JURIST Contributing Editor Marjorie Cohn of Thomas Jefferson School of Law says that the Bush administration’s repeated insistence that it has not endorsed the torture of prisoners rings hollow in light of newly-disclosed US Department of Justice memos supporting the harshest techniques the CIA has ever used…
The April 2004 publication of grotesque photographs of naked Iraqis
piled on top of each other, forced to masturbate, and led around on
leashes like dogs, sent shock waves around the world. George W. Bush
declared, “I shared a deep disgust that those prisoners were treated
the way they were treated.” Yet less than a year later, his Justice
Department issued a secret opinion endorsing the harshest techniques
the CIA has ever used, according to a report in the New York Times.
These include head slapping, frigid temperatures, and water boarding,
in which the subject is made to feel he is drowning. Water boarding is
widely considered a torture technique. Once again, Bush is compelled to
issue a denial. “This government does not torture people,” he insisted.
This was not the first time the Bush administration had officially
endorsed torture, however. John Yoo, writing for the Justice
Department’s Office of Legal Counsel, penned an August 2002 memorandum
that rewrote the legal definition of torture to require the equivalent
of organ failure. This memo violated the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, a treaty the
United States ratified, and therefore part of U.S. law under the
Supremacy Clause of the Constitution.
In December 2002, former Secretary of Defense Donald Rumsfeld approved
interrogation methods that included the use of dogs, hooding, stress
positions, isolation for up to 30 days, 20-hour interrogations,
deprivation of light and sound, and water boarding. U.S. Navy General
Counsel Alberto Mora told William Haynes, the Pentagon’s general
counsel, that Rumsfeld’s “authorized interrogation techniques could
rise to the level of torture.” As a result, Rumsfeld rescinded some
methods but reserved the right to approve others, including water
boarding, on a case-by-case basis.
When Bush maintained last week that his government doesn’t torture
prisoners, he stressed the necessity of interrogation to “protect the
American people.” Notwithstanding the myth perpetuated by shows like
“24,” however, torture doesn’t work. Experts agree that people who are
tortured will say anything to make the torture stop.
One of the first victims of the Bush administration’s 2002 torture
policy was Abu Zubaydah, whom they called “chief of operations” for al
Qaeda and bin Laden’s “number three man.” He was repeatedly tortured at
the secret CIA “black sites.” They water boarded him, withheld his
medication, threatened him with impending death, and bombarded him with
continuous deafening noise and harsh lights.
But Zubaydah wasn’t a top al Qaeda leader. Dan Coleman, one of the
FBI’s leading experts on al Qaeda, said of Zubaydah, “He knew very
little about real operations, or strategy ” He was expendable, you
know, the greeter . . . Joe Louis in the lobby of Caeser’s Palace,
shaking hands.” Moreover, Zubaydah was schizophrenic; according to
Coleman, “This guy is insane, certifiable split personality.” Coleman’s
views were echoed at the top levels of the CIA and were communicated to
Bush and Cheney. But Bush scolded CIA director George Tenet, saying, “I
said [Zubaydah] was important. You’re not going to let me lose face on
this, are you?” Zubaydah’s minor role in al Qaeda and his apparent
insanity were kept secret.
In response to the torture, Zubaydah told his interrogators about
myriad terrorist targets al Qaeda had in its sights: the Brooklyn
Bridge, the Statute of Liberty, shopping malls, banks, supermarkets,
water systems, nuclear plants, and apartment buildings. Al Qaeda was
close to building a crude nuclear bomb, Zubaydah reported. None of this
was corroborated but the Bush gang reacted to each report zealously.
Moreover, Khalid Sheikh Mohammed, considered the mastermind of the
September 11 attacks, was tortured so severely – including by water
boarding – that the information he provided is virtually worthless. A
potentially rich source of intelligence was lost as a result of the
torture.
Bush’s insistence that his administration doesn’t torture rings hollow.
He lied about weapons of mass destruction and a Saddam-al Qaeda
connection in Iraq. He lied when he assured us his officials would not
wiretap without warrants. As evidence of secret memos detailing harsh
interrogation policies continues to emerge, we can’t believe Bush’s
denials about torture.
Democrats in Congress have demanded they be allowed to see the memos,
but Bush said the interrogation methods have been “fully disclosed to
appropriate members of Congress.” Senator John D. Rockefeller IV was
unmoved. “I’m tired of these games,” he said. “They can’t say that
Congress has been fully briefed while refusing to turn over key
documents used to justify the legality of the program.”
It is incumbent upon the Senate Judiciary Committee to vigorously
interrogate Michael Mukasey during his attorney general confirmation
hearing. As AG, Mukasey would oversee the department that writes
interrogation policy. Mukasey should know that the Convention Against
Torture prohibits torture in all circumstances, even in times of war.
Torture is a war crime. Those who commit or order torture can be
convicted under the U.S. War Crimes Statute. Techniques that don’t rise
to the level of torture but constitute cruel, inhuman or degrading
treatment or punishment also violate U.S. law. Congress should provide
for the appointment of a special independent counsel to fully
investigate and prosecute all who are complicit in the torture of
prisoners in U.S. custody.
Marjorie Cohn is a professor at Thomas Jefferson School of Law and
president of the National Lawyers Guild. She is the author of Cowboy
Republic: Six Ways the Bush Gang Has Defied the Law. Her articles are
archived at http://www.marjoriecohn.com/