Torture Memos Released as Bush Six Face Spanish Indictment

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By Katherine Iliopoulos

In response to a public records request from the American Civil Liberties Union and other groups, Obama released four confidential US Department of Justice memoranda relating to the interrogation of high-level detainees on April 16. The “torture memos,” directed to then Acting General Counsel of the CIA John Rizzo, describe the harsh interrogation methods sanctioned by the Bush administration and the legal basis on which the Bush administration gave the go-ahead and contain approved techniques including waterboarding, sleep deprivation, forced nudity and ‘walling,’ whereby detainees were slammed into walls to force a confession.

Mr. Obama said when releasing the memos that his administration would not use anti-torture laws to prosecute CIA personnel who relied in good faith on Bush administration legal opinions issued after the September 11 attacks. ”It is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice, that they will not be subject to prosecution,” the President said.

Administration officials also appeared to suggest in the following days that Obama opposed the prosecution of other former government officials. But as political debate about the contents and release of the memos continued, Obama said on 21 April that any decision on prosecuting former government officials would be “for the attorney-general within the parameters of various laws” and that he didn’t want to prejudge the attorney-general’s decision. The president appeared to be drawing a distinction between officials involved in giving legal sanction to interrogation techniques, and CIA operatives who carried out the policies; Obama said he continued to oppose the prosecution of CIA operatives.

Obama also left the door open to some form of official investigation. He said he continued to believe that the United States “should be looking forward and not backwards” on the subject, but that “if and when there needs to be some form of further accounting” it should be done in a bipartisan way. “It’s very important for the American people to feel as if this is not being dealt with to provide one side or the other political advantage, but rather is being done in order to learn some lessons so that we move forward in an effective way.”

The CIA’s Torture Tactics Revealed

The documents released last week were written by Bush administration legal officials and concluded that the coercive techniques did not violate the prohibition against torture as they did not amount to inflicting severe mental or physical pain.

The first of the memos, dated 1 August 2002, was written by then Assistant Attorney General Jay Bybee. The memo was a response to Rizzo’s request for advice with respect to whether certain conduct violated the prohibition against torture contained in the United States Code. The memo, based solely on facts provided by the CIA, approves several interrogation procedures that were used, including waterboarding, insects in a confinement box, walling and sleep deprivation.

“To violate the statute, an individual must have the specific intent to inflict severe pain or suffering,” said the memo. “Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture … We have further found that if a defendant acts with the good faith belief that his actions will not cause such suffering, he has not acted with specific intent.”

Bybee’s authorization of waterboarding was based on representations by the CIA that its waterboarding regime followed the guidelines summarized above, which were based on the use of waterboarding for training purposes at the US Navy Survival, Evasion, Resistance and Escape (SERE) school, which attempts to train US soldiers in resistance to these interrogation techniques. The Bybee Memo was issued before the use of waterboarding against detainees Khalid Sheikh Mohammed and Abu Zubaydah. Bybee’s memo said that “although the waterboard constitutes a threat of imminent death, prolonged mental harm must nonetheless result” to violate the law.

In his memo of May 10, 2005, Principal Deputy Assistant Attorney General Steven Bradbury approved nudity as an interrogation technique. “Detainees subject to sleep deprivation who are also subject to nudity as a separate interrogation technique will at times be nude and wearing a diaper,” it said, noting that the diaper is “for sanitary and health purposes of the detainee; it is not used for the purpose of humiliating the detainee and it is not considered to be an interrogation technique.”

The fourth memo released, written by Bradbury on 30 May 2005, concluded that ‘enhanced interrogation techniques’ used by the CIA against high-value Al Qaeda detainees were consistent with the United States’ obligations under Article 16 of the UN Convention Against Torture (CAT) because the Article is limited in its application to territory under the United States’ jurisdiction.

The fourth memo also revealed that the CIA waterboarded Khalid Sheikh Mohammed 183 times in March 2003 and Abu Zubaydah 83 times in August 2002. That appears to have violated the CIA’s own internal guidelines for the use of waterboarding, as summarized in the Bradbury memo: “[Waterboarding] … may be used for two “sessions” per day of up to two hours. During a session, water may be applied up to six times for ten seconds or longer (but never more than 40 seconds). In a 24-hour period, a detainee may be subjected to up to twelve minutes of water application. Additionally, the waterboard may be used on as many as five days during a 30-day approval period.”

The memos contain no information obtained from the detainees themselves and simply accept unquestioningly the information provided by the CIA: as a result they contain no insight into the way the techniques are carried out in reality. In a recently leaked ICRC Report into the treatment of detainees at CIA-run detention facilities around the world, Abu Zubaydah provides a disturbing account of his experience of the waterboarding technique:

“I was put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds caused severe pain. I vomited. The bed was then again lowered to a horizontal position and the same torture carried out with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled without success to breathe. I thought I was going to die. I lost control of my urine. Since then I still lose control of my urine when under stress.”

Abu Zubaydah’s importance within al-Qaeda remains disputed. While the Bybee memo described Zubaydah as the “third or fourth man in al-Qaeda,” news reports have alleged that his that his importance was overstated. Despite the fact that Zubaydah provided his interrogators with some information early into his detention in 2002, – such as naming Khalid Shaikh Mohammed as the main organizer of the 9/11 plot – interrogators justified the use of waterboarding against him on the grounds that he was withholding further valuable intelligence. According to news reports, many investigators now believe he had no further information to reveal.

Khalid Sheikh Mohammed is regarded as the mastermind behind the September 11 attacks and one of the most senior operatives in Osama Bin Laden’s al-Qaeda network. He has reportedly admitted to dozens of attacks or plots, including those of September 11, 2001, the Bali Bombings, and his personal execution of journalist Daniel Pearl. While his claims may be true, it is highly likely that these confessions were procured through torture, including waterboarding, thereby rendering them potentially inadmissible in court proceedings.

Immunity from Prosecution – in the US

The UN special rapporteur on torture, Manfred Nowak, says the US is bound under the UN Convention against Torture to prosecute those who engaged in harsh interrogation tactics. Nowak went as far as to say that Obama’s decision not to prosecute the CIA agents allegedly responsible is a violation of international law. “The United States, like all other states that are part of the UN convention against torture, is committed to conducting criminal investigations of torture and to bringing all persons against whom there is sound evidence to court… The fact that you carried out an order doesn’t relieve you of your responsibility,” Nowak told the Austrian daily Der Standard. According to Nowak, the immunity granted by Obama cannot override the obligations of the US under international law, meaning that US Courts can still try those responsible.

He called for an investigation by an independent commission before any trial took place and emphasised the need for victim compensation. “First you need the truth and then you need justice,” Nowak said.

The possible criminal liability of former administration legal officials is also the focus of investigations in Spain. The Spanish investigative judge Baltasar Garzón has referred a case against six former administration lawyers for sanctioning torture to his fellow judges last week, overriding advice from Spain’s prosecutors’ office not to proceed with the investigation. Spanish Attorney General Candido Conde-Pumpido announced on April 16 his refusal to recommend an investigation, saying that “If you investigate the crime of abuse of prisoners, the people probed have to be those who were materially responsible.” He also said that a US Court was the most appropriate legal forum.

The same legal team that filed suit against former Israeli Defense Minister Binyamin Ben Eliezer for his responsibility in the deaths of 14 civilians during the bombardment of Gaza in July 2002 brought the case against the six legal officials, whom it says were responsible for devising the legal architecture that ‘legalised’ torture at Guantanamo Bay. The accused are John Yoo, a former Justice Department lawyer; Jay Bybee, former head of the Justice Department’s Office of Legal Counsel; David Addington, chief of staff and former legal counsel to former Vice-President Dick Cheney; Alberto Gonzales, former Attorney General; William Haynes, former counsel at the Defense Department; and Douglas Feith, former undersecretary of defense.

The lawsuit claimed the six former aides “participated actively and decisively in the creation, approval and execution of a judicial framework that allowed for the deprivation of fundamental rights of a large number of prisoners, the implementation of new interrogation techniques including torture, the legal cover for the treatment of those prisoners, the protection of the people who participated in illegal tortures and, above all, the establishment of impunity for all the government workers, military personnel, doctors and others who participated in the detention centre at Guantanamo.”

Garzón submitted the case on April 17 to a ‘lottery system’ which will now assign it to one of the six high court judges.

The Spanish Complaint states that on February 3, 2002, Douglas Feith, who said the charges against him “made no sense”, wrote a legal memorandum stating that Common Article 3 of the Geneva Conventions do not apply to Taliban detainees. Feith’s main reasoning was that the Geneva Conventions do not apply to Al-Qaeda combatants because they are not part of any state and therefore cannot claim rights under a treaty that is binding only for states signatories. Detainees could not rely on Common Article 3 also on the basis that its provisions applied only to “armed conflict not of an international character,” which the administration interpreted to mean ‘civil war.’

On the basis of Feith’s memo, on February 7, 2002, President Bush decided that none of the prisoners held at Guantanamo Bay had rights recognized under the Geneva Conventions, including those set out in Common Article 3, thereby removing the constraints of international law that could potentially limit the interrogation techniques that could be used in relation to the detainees.

The Complaint also cites a legal opinion commonly known as the ‘torture memo’ dated August 1, 2002, which redefined torture narrowly, and in a manner contrary to the universally accepted definition, declaring that physical torture occurred only when the pain was “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” and that mental torture required “suffering not just at the moment of infliction but … lasting psychological harm.”

If the six officials are subpoenaed and fail to appear in the Spanish court, Judge Garzón may decide to issue arrest warrants. “If and when arrest warrants are issued, 24 countries in Europe are obligated to enforce them.” That is the view of Michael Ratner, president of the Center for Constitutional Rights. “The world is getting smaller for the torture conspirators.”

And while the memos released by Obama are confined to interrogations at Guantánamo and CIA secret prisons around the world, a US Senate inquiry published on April 22 has added to the debate about possible prosecutions of high level officials. It details the background to the use of torture at prisons run by the US military in Iraq and Afghanistan, and implicates senior Bush Administration officials including former defence secretary Donald Rumsfeld and Condoleezza Rice in her position as national security adviser.

Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.

Related Links:

Rice gave early approval for CIA waterboarding, Senate report reveals
By Ewen MacAskill
The Guardian, April 23, 2009

Released: Bush Administration’s Secret Legal Memos
American Civil Liberties Union
April 16, 2009

Inquiry into the Treatment of Detainees in US Custody (PDF)
Committee on Armed Services, United States Senate
November 2008

ICRC Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody (PDF)
International Committee of the Red Cross
February 2007

The Green Light
By Philippe Sands
Vanity Fair, February 2008

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