Currently writing in the magazine Foreign Affairs, three members of Harvard University’s Carr Center on Human Rights, present evidence to support how Geneva Convention violations of the United States have backfired in spades—in American lives. Meanwhile, Republican Party members claim that “enhanced interrogation” produced results in the form of stopping terrorist plots, and more of the same will occur if Donald Trump is elected president. The three scholars (including a normal General Counsel of the Navy) identify several cases to support their contention.
Prohibitions under the Third Geneva Convention on treatment of prisoners of war have been openly violated, and therefore the perpetrators should be tried for violation of the American law on torture. Instead, the article engages in a cost-benefit analysis to determine whether more lives have been lost due to human rights violations than have been saved in the opinion of Republicans and some members of the Central Intelligence Agency.
Although the Iraqis imprisoned at Abu Ghraib did not suffer “enhanced interrogation,” many other war crimes occurred (bondage, facial lacerations, food deprivation, forced nudity, forced urine drinking, frogmarching, overexposure to cold, sleep deprivation, unhygienic filthy conditions, and even death). According to Colonel Stuart Herrington, who took command in December 2003, it was “routine and acceptable to beat prisoners.”
But “enhanced interrogation” did occur at Camp Bucca, where for example scorpions were placed on the nude bodies of Iraqi prisoners. Information about Guantánamo added to the picture of inhumane violations. In any case, the word leaked out that the Americans were using barbaric methods.
According to the three scholars, the following resulted:
• Among foreigners who entered Afghanistan and Iraq, joining insurgents battling the United States, the U.S. Department of State reported in 2006 that “the single most important motivating factor” was Abu Ghraib and Guantánamo.
• In 2008, Senator John McCain asked a senior al-Qaeda leader in captivity why the group got support in Iraq. The answer was “The chaos after the success of the initial invasion, and the greatest recruiting tool: Abu Ghraib.”
• After word of Abu Ghraib surfaced in 2004, Saudi Arabia arrested 250 men who tried to leave the country to join extremist groups.
• Among suicide bombers, 26 specifically have indicated in their videos that they were motivated by Abu Ghraib.
• Foreign fighters conducted more than 90 percent of all suicide bombings in Iraq from 2003-2005, killing thousands.
• Sunni jihadists in Iraq used torture of prisoners in their propaganda to justify killing (even beheading) Kurds and Shiites who cooperated with the United States.
• In 2004, Abu Musab al-Zarkawi, then leader of al-Qaeda in Iraq, stated that his group beheaded American contractor Nicholas Berg in retaliation for the abuses at Abu Ghraib.
• Today, ISIS puts prisoners in orange jumpsuits, mimicking Guantánamo. ISIS has also waterboarded, justifying their own Geneva Convention violations as vengeance against the United States for torturing prisoners.
• According to General Stanley McChrystal, “The thing that hurt us more than anything else in the war in Iraq was Abu Ghraib. . . . The Iraqi people . . . felt it was proof positive that the Americans were doing exactly what Saddam Hussein had done—that it was proof positive [that] everything they thought bad about the Americans was true.” The “hurt” identified by McChrystal was the unwillingness of Iraqis to cooperate with the United States in defeating al-Qaeda insurgents.
• The Netherlands government at first refused to send troops to join the coalition in Afghanistan, believing that their country could experience a backlash for being allied with a country using torture if they cooperated with the United States. The government delayed sending troops until the parliamentary debate begun in 2005 resulted in a favorable vote in 2006.
• In 2005, British troops captured an enemy combatant but released him because they did not have adequate detention facilities conforming to the Geneva Conventions and they could trust neither Iraq nor the United States to abide by them. The commander wanted to escape liability under British law for aiding and abetting torture.
• Forces from Australia, Britain, Canada, and New Zealand joined the United States in Afghanistan in 2001 and Iraq in 2003. But at a meeting in 2005, military lawyers from all four countries indicated that they would thin out their troops because of the American use of torture.
• In 2005, Finland refused to ratify an extradition treaty with the United States because of the American use of torture and extraordinary rendition, though the treaty was ratified in 2007.
• In 2008, Britain required the American embassy in London to apply for approval to land all military aircraft. The concern was whether British bases were being used as conduits for extraordinary rendition.
• A similar requirement was imposed in Ireland, which unwittingly was a transit point for extraordinary rendition. Ireland also banned weapons shipments to Israel during the 2006 conflict with Lebanon.
• In 2010, Britain paid off victims of extraordinary settlement rather making London’s complicity public.
• A convicted terrorist in Spain, Hamed Abderrahaman Ahmed, was released from a prison sentence because evidence came from his interrogation in Guantánamo.
• In 2010, the European Court of Human Rights fined Macedonia for its role during 2002 in turning over a person for extraordinary rendition to the United States.
• In 2012, Poland was fined by the European Court of Human Rights for complicity with extraordinary rendition.
• In 2016, Italy was ordered to pay an individual whom authorities had referred to the United States for extraordinary rendition.
• Four Americans fear travel to some European countries, where they may be arrested and tried for war crimes—George W. Bush, Dick Cheney, and Donald Rumsfeld, and John Yoo. Rumsfeld was nearly arrested in Paris during 2007. Travel restrictions on Bush administration officials have been imposed by Russia due to American support for “medieval torture.”
• In 2002, after Gambia aided American extraordinary rendition, 28 rebels were arrested and subjected them to secret prisons and torture. When the American Secretary of State for Africa met a member of the Gambian parliament to object to such violations, the Gambian replied, “[T]he world is different since 9/11 and al Qaeda and when it comes to matters of national security and the safety of the population, extraordinary measures must occasionally be taken.”
• In 2003, Colombia’s president adopted the American concept of “illegal combatants” to declare that Colombian rebels were outside the protections of international law.
• In 2008, Ethiopia and Kenya adopted the policy of extraordinary rendition for Somali militants.
• In 2004, Egypt began to use sexual humiliation of prisoners, based on Abu Ghraib.
• In 2006, Sudan’s president refused the entry of UN peacekeepers into Darfur, saying “We don’t want another Abu Ghraib in Darfur; we don’t want our country to go to Guantanamo.”
• After the United States refused admission of the UN special rapporteurs to Guantánamo, several other countries also refused.
• China, Cuba, Iran, and North Korea have dismissed criticisms of their human rights records as hypocritical in light of Abu Ghraib and Guantánamo.
• After American concern was expressed over Hindu-Muslim riots of 2006 in India, an official said, “[Washington] was guilty of horrific human rights violations and thus had no moral basis to speak on such matters.”
• In 2007, when two members of Congress met Syrian leaders to protest the detention of political prisoners, they received a response critical of Abu Ghraib and Guantánamo.
But what is odd is the three scholars did not produce the justifications used for terrorism on American soil, killing or threatening to kill Americans in the homeland:
• The motives behind the American embassy bombings in Kenya and Tanzania (technically, on American soil) during 1998 were revealed by Osama Bin Laden in 2002. In his “Letter to America,” he explicitly stated that al-Qaeda’s motives for their attacks include Western support for attacking Muslims in Somalia, supporting Russian atrocities against Muslims in Chechnya, supporting India’s oppression against Muslims in Kashmir, the Jewish aggression against Muslims in Lebanon the presence of American troops in Saudi Arabia, American support of Israel, and sanctions against Iraq.
• But Osama Bin Laden disclaimed any responsibility for the 9/11 attacks, so speculation on their motives has allowed politicians to engage in propagandistic renderings without evidence. There must be some anti-American reason. They may have been inspired by Osama Bin Laden’s thesis. Or maybe not.
• The Times Square bomber (2010), albeit unsuccessful, told the court in his trial that his motivation was that the United States killed his friends in Pakistan by drone strikes.
• The surviving Boston Marathon bomber (2013) wrote on the place where he was hiding that the attack was in response to U.S. wars in Iraq and Afghanistan.
• Evidence has been revealed that the Orlando mass shooter (2016) acted to avenge the killing of Afghanistanis by the United States as well as the bombing of the Islamic State by Russia and the United States.
When the latter motivation was revealed by the Los Angeles Times, an FBI official admitted that actual motives of terrorists had previously kept secret. In other words, the American people have been kept in the dark on consequences of policies in Washington, politicians have refused to raise the issue, and threats to American civilians at home and abroad will continue until the policy changes.
But the world has changed: Rather than being respectful of human rights, many parts of the world are doing what former Secretary of Defense Rumsfeld advocated—ignoring the Geneva Conventions and committing barbarous acts. The age of barbarism has returned.
Once again, someone has formulated the intention of killing Americans in retaliation for the killing of Muslims by the United States in the Middle East.
On June 12, 2016, an American-born Muslim shot and killed bar patrons in Orlando, Florida, indicating that his reason was the killing of Afghanistanis by the United States as well as the bombing of the Islamic State by Russia and the United States.
On April 15, 2013, two Muslims left a bomb to explode along the route of the Boston Marathon. After one of the perpetrators was killed, the other confessed that the bombing was in retaliation for Muslims killed in Iraq and Afghanistan.
On May 1, 2010, an American-born Pakistani planted a bomb in a vehicle in Times Square, which failed to explode. In court during his trial, he indicated that he had visited Pakistan earlier, and some of his friends there died from drone attacks.
Thus far, no motive has been disclosed for the two Pakistani-born residents of California who shot Americans in San Bernardo on December 2, 2015.
What is most revealing about the incidents is that until now the television media did not disclose the actual motive for any of the massacres. The American public was simply told that the terrorists are jihadists or have pledged allegiance to a terrorist group. Information about their motives has long been available on the Internet. An article buried in the New York Times regarding the Times Square plotter, but a front-age article in the Los Angeles Times evidently forced the the New York Times to do likewise, admitting that the Orlando shooter was angry about the bombing of ISIS in Iraq and Syria. The reason for the disclosure was the puzzle over why Orlando police took three hours to subdue the shooter instead of sending in a swat team immediately. The FBI initially redacted the statement about the real motive, but the LA Times printed the unredacted version.
When the motives were revealed on television, an FBI official admitted that actual motives of terrorists were previously kept secret because they did not want to attract other jihadists to copycat. But the fact is that bombing in the Middle East is interpreted as a revival of the Crusades. Now the word is out.
Until the Orlando incident, the media were cooperating with the FBI. But the dots have not been connected: Americans still do not understand that the American wars in the Middle East are perceived by some Muslims as a revival of the Crusades and that the increased terrorism in Europe and the United States is a retaliatory response. If the retaliatory actions had been undertaken by a state recognized under international law, the actions would be classified as “reprisals,” which are acceptable if proportionate to the provocation. Thus, the reprisals would be accepted as proportionate to the drone attacks, provided that drone strikes were judged contrary to international law, a matter still in dispute.
But the perpetrators, who are called “lone wolves,” have no such defense. And the UN Security Council has approved any action to stop the aggression of the Islamic State of Iraq and Syria (or Islamic States of the Levant).
But when will the United States and its allies stop their military action, withdraw their military forces, and thereby deprive “lone wolves” of motives? Meanwhile, violence will continue to breed violence.
On November 20, 2015, the UN Security Council voted on a resolution to authorize military action against the declared Islamic caliphate operating in Iraq and Syria. The resolution was introduced by France. Russia had drafted a similar resolution on September 30.
Although the vote was unanimous, what is notable is that the United States did not introduce the resolution despite bombing the area for more than a year.
Accordingly, this website will no longer list U.S. military strikes under “Breaking News” unless they commit such war crimes as bombing civilians.
Making war without UN permission is a war crime, according to the UN Charter. So is intervening in a civil war. Yet for months the U.S. Department of Defense has been bombing Iraq and Syria.
The United States could easily obtain permission from members of the UN Security Council for the attacks. But rather than doing so, Washington prefers to violate the UN Charter.
This website, accordingly, has been listing articles posted by the U.S. Department of Defense about the various attacks on “terrorists” in both countries. The essays, in turn, come from a Google listing of articles on Iraq that appears automatically each day.
Over the past week there has been unprecedented hacking of www.uswarcrimes.com. The same thing happened on September 9, 2015. There is no coincidence between the hacking and the listing.
Who are the cowardly hackers? Are they inside the Department of Defense? Or are they members of the CIA? Or perhaps just vigilantes, eager to prevent a website from continuing to list the DOD articles under Breaking News. Whoever is doing so might better ask the DOD to get UN Security Council approval. When they do, the articles will no longer be listed routinely.
If the United States wants law and order in the world, the way to do so is to follow the law—international law. If all countries were to follow DOD’s example, countries would routinely bomb other countries. Perhaps taking their cue from the lawless DOD, North and South Korea recently traded fire across their border. Russia has felt no compunction about supporting rebels in the Ukraine. Who will be next?
The essence of the nation-state system, as first developed by international law during 1648, is that one country should not have its sovereignty violated by another. If the DOD does not respect the most fundamental principle of the current nation-state system, then what kind of world order does it promote other than international anarchy that will have no end in sight?
In 1961, Yale Psychology Professor Stanley Milgram sought to determine whether Adolf Eichmann’s claim that he was merely following orders was credible. He then began an experiment in which subjects for less than an hour were paid to punish someone in another room with electric shocks if they failed to answer a question correctly, not knowing that the person in the other room was not being shocked. Milgram later concluded, “The extreme willingness of adults to go to almost any lengths on the command of an authority constitutes the chief finding of the study and the fact most urgently demanding explanation.”
Ten years later, Stanford Psychology Philip Zimbardo got a grant from the U.S. Office of Naval Research to study the causes of conflict between military guards and prisoners.
But these important facts are not mentioned when the film “The Stanford Prison Experiment” begins. Nor is there any mention of the International Covenant on Civil and Political Rights of 1967.
Instead, filmviewers first view Zimbardo (played by Billy Crudup) and colleagues interviewing Stanford undergraduates who need some extra money before classes resume in the fall quarter to select among applicants to participate in a two-week “prison experiment” for $15 per day. Some are then randomly chosen either as guards or as prisoners. Rules of confinement are explained before the experiment, but the guards violate them during the experiment, inflicting extraordinary psychological and even some physical and sexual abuse on the prisoners. Although they believe that they are trying to make their prisoners obedient, the guards end up slave training.
Some prisoners are so devastated psychologically that they are released within a few days. The experiment itself is terminated on the sixth day, when Zimbardo concludes that he can no longer tolerate watching the abuse he watches from a surveillance camera on the monitor in his control room. Indeed, the main person who is experimented upon is Zimbardo himself for undertaking an experiment without apparent knowledge of Milgram’s experiment or of actual conditions in military prisons.
Zimbardo perfectly fits the role of the experimenter in Milgram’s study, bossing his psychology graduate students and the guards. But the experiment unravels as prisoners rebel, guards overreact, Zimbardo’s colleagues object, and his future wife calls him out for being an idiot. An older psychology professor, not part of the experiment, asks him to identify the independent variable of his experiment, which he cannot.
A title at the end–that no permanent damage was done to any of the experimental subjects—is contradicted by one of the former prisoners in a post-experimental conversation with one of his most abusive guards. That guard admits he was experimenting with himself in trying to test his own limits in inflicting abuse and professes surprise that no prisoner specifically objected—although they did.
That conversation is entirely different from debriefings after the Milgram experiment, when subjects were reassured that they caused no pain and were able to rationalize their own behavior.
Zimbardo, in short, proves to be the most naïve person in the film. Clearly, he violates professional ethics so blatantly because he needed the money (and prestige) from the grant more than the students. A title at the end indicates that Zimbardo now gives lectures and has written about abuse of power, including Abu Ghraib, having done so himself far more than any of the guards in his experiment. (The idea of paper bags over the heads of the Stanford prisoners in the film came directly from Abu Ghraib.)
Directed by Kyle Patrick Alvarez, “The Stanford Prison Experiment” went beyond the actual experiment in order to provoke conversation by filmviewers as they leave a cinema because the film is an experiment upon the audience as well.
What is depicted is a paradigm of why Americans and others around the world lack real democracy: They obey authority because they lack moral courage, preferring to worship (or have a taste of) power, even (or perhaps especially) when exercised illegitimately. Thus, learning nothing from the Milgram and Zimbardo experiments, some psychologists provided technical assistance to the torture conducted at Guantánamo, and the American Psychological Association until recently refused to consider condemning them.
The subliminal message of the film is that Abu Ghraib and Guantanamo are re-enactments of the Zimbardo experiments in which the Bush administration informed guards that the Geneva Conventions did not apply, thereby leaving care of prisoners up to the imagination of guards from a country that still seems fascinated with psychological torture as a method for maintaining tyranny.
by J. Wells Dixon
American military doctrine is clear: when a superior officer identifies a lawful strategic objective, forces under his or her command must work to achieve it without delay. When it comes to Guantánamo, however, the Pentagon continues to obstruct President Obama’s mandate to close the prison. Their defiance is tantamount to insubordination.
Obama has said repeatedly and without equivocation that closing Guantánamo is a moral imperative and national security priority for the United States. He has further said it serves as a recruiting tool for terrorists. The president started out well on Guantánamo, signing an executive order on his second day in office requiring the prison to be shuttered within one year. He failed to achieve that goal because of missteps early in his administration, but the Pentagon, working closely with the State Department, transferred 67 detainees during his first two years in office.
what has become an all too familiar pattern in recent years, however, momentum was lost and closure efforts stalled when the president lost his nerve in the face of political opposition. By January 2011, he had effectively turned his back on Guantánamo, and only four men left the prison in the two and a half years that followed.
In May 2013, nearly two years ago, the president returned his attention to Guantánamo in response to a mass hunger strike by the men and recommitted to closing the prison. He said Guantánamo is “a symbol around the world for an America that flouts the rule of law,” and “there is no justification beyond politics . . . to prevent us from closing a facility that should never have been opened.” He warned that “history will cast a harsh judgment on this aspect of our fight against terrorism and those of us who fail to end it.” He lifted a self-imposed moratorium on transfers to Yemen, and appointed new envoys at the State and Defense Departments to oversee closure efforts. Transfers resumed, and 11 men were released between August and December 2013.
Then transfers stopped, and momentum was lost again, because Defense Secretary Chuck Hagel refused to sign the paperwork necessary to carry out more transfers. In the first 11 months of 2014, only six detainees left the prison, five of whom were exchanged in a prisoner swap for a U.S. soldier held by the Taliban. In November 2014, Hagel announced his resignation amid conflicts with the president, including his refusal to transfer detainees. Transfers quickly resumed: 22 men were released in November and December 2014, and five more in January 2015. Since then, however, the State Department envoy resigned – and hasn’t been replaced – and the momentum for closure has once again ground to a halt. Now, 122 men remain in limbo, half unanimously approved for transfer by all relevant security agencies.
At this point transfers are not expected to resume until May or June, and it looks increasingly likely that Obama will fail to close Guantánamo in the remaining 18 months of his administration. Whether that happens will be determined largely by the Pentagon’s willingness to transfer cleared men out of the prison and step up the pace of the Periodic Review Boards so that more men may be cleared. There are reportedly transfers approved in 2014 that have not been executed by the Pentagon. There are also reportedly several transfers awaiting Defense Secretary Ashton Carter’s signature. It makes you wonder whether these transfers are hitting his desk, or why they may be collecting dust on the Defense envoy’s desk. You also have to wonder why, in the face of continuing congressional opposition to closure, Marine General John Kelly would tout a purported “recidivism” figure of 30 percent when data released by the Director of National Intelligence shows that figure is below 6 percent and falling for men transferred by the current administration. Is the Pentagon working against the closure of Guantánamo?
Obama recently told a seventh-grader that he regrets not closing Guantánamo on his first day in office. His regret pales in comparison to that of our clients who continue to languish there, even though many have been cleared by the government for release for years. Yet despite the obstacles he has had to navigate, the president has never wavered from his stated commitment to closing Guantánamo.
From the ongoing indefinite detention of cleared detainees, to the glacial pace of the Periodic Review Boards, to the collapse of most military commission trials, the dysfunction in Guantánamo military operations is palpable. What remains to be seen is whether Obama, now with his back to the wall on closing Guantánamo, will continue to tolerate the intransigence and clear lack of effectiveness that plague the forces under his command.
by Cliff Sloan
When I began as the State Department’s envoy for closing the detention facility at Guantánamo Bay, many people advised me that progress was impossible. They were wrong.
In the two years before I started, on July 1, 2013, only four people were transferred from Guantánamo. Over the past 18 months, we moved 39 people out of there, and more transfers are coming. The population at Guantánamo — 127 — is at its lowest level since the facility opened in January 2002. We also worked with Congress to remove unnecessary obstacles to foreign transfers. We began an administrative process to review the status of detainees not yet approved for transfer or formally charged with crimes.
While there have been zigs and zags, we have made great progress. The path to closing Guantánamo during the Obama administration is clear, but it will take intense and sustained action to finish the job. The government must continue and accelerate the transfers of those approved for release. Administrative review of those not approved for transfer must be expedited. The absolute and irrational ban on transfers to the United States for any purpose, including detention and prosecution, must be changed as the population is reduced to a small core of detainees who cannot safely be transferred overseas. (Ten detainees, for example, face criminal charges before the military commissions that Congress set up in lieu of regular courts.)
The reasons for closing Guantánamo are more compelling than ever. As a high-ranking security official from one of our staunchest allies on counterterrorism (not from Europe) once told me, “The greatest single action the United States can take to fight terrorism is to close Guantánamo.” I have seen firsthand the way in which Guantánamo frays and damages vitally important security relationships with countries around the world. The eye-popping cost — around $3 million per detainee last year, compared with roughly $75,000 at a “supermax” prison in the United States — drains vital resources.
Americans from across the spectrum agree on closing Guantánamo. President George W. Bush called it “a propaganda tool for our enemies and a distraction for our allies.” Kenneth L. Wainstein, who advised Mr. Bush on homeland security, said keeping the facility open was not “sustainable.”
In 18 months at the State Department, I was sometimes frustrated by opposition to closing the facility in Congress and some corners of Washington. It reflects three fundamental misconceptions that have impeded the process.
First, not every person at Guantánamo is a continuing danger. Of the 127 individuals there (from a peak of close to 800), 59 have been “approved for transfer.” This means that six agencies — the Departments of Defense, Homeland Security, Justice and State, as well as the Joint Chiefs of Staff and the director of national intelligence — have unanimously approved the person for release based on everything known about the individual and the risk he presents. For most of those approved, this rigorous decision was made half a decade ago. Almost 90 percent of those approved are from Yemen, where the security situation is perilous. They are not “the worst of the worst,” but rather people with the worst luck. (We recently resettled several Yemenis in other countries, the first time any Yemeni had been transferred from Guantánamo in more than four years.)
Second, opponents of closing Guantánamo — including former Vice President Dick Cheney — cite a 30 percent recidivism rate among former detainees. This assertion is deeply flawed. It combines those “confirmed” of having engaged in hostile activities with those “suspected.” Focusing on the “confirmed” slashes the percentage nearly in half. Moreover, many of the “confirmed” have been killed or recaptured.
Most important, there is a vast difference between those transferred before 2009, when President Obama ordered the intensive review process by the six agencies, and those transferred after that review. Of the detainees transferred during this administration, more than 90 percent have not been suspected, much less confirmed, of committing any hostile activities after their release. The percentage of detainees who were transferred after the Obama-era review and then found to have engaged in terrorist or insurgent activities is 6.8 percent. While we want that number to be zero, that small percentage does not justify holding in perpetuity the overwhelming majority of detainees, who do not subsequently engage in wrongdoing.
Third, a common impression is that we cannot find countries that will accept detainees from Guantánamo. One of the happiest surprises of my tenure was that this is not the case. Many countries, from Slovakia and Georgia to Uruguay, have been willing to provide homes for individuals who cannot return to their own countries. Support from the Organization of American States, the Vatican and other religious and human rights organizations has also been helpful.
I don’t question the motives of those who oppose the efforts to close Guantánamo. Some are constrained by an overabundance of caution, refusing to trust the extensive security reviews that are in place. Others are hampered by an outdated view of the risk posed by many of the remaining detainees. A third group fails to recognize that the deep stain on our standing in the world is more dangerous than any individual approved for transfer. These concerns, however well-intentioned, collapse in the glare of a careful examination of the facts.
The road to closing Guantánamo is clear and well lit. We are now approaching the 13th anniversary of the opening of the Guantánamo detention facility. Imprisoning men without charges for this long — many of whom have been approved for transfer for almost half the period of their incarceration — is not in line with the country we aspire to be.
New York Times, January 5, 2015
Among discussion about Senator Dianne Feinstein’s release of a 528– page summary of the Senate Select Committee on Intelligence Committee’s Study of the Central Intelligence Agency’s Detention and Interrogation Program (www.nytimes.com/interactive/2014/12/09/world/cia-torture-report-document.html?_r=0), the most egregious defense has been penned by John Yoo, Deputy Assistant U.S. Attorney General in the Office of Legal Counsel, Department of Justice, during the Bush administration.
The following should serve to refute each of the claims made by Yoo in a recent op-ed in the Los Angeles Times (www.latimes.com/opinion/op-ed/la-oe-yoo-torture-feinstein-20141214-story.html#page=1):
1. Feinstein released the report without Republicans, so the claims cannot be trusted.
The fact is that the full report had bipartisan cooperation. The Republicans objected to the report’s release for partisan reasons, not inaccuracies. Moreover, one prominent Republican—John McCain—approved.
2. The report was not based on interviews of witnesses, so the claims cannot be trusted.
Feinstein’s bipartisan committee agreed to review existing documents of witnesses. There was no need to re-interview or cross-examine.
3. CIA officials “have rejected many of the report’s factual findings and its central claim that the CIA systematically misled the White House and the present and covered up the abuse of terrorists.”
If anything motivated Feinstein and the rest of her committee, it was that CIA intelligence briefings were lies. Secretary of State Colin Powell was also kept out of the loop—and resigned.
4. American law banning torture during interrogation only criminalizes those who apply methods with “specific intent” to cause “severe physical or mental pain and suffering.”
According to the law, “severe physical or mental pain and suffering” is defined as including the following: “(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality”
The record shows that signs of pain and suffering as well as blood were ignored by those who continued to torture. Further, when the methods were applied, members of the FBI exited the rooms to avoid any association with the torture. There have been sufficient whistleblowers to attest that the torture continued after evidence of suffering was clearly present. The torturers knew what they were doing.
Besides, international law also applied, including measures short of torture that constitute “cruel, inhuman or degrading treatment.” The United States has ratified the appropriate international treaty, which has been interpreted in European courts to ban such practices as sleep deprivation.
5. Only waterboarding was “close to the line” as an illegal method of torture.
Waterboarding was conducted against American soldiers during World War II in Japan, and those who did so were convicted in the Tokyo War Crimes Trials under the supervision of the U.S. military. Accordingly, the Geneva Conventions banned torture, and American law was written in full cognizance of that experience. But the Feinstein report and other sources indicate other methods as well that have been banned. The most common were routine beatings for several minutes resulting in bleeding, broken bones, unconsciousness, and even death. Others include making incisions on the skin of a penis three times, hanging from handcuffs, chaining prisoners to the floor in a cold room naked in fetal positions, sleep deprivation, forcible removal from one cell to another as many as 112 times in a period of two weeks, subjection to freezing temperatures without adequate cover, requiring a prisoner to stand for 24 hours for 20 days, forcing prisoners to squat naked for hours while chains cut into their flesh, stuffing prisoners head first into sleeping bags to induce claustrophobia, the threat to kill a prisoner’s 9-year-old daughter, telling a prisoner that the voice he heard screaming outside his cell was that of his wife, threatening to rape the wives and children of prisoners, and deprivation of clothing and food. Torture can be inferred when several techniques are applied in tandem.
6. The Geneva Conventions did not apply to Al Qaeda terrorists because they fought for no nation.
In fact, many of those detained were captured during wartime—the war in Afghanistan against the government. Some were caught while fighting against forces of the United States and its allies.
Others were turned in by Afghans and Pakistanis for a variety of reasons—for the bounty paid by the United States, because they spoke Arabic, or because Afghans wanted to get rid of political rivals. The International Covenant on Civil and Political Rights, which bans torture during interrogation of prisoners, applied to those who were not captured on the battlefield. The United States has also ratified that treaty.
Moveover, to establish that someone is a terrorist means to find that person either planning or committing a specific act. When torture was used to force prisoners to confess to terrorism or plots of terrorism, there clearly there was no advance proof that they were terrorists.
How can Yoo explain the detention of 64 children at Guantánamo, some as young as 10, to be among the “worst of the worst”? Why were they hooded without the ability to see and chained to the bottom of aircraft en route from Afghanistan along with the others? What intelligence were they supposed to provide? There were still 21 children at Guantánamo in May 2008 while Bush was still in office.
7. US. Soldiers had been trained on the same methods without physical or mental injury.
Experiments were indeed conducted on American soldiers, but they stopped short of inflicting injury.
8. “We knew little about Al Qaeda, and intelligence indicated that more attacks were coming.”
Aside from the obvious contradiction in Yoo’s sentence, the fact is that the Clinton administration knew about Al Qaeda, and the Bush administration heard warnings from Richard Clarke, National Coordinator for Security, Infrastructure Protection, and Counter-Terrorism, but did not want to know more from him.
9. “If some CIA interrogators went beyond these methods [of harsh interrogation], they would not have received Justice Department approval.”
Yoo was the one who wrote in approval on behalf of the Justice Department, so his statement is one of self-incrimination.
10. Standard interrogation methods could take “weeks, months, years—or never” to yield intelligence.
In other words, the end justified the means. Yet the evidence presented in the Feinstein report indicates that valuable intelligence was obtained by standard methods, whereas torture produced phony information.
11. There has been no “second large-scale terrorist attack for the last 13 years.” Ergo, the CIA’s interrogation methods were effective.
Here, Yoo discredits the effectiveness of national security surveillance and local law enforcement for preventing terrorist attacks without proof that the CIA made any contribution.
Yoo’s qualifier “large” in “large-scale attacks” is a recognition of the fact that small-scale attacks have occurred. Yet in all those cases, the reason for the attacks was retaliation against the United States for breaking international law, as Faisal Shahzad said in court when he was convicted of putting a bomb in Times Square on May 1, 2010. An American citizen, he was reacting to indiscriminate drone strikes in Pakistan that had killed hundreds of innocent civilians.
12. The CIA could only have found out the name of the courier to track down Osama Bin Laden through torture. “The Feinstein report cannot explain how the CIA brought down Al Qaeda’s leadership.”
Feinstein has replied that the names of the courier and others were already in CIA files and were discovered through normal interrogation methods. The leaders were located through normal intelligence and brought down by drone strikes.
13. Yoo justifies American “practical” wartime measures by pointing out indiscriminate killing by Union Army troops under General William Sherman during the Civil War, massive bombings of Germans during World War II, and President Harry Truman’s unleashing of the atom bomb on Japan.
Yet none of these measures were at the time in violation of domestic or international law. The Geneva Conventions came later. Not until 1949 did international law place restrictions on aerial warfare. Besides, Yoo’s point is irrelevant: The examples are not about interrogation methods. Yoo accuses Obama (though not Bush) of impropriety involving drone strikes, and on this point he is correct: Interrogations would result in fewer deaths if those killed by drone strikes would be captured instead.
14. A “large majority of Americans support tough interrogation methods.”
In 2007, only 27 percent of Americans surveyed in a poll said the United States should torture prisoners captured in the war against terrorism, but in 2012 41 percent said they approved of torture. In 2005, a poll reported that 82 percent thought waterboarding was wrong, though the percentage slipped to 55 percent in 2012. Chaining of prisoners naked in cold rooms was disapproved by 79 percent in 2005 but was by 51 percent in 2012. Americans also have strongly opposed threatening prisoners with dogs and religious humiliation.
Conclusion. Feinstein’s report was in the mode of a “truth commission.” But the report does not articulate specific crimes that could be prosecuted from the evidence, as Yoo notes. That was the task of my book well-documented George W. Bush, War Criminal? The Bush Administration’s Liability for 269 War Crimes, which I gave to NBC journalist Chuck Todd to be delivered to Barack Obama just before his inauguration in 2009, with a recommendation to close Guantánamo on which he acted soon after taking office. The importance of the information is underscored by the words of Benjamin Ferencz, Nuremberg Chief Prosecutor, who wrote the Foreword to the book.
Such “truth commissions” and war crimes trials are usually served upon those no longer in power, so the question has arisen why the report was released, even in a redacted form. She has been accused of endangering American lives by bringing the subject into the public arena. But the publication only brings the matter into the American public discourse. Two television journalists (Jack Cafferty and John Stewart) were forced to recant accusations that American public officials (Donald Rumsfeld and Harry Truman) have been war criminals, so the subject has been taboo for decades. The rest of the world has known about the facts for years, and those particularly incensed continue to act upon those facts. For Obama to pardon those responsible, as some urge him, would further fan the flames of international hostility.
There will come a time in the future when an American president and Congress will join in admitting that serious, illegal wrongdoing occurred during the misguided “war on terror” in order to recover whatever is left of the moral authority of the United States.
There are two ways of reviewing Camp X-Ray, a dramatic film directed by Peter Sattler on behalf of a production company in Karachi. One is to watch Private First Class Cole (played by Kristen Stewart) as she is assigned to the maximum security prison at Guantánamo, learns the routine, but finds more sincerity on the part of prisoner Ali Amir (Peyman Maadi) than her fellow soldiers. Ali has finally found in Cole, whom he calls “Blondie,” an interlocutor who is civil enough to engage him in conversation, not just about his confinement but about a Harry Potter volume that he would like to read and her state of mind as she guards him and even prevents him from committing suicide.
The other way is to count the number of war crimes being committed: (1) The denial that they are war criminals, as the euphemism “detainees” is used to pretend that the Geneva Conventions do not apply. (2) Violating medical ethics by forced feeding. (3) Cruel treatment in the form of forced movement from cell to cell. (4) Outrages upon personal dignity, which prompts Cole to file a complaint. (5) Reprisals for refusal to eat. (6) Systematic insults. (7) Cramped housing in a single cell. (8) Solitary confinement. (9) Prisoners disallowed from food preparation. (10) Prisoners not allowed to eat together. (11) Lack of a prison canteen. (12) Inadequate recreational opportunities. (13) Inhumane transfer of prisoners to Guantánamo. (14) Failure to allow prisoners to elect representatives for negotiation with prison management. (15) Repeated punishment. (16) Punishment beyond the 30-day maximum. (17) Corporal punishment evidenced by scars on Ali’s body. (18) Confinement without daylight. (19) Inhumane treatment, notably lights left on for 24 hours. (20) Failure to try accused prisoners. (21). Lack of speedy trials. (22) Failure to have a public list of Geneva Convention provisions. (23) Failure to disseminate Geneva Convention provisions to military personnel. (24) Failure to allow visits between prisoners and their attorneys. (25) Failure to allow United Nations personnel to visit prisoners. (26) Failure to allow the Red Cross or other nongovernmental organizations to visit prisoners. (27) Failure of commanding officers to report offenses against prisoners to their superiors. (28) Failure of commanding officers to discipline or prosecute soldiers committing offenses against prisoners. (29) Attempting to justify torture. (30) Failure to repatriate prisoners promptly. (31) Failure to allow prisoners to correspond with families.
But these are only a subset of 165 war crimes against prisoners committed by the United States since 9/11, as documented in George W. Bush, War Criminal?, a book for sale in a Karachi bookstore that is only available online in the USA (2009).
At the end of a war, according to Article 20 of the Hague Convention of 1907, as later revised by the Geneva Conventions of 1949, prisoners of war must be either released to go home or put on trial for war crimes. As the American role in the Afghan civil war winds down during 2014, the subject of prisoner release from Guantánamo will inevitably have to be addressed.
Accordingly, the exchange of five members of the Taliban for one American soldier held hostage by the Taliban for four and one-half years on May 31, 2014, has brought the Geneva Conventions back into the limelight, having been ignored ever since January 25, 2002, when Alberto Gonzalez, White House Counsel to President George W. Bush and later attorney general, authored a memorandum stating that the Geneva Conventions did not apply to the “war on terror.” For the first time, several members of the media are now using the term “prisoner,” rather than the politically correct term “detainee,” as they describe the swap, although the American military claims that they always referred to the soldier as a “prisoner of war.”
The American is 28-year-old Army Sergeant Bowe Bergdahl, the only known American held as a prisoner of war by the Taliban. Negotiations for his release had been ongoing since December 2013, but the Taliban insisted that he would be released only in exchange for a swap of all five members of the Taliban held at Guantánamo.
Bergdahl was transferred to an American military hospital in Landstuhl, Germany, where he is receiving psychological care and evaluation as well as a debriefing on the circumstances of his capture. According to present plans, he will be further treated at a military hospital in San Antonio, Texas, and later reunited with his parents in Hailey, Idaho, after his treatment at the hospital concludes.
Although his stay in San Antonio was described as “long term,” he was reported in good physical condition upon his release, so Bergdahl may suffer from a psychological toll after four and one-half years of captivity. The Taliban may believe that his release is consistent with Article 6 of the Geneva Convention of 1864, which requires repatriation of “unfit” prisoners of war; if so, then he should have been released earlier. But that raises the question why seriously ill prisoners have been held at Guantánamo, including Shaker Aamer and Ibrahim Othman Ibrahim Idris, whose lawyers have petitioned for their release this year.
The five former Taliban prisoners in Guantánamo include Khirullah Said Wali Khairkhwa, who was associated directly with Osama bin Laden and Mohammad Omar, the Taliban’s supreme commander. Another, Mullah Norullah Noori, led troops against American and Coalition forces, was directly subordinate to Taliban Supreme Leader Mullah Omar, is associated with members of al-Qaeda, and is wanted by the UN for possible war crimes. Mullah Mohammad Fazl is the Taliban’s deputy former defense minister. Abdul Haq Wasiq, as the Taliban’s deputy minister of intelligence, support al-Qaeda and Taliban personnel in eluding capture; he also trained al-Qaeda personnel in intelligence methods. Mullah Khirullah Said Wali Khairkhwa, former Taliban interior minister, was directly associated with Osama bin Laden and Taliban Supreme Commander Mullah Muhammad Omar. Mohammad Nabi Omari, a senior Taliban official, belonged to a joint al-Qaeda/Taliban ACM cell. All are alleged to have been “cooperative” prisoners, whatever that means.
They were flown to Qatar, where the government is to house them with their families for at least a year after which they presumably will be returned to Afghanistan. During that year, the Qatar government has agreed to place restrictions on the activities and movement of the former Guantánamo prisoners.
Objections have been raised to the prisoner exchange by several parties. A defense of the action has been made inside and outside the Obama administration. But the Geneva Conventions have been left out of the discourse thus far.
In addition, not cited in the press or by the Bush and Obama governments is the fact that the UN Security Council has since December 20, 2001, annually approved of a force supplied by the North Atlantic Treaty Organization to stabilize the country. When that annual resolution expires, any outside role in the Afghan civil war might amount to a violation of the Convention on Duties and Rights of States in the Event of Civil Strife of 1928, which prohibits interference in officially recognized civil wars: If the Taliban is officially recognized as a “belligerent,” further support to the Afghan government would violate that treaty. And negotiations for the prisoner swap unofficially appear to have recognized the Taliban as a belligerent in a civil war.
Hamid Karzai, lame duck president of Afghanistan, has objected that the deal violates unspecified international law. He also is incensed that his government was not consulted about the secret transfer of the five Afghan citizens, evidently referring to previous agreements between Washington and his government.
Karzai has also protested the pledge of Qatar to place restrictions on the former Taliban prisoners. In his view, perhaps referring to the Geneva Conventions, there should be no restrictions. Despite the restrictions, Afghan Taliban’s longtime leader Mullah Omar thanked the government of Qatar for its “tireless efforts.”
Republican members of Congress have blasted the swap as a violation of restrictions placed by law on transfers out of Guantánamo. In particular, members of Congress were not consulted before the exchange. Although Obama signed that law every year as a provision within the military appropriations bill, he always did so reluctantly. He has again threatened to veto that bill for fiscal 2014-15 on the ground that the provision is a violation of executive prerogatives. My view, expressed two years ago in the New York Review of Books, is that the restrictions amount to a bill of attainder, as Guantánamo prisoners are in effect prisoners of Congress, which metes out a sentence of indefinite incarceration without a prior trial. When members of Congress objected, Barack Obama apologized for the oversight.
Josh Korder, sergeant within Bergdahl’s former platoon in Afghanistan, and other members of his unit have objected that the missing soldier should instead be arrested and tried for desertion because he walked away from his comrades one night in 2009 without a weapon in hand. But their only evidence is that Bergdahl was dissatisfied with his combat assignment. Nevertheless, the Army promoted him to specialist while in captivity. According to letters sent home as reported in a Rolling Stone article of June 2012, he was disgusted by combat conditions. He possibly witnessed war crimes committed in the American military occupation of Afghanistan. However, a Wikileak document states that he was captured while sitting on a makeshift latrine.
General Martin Dempsey, chairman of the Joint Chiefs of Staff, has responded that the circumstances surrounding Bergdahl’s release were unique and “the last, best opportunity to free him,” a pragmatic justification. But Dempsey also opened an inquiry about the facts of Bergdahl’s disappearance and said that the Army “will not look away from misconduct if it occurred [though] . . . he is innocent until proven guilty.”
Yet another objection is the long-held view that “America does not negotiate with terrorists.” But is the Taliban a “terrorist” organization or instead a party in a civil war? In fact, Washington has never declared the Taliban to be a terrorist organization in Afghanistan. The justification for fighting in Afghanistan in 2001 was that the Taliban government supported a terrorist organization, al-Qaeda, but that pretext evaporated when the Taliban was driven out of the country. During the 2012 Republican primary season, candidate Herman Cain even proposed prisoner swaps as a way to close Guantánamo.
Some have argued that the 5-for-1 swap might raise the future cost of ransoms of various sorts. That prediction may be true but is irrelevant to war crimes issues.
One pragmatic consequence, if not a justification, is that the prisoner swap will revive negotiations to end the war. Clearly, the swap occurred because of secret negotiations. But an agreement to end the civil war would have to involve both the Afghan government and the Taliban, and outgoing President Karzai refused to engage in peace negotiations in 2013, when he objected to the opening of an office in Qatar by the Taliban as in effect a “government in exile.” He will no longer be president before the end of the year.
As the date for termination of the UN-approved role of the American military in Afghanistan approaches, will Guantánamo finally be closed? December 31, 2014, is that date and may be that watershed if all prisoners are either released or retained for trial. And those put on trial may be moved to the U.S. Mainland for those trials.