A
Crusade Of Torture
By Joel Wendland
22 June, 2004
Countercurrents.org
On
June 18th, the Associated Press (1) reported that UN Secretary General
Kofi Annan delivered a letter to members of the UN Security Council
urging the opposition to a resolutionextending exemption from war crimes
prosecution for US military personnel and officials. According to the
story, Annan's letter cited the Abu Ghraib atrocities as a central concern.
Annan doubted if the exemption was legal and described passage of such
a resolution as an "unfortunate signal" to send "particularly
at this time." All signs indicated that the exemption would not
be granted. Scrutiny of how the atrocities at Abu Ghraib became, in
the words of a confidential January 2004 report by the International
Committee of the Red Cross, "a practice tolerated by the CF [coalition
forces]" rather than "exceptional" reveals how the Bush
administration conducted an American crusade of torture.
Bush called for
and received UN exemptions from war crimes prosecutions originally in
2002 and had it renewed in 2003. The Bush administration brought enormous
pressure bear on other members of the UN Security Council to obtain
this measure. To achieve passage, Bush vetoed a UN peacekeeping mission
in Bosnia in 2002 and urged congressional leaders to withhold funding
for other UN missions, threatening to continue to block future UN operations.
The exemption was extended in July of 2003 despite heavy lobbying by
human rights groups to the contrary. It is set to expire at the end
of June.
Many critical observers
linked the demand for exemption with a perceived systematic "assault"
on the International Criminal Court (ICC). President Clinton signed
the 1998 Rome Treaty establishing the ICC on his last day in office.
Since then Bush "has renounced the Clinton administration's signing
of the treaty and has set out to cripple this new institution,"
(2) Eric Schwartz argued in the Boston Globe in 2002. Bush formally
withdrew from the treaty in May of 2002.
Bush claimed that
the Rome Treaty, ratified by 94 countries at this point, would lead
to frivolous or politically motivated war crimes prosecutions against
US military and political officials. Supporters of the treaty say it
contains numerous safeguards against this. For example, if a US national
is accused of a war crime, that person could be tried in the US and
avoid prosecution by the ICC.
Commenting in the
(3) Miami Herald, Andrew Reding speculated presciently that Bush's campaign
against the treaty meant "that the White House wishes to reserve
the right to support the use of terror against foreign countries when
it serves US objectives." Reding noted Haitian terrorists given
safe harbor in the US who have since returned to Haiti to lead a coup
sponsored by the Bush White House and the Republican Party against the
democratically elected Aristide.
Legal expert, Marjorie
Cohn , (4) took another view. The war on Iraq itself might be considered
a violation of the UN Charter and deemed a "crime of aggression"
under the Rome Treaty's provisions. This worries the Bush administration
the most, in her view.
It was also widely
speculated that the Bush administration was protecting particular individuals
such as Henry Kissinger who has been subjected to criminal charges in
various countries for his role in the 1973 overthrow of Salvador Allende
in Chile.
Because most of
this commentary appeared months and years before the release of the
photo evidence of the atrocities at Abu Ghraib, the commentators who
I surveyed don't highlight the use of torture. The Bush administration's
desire to use torture is missing as an explanation for the campaign
against the treaty despite the fact that numerous human rights organizations
have provided documentary and testimonial evidence of prisoner abuse
since as early as 2002.
If the prisoner
abuse scandal were isolated to a handful of "rogue" individuals,
the US could prosecute them and they would avoid an intervention by
the ICC, according to the Rome Treaty's provisions. But as the evidence
mounts that top Pentagon, Justice Department, and intelligence officials
authorized treatment of prisoners that are direct violations of the
Geneva Conventions the chances of the US government handing down indictments
are growing slimmer.
In fact, when Democrats
on the Senate Judiciary Committee (5) called for a subpoena of all Justice
Department documents related to this issue, including "any and
all orders, directives, instructions, findings or other writings signed
by Bush or on his behalf," the Republican majority on the committee
voted the measure down. Senator Patrick Leahy (D-VT) described the vote
and the refusal of the Justice Department to hand over documents willingly
as a "brazen sign of a cover-up."
Evidence of the
mistreatment of prisoners dates back to 2002 to the detention facilities
at Guantanamo Bay, Cuba and various sites in Afghanistan. The media
made no connection, however, between reports of mistreatment and the
policy of defining detainees as outside the relevant provisions of the
Geneva Conventions and other international agreements - at least not
until more recent exposures of the Pentagon, White House, Justice Department,
and CIA discussions of such a policy.
A report recently
published by Human Rights Watch, title (6) "The Road to Abu Ghraib"
quoted Defense Secretary Donald Rumsfeld, as early as 2002, after denying
that prisoners held at Guantanamo Bay have POW status, as stating, "Unlawful
combatants do not have any rights under the Geneva Convention."
In an effort to set aside the Geneva Conventions' provisions for the
treatment of prisoners, Rumsfeld glibly remarked that the US military
would "for the most part, treat them in a manner that is reasonably
consistent with the Geneva Conventions, to the extent they are appropriate."
But, Rumsfeld was clear that he did not consider the Geneva Conventions
relevant.
Rumsfeld's attitude
about detention status wasn't simply tough rhetoric for suspected terrorists.
The claim that prisoners "do not have any rights" was created
to justify a new secret expanded list of acceptable methods of interrogation
and treatment of prisoners previously regarded as violations of the
Geneva and other international human rights conventions. According to
the Washington Post,(7) it is known that as early as December 2002,
Rumsfeld personally ordered expanded interrogation tactics that violate
international conventions of prisoner treatment.
Rumsfeld's view
was supported by the Justice Department, which, in an August 2002 memo
to Alberto Gonzales, Bush's chief legal counsel, indicated its belief
that "harsh interrogation" methods might be
considered war crimes if the prisoners were held to be fully protected
by the Geneva Conventions. In the (8) memo written at the behest of
the CIA and the White House, which was first publicized by the Washington
Post, (9) one finds Justice Department lawyers quibbling over torture
and "rough treatment." Distinctions over the words "extreme
pain" and "severe pain" in defining torture are highlighted
- the latter wouldn't constitute torture in the view of the Justice
Department memo. In the process of producing this argument, Justice
Department lawyers created a category of "rough treatment"
that, if they could be shown not to have been intended to inflict intense
pain or permanent physical or mental harm, were not prosecutable. In
other words, "here is a list, Mr. President," they said, "of
what we think you ought to be able to get away with."
According to Newsweek,
(10) this report was drafted and analyzed, with participation from Pentagon
lawyers, at the request of the CIA, which wanted to avoid public recrimination
over interrogation methods adopted by the Bush administration. CIA officials
sought "written authorization from lawyers and senior policymakers"
before implementing techniques that came to be outlined in the Justice/Gonzales
memo.
The memo goes even
further than simply what kinds of severe treatment it considered to
be legal. It advises that US law (including adherence to international
treaties) cannot be construed "as infringing on the President's
ultimate authority" to "detain and interrogate" and "determine
the interrogation and treatment" of suspects in the "war on
terror." The claim is that the interrogation of prisoners is no
different than other battlefield decisions relegated to the president,
and this puts him above the law on the issue of the treatment of prisoners.
Further, executive officials do not have to comply with congressional
subpoenas to provide testimony on these issues as that violates the
president's authority to make these decisions. Of greater significance,
the Department of Justice "could not bring criminal prosecution
on a defendant who had acted pursuant to the exercise of the President's
constitutional power."
The upshot of this
memo's argument is that the president has the power to determine "rough
treatment" as long as it is not "extreme," and he has
the authority to keep it secret. When Attorney General John Ashcroft
testified in early June before the Senate Judiciary Committee on the
release of this memo, he seemed to invoke a protection for his silence
on these matters based on the memo's argument. Despite Bush's own attempt
to sidestep media questions about whether he adopted the memo's argument
as policy, it was put into practice in the military prisons in Guantanamo,
Afghanistan, and in Iraq. The advice provided by the Justice Department
memo was accepted by Rumsfeld later in 2002 and codified by the Department
of Defense in March 2003, according to a memo (11) leaked to and published
by the Wall Street Journal. If Bush didn't adopt this torture policy,
shouldn't he be outraged that it was even considered let alone adopted
by various cabinet departments? Either administration officials feel
free to pursue illegal policies that are not approved by the president,
or he is lying when he claims to have opposed prisoner mistreatment.
While the Bush administration
scrambles to cover itself, it appears that a small handful of low-level
military personnel will pay criminal penalties for having been caught
in the act. The immunity from prosecution described in the Justice/Gonzales
memo has proven to be a public relations failure, even though Rumsfeld
initially attempted to argue to (12) Matt Lauer of NBC's Today Show
that Geneva Conventions' rules did not apply to Iraq either.
The memos' implications
are that the Bush administration's stated outrage over the mistreatment
of prisoners at Abu Ghraib lacks credibility. After expending all of
those resources to create what it called a set of legal detention, treatment,
and interrogation methods, why would the Bush administration need to
be outraged? Why would it condemn the actions of a few rogue military
police at Abu Ghraib as deplorable and contrary to "American values,"
if they were complying with methods and techniques declared legal by
the Department of Justice and the Department of Defense? Why not assert
their immunity from prosecution based on their compliance with the president's
Constitutional power to define the treatment of detainees? Clearly the
feigned outrage resulted from national and international condemnation
and a perceived blow to the administration's credibility on the whole.
Along with hastily thrown together Pentagon "investigations"
of atrocities, such self-serving denunciations from the Bush administration
are a weak attempt at cover.
As it turns out,
Bush himself only publicly denounced the torture policy, just as it
became clear in the summer of 2003 to many military and administration
officials that the atrocities at Abu Ghraib could not be prevented from
going public. According to a confidential (13) International Committee
of the Red Cross report dated January 2004, a study of violations at
various sites in Iraq covered the period from March 2003 (the start
of the war) to November 2003. The results of the study were periodically
handed over to the US military forces with recommendations on curbing
illegal mistreatments of prisoners. The report states that the ICRC
brought their findings "on several occasions orally and in writing"
to the military authorities in Iraq. A persistent failure to comply
led a frustrated ICRC to regard the mistreatment and torture policy
- to acceptable to the US military authorities. And despite all of the
official quibbling over "extreme," "severe" or "rough"
treatment in Washington, the ICRC concluded emphatically that the "practices
described in this report are prohibited under International Humanitarian
law."
ICRC reported "brutality
against protected persons - sometimes causing death or serious injury,"
physical ad psychological coercion during interrogation, prolonged solitary
confinement in the dark, excessive use of force, holding prisoners unprotected
in fighting zones, and more. The US military investigation of atrocities
at Abu Ghraib, compiled in the Tuguba Report, looking at incidents between
October and December of 2003, noted such acts as: "Breaking chemical
lights and pouring the phosphoric liquid on detainees; pouring cold
water on naked detainees; beating detainees with a broom handle and
a chair; threatening male detainees with rape; allowing a military police
guard to stitch the wound of a detainee who was injured after being
slammed against the wall in his cell; sodomizing a detainee with a chemical
light and perhaps a broom stick, and using military working dogs to
frighten and intimidate detainees with threats of attack, and in one
instance actually biting a detainee."
Other unofficial
human rights organizations had a longer history of exposing the administration's
new prisoner treatment and interrogation policies. They held more widely
accepted definitions of POW and the protections provided by the Geneva
Conventions (and other international frameworks) for POWs and non-POW
detainees. Human Rights Watch, for example, took issue with the administration's
claim that detainees held at Guantanamo Bay, most of whom were captured
as a result of military action in Afghanistan were not subject to certain
portions of the Geneva Conventions governing torture and mistreatment.
In "The Road to Abu Ghraib," HRW argued, "Belligerents
captured in the conflict in
Afghanistan should have been treated as POWs unless and until a competent
tribunal individually determined that they were not eligible for POW
status."
Al Qaeda suspects
not captured as a result of military actions and not afforded POW status
still had protections from abuse and should have been afforded some
basic rights. "Such protections include," said HRW, "the
right to be free from coercive interrogation, to receive a fair trial
if charged with a criminal offense, and, in the case of detained civilians,
to be able to appeal periodically the security rationale for continued
detention." In other words, they had some basic rights afforded
to criminal suspects and should have been treated as such.
Amnesty International,
in a letter to the Bush administration in March of 2002, agreed with
this concept. It pointed out that "international law and standards
provide that all persons who are arrested or detained should be informed
immediately of the reasons for the detention and notified of their rights,
including the right of prompt access to and assistance of a lawyer;
the right to communicate and receive visits; the right to inform family
members of the detention and place of confinement; and the right of
foreign nationals to contact their embassy or an international organization."
The US, argued Amnesty, had promised to guarantee these rights when
it ratified the International Covenant on Civil and Political Rights
(ICCPR) in 1992 and the Body of Principles for the Protection of All
Persons Under Any Form of Detention or Imprisonment, approved by the
United Nations General Assembly in 1988.
Amnesty followed
this letter one month later with a forceful denunciation of the treatment
of detainees at Guantanamo Bay. "International law has been flouted
from the outset," wrote Amnesty. "None of the detainees was
granted prisoner of war status nor brought before a competent tribunal
to determine his status, as required by the Third Geneva Convention.
None has been granted access to a court to be able to challenge the
lawfulness of his detention.. Detainees have been denied access to legal
counsel and their families." Amnesty then forewarned with what
turned out to be correct foresight that "When a state .adopts a
selective approach to international law and standards, the integrity
of those standards is eroded."
Early in 2002, Amnesty
focused its attention on prisons in Afghanistan as well. It argued that
the US "has considerable influence over the running of detention
facilities in Afghanistan and is responsible for the welfare of any
prisoners they have handed over to the Afghan authorities." More
recently Human Rights First (HRF) exposed the extent to which US military
and intelligence officials had helped construct a secret network of
detention centers, holding facilities, and prisons throughout Afghanistan.
A recent Agence
France Press story reports that HRF "claims there are seven undisclosed
centres in Afghanistan, including a CIA interrogation facility in the
capital, Kabul, known as 'The Pit.'" Human Rights First reported
"the United States was holding suspects in the war on terror in
more than two dozen prisons around the world, with the biggest number
of secret prisons in Afghanistan." The secrecy of the jails made
"inappropriate detention and abuse not only likely, but inevitable."
Though the CIA denied much of the HRF's report, the AFP was able to
confirm the existence of several of these prisons through its own sources.
According to AFP, the CIA runs 5 secret jails in Kabul alone holding
many of the nearly 2,0000 suspects captured in Afghanistan secretly
for as much as 2 years.
The combination
of all of these revelations provides an alternative picture to what
the Bush administration claims are the actions of isolated individuals.
In "The Road to Abu Ghraib," Human Rights Watch asserted that
"This pattern of abuse did not result from the acts of individual
soldiers
who broke the rules. It resulted from decisions made by the Bush administration
to bend, ignore, or cast rules aside. Administration policies created
the climate for Abu Ghraib." Important media outlets
arrived at similar conclusions.
An editorial in
the Washington Post said, "we have learned that much of what the
guards did -- from threatening prisoners with dogs, to stripping them
naked, to forcing them to wear women's underwear -- had been practiced
at U.S. military prisons elsewhere in the world." Further, this
type of treatment was "sanctioned" by Rumsfeld and top military
officials.
Rumsfeld "approved"
abusive treatment at Guantanamo Bay that he would come to call "grievous
and brutal abuse and cruelty" when exposed by the infamous Abu
Ghraib photographs, wrote the Post. "Sadly," it opined, "the
Bush administration's policy decisions have cast doubt on whether this
country accepts this fundamental principle of human rights." The
International Herald Tribune argued that torture had "become the
practice" despite its ineffectiveness. It also compared the Bush
administration's new policy on interrogation with Nazi Germany. Though
these revelations were grounds for impeachment, it didn't see a Republican-dominated
Congress doing the right thing. Further, it concluded that if America
chooses to reelect Bush in November, "will have made these practices
its own."
Joel Wendland is
managing editor of
http://www.politicalaffairs.net
and also writes
http://classwarnotes.blogspot.com
and is a member of UAW
Local 1981 (National Writers Union).
1.http://story.news.yahoo.com/news?tmpl=story&cid=540&e=
1&u=/ap/20040619/ap_on_re_mi_ea/un_international_court
2. http://www.commondreams.org/views02/0701-01.htm
3. http://www.commondreams.org/views02/0510-02.htm
4. http://www.commondreams.org/views03/0909-13.htm
5. http://www.commondreams.org/headlines04/0618-01.htm
6 http://hrw.org/reports/2004/usa0604/2.htm#_Toc74483692
7.http://www.washingtonpost.com/ac2/wp-dyn/A29742-2004Jun9?language=printer
8. http://www.washingtonpost.com/wp-srv/nation/
documents/dojinterrogationmemo20020801.pdf
9. http://www.washingtonpost.com/ac2/wp-dyn/
A38894-2004Jun13?language=printer
10.http://www.msnbc.msn.com/id/5197853/site/newsweek
11. http://news.findlaw.com/wp/docs/torture/30603wgrpt.html
12. http://www.dod.gov/transcripts/2004/tr20040505-secdef1425.html
13. http://www.globalsecurity.org/military/library/report/
2004/icrc_report_iraq_feb2004.htm