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Human Rights Abuses in the USA

Torture in the "War on Terror"

Human Rights Abuses in the USA

Torture in the "War on Terror"


Following the attacks of September 11, 2001, the United States abandoned its policy of opposing torture for the first time in history.  Devised by health care professionals, justified by lawyers, and authorized at the highest levels in government, a program of cruel psychological and physical abuse was applied to detainees in U.S. custody at Guantánamo Bay and other sites beyond U.S. borders.

History of Torture in the United States

The United States has a long history of humane treatment of persons captured in war. During the Revolutionary War, General George Washington decreed that his troops would never torture prisoners as the British did; this “new country in the New World would distinguish itself by its humanity.” [1]  Following the horrors of WWII, the United States championed the rights of prisoners of war as well as the rights of civilians during hostilities. Not only did the United States sign and ratify the Geneva Conventions, the original signed copies were entrusted to the custody of the United States and remain in a vault in the State Department. [2]   The United States also played a leadership role in the Nuremberg trials, which established the criminal accountability of government officials for crimes against humanity, genocide, and war crimes.  The Nuremberg precedents now form much of the basis for current international law of armed conflict and international criminal law.

But the United States’ lead role in opposing torture ended as the U.S. began psychologically and physically tormenting detainees following the attacks of September 11, 2001. The Geneva Conventions, sitting in the State Department, lay ignored, as Bush Administration lawyers used “tricky legalisms adopted in classified memos” to blur the bright line which prohibited the use of torture.  [3]  

U.S. Policy on Torture: Post 9/11

On September 11, 2001, al Qaeda terrorists hijacked commercial passenger planes, crashing two into the World Trade Center towers and one into the Pentagon, murdering thousands of innocent civilians while the world watched. [4]

In the immediate aftermath of the attacks, White House and U.S. Justice Department lawyers developed secret legal justifications for a vast expansion of the power of the executive branch, to give U.S. officials the power to physically and psychologically torment suspected terrorists in U.S. custody. [5] As the United States Armed Forces went to war in Afghanistan in 2001 and in Iraq in 2003, and as the CIA ramped up its counterterrorism efforts worldwide, the U.S. detained a growing number of suspected terrorists in its “War on Terror.”

Vice President Richard Cheney spoke of a need to “work the dark side,” emphasizing the “need to spend time in the shadows in the intelligence world. A lot of what needs to be done here will have to be done quietly, without any discussion…” [6]   The Bush Administration, at the highest levels, had vowed to “take the gloves off” with regard to the interrogation of detainees. Unfortunately “the gloves” were laws that forbade torture and other cruel treatment, ensured due process, and limited the president’s power to wage war in any manner. [7]

Sadly, as news reports confirm, in a series of high-level meetings in 2002, without a single dissent from cabinet members, the United States for the first time officially embraced the brutal methods of interrogation it had always condemned. [8] 

Lawyers Justify Cruel Treatment

In keeping with the internal campaign to expand the powers of the president, on August 1, 2002, two Justice Department attorneys, John Yoo--now a law professor at the University of California, Berkeley--and Jay Bybee--now a judge on the U.S. Court of Appeals for the Ninth Circuit, produced a memorandum on the legality of certain interrogation techniques. The memorandum redefined torture to the point where almost no action would fall into the universally recognized prohibition. The Convention Against Torture defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person… by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”  [9]  Yet, according to the Yoo and Bybee memo, to be considered “torture,” one had to show intent to inflict suffering “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death…” and the pain had to be “of significant duration, e.g., lasting for months or years.”

This definition of torture was apparently crafted to allow for waterboarding, prolonged isolation, sensory deprivation, exploitation of phobias, and other harsh interrogation techniques. Because there is no specific level of pain associated with “organ failure, impairment of bodily function, or even death” the standard given is nearly meaningless. [10]   The memo notes, “there is a significant range of acts that though they might constitute cruel, inhuman, or degrading treatment or punishment fail to rise to the level of torture.”

Furthermore, for an interrogation technique to qualify as torture, infliction of pain had to be the precise objective of the abuse, not a by-product.  The memo also noted that if all else fails, any interrogation technique used could be legal simply because the President authorized it. [11] Thus, U.S. lawyers legitimated cruelty as a weapon of war. [12]

Several of the Office of Legal Counsel's memoranda cite Mehinovic v. Vuckovic, one of CJA's cases, when rationalizing abuse.

In a memorandum dated August 1, 2002, Jay Bybee discusses the torture of our clients by a Bosnian Serb jailer. Seeking to analyze what acts may constitute torture, Bybee opines that the kick delivered to our client Hasan Subasic's stomach, while he knelt defenseless on the ground, was not sufficiently painful to constitute torture on its own. Our client would disagree, as did the U.S. District Court for the Northern District or Georgia, which found that this kick alone was an act of torture. But Bybee glossed over this ruling, and reached his own conclusion that a single beating would not qualify as torture. 

In another memorandum, Steven G. Bradbury, then Principal Deputy Assistant Attorney General, opines on what constitutes "prolonged mental harm" as a result of torture.  He juxtaposes waterboarding, which is used to "induce a sensation of drowning," with the game of "Russian roulette" which CJA's clients, Kemal Mehinovic, Muhamed Bicic, Safet Hadzialijagic and Hasan Subasic, experienced while being held in a Bosnian detention camp.  Strangely, Bradbury concludes that that waterboarding is an acceptable form of torture but Russian roulette is not.  Needless to say, CJA's clients who have been subjected to waterboarding would disagree.

» Read more of the Office of Legal Counsel memoranda attempting to justify harsh interrogation tactics.

Psychologists Reverse-Engineer SERE Tactics

SERE stands for Survival, Evasion, Resistance, and Escape. The SERE program was founded during the Cold War to recreate the abuse that led 36 captured U.S. airmen to give shocking false confessions during the Korean War.

The SERE programs taught participants to resist “Communist Chinese techniques used during the Cold War to elicit false confessions." They were not designed to extract reliable intelligence from detainees. [13] All the same, James Mitchell and Bruce Jessen, two psychologists involved in SERE, represented themselves as experts in interrogation, even though their only experience was in resistance training. [14] Mitchell and Jessen reverse engineered the SERE program to form the core curriculum for the interrogation of U.S.-held detainees. In the process, they became the architects of the U.S. interrogation program and built a business that “made millions of dollars selling interrogation training services to the CIA.” [15]

Author Jane Mayer notes that “the details of the program described by the detainees, not only are consistent with each other’s accounts, despite the fact that they had no occasion to compare notes, they also echo uncannily the ostensible mock torture of the SERE program.” [16]   The resemblance is not a coincidence; SERE had been hastily transformed from a defensive resistance technique into an offensive interrogation program. SERE-trained psychologists began utilizing the same tactics they had once prepared soldiers to resist. [17]

In 2010, CJA filed a complaint with the New York Office of the Professions on behalf of New York psychologist Dr. Steven Reisner against New York psychologist Dr. John Leso for his role in designing, implementing, and participating in a system of abusive interrogations at United States Naval Station at Guantánamo Bay, Cuba.

» Read more about Reisner v. Leso

Guantánamo Bay detention camp

The United States has housed suspected terrorists and “unlawful enemy combatants” at a detention camp in Guantánamo Bay, Cuba, since 2002. The detainment facility at Guantánamo Bay has faced intense criticism from human rights groups, foreign governments, and others for mistreatment of detainees. According to an International Committee of the Red Cross report, 14 detainees at Guantánamo bay were subjected to a macabre list of techniques that included suffocation by water, prolonged stress standing, beatings by use of collar, beating and kicking, confinement in a box, prolonged nudity, sleep deprivation and use of loud music, exposure to cold temperature/cold water, prolonged use of handcuffs and shackles, threats, forced shaving, deprivation/restricted provision of solid food. [18] These techniques tellingly reflect techniques used in the SERE programs. [19] The New York Times reports that 779 people have been detained at Guantánamo Bay.  While 592 have been transferred, 181 remain. Additionally, six detainees are known to have died while in custody. [20]   

Many harsh interrogations have taken place at Guantánamo; the Bush Justice Department considered it to be outside U.S. jurisdiction and thus beyond the reach of U.S. law. The U.S. government denied detainees at Guantánamo Bay all legal protections until 2006, when the Supreme Court ruled that the detainees were indeed entitled to minimal protections of common article three of the Geneva Conventions. [21]  The Military Commissions Act soon followed, allowing Guantánamo detainees designated as “unlawful enemy combatants” to be tried by military commission with few procedural protections. [22] The Supreme Court again intervened, declaring the Military Commissions Act unconstitutional to the extent that it denied detainees the right to habeas corpus. [23]

Since 2002, CJA has submitted amicus briefs in a series of cases challenging the detention of prisoners at Guantánamo without habeas review, opposing the admissibility of evidence obtained through torture in military commissions, and vindicating the right of survivors of government abuses to seek redress.

» Read more on CJA’s amicus work in Hamdan v. Rumsfeld and other cases.

Abu Ghraib Prison

In 2004, reports and disturbing photos of physical, psychological, and sexual abuse of detainees held in the Abu Ghraib Prison (Baghdad Correctional Facility) in Iraq began to appear in the mainstream media. [24] The U.S. Department of Defense removed seventeen soldiers and officers from duty, and eleven soldiers were charged with crimes relating to the abuse. No high-ranking military, intelligence, or cabinet officials have been charged with crimes relating to the abuses at Abu Ghraib. However, public outrage at the revelations of torture at Abu Ghraib spurred the Bush Administration to revisit some the most controversial aspects of counterterrorism policy.

According to sources quoted in the Senate Armed Services Committee inquiry, the brutal treatment of detainees in the Guantánamo Bay detention camp and the Abu Ghraib prison abuse scandal have become the most potent symbols for recruitment of Iraqi insurgents, and thus a cause of endangerment to U.S. troops in Iraq and Afghanistan. [25]  

Extraordinary Rendition and Black Sites

While the Department of Defense, headed by Donald Rumsfeld, operated the Abu Ghraib and Bagram detention facilities in Iraq and Afghanistan, as well as the Guantánamo bay facility in Cuba, the CIA extraordinary rendition program sent suspected terrorists to a network of secret “black sites” scattered throughout the world.  Extraordinary rendition is the extrajudicial transfer of a person from one state to another. Critics of this practice have accused the United States of “torture by proxy” as detainees have systematically been transferred to countries where interrogation standards are loose and torture is alleged to have occurred. [26]

In 2006, CJA joined other human rights NGOs in an amicus brief supporting the claims of Maher Arar, a Canadian citizen who was detained by U.S. officials at a layover at JFK airport while en route to Montreal. Arar was rendered to Syrian intelligence agents who brutally tortured him and held him in a coffin-sized cell for a year, before releasing him without charge.

» Read more on CJA’s amicus brief in Arar v. Ashcroft

President George W. Bush acknowledged the existence of black sites operated by the U.S. government and its surrogates in September 2006. [27]  President Barack Obama ordered the black sites closed during his first days in office in January 2009.

Disavowal of Torture by the U.S.

Official support for the interrogation program in 2002 dissolved during the next year. Understanding that it would be blamed if the interrogation policy entered the public debate, the CIA and Department of Defense curtailed use of the harshest techniques. According to the New York Times, the last instance of a detainee being waterboarded was in March 2003, and the full complement of harsh techniques were officially dropped from use in 2005. [28]

In May 2004, the Inspector General of the CIA, John Helgerson, released a lengthy report that disputed the legality of certain coercive interrogation methods, alleging that interrogators were exceeding Justice Department limits on coercive methods, and challenging the efficacy of the entire coercive interrogation program. In 2005, following on the heels of the abuse scandal at the Abu Ghraib prison in Iraq, a senate bill was passed that banned cruel, inhuman and degrading treatment of prisoners. [29]

Though critics both within and outside the Bush Administration denounced the descent into cruelty, critics within played leading roles in reversing abusive policies. Most notably, Alberto Mora, General Counsel of the Navy, led the effort within the Department of Defense to end coercive interrogation tactics and to oppose the legal reasoning of Yoo and Bybee that undergirded the use of coercive interrogation techniques. A number of CIA and military officials reported their concerns to Helgerson for his report, and many others within the Bush Administration registered their concerns through other channels. [30] 

Current U.S. Policy on Treatment of Detainees Held Outside the U.S.

Soon after being inaugurated, President Barack Obama issued executive orders officially reversing the most controversial counterterrorism policies of the previous administration. President Obama’s directives required that all interrogations comply with the methods of the Army Field Manual. [31] The President also ordered his cabinet to review and formulate new policies on detention and interrogation of detainees. Because most harsh techniques had already been discontinued during the Bush Administration, this action principally reaffirmed that torture was no longer the official policy of the United States. The Obama legal team has also, as of March 2009, reoriented the U.S. position on detaining terror suspects to comply with the Geneva Conventions and other established international laws of armed conflict. [32] 

However, the Obama administration has continued to imprison without trial nearly 50 detainees at the Guantánamo Bay facility in Cuba because a task force has concluded that they are too difficult to prosecute (in certain instances, because they had been tortured) and pose too great of a threat to release. [33]   Attempts by the Obama Administration to move towards closure of the detention camp have faced stiff opposition from Republicans who argue that the potential release of detainees is too dangerous. [34] President Obama has also faced criticism for his attempts to revive a modified version of the Bush Administration’s Military Commissions system for trying detainees, which human rights advocates and others see as a continuation of the attempt to keep detainees outside of the U.S. legal system. As a spokesperson for the ACLU writes, “While Congress recently improved the military commissions system in certain respects, the system still fails to provide the procedural rights that are guaranteed by U.S. and international law.” [35] 

A recent Department of Justice report found that John Yoo and Jay Bybee, who crafted legal justifications for the Bush Administration’s brutal interrogation programs, used “flawed legal reasoning” but were not guilty of professional misconduct. [36] The final report reversed a prior opinion issued by ethics lawyers in the Office of Professional Responsibility (OPR), which indicated intent to “refer its finding of misconduct to the state bar disciplinary authorities in the jurisdictions where Bybee and Yoo are members.” [37] While many of the worst policies have been reversed, the Obama Administration has not aggressively sought investigation or prosecution of those who actively designed the policy of cruelty, its techniques, or the legalisms used to justify and facilitate it. [38]

CJA joins human rights groups around the world in calling on Congress and the Obama administration to investigate and, if warranted, prosecute U.S. officials responsible for torture.  Those held responsible should include the interrogators who committed torture, the lawyers and senior officials who authorized torture, and the medical personnel who oversaw torture.

Senate Intelligence Committee Torture Report

In 2009, the U.S. Senate Intelligence Committee began investigating the post-9/11 CIA torture program.  After years of investigating, the committee created the most comprehensive report to date on this program.  The report details not only the actions behind euphemisms like “waterboarding” and “stress positions”, but also the misleading information provided to Congress by the CIA about the value of these practices in gaining information from detainees.  In December 2012, the Committee gave bipartisan approval of this 6,300 page report. [39] 

Unfortunately, the report has not yet been released to the public.  Public release of this report would most likely dismantle claims that torture was necessary to gain actionable intelligence, such as the location of Osama bin Laden. [40]  On April 3, 2014, the Senate Intelligence Committee vote to declassify this report.  It is now up to the White House to ensure the report’s release. [41]  CJA joins human rights groups around the world in calling for the full release of this report and, if warranted, the prosecution of the U.S. officials responsible for torture.  Those held responsible should include the interrogators who committed torture, the lawyers and senior officials who authorized torture, and the medical personnel who oversaw torture.

Notes


[1] Jane Mayer, The Dark Side 8-9 (Doubleday 2008).
[2] Id.
[3] Id. at 151.
[4] See The National Commission on Terrorist Attacks Upon the United States (a.k.a The 9/11 Commission), The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States (Official Government Edition 2004), available at http://www.gpoaccess.gov/911/index.html.
[5] Mayer, supra note 1, at 316.
[6] Id. at 10.
[7] Mark Danner, The Red Cross Torture Report and What it Means, NEW YORK REVIEW OF BOOKS, Apr. 30, 2009, at 1-2, available at http://www.nybooks.com/articles/archives/2009/apr/30/the-red-cross-torture-report-what-it-means/?page=1.
[8] See Scott Shane and Mark Manzetti, In Adopting Harsh Tactics, No Look at Past Use, NEW YORK TIMES, Apr. 22, 2009, available at http://www.nytimes.com/2009/04/22/us/politics/22detain.html?_r=1.
[9] See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10. 1984, 1465 U.N.T.S. 85 [hereinafter UN Convention Against Torture], available at http://www.hrweb.org/legal/cat.html.
[10] David Cole, They Did Authorize Torture, But…, NEW YORK REVIEW OF BOOKS, Apr. 8, 2010, at 42, available at        http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1332&context=facpub
[11] See Memorandum from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, to Alberto R. Gonzalez, Counsel to the President, from Jay S. Bybee Re: Standards of Conduct for Interrogation under 18 U.S.C. §§2340-2340A (Aug. 1, 2002), available at news.findlaw.com/nytimes/docs/doj/bybee80102mem.pdf.
[12] For a discussion of “cruelty,” see Alberto Mora’s Key Note Speech for CJA. Alberto Mora, former General Counsel of the United States Navy, Keynote Speech for CJA’s 2010 Event (Apr. 28, 2010), available at http://cja.live2.radicaldesigns.org/article.php?id=791.
[13] See generally Senate Armed Services Committee, Inquiry into the Treatment of Detainees in U.S. Custody (Apr. 22, 2009), available at http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf.
[14] Matthew Cole, Psychologists Told CIA Waterboarding Was Safe Despite Red Flags; CIA Followed Interrogation Program of Bruce Jessen and Jim Mitchell, ABC NEWS, May 1, 2009, available at http://abcnews.go.com/Blotter/story?id=7474412&page=1.
[15] Scott Shane, Interrogation Inc.: 2 U.S. Architects of Harsh Tactics in 9/11’s Wake, NEW YORK TIMES, Aug. 11, 2009, available at http://www.nytimes.com/2009/08/12/us/12psychs.html
[16] Mayer, supra note 1, at 165.
[17] Shery Fink, Tortured Profession: Psychologists Warned of Abusive Interrogations, Then Helped Craft Them, PROPUBLICA, May 7, 2009, http://www.propublica.org/article/tortured-profession-psychologists-warned-of-abusive-interrogations-505.
[18] See International Committee of the Red Cross Regional Delegation for United States and Canada, ICRC Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody (Feb. 14, 2007), at 43, available at http://www.nybooks.com/media/doc/2010/04/22/icrc-report.pdf.
[19] Shery Fink, Tortured Profession: Psychologists Warned of Abusive Interrogations, Then Helped Craft Them, PROPUBLICA, May 7, 2009, http://www.propublica.org/article/tortured-profession-psychologists-warned-of-abusive-interrogations-505.
[20] The Guantánamo Docket, NEW YORK TIMES REFERENCE, http://projects.nytimes.com/guantanamo (last visited May 21, 2010).
[21] See Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Charles Lane, High Court Rejects Detainee Tribunals, WASHINGTON POST, June 30, 2006, available at http://www.washingtonpost.com/wp-dyn/content/article/2006/06/29/AR2006062900928.html.
[22] See Military Commissions Act of 2006, available at  http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_bills&docid=f:s3930es.txt.pdf.
[23] Boumediene v. Bush, 553 U.S. 723 (2008).
[24] See Seymour M. Hersh, Torture at Abu Ghraib, NEW YORKER MAGAZINE, Apr. 10, 2004, available at http://www.newyorker.com/archive/2004/05/10/040510fa_fact.
[25] See generally Senate Armed Services Committee, Inquiry into the Treatment of Detainees in U.S. Custody (Apr. 22, 2009), available at http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf.
[26] See Jane Mayer, The Black Sites: A Rare Look Inside the C.I.A.’s Secret Interrogation Program, NEW YORKER MAGAZINE, Aug. 15, 2007, available at http://www.newyorker.com/reporting/2007/08/13/070813fa_fact_mayer; see also, Secret prisons: Obama’s order to close ‘black sites’, THE GUARDIAN UK, Jan. 23, 2009,  available at http://www.guardian.co.uk/world/2009/jan/23/secret-prisons-closure-obama-cia.
[27] Bush Admits to CIA Secret Prisons, BBC NEWS, July 7, 2006, available at http://news.bbc.co.uk/2/hi/americas/5321606.stm.
[28] See Scott Shane and Mark Manzetti, Interrogation Debate Sharply Divided Bush White House, NEW YORK TIMES, May 4, 2009, http://www.nytimes.com/2009/05/04/us/politics/04detain.html?_r=1.
[29] Id.
[30] Id.; see also Douglas Jehl, Report Warned C.I.A. on Tactics in Interrogation, NEW YORK TIMES, Nov. 9, 2006,   http://www.nytimes.com/2005/11/09/politics/09detain.html?scp=1&sq=report%20warned%20cia%20on%20tactics%20in%20interrogation&st=cse.
[31] See Scott Shane, Mark Manzetti, and Helene Cooper, Obama Reverses Key Bush Security Policies, NEW YORK TIMES, Feb. 22, 2009, http://www.nytimes.com/2009/01/23/us/politics/23obama.html
[32] See Jane Mayer, Behind the Executive Orders, NEW YORKER, Jan. 25, 2009, http://www.newyorker.com/online/blogs/tny/2009/01/behind-the-executive-orders.html
[33] See Bob Woodward, Guantanamo Detainee was Tortured, Says Official Overseeing Military Trials, WASHINGTON POST, Jan 14, 2009, available at http://www.washingtonpost.com/wp-dyn/content/article/2009/01/13/AR2009011303372.html
[34] See Republican National Convention Blog, More Released Gitmo Detainees Returning to Terrorism- Appropriations Republicans Insist on Immediate halt to Transfers and Releases, http://rncnyc2004.blogspot.com/2010/05/more-released-gitmo-detainees-returning.html (May 9, 2009).
[35] American Civil Liberties Union, Obama Administration Will Try Sixth Guantánamo Detainee in Military Commissions System, http://www.aclu.org/national-security/obama-administration-will-try-sixth-guantanamo-detainee-military-commissions-syste (Jan. 7, 2010).
[36] See Eric Lichtblau and Scott Shane, Report Faults Two Authors of Bush Terror Memos, NEW YORK TIMES, Feb. 19, 2010, http://www.nytimes.com/2010/02/20/us/politics/20justice.html.
[37] See Memorandum from David Margolis, Deputy Attorney General, to the Attorney General on Decision Regarding the Objections to the Findings of Professional Misconduct in the Office of Professional Responsibility's Report of Investigation into the Office of Legal Counsel's Memoranda Concerning Issues Relating to the Central Intelligence Agency's Use of “Enhanced Interrogation
Techniques” on Suspected Terrorists (Jan. 5, 2010) (released February 19, 2010), available at http://graphics8.nytimes.com/packages/pdf/politics/20100220JUSTICE/20100220JUSTICE-DAGMargolisMemo.pdf.
[38] See David Cole, supra note 10, at 42. 
[39] Spencer Ackerman, Senate Intelligence Committee Presses CIA to Release Torture Report, THE GAURDIAN, Dec. 20, 2013, available at http://www.theguardian.com/world/2013/dec/20/senate-intelligence-committee-cia-torture-report
[40] Bradley Klapper, Senate Report: Torture Didn’t Lead to Bin Laden, ABC NEWS, Mar. 31, 2014, available at:  http://abcnews.go.com/Politics/wireStory/senate-torture-report-examines-hunt-bin-laden-23123398
[41]Panel Votes to Declassify CIA Torture Report, AL JAZEERA, Apr. 4, 2014, available at: http://www.aljazeera.com/news/americas/2014/04/panel-votes-declassify-cia-torture-report-201443232242994409.html