Who Authorized The Torture of Abu Zubaydah?
For the defendants of the use of torture by U.S. forces — still led by former Vice President Dick Cheney — this has been a rocky few weeks, with the publication, in swift succession, of the leaked report by the International Committee of the Red Cross (PDF), based on interviews with the 14 “high-value detainees” transferred to Guantánamo from secret CIA prisons in September 2006, which concluded that their treatment “constituted torture” (and was accompanied by two detailed articles by Mark Danner for the New York Review of Books), the release, by the Justice Department, of four memos issued by the Office of Legal Counsel (OLC) in 2002 and 2005, which purported to justify the use of torture by the CIA, and the release of a 231-page investigation into detainee abuse conducted by the Senate Armed Services Committee (PDF).
The publication of the full Senate Committee report was delayed for four months, subject to wrangling over proposed redactions, but the Executive Summary, published last December, had already successfully demolished the Bush administration’s claims that detainee abuse could be blamed on “a few bad apples,” and, instead, blamed it on senior officials who, with the slippery exception of Dick Cheney, included George W. Bush, former defense secretary Donald Rumsfeld, Dick Cheney’s chief of staff David Addington, former Pentagon General Counsel William J. Haynes II, former Chairman of the Joint Chiefs of Staff General Richard Myers, former Attorney General Alberto Gonzales, former Justice Department legal adviser John Yoo, former Guantánamo commanders Maj. Gen. Michael Dunlavey and Maj. Gen. Geoffrey Miller, and Lt. Gen. Ricardo Sanchez, the former commander of coalition forces in Iraq.
Much of the fallout from the release of these memos and reports has, understandably, focused on the inadequacy of the legal advice offered to the CIA for its “high-value detainee” program by the OLC, whose lawyers have the unique responsibility of interpreting the law as it relates to the powers of the executive branch, and whose advice, therefore, provided the Bush administration with what it regarded as a “golden shield,” which would prevent senior officials from being prosecuted for war crimes. However, if it can be shown that the OLC’s advice was not only inadequate, but also tailored to specific requests from senior officials, then it may be that the “golden shield” will turn to dust.
This threat to the “golden shield” probably explain why Dick Cheney’s scaremongering has been shriller than usual in the last few weeks, but what has largely been overlooked to date is another question that poses even weightier challenges for the former administration: if the use of torture techniques on Abu Zubaydah, the first supposedly significant “high-value detainee” captured by the US (on March 28, 2002), was authorized by two OLC memos issued on August 1, 2002, then who authorized the torture to which he was subjected in the 18 weeks between his capture and the moment that Jay S. Bybee, the head of the OLC, added his signature to the OLC memos?
It’s clear that the major reason this question has been overlooked is because, as the ICRC report reveals, Zubaydah was not subjected to waterboarding (an ancient torture technique that involves controlled drowning) until after the memo was issued, but what is also apparent is that the treatment to which he was subjected before the waterboard was introduced also “constituted torture.”
Zubaydah was severely wounded during his capture in Faisalabad, Pakistan, to the extent that, as President Bush explained in a press conference in September 2006, shortly after Zubaydah and 13 other “high-value detainees” had been transferred to Guantánamo from secret CIA prisons, “he survived only because of the medical care arranged by the CIA.” We don’t know if there is any truth to the allegation, made by Ron Suskind in his 2006 book The One Percent Doctrine, that medication was only administered in exchange for his cooperation (it seems likely, but has been officially denied), but we do know, from James Risen’s book State of War, that when CIA director George Tenet told the President that Zubaydah had been put on pain medication to deal with the injuries he sustained during capture, Bush asked Tenet, “Who authorized putting him on pain medication?” which prompted Risen to wonder whether the President was “implicitly encouraging” Tenet to order the harsh treatment of a prisoner “without the paper trail that would have come from a written presidential authorization.”
We also know that, shortly after his capture, Zubaydah was flown to Thailand, to a secret underground prison provided by the Thai government, where, as a New York Times article in September 2006 explained, “he was stripped, held in an icy room and jarred by earsplittingly loud music — the genesis of practices later adopted by some within the military, and widely used by the Central Intelligence Agency in handling prominent terrorism suspects at secret overseas prisons.”
The details of his treatment, “based on accounts by former and current law enforcement and intelligence officials,” were even more shocking. We have become somewhat inured, over the years, to stories of prisoners deprived of sleep for disturbing long periods of time, in which the use of loud, non-stop music — in this case, the Red Hot Chili Peppers — played an integral part.
This in itself is unacceptable, as the use of music is not simply a matter of being forced to listen to the same song over and over again at ear-splitting volume, but is, instead, a component in a program of sleep deprivation and isolation designed to provoke a complete mental breakdown. One of the major reference points for the CIA in the 1950s, when it was deeply involved in investigating the efficacy of psychological torture techniques, was research conducted by Donald Hebb, a Canadian psychologist, who discovered that, “if subjects are confined without light, odor, sound, or any fixed references of time and place, very deep breakdowns can be provoked,” and that, within just 48 hours, those held in what he termed “perceptual isolation” can be reduced to semi-psychotic states.
However, while some interpretation and empathy is required to understand the impact on Abu Zubaydah of his profound isolation in this period, in which, as the Times also reported, he was largely cut off from all human interaction, only occasionally punctuated by an interrogator entering his cell, saying, “You know what I want,” and then leaving, there is no denying the visceral impact of the following description. “At times, Mr. Zubaydah, still weak from his wounds, was stripped and placed in a cell without a bunk or blankets,” the Times explained. “He stood or lay on the bare floor, sometimes with air-conditioning adjusted so that, one official said, Mr. Zubaydah seemed to turn blue” (emphasis added).
Further information about Zubaydah’s treatment in Thailand has not emerged in great detail. In The Dark Side, Jane Mayer noted only that he was “held naked in a small cage, like a dog,” and the ICRC report focused instead on his detention in Afghanistan, from May 2002 to February 2003. What we do know, however, from the Senate Committee’s report, is that an FBI agent was so appalled by his treatment at the hands of CIA agents that he “raised objections to these techniques to the CIA and told the CIA it was ‘borderline torture,’” and that, sometime later, FBI director Robert Mueller “decided that FBI agents would not participate in interrogations involving techniques the FBI did not normally use in the United States.” We also know from Jane Mayer that R. Scott Shumate, the chief operational psychologist for the CIA’s Counterterrorist Center, left his job in 2003, apparently disgusted by developments involving the use of the “enhanced interrogation techniques,” and that “associates described him as upset in particular about the treatment of Zubaydah.”
Moreover, although the ICRC report dealt only with Zubaydah’s treatment in Afghanistan, it’s also clear that the techniques to which he was subjected in Afghanistan, in the approximately two and a half months before the OLC memos were signed, also “constituted torture.”
In his statement to the ICRC, Zubaydah explained how, even before the waterboarding began, he was strapped naked to a chair for several weeks in a cell that was “air-conditioned and very cold,” deprived of food, subjected to extreme sleep deprivation for two to three weeks — partly by means of loud music or incessant noise, and partly because, “If I started to fall asleep one of the guards would come and spray water in my face” — and, for the rest of the time, until the waterboarding began, was subjected to further sleep deprivation, and kept in a state of perpetual fear.
This array of techniques undoubtedly appears less dramatic than the “real torturing” that followed (in which the waterboarding was accompanied by physical brutality, hooding, the daily shaving of his hair and beard, and confinement in small boxes), but, again, it is critical to try to imagine what two to three weeks of chronic sleep deprivation actually means, and to recall that, by the time Steven G. Bradbury, the Principal Deputy Assistant Attorney General, revised the approval for torture techniques in May 2005, it was noted that it was only considered acceptable to subject a prisoner to 180 hours (seven and a half days) of sleep deprivation.
To understand how torture came to be used before it was officially approved, we need to return to the New York Times article of September 2006, which explained how, according to accounts by three former intelligence officials, the CIA “understood that the legal foundation for its role had been spelled out in a sweeping classified directive” signed by President Bush on September 17, 2001, which authorized the agency “to capture, detain and interrogate terrorism suspects.”
Significantly, this “memorandum of notification” did not spell out specific guidelines for interrogations, but as later research, and the latest reports have confirmed, the directive led to focused efforts by the CIA, and by William J. Haynes II, the Pentagon’s General Counsel (and a protégé of Dick Cheney), to contact foreign governments for advice on harsh interrogation techniques, and to begin a relationship with a number of individuals involved in the Joint Personnel Recovery Program (JPRA), the body responsible for administering the SERE program (Survival, Evasion, Resistance and Escape), which is taught at U.S. military schools.
Designed to teach military personnel how to resist interrogation if captured by a hostile enemy, the SERE program uses outlawed techniques derived from techniques used on captured U.S. soldiers during the Korean War to elicit deliberately false confessions, and includes, as the Senate Committee report explained, “stripping detainees of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures.” In some circumstances, the techniques also include waterboarding, and, as numerous sources — including the recently released reports and memos — have revealed over the last few years, the reverse-engineering of the SERE techniques constituted the bedrock of the administration’s interrogation program, from Afghanistan, Iraq and Guantánamo to the secret dungeons of the CIA.
As we also know, from the pioneering research conducted by Jane Mayer, by the time that the CIA took over Zubaydah’s interrogation from the FBI, in April 2002, the team included Dr. David Mitchell, a retired Air Force SERE psychologist. Thanks to the detailed timeline provided by the Senate Committee, we now know that it was Haynes who first inquired about the applicability of the SERE program to the interrogation of prisoners in December 2001, and we also know that, in April 2002, while “experienced intelligence officers were making recommendations to improve intelligence collection” — which, noticeably, included an assessment by Col. Stuart A. Herrington, a retired Army intelligence officer, that a regime based solely on punishment “detracts from the flexibility that debriefers require to accomplish their mission” — “JPRA officials with no training or experience were working on their own exploitation plan,” and a colleague of Mitchell’s, Bruce Jessen, a senior SERE psychologist, was providing recommendations for JPRA involvement in the “exploitation of select al-Qaeda detainees” in an “exploitation facility” to be established especially for the purpose — which, presumably, turned out to be the secret dungeon provided by the Thai government.
We also know from Mayer that discussions about the CIA’s proposed interrogation techniques, in April 2002, involved numerous other senior officials — beyond the key involvement of Haynes — in meetings in the White House’s Situation Room that were chaired by National Security Advisor Condoleezza Rice, and attended by Cheney, Rumsfeld, Tenet, Secretary of State Colin Powell, and Attorney General John Ashcroft, and, moreover, that the level of detail provided by Tenet appalled Ashcroft to such an extent that he lamented, “History will not judge us kindly.”
This is disturbing enough, but what makes it even more chilling is the realization that the tactics being discussed, which, it is clear, led swiftly to their enactment in actual interrogations, were some months away from being authorized by the OLC. As the Times article explained, in what was perhaps its most damning passage, “Three former intelligence officials said the techniques had been drawn up on the basis of legal guidance from the Justice Department, but were not yet supported by a formal legal opinion.”
In my book, this means that, regardless of the validity of the OLC’s opinions, those who authorized the torture of Abu Zubaydah between March 28 and July 31, 2002 are not protected by the OLC’s supposed “golden shield,” and should be prosecuted for contravening the prohibition on the use of torture that, since 1988, has been enshrined in U.S. law. This may not apply to all of those who attended the meetings in the White House (plus Haynes), but it’s inconceivable that the CIA began subjecting Abu Zubaydah to chronic isolation and sleep deprivation with receiving approval from somebody in high office.
It remains to be seen, however, whether the Obama administration is committed to abiding by the laws that President Obama praised so lavishly during his election campaign, or whether, instead, he and his administration are committed to reading from a different book: How to Torture With Impunity And Get Away With It, by former Vice President Dick Cheney and an array of associates, all intoxicated with the thrill of unfettered executive power, which concludes by claiming that you get away with breaking any damn law that you please, so long as you’re voted out of office at the end.
Friday, April 24, 2009
The Index On Censorship Award
A big thank you for the very kind and generous congratulatory messages over the past few days.
The Index on Censorship started out as a magazine in 1972. Founded by a group of journalists, writers and artists, the aim of the publication was to provide a platform for views in defence of the freedom of expression. Over the years, it has featured the writings of an impressive list of distinguished writers and thinkers that include Aleksandr Solzhenitsyn, Milan Kundera, Vaclav Havel, Nadine Gordimer, Noam Chomsky and Umberto Eco (Wikipedia)
Since then it has evolved. As Index says of itself, “Index on Censorship is Britain’s leading organisation promoting freedom of expression. Our award-winning magazine and website provide a window for original, challenging and intelligent writing on these vital issues around the world. Our international projects in media, arts and education put our philosophy into action.”
The Index on Censorship launched the Freedom of Expression Awards in 2000 to recognize free expression activity around the world and to honour those who have made outstanding contributions to the promotion of free expression. Since 2000, the awards have grown and are now awarded in five categories: New Media (supported by The Economist). Law and Campaigning (supported by Bindmans), Journalism (supported by The Guardian), the Index Film Award and the T R Fyvel Book Award.
The first Bindmans Law and Campaigning Award was initiated in 2007. The award is given to lawyers or campaigners “who have fought repression, or have struggled to change political climates and perceptions. Special attention is given to people using or establishing legal precedents to fight injustice.”
The first recipient of the award was Siphiwe Hlophe, a Swazi activist who co-founded Swazis For Positive Living (Swapol) in 2001 when she was abandoned by her husband and lost an agricultural economics scholarship when she tested positive for HIV. Swapol campaigns against gender discrimination related to HIV/Aids as well as provides assistance to persons living with HIV/Aids
In 2008 it was awarded to U Gambira (pseudonym), the leader of the All-Burma Monks Alliance, which organized and spearheaded the nationwide protests in 2007. He was detained in November 2007 and is still under detention.
I only came to know that I had been nominated and had been shortlisted when an associate alerted me. In the same way, I came to know who it was that had nominated me much later: Peter Noorlander, legal director of the Media Legal Defence Initiative, an organisation that works globally to help journalists and small media outlets defend their rights. He was formerly of Article 19, a human rights organization that works around the world to protect and promote the right to free expression. I have had the privilege of collaborating with Peter.
The shortlist for the 2009 Award had three other nominees, all very distinguished in their own right: Gamal Eid (Egypt), Harrison Nkomo (Zimbabwe) and Harry Roque (Phillipines).
The recipient of the award was to be announced at an Awards Dinner held in London on the 21st of April. I could not attend the dinner as I was scheduled for hearings in court through the week. Peter Noorlander was kind enough to represent me and to e-mail me as soon as it was announced (“You won”).
This is how Index describes my selection:
“Malik Imtiaz Sarwar is a leading human rights lawyer and activist and the current president of the National Human Rights Society (HAKAM). Imtiaz has been a central figure in fighting lawsuits brought against journalists and bloggers, and was the lead counsel for Raja Petra Kamaruddin, popular blogger and editor of Malaysia Today, whose release he secured last year. In August 2006, a poster declaring him to be a traitor to Islam and calling for his death was circulated in Malaysia. He has proposed setting up an inter-faith council, and spoken in a series of public forums on the need for religious freedom.”
As far as I know the selection was based entirely on an independent assessment of my efforts. I was not contacted by anyone from Index or associated with the awards nor was I requested to submit any materials to the selection panel. It appears however that the panel of judges was acquainted with my body of work.
In conjunction with the event, I was asked to contribute a comment for the Guardian. This was the piece entitled “The Truth About Malaysia” that has been reproduced on various Malaysian soc-pol sites.
As I said in an interview with Deborah Chong of the Malaysian Insider, I am happy to have been nominated and given the award. It presented an opportunity to bring to light the Malaysian situation, one that sadly in the view of dispassionate and objective third parties fits into the parameters of the award.
But then, that should really not come as a surprise, all things considered.
The cause is however one that is worth all the pain and suffering it might entail, a sentiment that I had the opportunity of expressing in the acceptance speech (that Peter was kind enough to read out for me) in this way:
“Being a public interest advocate is at times one of the loneliest things that one can do. Standing up against systemic repression and populist sentiment is not the most popular thing one can do. And yet, it must be done. In the short period that Malaysians stopped doing so, we lost the Rule of Law. The consequences of this failure is the legacy that younger Malaysians have inherited.
The award tonight is a reminder that no matter the specific nature of our respective struggles, the underlying causes are universal. The truths that define us in Malaysia are the same as those that define our friends in Egypt, Zimbabwe, the Phillipines or any other place. We each want to believe that each of our futures is limited only by our ability to dream.”
We must all keep on reaching for the stars. Our futures are written in them.
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