Cheating Justice (19 page)

The initial passage of the anti-torture law in 1994 accompanied the U.S. ratification of the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). First adopted by the UN General Assembly in 1984, this important treaty bars torture and specifies that public officials must not only refrain from using torture, but are obliged to prevent it and to intervene actively if they become aware of it.

The Convention Against Torture, as ratified by the U.S. Congress in 1994, is clear: there are no exceptions to the ban against torture. In other words, it carries something akin to strict liability for torture—officials engage in it at their peril. President Ronald Reagan hailed adoption of the Convention Against Torture by the UN in 1984. He urged U.S. ratification, sending a message to the Senate in 1988 that it “will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today.” He said the ratification “will demonstrate unequivocally” the nation's desire to end torture.
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After the United States ratified the Convention Against Torture in 1994, the anti-torture law also entered the books. It defines torture as an act “specifically intended to inflict severe physical or mental pain or suffering” on a person who is in custody. The anti-torture law also has a special section on “conspiracy”—Section 2340A(c). It says: “A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.”

In a bit of irony, the USA Patriot Act extended the statute of limitations in the anti-torture law by adding it to a list of laws for which there is
no
statute of limitations in certain circumstances (the intention was to heighten the punishment for terrorists, but, of course, it applies to all violators.) The absence of a statute of limitations means that there is no time limit on prosecution—as long as the people who committed the torture are alive, they are liable to prosecution.

There is no doubt that the anti-torture law covered acts of brutality carried out by the Bush administration against detainees. Torture occurred at the explicit behest of President Bush and as a result of his loosening the reins on mistreatment of detainees, acts that are covered under this law.

In an attempt to shield themselves from accountability under the criminal law, President Bush's team secured a reinterpretation of the anti-torture law from a Federalist Society lawyer in tune with its sensibilities—John Yoo. The Bush insiders wanted a verbal silo of language to shield their illegal behavior; Yoo delivered. The question, then, is whether that interpretation does, in fact, protect the president and others from prosecution for the torture protocols they adopted. On close examination, the walls of protection they tried to construct come tumbling down.

President Bush explained his administration's use of waterboarding of suspects in custody in an interview with Martha Raddatz of ABC News in April 2008. “We had legal opinions that enabled us to do it,” the president said.
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By this statement, the president, perhaps unintentionally, acknowledged a key element pointing to his culpability for torture: he and his executive staff had not sought out the best legal advice about interrogation, which, if given, might potentially have put the brakes on the harsh interrogation methods they wanted to use, but instead looked for and secured legal “enablers.”

I described earlier the multiple problems with the content of the “legal opinions.” There is another issue as well—the timing. The president has indicated that he relied on the legal opinions in the memos in authorizing waterboarding and other enhanced interrogation techniques. But the memos were written
after
torture and cruel treatment were already under way. As a result, the president and his team could not have “relied” upon them in deciding to authorize torture. The inspector general of the FBI indicated in a report on detainee interrogations in 2008 that SERE-style interrogations began on Abu Zubaydah between April and June 2002;
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the torture memos were released on August 1, 2002—two to four months after that.

Other interrogations were already in process, too. Colonel Lawrence B. Wilkerson, the former chief of staff for Secretary of State Colin Powell, wrote in
The Washington Note
blog in 2009 that, in his research, the “administration authorized harsh interrogation in April and May of 2002—well
before the Justice Department had rendered any legal opinion.” Wilkerson was referring specifically to the case of Ibn al-Shaykh al-Libi,
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who was delivered by the United States to Egypt for questioning and tortured there. Aggressive interrogations were also occurring at Guantánamo before the August 1, 2002, legal “justifications,” according to a report written by the inspector general of the FBI in 2008.
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Rather than offering guidance on the best course of action to take to abide by the anti-torture law and fulfill the Constitution, the Yoo/Bybee torture memos were meant to exonerate and offer cover for torture activities that had already occurred, and to greenlight just about anything coming down the pike.

The treatment and interrogation of many detainees violated the law, according to documents and reports that have been uncovered. Government documents released to the American Civil Liberties Union in 2005 showed that twenty-one individuals died of homicide in custody and eight deaths appear to have resulted from abuse, such as “blunt force injuries,” “asphyxiation” and “strangulation.”
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In 2008, Human Rights First identified sixty-eight detainees at Guantánamo Bay who may have been abused in its report
Tortured Justice.
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A full investigation and release of all documents related to interrogations would permit a complete review of the cases of alleged mistreatment and torture.

But a prosecution need not rest on showing how widespread the torture was or how many individuals were affected. The case of Abu Zubaydah, who was subjected to a wide range of torture and cruel treatment, already illustrates how the actions of the Bush administration undoubtedly broke the law. The CIA destroyed videotapes of his interrogations in 2005. As a result of his treatment and prior injuries, Zubaydah now suffers blinding headaches and permanent brain damage, and experienced two hundred seizures in two years. “Abu Zubaydah's mental grasp is slipping away,” his lawyer, Joseph Margulies, wrote in the
Los Angeles Times
in 2009.
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There are other cases as well. A military reviewer found that al Qahtani was a victim of torture. In the case of detainee Mahamadou Walid Slahi, the lawyer assigned to serve as prosecutor in 2003, Lieutenant Colonel Stuart Couch, concluded that Slahi had been tortured and refused to handle the case, according to a report of the Senate Armed Services Committee in 2008. His treatment was portrayed as similar to al Qahtani's. Slahi was chained, placed in temperature extremes and a space without light; a
masked interrogator told of seeing a grave with him in it and showed him a fictitious letter stating that his mother was being detained. The interrogations continued even after a psychologist reported that Slahi was hearing voices. It “seems a bit creepy,” the psychologist said in an e-mail to a supervisor, according to the Senate Armed Services Committee report.
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The Bush administration admits that it engaged in waterboarding. U.S. courts have “made it clear” that waterboarding “is indeed torture,” wrote law professor Evan Wallach, a former member of the U.S. Army's Judge Advocate General's Corps, in a law review article.
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Waterboarding by the CIA ended by 2004, according to an analysis by Mark Mazzetti and Scott Shane in the
New York Times
, as CIA officials became “acutely aware that the agency would be blamed if the policies lost political support.”
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The highly critical report by the CIA inspector general, released in May 2004, and the Detainee Treatment Act passed by Congress the next year, reinforced its demise.

President Bush has insinuated that waterboarding was inconsequential because it involved only three detainees (but 268 waterboarding incidents). He wrote in his memoir, “Of the thousands of terrorists we captured in the years after 9/11, about a hundred were placed into the CIA program. About a third of those were questioned using enhanced techniques. Three were waterboarded.”
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(At least one other detainee was waterboarded in “rendition.”) But one is enough to violate the law. It does no good for a criminal to say, “Look at all of the people I didn't beat up”—criminal prosecutions are predicated on individual violations of the law, not percentages.

The use of waterboarding and other abusive interrogation methods authorized by President Bush inflicted severe physical pain, as well as severe suffering, on many detainees, and violated the anti-torture law. Violating the law is a federal crime, and conspiring to violate the law is a federal crime as well. President Bush, Vice President Cheney, Secretary of Defense Rumsfeld, and those who aided and abetted them should be criminally investigated for their deliberate and willing violations of the law.

The remaining question is whether the president and his team have a defense for their violations of the anti-torture law. The answer, in short, is no. One by one, the defenses fall away.

The president's office blamed a “few bad apples” in low-level positions for the abuse at the Abu Ghraib prison. In fact, the orchard, the barrel, and the shipping container were all rotten, and it was the president and his team who were the overseers and the planners. Those who set the torture policy are culpable for the actions that followed.

Historically, where torture has been used, the top leaders, whether civilian or military, bear responsibility. The United States executed Japanese general Tomoyuki Yamashita, head of the Japanese armies in the Philippines during World War II, for the brutal treatment of prisoners of war and civilians caused by his troops. Slobodan Milosevic, the former president of Serbia, was charged internationally with permitting atrocities (he died in prison before the completion of the proceedings). Far from being exempted from the laws as the commander in chief (as the Yoo/Bybee torture memos absurdly tried to assert), the president as well as others at the top of the chain of command are responsible for ensuring that the laws against torture are scrupulously followed.

In this case, President Bush, Vice President Cheney, Defense Secretary Donald Rumsfeld, and their lawyers and advisors were deeply involved in planning and implementing the torture protocols and the use of cruel, inhuman, and degrading treatment. They engaged in a conspiracy that spread across departments and agencies of the government, that went from the top down, and they cannot defend themselves by asserting that they did not personally engage in “walling” individuals or shackling them in painful positions.

The president, vice president, and cabinet members are responsible for their own personal participation in authorizing torture and for their conspiracy to commit torture; this defense will not succeed.

A favorite smokescreen of President Bush is that a lawyer told him that the enhanced interrogation techniques were okay. When examined in light of the anti-torture law, this claim simply doesn't hold up. It is, without a doubt, a sham by which the Bush officials tried to shift the blame, absolve themselves, and buffer their actions, but it won't protect the president, vice president, and others from accountability under the anti-torture law.

President Bush explained this line of thinking in an interview with Matt
Lauer on November 8, 2010, on NBC. “Why is waterboarding legal, in your opinion?” asked Lauer. President Bush replied: “Because the lawyer said it was legal. He said it did not fall within the Anti-Torture Act. I'm not a lawyer, but you gotta trust the judgment of people around you and I do,” the president said. Lauer says, “You say it's legal. ‘And the lawyers told me.'” And, as transcribed by NBC, Bush replies: “Yeah.”
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But the president, as he liked to say, was “the decider,” and his book is called
Decision Points
, not
My Lawyer's Decision Points.
As the president, the buck stopped at his desk, not at the desk of a lawyer across the way. The president and his team made active choices. At each step along the road to torture there were dissenting voices, and the president chose to ignore them. Secretary of State Colin Powell, as well as the lawyer for the State Department, objected vociferously to the February 7, 2002, memo that withdrew Geneva Conventions protections. Powell was the former chair of the Joint Chiefs of Staff and had more military experience than any other person in the cabinet.

In December 2002, as Secretary Rumsfeld prepared to sanction enhanced interrogation techniques, military lawyers across the spectrum raised concerns. Navy General Counsel Alberto Mora repeatedly objected.

Referring to the Yoo/Bybee torture memos, Jack Goldsmith, special counsel in the Department of Defense and later head of the Office of Legal Counsel, said that “never in the history of the United States had lawyers had such extraordinary influence over war policies as they did after 9/11. The lawyers weren't necessarily expert on al Qaeda, or Islamic fundamentalism, or intelligence, or international diplomacy, or even the requirements of national security.”
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In a prosecution (as I described earlier in chapter 2), in order to raise a defense of “reliance on counsel” when charged with criminal law violations, as here, a defendant must rely in good faith on the independent advice of counsel. None of these elements are present here. The Yoo/Bybee torture memos were not sought in good faith, but were sought to provide cover for the president. They did not constitute the independent advice of counsel but were written to justify a policy. The opinions came nine months after the first U.S. detentions, and two to four months after SERE-type interrogations began on Abu Zubaydah.