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Sat Jan 17th 2009, 11:31 PM

The Bush/Cheney Torture Legacy Still Being Whitewashed

Posted by Time for change in General Discussion

"If certain acts in violation of treaties are crimes they are crimes whether the United States does them or whether Germany does
them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to
Even as the convening authority of the Military Commissions at Guantanamo Bay, Susan Crawford, finally comes forward with
revelations of torture at Guantanamo Bay against suspected terrorist Mohammed al-Qahtani, our corporate media and others
continue to whitewash the Bush/Cheney torture legacy.
In the first place, this is not new information, by any stretch. Almost three years ago, in February 2006, Jean Mayer wrote in the
New Yorker about the General Counsel of the U.S. Navy, Alberto Mora’s attempt to put a stop to the torture. Mayer’s article
describes a 22-page memo by Mora, released in July 2004, which showed that in 2002 Mora tried to put a halt to what he saw as
“a disastrous and unlawful policy of authorizing cruelty towards terrorism suspects”. Mayer writes that:
Mora learned, to his horror, that the administration was engaged in high-level efforts to construct a legal
rationale for torture and cruelty toward detainees at Guantanamo and elsewhere…. Mora was appalled by the
reasoning among Pentagon and administration lawyers who were clearly trying to carve out a policy condoning
authorization of such acts.
The article is littered with phrases from Mora like "wholly inadequate analysis of the law," "serious failures of legal analysis",
"extreme and virtually unlimited theory" of the President's authority as Commander-in-Chief, "profoundly in error," "a mockery
of the law" and "catastrophically poor legal reasoning."
Furthermore, a meticulously researched book describing the chain of torture authorization at Guantanamo Bay in great detail
was published several months ago. Authored by international lawyer Philippe Sands, “Torture Team – Rumsfeld’s Memo and the
Betrayal of American Values”, is described in its jacket as follows:
Torture Team uncovers the real story behind Rumsfeld’s notorious memo, a tale of fear and abuse, deception
and ideology that reveals how the path leading to torture began with Rumsfeld, Dick Cheney, George W. bush,
and their lawyers… Sands delivers a scathing and timely indictment that resurrects the specter of war crimes
charges for the decision-makers and their lawyers.
Yet with all that, here we have an article just two days ago titled “How the Susan Crawford interview changes everything we
know about torture”, as if Susan Crawford had some big new revelations to tell us. But what Susan Crawford had to say added
absolutely nothing to our collective knowledge about the Bush/Cheney torture legacy – that is, unless our attitude is that only
what current Bush administration officials have to say is important, and that widely acclaimed international lawyers and former
Chief Counsel whistleblowers from the U.S. Navy should rightfully be ignored. But I guess that’s the point: Only when current
Bush administration officials admit to Bush administration crimes should those crimes even be publicized, let alone prosecuted.
Defense of the Bush administration
Notwithstanding Crawford’s “revelations”, much of her language was couched so as to cleanse the Bush administration actions
and make them sound acceptable. For example:
The interrogation of Mr. Qahtani, public military documents show, included prolonged isolation, sleep
deprivation, forced nudity, exposure to cold…
Crawford maintained those and other techniques were all authorized and legal… Crawford instead opted for a
medical definition of torture. "It was the medical impact" – Qahtani was hospitalized twice with a life-
threateningly low heart beat – "that pushed me over the edge," she told Woodward to explain her ground-
breaking word choice… “The techniques they used were all authorized, but the manner in which they applied
them was overly aggressive and too persistent.”
Authorized and legal? That makes it sound as if no war crimes were committed at the highest levels of the Bush administration.
And the statement that the application of the techniques was “overly aggressive and too persistent” makes it sound as if the
fault lay in lower level interrogators rather than with those who created the policy.
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Corporate news media coverage of this, as always, has been of little value. They have failed to emphasize the extent to which
Bush administration torture at Guantanamo Bay was blatantly illegal. They have failed to point out the origins of the Bush
administration torture policies at the highest levels of the Bush administration, thus leaving open the possibility that torture at
Guantanamo Bay was merely the work of “a few bad apples”, as was claimed for the torture at Abu Ghraib. And, they have
utterly failed to describe the extent of the torture, leaving open the possibility that the admitted torture of al-Qahtani was the
exception, rather than the rule. All of these things deserve much more emphasis than they have been given.
The blatant illegality of the Bush administration torture policies
Shortly after George W. Bush proclaimed his “War on Terror”, he solicited legal advice from lawyers on the limits of “aggressive
interrogation” that could be used on terrorism suspects. Aside from the fact that he and Cheney cherry picked lawyers to provide
them with the advice that they wanted to hear, there was a major limitation put on the legal advice that Bush administration
lawyers could provide. Philippe Sands explains:
The President had decided that none of the detainees would be able to claim any rights under the Geneva
Conventions… No alternatives were offered to the Geneva rules.
George Bush’s determination that the Geneva Conventions would not apply to his prisoners was made on February 7, 2002. All
further policies in his “War on Terror” were developed under that crucial constraint.
The responsibility for providing legal advice on the first specific torture policies proposed by the Bush administration in Bush’s
“War on Terror” was given to Lt. Colonel Diane Beaver, a junior lawyer at Guantanamo Bay. Sands explains how Bush’s
proclamation that the Geneva Conventions do not apply tied her hands:
She was stuck with the President’s decision on Geneva, which required her to proceed on the basis that Geneva
provided no rights for the detainees. She said “It was not my job to second-guess the President.”… She
proceeded on the basis that “no international body of law directly applies.” The President had set aside
Geneva; moreover, she concluded that the Torture Convention and various human rights treaties didn’t apply,
either, because the United States had entered reservations that gave primacy to U.S. federal law… All that was
left was U.S. law…
Sands describes his discussion with Beaver about the policy memo that she produced, and his assessment of it:
The assumption was that none of the techniques (proposed by Rumsfeld and company) crossed the line. I
pointed out to Beaver that under international law the pain threshold was set far lower. “I know”, she
countered, “but the President decided those rules didn’t apply.”…
Diane Beaver should never have been put in that position: a more confident individual would have refused.
Beaver struck me as honest, loyal and decent. She did what she did in difficult circumstances, under pressures
from her commanding officer at Guantanamo and against the background of even greater pressure from
Washington.
This was not the work of “a few bad apples”
Sands describes how torture became standard procedure for U.S. conduct in its “War on Terror”, on the first page of his book:
With a signature and a few scrawled words Donald Rumsfeld cast aside America’s international obligations…
Principles for the conduct of interrogation, dating back more than a century to President Lincoln’s famous
instructions of 1863 that “military necessity does not admit of cruelty” were discarded. His approval of new and
aggressive interrogation techniques would produce devastating consequences.
Sands explains how Rumsfeld had been presented with a memo for his signature detailing 18 new techniques of “aggressive
interrogation”, along with legal advice in favor of those techniques, from Lt. Colonel Diane Beaver. As noted above, Beaver had
provided her advice in the context of intense pressure from high levels of the Bush administration, and with the explicit
instructions that the Geneva Conventions do not apply.
The memo that Rumsfeld was being asked to sign “went far beyond what the U.S. Army Field Manual 34-52, the military
interrogator’s bible, allowed”, “were inconsistent with Common Article 3 of the Geneva Conventions, prohibiting cruel or
inhumane treatment”, and had already been strongly objected to by many of the professional interrogators at Guantanamo Bay.
Furthermore, in contrast to standard procedure, the memo had not been signed by the Chairman of the Joint Chiefs of Staff nor
been subjected to anything remotely resembling standard consultative procedures from the administration’s experts in
interrogation techniques.
Nevertheless, Rumsfeld signed the memo, which was subsequently prominently distributed to all personnel who had
responsibility for interrogating prisoners.
Sands provides details from the interrogation logs of Mohammad al-Qahtani, the subject of Susan Crawford’s recent
“revelations”. The interrogations were a direct result of Rumsfeld’s memo approving the 18 techniques. None of these logs
indicated that the techniques allowed in Rumsfeld’s memo were exceeded.
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The logs that Sands describes include the use of white noise, pouring water on the detainee, and making him stand in order to
deprive him of sleep; not allowing him to practice his religion; constantly attacking his self esteem by such means as yelling at
him, calling him a homosexual, calling his mother and sister whores, and teaching him dog tricks in order to “elevate his social
status up to the of a dog”; strip searching and stripping the detainee naked; hooding; exorcism; and the detainee reacting with
severe agitation, crying, and dehydration.
Scope of the Bush/Cheney torture program
Our corporate news media coverage of revelations of Bush administration torture always gives the impression of isolated events
that are the exception rather than the rule. But when we consider the prisoners at Guantanamo, Afghanistan, Iraq, secret CIA
prison sites throughout the world, plus prisoners that we have sent to countries to be tortured through our policy of
“extraordinary rendition”, estimates of the number of our “War on Terror” prisoners have varied from 8,500 to 14,000 to 35,000.
How many of these men and boys have been tortured? Rush Limbaugh and other right wing idiots have belittled evidence of
torture by claiming, even when the photographic evidence at Abu Ghraib was publicized, that U.S. treatment of its prisoners is
no different than fraternity “hazing” of pledges.
However, a 2005 analysis of 44 autopsies reported by the ACLU, of men who died in our detention facilities, exposes those claims
for the lies that they are. That study found 21 of the 44 deaths evaluated by autopsy to be homicides:
The American Civil Liberties Union today made public an analysis of new and previously released autopsy and
death reports of detainees held in U.S. facilities in Iraq and Afghanistan, many of whom died while being
interrogated. The documents show that detainees were hooded, gagged, strangled, beaten with blunt objects,
subjected to sleep deprivation and to hot and cold environmental conditions.
Keep in mind that that study involved only a small fraction of the total number of detainees dying in the U.S. prison system since
September 11, 2001. We will probably never know for sure the full extent of these barbaric homicides.
A few words about the Obama administration’s approach to Bush administration war crimes
President-elect Obama has expressed the following with regard to the possibility of prosecuting Bush administration officials for
war crimes:
Obama said “… Obviously we're going to be looking at past practices and I don't believe that anybody is above
the law. On the other hand, I also have a belief that we need to look forward as opposed to looking
backwards. ... My orientation is going to be moving forward.”
Obama explained that he doesn't want CIA employees to "suddenly feel like they've got to spend all their time
looking over their shoulders and lawyering."
I agree with him.
We should be looking forward towards the future. More specifically, we should strive for a future where American leaders
understand that they are not free to commit war crimes with impunity. By way of example, we need to send a message to future
American leaders that war crimes – or other crimes against humanity or against our Constitution – will be met with appropriate
punishment.
Because if we don’t do that, this is almost certainly going to happen again – in the future. And when it does happen, and when
those responsible leave office, our new President will say, “Well, that was in the past. We need to think about the future and
move forward”.
With respect to the CIA employees, I agree that they shouldn’t have to “spend all their time looking over their shoulders”. For
those who are suspected of participating in war crimes, suspend them from service, indict them where appropriate, and in
appropriate cases give some of them immunity for testifying about where there orders came from.
Holding those responsible for war crimes fully accountable for their actions will also send a very important message to the rest of
the world that will go far towards restoring our moral standing in the world. It will send them the message that the American
people are serious about atoning for the crimes against humanity of their leaders, and that the tragedy of the past eight years is
unlikely to be repeated any time soon.
As was made quite clear at the time the Nuremberg Tribunal was created, international law applies to ALL the nations of the
world. As much as George Bush, Dick Cheney, or certain members of Congress or the U.S. public may not like it, those laws apply
to our country now just as much as they applied to the Nazis for whom the Nuremberg Tribunal was created in 1945. Robert
Jackson, the Chief U.S. prosecutor for the Nuremberg Tribunal, made that quite clear. He said:
If certain acts in violation of treaties are crimes they are crimes whether the United States does them or
whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others
which we would not be willing to have invoked against us.