Cheating Justice (14 page)

The history of the United States shows how strongly and deeply the framers of our Constitution resisted the notion of torture. Their opposition surfaces not once, but twice in the Bill of Rights. The Fifth Amendment makes it clear that no person “shall be compelled in any criminal case to be a witness against himself.” Since the main objective of torture was to obtain confession of a crime, the Fifth Amendment was designed to put a stop to that. The Eighth Amendment prohibits the infliction of “cruel and unusual punishments,” which, by definition, includes torture.

There are no exceptions to these prohibitions. There is no loophole for serial murderers, awful crimes, or even war. There is no exception for the need to solve crimes, even when it might save lives. For the framers of the Constitution, there was no compromising this bedrock value. Knowing that torture annihilates human dignity, they did not abide by any ends-justifies-the-means view: torture was simply banned.

The framers understood the problems with torture. Moral revulsion aside, they knew that torture didn't ensure a truthful answer. Torture may produce information, some of which may be true, but there is no way to separate what is true from what the prisoner has made up in order to stop the torture. Because torture doesn't produce reliable information, a statement wrung out by torture can't be used as a basis for prosecution. Think about it. If torture were permitted, it would be the default approach in all cases.

Anti-torture principles are intertwined with U.S. history. In his instructions to the troops in April 1863, President Abraham Lincoln wrote: “Military necessity does not admit of cruelty—that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions.”
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After World War II, new humanitarian measures around the world and in the United States bolstered the prohibition against torture. In 1948, the
Universal Declaration of Human Rights was adopted by the new United Nations. The United States voted in favor. Article 5 states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
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Two international treaties ratified by the United States prohibited the mistreatment and torture of U.S. detainees: One was the Geneva Conventions;
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the other was the Convention Against Torture.
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Two federal laws correspond with these international treaties and make torture or the mistreatment of detainees a crime: the War Crimes Act of 1996
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and the “anti-torture law” (18 USC §§ 2340–2340A) passed in 1994.
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There are also prohibitions against conspiracies to commit any of these crimes.

In case any doubt existed about the U.S. perspective on torture, the
Army Field Manual for Intelligence Interrogations
made it clear to interrogators that they were prohibited from “the use of force, mental torture, threats, insults, or exposure to unpleasant and inhumane treatment of any kind”; also rejected were “brainwashing, physical or mental torture, or any other form of mental coercion.” The
Field Manual
explicitly republished the Geneva Conventions, described as “definite limits on measures which can be taken.”
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President Bush repeatedly said, “We do not torture,” while the truth is that we did. “We” also engaged in cruel and inhuman treatment—again at the president's initiative and with his approval. Once exposed, the president and vice president lobbied for changes in the law to shield themselves from prosecution. They turned American values on their head.

 

Shortly after September 11, President Bush issued an executive order permitting the CIA to capture and detain prisoners. Both the Department of Defense and the CIA were involved in interrogating detainees after September 11; sometimes their interrogations overlapped, and sometimes private contractors or the FBI entered the mix.

Most of the imprisonment and interrogation activities fell to the military and the Department of Defense, headed by Secretary of Defense Donald Rumsfeld. The CIA, under the direction of George Tenet, also conducted interrogations on military grounds, at CIA facilities in Iraq and Afghanistan, at “black” sites in countries across the globe, and through proxy jailers in foreign countries.

The first torture subjects are unknown, but “American Taliban” soldier John Lindh, when captured in the fall of 2001, was kept in solitary confinement, naked, cold, and deprived of sleep, according to
The Dark Side
by Jane Mayer.
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Other prisoners were captured that fall as well. Ibn al-Shaykh al-Libi was an early target of torture. Captured in November 2001, al-Libi was an al Qaeda trainer in Afghanistan. FBI agents used standard noncoercive interviewing techniques on him, and with some success. To their disgust, FBI agents were shoved aside when CIA interrogators arrived and forcibly removed al-Libi to Egypt, where he was tortured.

Aside from the aggressive treatment, there was another fishy thing going on, as described in the
New Yorker
by Jane Mayer in February 2005. Bush administration officials demanded information from al-Libi—not about September 11 or a possible follow-up attack, but about making a link between Iraq and al Qaeda. “Administration officials were always pushing us to come up with links, but there weren't any,” the FBI officer said.
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An implausible and untrue “confession” given under torture by al-Libi was snatched up by Vice President Cheney and President Bush to claim—falsely—that Iraq was involved in the 9/11 attacks.

Sometime in December 2001, not long after al-Libi was picked up, William J. Haynes II, general counsel of the Department of Defense, began investigating techniques that were used in countries known to torture and were part of the resistance training in the SERE (Survival, Evasion, Resistance, Escape) program of the Department of Defense, according to a 2008 report by the Senate Armed Services Committee.
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SERE studied torture by debriefing U.S. POWs in the Korean War who had been subjected to the extremely brutal techniques employed by North Korea; the methods were drawn from those in Communist China. The SERE program then prepared U.S. military trainees—all participants volunteered—so that they would be able to resist similar types of harsh questioning and mistreatment if they were captured by an unsavory enemy.
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To do this, SERE instructors reenacted the cruel techniques used against Americans and that the United States plainly considered illegal. After the Korean War, the United States had even filed a complaint with the UN alleging that Korea had not complied with the Geneva Conventions, wrote Northwestern University law professor Joseph Margulies in the
Washington Post.
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On January 11, 2002, as the first of 750 prisoners were transferred to Guantánamo Bay, White House officials and the CIA met to discuss interrogation methods. David Addington, counsel to Vice President Cheney, participated; so did John Yoo, deputy assistant attorney general in the Justice Department's Office of Legal Counsel, and Alberto Gonzales, counsel to the president. Then and there, according to a 2007 investigative story by Barton Gellman and Jo Becker in the
Washington Post
, the idea was hatched to break the back of the Geneva Conventions. “The vice president's office played a central role in shattering limits on coercion of prisoners in U.S. custody, commissioning and defending legal opinions that the Bush administration has since portrayed as the initiatives, months later, of lower-ranking officials,” wrote Gellman and Becker.
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When Secretary of State Colin Powell got wind of what was under way—that the all-important Geneva Conventions for the humane treatment of detainees were being unceremoniously dumped—his office and its top lawyer immediately registered a pointed objection to the White House.
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The first official word came on February 7, 2002. On that day, President Bush publicly announcedthat, in fact, the Geneva Conventions would not apply to Taliban and al Qaeda prisoners. A two-page memorandum shredded decades of careful thinking, U.S. law, military practice, and an international treaty.
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The memo said that prisoners should be treated “humanely,” which sounds good, but it had a caveat—except for “military necessity.” This caveat was huge: a vague and undefined phrase that blasted open the portals to hellish circles and ended well-established limits on the infliction of cruelty and degradation. President Lincoln had used the same phrase, but to march in exactly the opposite direction—“military necessity doesn't admit cruelty,” he had said.

President Bush's memo embellishing on his “decision point” soon became institutionalized in the form of “enhanced interrogation techniques” that could be used on detainees in Afghanistan and Guantánamo. The torture and cruel treatment of detainees that drew public attention much later was the direct and foreseeable result of this February 2002 memorandum by President Bush: here was the first and most significant of three critical actions that unleashed, for the first time in U.S. history, the systemic, presidentially authorized use of torture and abuse in detention and interrogation.

The Senate Armed Services Committee in 2008 weighed the full impact of the president's decision to push aside and replace well-established military doctrine. “Following the President's determination, techniques such as waterboarding, nudity, and stress positions, used in SERE training to simulate tactics used by enemies that refuse to follow the Geneva Conventions, were authorized for use in interrogations of detainees in U.S. custody,” the committee report said.
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As noted, the SERE program gathered its torture techniques from those used against U.S. prisoners of war in the 1950s. More than three dozen U.S. Air Force personnel were subjected to these techniques by the North Koreans, after which each airman made a startling—and completely false—“confession” that the United States was engaged in germ warfare, statements paraded in public as propaganda.

After the war, air force sociologist Albert D. Biderman wrote an article describing the methods, “Communist Attempts to Elicit False Confessions from Air Force Prisoners of War.”
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The methods explained by Biderman became the basis of the SERE program, which operated under highly controlled limitations. Although the SERE program didn't conduct real interrogations with actual suspects—that was the responsibility of a different department of the military—its techniques were “reverse engineered” for use against prisoners held by the United States. “In what critics describe as a remarkable case of historical amnesia, officials who drew on the SERE program appear to have been unaware that it had been created as a result of concern about false confessions by American prisoners,” wrote reporter Scott Shane in the
New York Times.
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And so a sick irony emerges from the White House development of torture. In the hands of the Bush administration, the SERE methods were turned into tools of terror to be used by the United States against persons who were captured. “The use of techniques in interrogations derived from SERE resistance training created a serious risk of physical and psychological harm to detainees,” the Senate Armed Services Committee said.
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Exactly why the CIA wanted to use the SERE methods in the first place is a mystery. The CIA was charged with securing the country from attacks; agents needed to get at the truth about al Qaeda—“actionable intelligence”—in order to upend plots and track down real-life terrorists. False confessions were the last thing that the CIA needed. “People say we need intelligence, and we do,” said Senator Carl Levin, chair of the Armed
Services Committee. “But we don't need false intelligence,” he told Scott Shane of the
Times.

And, yet, at the request of higher-ups in the Bush administration, SERE trainers put together a menu of proposed enhanced interrogation techniques, described at one point in a convenient guide by the CIA:

President Bush said in his memoir that he personally selected the techniques to be used.
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In March 2002 a man named Abu Zubaydah was apprehended in Pakistan. The CIA believed he was a real catch and had pegged him as a top al Qaeda figure—in reality, he was a kind of travel agent for jihadists, or more likely, for their wives and children. And, it turns out, he was also mentally unstable, and rather severely injured in the course of being captured. At first, the FBI interrogated him using standard procedures, and with a good deal of success. He identified “the brain” seen in various coded messages and intelligence reports as Khalid Sheik Mohammed, believed to be one of the planners of the 9/11 attacks. But then the CIA arrived with SERE specialists. The CIA aggressiveness so disturbed the FBI agents that they protested to FBI headquarters about the “borderline torture.” The agents received instructions to leave, which they did. Abu Zubaydah soon became one of the first targets of a new protocol of torture and cruel treatment.
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Around that time, U.S. government leaders began to meet to discuss what would be done to whom. “Members of the President's Cabinet and other senior officials participated in meetings inside the White House in
2002 and 2003 where specific interrogation techniques were discussed. Members of the National Security Council Principals Committee reviewed the CIA's interrogation program during that period,” noted the Senate Armed Services Committee.