Guantánamo detainees.
Rasul v. Bush was the shot across the bow in what would eventually develop into a multi-case campaign to contest the legality of Bush administration – and later Obama administration – detention policies.
The government moved to have the habeas petitions dismissed for lack of jurisdiction. Indeed, Guantánamo had been selected precisely because, White House and Justice Department lawyers contended, it was not a sovereign part of the US and therefore federal laws did not apply or extend to those detained there as unlawful enemy combatants. As the case moved through the lower courts, the government’s contention prevailed.
However, in November 2003, the Supreme Court agreed to hear Rasul . Following that announcement, Washington decided to stop the transfer of “ordinary prisoners” from Bagram to Guantánamo because of the uncertainty of the outcome of that case.
The brutalisation of prisoners detained in Afghanistan was extreme and routine. In November 2002, a prisoner at the CIA black site near Kabul known as the Salt Pit, who had been chained naked to the floor overnight, died of hypothermia. On March 4, 2003, Carlotta Gall of the New York Times published an exposé about two deaths in detention at Bagram. A taxi driver named Dilawar and the brother of a former Taliban commander named Mullah Habibullah died of blunt force trauma within days of arriving at the facility the previous December. Both men had been beaten so badly that their legs were described in the pathology reports as “pulpified”.
From secrecy to denial
On April 28, 2004, hours after the Supreme Court heard arguments in Rasul , shocking photos from the Abu Ghraib prison in Iraq were broadcast on CBS. Simultaneously, the online version of The New Yorker exposé by Seymour Hersh about the leaked findings of the classified Taguba report was published. Maj. General Antonio Taguba had been tasked to investigate allegations of prisoner abuse at Abu Ghraib, and he concluded that the “systematic” and “wanton” abuses were consequences of the decision to disregard the Geneva Conventions, and the migration of coercive tactics and degrading treatment from Afghanistan and Guantánamo to Iraq.
Bush administration officials blamed Abu Ghraib on “bad apples”. But in mid-June, as a result of political pressure for information about the secret detention policy, the first batch of policy documents and legal opinions was declassified or leaked to the public. These “torture memos”, as they were aptly described, revealed the radical legal rationales that had guided interrogation and detention policy decision making, and exposed the falseness of the bad apple theory.
On June 28, 2004, the Supreme Court issued its Rasul decision that federal courts do have jurisdiction to hear habeas appeals by petitioners detained at Guantánamo. This opened the prison camp door to lawyers, causing the CIA shut down its operation there. Coming on the heels of the Abu Ghraib photos and the torture memos, hundreds of lawyers from all sectors of the profession volunteered to serve pro bono as habeas counsels.
They formed what came to be referred to as the “GITMO bar”. The government attempted to impede lawyers’ access to clients and their ability to work by imposing onerous and dilatory security clearances, speech-stifling protective orders, constantly and arbitrarily changing rules, surveillance and other forms of harassment.
The Bush administration tried to thwart the impact of Rasul by establishing Combatant Status Review Tribunals (CSRTs) in July 2004. The CSRT process provided the first hearings to consider whether prisoners’ detention as unlawful enemy combatants was justified by evidence in their files. Redacted versions of the CSRT transcripts (made public as a result of Freedom of Information Act Litigation by the Associated Press) exposed information about conditions and treatment at Guantánamo as well as Bagram and other US detention facilities.
Another source of information came from released prisoners: Some allied governments, responsive to domestic condemnation of American torture and protracted incommunicado detention, pressured the US to release their detained citizens and residents. Five British prisoners were released from Guantánamo in March 2004, including Shafiq Rasul and his friends, Asif Iqbal and Ruhal Ahmed.
They gave media interviews about their treatment and the false allegations that had kept them in US custody for years. Their story was featured in Michael Winterbottom’s docu-drama, The Road to Guantánamo , which premiered in February 2006. Moazzam Begg, also British, was released and repatriated in January 2005; his Enemy Combatant: My Imprisonment at Guantánamo , Bagram, and Kandahar (written with Victoria Brittain) was the first autobiography by someone held at these three facilities.
The negative publicity from first-hand accounts of prisoner abuse was damaging to the Bush administration, at least overseas. When David Hicks was repatriated to his native Australia in April 2007 to serve out a seven-month sentence of a plea-bargained agreement (negotiated by Vice President Dick Cheney to assist Prime Minister John Howard, who was facing a tough reelection campaign, partly because of criticism that he had abetted US torture), the deal included a gag order barring Hicks from giving media interviews.
Despite the continuous accretion of information and evidence about serious, systematic prisoner abuses, President Bush and other top officials resiliently denied that what we do is “torture” while stressing the efficacy of “enhanced interrogations”, as the practices came to be euphemised.
The torture policy had adverse consequences for US relations with some of its allies. In November 2005, the Washington Post reported that the CIA engaged in kidnappings and ran black sites in Europe (subsequently revealed by Human Rights Watch to be in Poland, Romania and Lithuania). The Council of Europe conducted an investigation into illegal US activities and in 2006 reported that a hundred people had been kidnapped on the continent. The European Parliament’s investigative report, released in February 2007 and endorsed by a large majority, exposed extensive collusion by European security services and other government agencies with the CIA’s extraordinary rendition program.
|Lisa Hajjar explores the dark world of secret prisons in a five part series|
Part 3: The ‘War on Terror’ goes to court
In 2005, an Italian court issued indictments for 23 CIA agents (along with four Italians) who had kidnapped Hassan Mustafa Osama Nasr (aka Abu Omar) in Milan in February 2003 and transported him to Egypt where he was brutally tortured. Despite US diplomatic pressure and refusal to cooperate, and political opposition by the Berlusconi government, the agents’ trial-in-absentia proceeded. In November 2009, the Italian court handed down guilty verdicts for most of them.
In 2007, a German court issued arrest warrants for 13 CIA agents involved in the December 2003 kidnapping of Khaled El-Masri, a German citizen, from Macedonia. El-Masri was transported to Afghanistan where he was tortured and held incommunicado for months.
When the CIA realized that El-Masri was not who they thought he was and decided to release him, they dumped him in a remote area of Albania, from which he eventually made it back to Germany. In May 2010, Spanish prosecutors issued indictments for the same 13 CIA agents because they had transited through Spain using forged documents on their way to kidnap El-Masri.
Maher Arar, a Canadian citizen, was taken into US custody in September 2002 while transiting through the John F Kennedy airport in New York. He was held incommunicado, then extraordinarily rendered via Jordan to Syria where he was tortured for ten months, confined for most of it in an “underground grave”.
After Arar was released by the Syrians because they determined that the allegations were baseless, the Canadian government, which had colluded in his extraordinary rendition, conducted an exhaustive investigation and concluded that there was no evidence that he had been involved in terrorism. Arar received an official apology and $10m in compensation from the Canadians. The US, by contrast, denied Arar permission to enter the country to testify before Congress about his experience; he testified by video link (and to date he remains on the “no fly” list).
Binyam Mohamed, a British national, had been arrested in Pakistan in 2002 and extraordinarily rendered to Afghanistan, then to Morocco where he was subject to torture-by-proxy for eighteen months (including having his penis repeatedly sliced with a razor). Mohamed was sent back to Afghanistan where he was held in the Salt Pit (the CIA black site near Kabul) before being transferred to Guantánamo in 2004. Although the Bush administration eventually conceded that suspicion of his involvement in terrorism was false, officials refused to repatriate him because he would not agree to demands not to make public statements about his treatment.
When Mohamed finally was returned to Britain in March 2009 after President Bush was out of office, public disclosures about British intelligence agents’ involvement in his torture sparked a political controversy that led to the first criminal investigation against British agents for their collusion with the CIA. On November 16, 2010, the British government announced that it was paying Mohamed and five other former Guantánamo detainees millions of pounds in compensation.
Military lawyers challenge torture
The use of torture fouled efforts to pursue any modicum of legal justice for 9/11. The military lawyers assigned to represent the first detainees who were charged by the Guantánamo military commissions were among the first to expose and challenge the torture policy. They made use of information about their clients’ mistreatment to contest the legality and veracity of confessions and third-party statements being used by the government to prosecute them.
Salim Hamdan, a Yemeni who had gone to Afghanistan to find work and had been employed as Osama bin Laden’s driver, was one of the first Guantánamo detainees to be charged by the military commissions. His case had gone to the head of the line not because he was regarded as a major terrorist but because he had agreed, under torture, to a plea bargain; the Pentagon was seeking a quick conviction to boost the image of the beleaguered commissions.
The military defense lawyer assigned to represent him, Lt. Cmdr. Charles Swift, refused to go along with the deal. Instead, he joined with several civilian lawyers to file a lawsuit, Hamdan v. Rumsfeld, challenging the legality of the commissions.
Military and civilian lawyers representing Canadian “child soldier” Omar Khadr, who had been badly wounded during a firefight when the 15-year-old was captured in Afghanistan in July 2002, challenged self-incriminating statements that he had thrown a grenade that killed a US soldier on the grounds that they were the product of torture and are, therefore, involuntary and unreliable. According to Khadr’s affidavit (and later confirmed by some witnesses to his treatment), at Bagram he was beaten, hung by his wrists for hours which exacerbated the pain of his injuries, hooded and soaked with water until he began to suffocate. His captors shined bright lights into his eyes, which had been damaged by shrapnel. Khadr was transferred to Guantanamo in October 2002 where his abusive and degrading treatment continued.
According to Khadr's affidavit, at Bagram he was beaten, hung by his wrists for hours...hooded and soaked with water until he began to suffocate... his captors shined bright lights into his eyes, which had been damaged by shrapnel.
In 2010, Khadr’s main Bagram interrogator, who had been court-martialed in connection with the beating death of Dilawar, was called as a government witness to testify that he was not “unlawfully” abused. The former interrogator acknowledged threatening the then-16-year-old with gang rape and death. Although military judges in some commissions cases decided to exclude statements from Bagram because of the commonplace brutality in that facility, Khadr’s judge did not. In October 2010, he pled guilty to all charges in exchange for a plea agreement that will release him to Canada in late 2011.
Muhammad Jawad, an Afghan juvenile at the time of his capture and transfer to Guantánamo in 2002, was accused of throwing a grenade at a passing convoy that wounded two US soldiers and their translator. His military lawyer, Maj. David Frakt, moved to have the charges dismissed on the grounds of torture and outrageous government conduct. The prosecutor assigned to the case, Lt. Col. Darrel Vandeveld, resigned in protest.
Frakt and Vandeveld cooperated to expose the extent of the “frequent flier program” (i.e., protracted sleep deprivation) at Guantánamo. Although the military judge hearing the motion refused to dismiss Jawad’s charges on those grounds, paradoxically, he did recommend that those directly involved in Jawad’s abuse be disciplined. In 2009, charges against Jawad were dismissed because the only government evidence to support the allegation that he threw the grenade was tortured statements he had made to interrogators at Bagram. When he was repatriated to Afghanistan in August 2009, he would have been transferred to Afghan custody in Pul-e-Charki prison, but one of his military lawyers flew there to precede his arrival and intervened with the Karzai government to prevent that.
Six military commission prosecutors quit because they refused to participate in a system that relies on tortured evidence. In an attempt to overcome the problem of prosecuting people who had been brutalised and degraded, “clean teams” of FBI and military interrogators were sent to “reinterview” prisoners to generate confessions and other forms of evidence untainted by previous abuse.
In November 2008, the convening authority for the military commissions, Susan J Crawford, decided that Muhammad al-Qahtani (the alleged twentieth hijacker for whom the “special measures” at Guantánamo were originally devised in 2002) was unprosecutable because he had been tortured; his treatment included forty-nine consecutive days of 20-hour interrogations, forcible administration of intravenous fluids, drugs and enemas, sexual and religious humiliations, and death threats.
Only three Guantánamo prisoners were convicted in the military commissions over the course of the Bush administration, none for perpetrating the 9/11 attacks. Of the total population of 779 people ever confined at this facility, over 500 of these ostensibly “worst of the worst” men had been released or transferred by the time President Bush left office.
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.