Descent Into Chaos (55 page)

Today there are four Geneva Conventions (GC)—the first signed in 1864 and revised in 1949—and three additional Protocols. The first and second GC deal with the treatment of sick and wounded soldiers on the battlefield and at sea. The third—the most pertinent to the post-9/11 world—deals with the treatment of POWs, and the fourth with protecting civilians in war zones. The third Convention permits state armies to go to war, and if captured, soldiers are entitled to POW status and may be held until the end of active hostilities. The soldiers are considered lawful combatants who may not be prosecuted. POWs, however, may be tried for any war crime they may have committed. If their POW status is in doubt, the victor is obliged to set up a “competent tribunal” to determine if this status must be granted. The GC and the 1951 UN Convention against Torture, to which the United States is a signatory, prohibit torture, but the GC do not define
torture
or
terrorism,
giving states considerable latitude, as long as all prisoners are treated humanely. Detainees can be held until the end of a conflict if they are being prosecuted for war crimes. Thus the GC protect both the interests of states and humanitarian law. “Civil rights, human rights and the rule of law are not impediments to human security. They are, in fact, the ultimate repositories of it,” says Gabor Rona, the international legal director of Human Rights First. “Humanitarian law is a bulwark of human security in times of conflict.”
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The International Committee of the Red Cross, based in Geneva, which serves as the guardian of the GC, wrote to the Bush administration after 9/11 saying that the upcoming war was an “international armed conflict, ” and the United States was urged to treat humanely any combatant taken prisoner. The ICRC received no reply. Instead Bush decided to predetermine all al Qaeda and Taliban prisoners as “illegal enemy combatants” and deny them status as POWs under the GC or any legal rights under the U.S. Constitution. A legal black hole was willfully created in which all manner of abuse could be carried out. The holding of prisoners outside the jurisdiction of U.S. territory and law, in Kandahar, Bagram, Guantánamo Bay, and around the world in dozens of secret CIA jails called black sites, created a parallel system of justice that was to undermine the core values of the U.S. justice system.

What prompted the Bush administration’s drastic measures? Initially it was believed that the sheer shock of the attacks on the U.S. homeland called for extreme measures. Bush’s depiction of a war between good and evil and more talk of a war between civilizations conjured up strong feelings of revenge and retribution. There was little discussion in the media or Congress as to how this war would be carried out, as people wanted the administration to get tough with terrorism. There were fears of al Qaeda using nuclear weapons in a second strike, especially after Pakistani nuclear scientists were arrested for helping bin Laden. When the bombing campaign began in October 2001, phone intercepts hinted at something more to come. “We began to get serious indications that nuclear plans, material and know-how were being moved out of Pakistan [by al Qaeda]. . . . It was the vibrations coming out of everybody reviewing the evidence,” Bush told Bob Woodward.
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However, it is now clear that the key impulse for the drastic measures was from the neoconservatives in the administration who wanted to exploit the crisis in order to gain more powers for the president and the executive branch. They reckoned that presidential authority could be increased enormously at the expense of Congress and the judiciary, who were never consulted about the new laws. The very checks and balances within the U.S. political system that should have restrained this cynical agenda were bypassed. Once Bush moved away from depicting the war as one against al Qaeda to one against terrorism in general, the neocons were able to move the goalposts of their agenda from Afghanistan to Iraq and later to Iran. Rejecting the GC also helped create fear and awe among the public by implying that the terrorist threat was greater than anything the United States had ever experienced before. Madeleine Albright wrote that Americans had had an overdose of fear. “We have been told to be afraid so that we might be less protective of our Constitution, less mindful of international law.”
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Immediately after 9 /11 a small group of political appointees in the Office of Legal Counsel at the Department of Justice and the White House Counsel’s Office began to develop the new policy. Many of these lawyers belonged to the right-wing Federalist Society and shared a contempt for the Geneva Conventions. The White House Counsel, Alberto R. Gonzales, who became attorney general in the second Bush term, sent a now-infamous memo to Bush on January 25, 2001, stating, “The war against terrorism is a new kind of war. . . . In my judgment this new paradigm renders obsolete Geneva’s strict limitations on questioning enemy prisoners and renders
quaint
[my italics] some of its provisions.”
⁴
He argued that “Afghanistan was a failed state because the Taliban did not exercise full control over the territory and people . . . the Taliban and its forces were in fact, not a government, but a militant, terrorist-like group.” Gonzales asserted that such a determination meant that the obligation to abide by the GC need not apply. Gonzales’s entire analysis was false. The war on terrorism was not a new war, and the idea of failed states or what to do with them was not even covered by the GC. Moreover, the Taliban could hardly be considered terrorists when the Clinton administration had negotiated with them in the 1990s.

In a reply to the White House the next day, the State Department wrote that abrogating the GC would have a negative effect on the image of the United States abroad, the lives of captured American soldiers would be at risk, and U.S. leaders could be accused of war crimes. State argued that the United States was still obligated to determine the status of each prisoner by a military tribunal, and even if al Qaeda was to be refused POW status, the same could not be said for the Taliban. The Judge Advocate General’s Corps, or JAG—the army’s own lawyers—also protested. The army’s Uniform Code of Military Justice made maltreatment of POWs a crime. JAG pointed out that with the U.S. military’s global deployments, defiance of international law could create huge risks for U.S. soldiers. All this was to emerge in May 2004 when these memos were first published.
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Gonzales had the support of Bush and Cheney, and the debate was won. Bush stated on February 7 that al Qaeda and the Taliban would be collectively given the status of “illegal enemy combatants,” and the United States would treat them “humanely and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the GC.” This clause allowed the administration to cherry-pick those parts of the GC it wanted. Coining the phrase “illegal enemy combatant” was masterful because it was outside the lexicon of humanitarian law and allowed the United States to term the whole world a potential battlefield. In the first few months after 9/11, more than ten thousand people were arrested by the United States and its allies in the war on terror. In the United States alone, the FBI arrested several thousand Muslims on suspicion of being involved in terrorism. These people were held without trial and many were freed without an apology or explanation.

At home, the U.S. administration built up public hysteria. “We are keeping them off the street and out of the airlines and out of nuclear power plants and out of ports across the country and across other countries,” said Rumsfeld, as though he were an actor in a science-fiction movie. When he visited Guantánamo for the first time in February 2002, he said the United States was holding “the most dangerous, best-trained, vicious killers on the face of the earth.”
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Although most of the prisoners would turn out to be innocent of any crime, Rumsfeld had already determined their guilt. Even before the February 7 decision, the White House was considering a favorable prison site that “would be safe from attack and quiet enough for sustained interrogations,” one U.S. official told me.
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Prison ships parked in the ocean were considered, as was the island of Diego Garcia, a naval base in the Indian Ocean that the United States leases from Britain. However, the U.S. naval station at Guantánamo—the oldest overseas U.S. military base, dating back to 1903, when Washington leased forty-five square miles from Cuba for a refueling station at a cost of four thousand dollars a year— was both isolated and close to the U.S. mainland.

The ICRC only vaguely suspected that the United States was going to defy the GC. When U.S. officers gave the organization access to prisoners at the Kandahar detention center in December, they assured the ICRC that they would be applying the GC. Yet a few weeks later—on January 17, 2002—when the ICRC paid its first visit to Camp X-Ray, at Guantánamo, they saw sedated, hooded, and chained prisoners who had arrived by plane a week earlier. Once prisoners from places not connected to Afghanistan started to arrive in Guantánamo, it became clear to the ICRC that Washington had no intentions of adhering to the GC. Nobody in Washington had briefed the ICRC or given any indication of what U.S. plans were. Clearly the ICRC had been duped.

U.S. SOF and the CIA operating in northern Afghanistan also appeared to know that the rules of war were about to be changed, as they tolerated unprecedented abuse, torture, and death of Taliban prisoners at the hands of commanders such as General Dostum. “When we got to Shiberghan we could not believe the extent of the abuses and starvation carried out by the NA commanders and what U.S. SOF on the scene had tolerated there,” a senior Western aid official told me. “It was because the Americans knew the rules of war were about to change.”

For the most part Europeans refused to follow suit and did not dilute their obligations under GC, even after the devastating bombing of trains in Madrid in March 2004 that left 192 people dead. Britain was the only European country to follow the U.S. example, when Tony Blair removed Britain from its obligations under the European Convention on Human Rights. Parliament passed an Anti-Terrorism, Crime and Security Act, extending the government’s powers of arrest and detention.

The Americans introduced at least six different systems of holding prisoners and then encouraged their allies in the region to do the same. These systems included the main holding area at Guantánamo, jails at Bagram and Kandahar, a dozen secret sub-jails at U.S. firebases in the Afghan mountains where the SOF held their own prisoners, jails run by Afghan warlords and by General Fahim’s intelligence service, jails run by the ISI, and, finally, the process of “rendition” by which the CIA transported prisoners to allied countries where they could be interrogated and tortured by local intelligence agencies. Each system had levels of secrecy, nontransparency, the lack of legal redress, and noncompliance with U.S. law, contradicting even what Bush had promised in February—that prisoners would be treated “humanely.” What the United States imposed in those early months in Afghanistan would later be transported wholesale to Iraq. One Western official who knew all the prison systems well said it was “a descent into hell which the American legal system may never recover from.”

The first prisoner abuses in Afghanistan took place in Kandahar’s detention center, set up by U.S. Task Force 500, at the airport outside the city. Through the winter, prisoners from all over Afghanistan and Pakistan were flown there, including those captured outside the battlefields or those sold to the Americans by the warlords and Pakistani officials. Without documentation and only hearsay evidence that they were al Qaeda, the U.S. interrogators in Kandahar had to determine whether they should be sent onward to Guantánamo. Ultimately it was easier for the understaffed, undertrained, and all too few U.S. interrogators to send the prisoners to Guantánamo. In Pakistan the arrests were even more haphazard, due to the CIA paying bounties for any al Qaeda. As a result the army and police rounded up hundreds of innocent Arabs and Pashtuns.

The Afghanistan-Pakistan border region became an immense human bazaar where lives were traded with no limits or rules. Often the very old or the very young were sent to Kandahar. Three Afghan boys aged between thirteen and sixteen were held at Kandahar and then Guantánamo until March 2003. Another Afghan boy who had been a dishwasher at a restaurant where Taliban once ate was also held. Men over eighty years old, barely able to stand up straight, including one eighty-eight-year-old, also ended up in Guantánamo. Some Afghans just happened to be in the wrong place at the wrong time, such as Noor Habibullah, a landless Afghan farmer from a village near Jalalabad who had been conscripted by the Taliban at the end of the war. His story is typical of many: