Tuesday, December 16, 2008

Senate Armed Services Committee: Senior Bush Officials Directly Responsible for Torture

Last week the Senate Armed Services Committee released the results of their Inquiry into the Treatment of Detainees in U.S. Custody. This bi-partisan inquiry concluded that senior officials in the Bush Administration, including the President, are directly responsible for implementing policies that led to the abusive techniques that were used on detainees in U.S. custody. In addition, the inquiry also concludes that the legal council of the Department of Justice distorted the intent of anti-torture laws and that legal reviews of these policies were cut short and acted to undermine the military's review process.

This revelation, that of the Bush Administration's responsibility for policies resulting in detainee abuse, should not come as a surprise to those who have been following developments of how the United States has conducted the so-call "War on Terror" since 2001. What is new in this instance, is that the Senate Armed Services Committee, whose ranking member is Republican Senator John McCain, has concluded that senior government officials both past and present are directly responsible for such actions.

Such a damning report has received scant media coverage in the wake of the Blagojevich scandal and is likely not to register as a blip on the radar of news coverage. Glenn Greenwald, blogger and analyst for Salon.com, reflects on the issue:

"Just ponder the uproar if, in any other country, the political parties joined together and issued a report documenting that the country's President and highest aides were directly responsible for war crimes and widespread detainee abuse and death. Compare the inevitable reaction to such an event if it happened in another country to what happens in the U.S. when such an event occurs..."

Non-existent media coverage does not lessen the importance of such findings. The conclusions reached and the time-line established are well worthy of, and frankly demand, further discussion and examination. Based on the findings of the inquiry, the initial action that opened the door for the consideration and implementation of so-call "enhanced interrogation techniques" was President Bush's signing of the memorandum on February 7, 2002 which stated that the Third Geneva Convention did not apply to the conflict with Al Qaeda. From the report:

"...the decision to replace well established military doctrine, i.e., legal compliance with the Geneva Conventions, with a policy subject to interpretation, impacted the treatment of detainees in U.S. custody."

This memorandum set off a chain of events that resulted in the United States implementing the same torture techniques on detainees that they had once trained their own military members to resist. The Joint Personnel Recovery Agency (JPRA) is an agency under the Department of Defense who trained American military to resist and withstand interrogation techniques that were considered illegal. This training, called Survival Evasion Resistance and Escape or SERE training, taught service members to resist Chinese Communist techniques originally developed to elicit false confessions. During the Spring of 2002, the report finds that senior government officials began to inquire about knowledge that JPRA had and its support for interrogations. Into the Summer of 2002, JPRA provided information to DOD that allowed the agency to begin the process of reverse engineering the SERE techniques for use on detainees.

During this same time period, the Department of Justice's Office of Legal Council (OLC) was working to redefine torture. The now infamous "Bybee memos" were issued on August 1, 2002. The first memo concluded that "For an act to constitute torture as defined in [the federal torture statute], it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." The Second memo addressed the legality of interrogation techniques and while these techniques remain classified, there have been indications that waterboarding was among the list that were approved. It is during this time period where Assistant Attorney General for the OLC, John Yoo, was meeting with people like Alberto Gonzales and David Addington to discuss these matters before issuing a new legal opinion on torture.

On October 11, 2002, a request was sent from the detention facility at Guantanomo Bay (GTMO) to the Commander of the United States Southern Command requesting approval for use of more aggressive interrogation techniques. It was after this request that GTMO's Staff Judge Advocate, Lieutenant Colonel Diane Beaver, wrote an analysis that justified such interrogation techniques, but she expected a broader legal review would take place at more senior levels. General Richard Myers, the Chairman of the Joint Chiefs of Staff then began to solicit the opinion of every branch of the military on the opinion issued by Beaver. Every branch of the military objected to certain aspects of the opinion. The Marine Corps even stated that several of the techniques "arguably violate federal law, and would expose our service members to possible prosecution."

The Legal Counsel to the Chairman of the Joint Chiefs of Staff, Capitan Jane Dalton, instructed her staff to perform a thorough review of these techniques, but the review was cut short by General Myers and soon after, Secretary of Defense Donald Rumsfeld pressured his advisors for a final recommendation. On November 27, 2002 DOD council William Haynes recommended that Rumsfeld approve all but three of the techniques that were requested by Dalton. On December 2, 2002, Rumsfeld famously signed Haynes's recommendation and in referencing limits on stress positions Rumsfeld added the handwritten note: "I stand for 8-10 hours a day. Why is standing limited to 4 hours?"

From this point on, SERE techniques were actively taught at the military base in Guantanamo Bay and quickly spread to Afghanistan and into Iraq. These authorized techniques led to the torture, injury, and death of detainees in U.S. custody. The ACLU has compiled a comprehensive list of deaths that have occurred in U.S. custody that you can view here. While Rumsfeld rescinded the order that authorized use of these so-called enhanced techniques at GTMO in January of 2003, it is evident and the Senate Armed Services report states, that these practices continued throughout Afghanistan and Iraq. After rescinding the order, Rumsfeld acted to establish a "Working Group" whose purpose it was to review the interrogation tactics. According to the Senate Armed Services Report:

"...senior military and civilian lawyers tried, without success, to have their concerns about the legality of aggressive techniques reflected in the Working Group's report. Their arguments were rejected in favor of a legal opinion from the Department of Justice's Office of Legal Counsel's John Yoo."

Yoo's opinion concluded that criminal laws in effect would not apply to military interrogators and that they could not be prosecuted for methods that violate the law. This opinion was later rescinded by the new Assistant General for the Office of Legal Counsel, Jack Goldmith in late 2003 as he told the DOD that Yoo's memos could not be relied upon to determine the legality of such techniques.

The conclusions of this report are crystal clear. Starting with President Bush's declaration that the Geneva Conventions do not apply to al Qaeda, senior members of the Administration supported policies that directly led to the abuse (and in some cases death) of detainees in U.S. custody. Though the report does not use the term "war crimes" this is precisely what is being described. Not only did these officials support these policies, but it is apparent that they sought to find legal opinions that matched their wish for implementing such policies and disregarded concerns from numerous branches of the military about the legality of these policies.

As this new Administration takes office it is imperative for President Obama to denounce these actions and end the assault that the Bush Administration has waged upon the rule of law. Doing this requires accountability for past actions and for past crimes committed. We often hear the argument that we should not look to the past and further divide the country by taking action against past Administration officials, but in this situation, it is absolutely necessary for action to be taken. After all, not only did the Administration actively work to reinvent the definition of torture so that they could abuse detainees, but as Dan Froomkin of the Washington Post points out, they constantly lied about it:

"Bush himself repeatedly and sanctimoniously blamed Abu Ghraib on a small number of low-level perpetrators, even while trying to get credit for what he insisted was a transparent system that held those who were responsible accountable.

Bush, on May 24, 2004, described what happened at Abu Ghraib as "disgraceful conduct by a few American troops who dishonored our country and disregarded our values."

On June 1, 2004, he told a reporter: "Obviously, it was a shameful moment when we saw on our TV screens that soldiers took it upon themselves to humiliate Iraqi prisoners -- because it doesn't reflect the nature of the American people, or the nature of the men and women in our uniform. And what the world will see is that we will handle this matter in a very transparent way, that there will be rule of law -- which is an important part of any democracy. And there will be transparency, which is a second important part of a democracy. And people who have done wrong will be held to account for the world to see. "

If action is not taken to punish members of the Bush Administration for these actions, what will deter future political figures from breaking the most serious laws in this country if they are shown that there is no accountability for these actions? How can it be justified that the lower level military personnel have been punished for carring out these policies at places like Abu Ghraib, yet those who supported and provided shoddy legal justification that led to the implementation of these same policies, go unpunished? It is for these reasons that President Obama should launch an independent and thorough investigation into this issue and let the chips fall where they may when it comes to prosecuting these officials. This new Administration should not balk at any political heat they would take for such action as these violations are too serious to simply chalk up to leaving the past in the past.

"The abuse of detainees in U.S. custody cannot simply be attributed to the actions of 'a few bad apples' acting on their own. The fact is that senior officials in the united States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees. Those efforts damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of oru enemies, and compromised our moral authority."

- Senate Armed Services Committee Report, 2008

This article is also available at: http://www.cincinnatibeacon.com

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