On Oct. 4, the New York Times blew another ten-foot hole in the Bush administration’s torture cover-up. The Times revealed that the Justice Department produced a secret legal opinion in early 2005 permitting CIA interrogators to use “combined effects” on detainees, including head slapping, waterboarding, frigid temperatures, manacling for many hours in stress positions, and blasting with loud music to assure sleep deprivation. The Times labeled the memo as an “expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.”
Within hours of the paper hitting the streets, President Bush issued the same moth-eaten denial he has used many times since Abu Ghraib: “This government does not torture people. You know, we stick to U.S. law and our international obligations.” But it is the “law” as contorted by administration lawyers who rubberstamp whatever methods Bush or Cheney demand. The same lawyers who tell Bush he has “inherent authority” to wiretap Americans’ phone calls also tell him he has authority to redefine torture, regardless of the English-language precedents dating back to Chaucer.
The Times detailed how, after 9/11, the CIA constructed an interrogation program by “consulting Egyptian and Saudi intelligence officials and copying Soviet interrogation methods long used in training American servicemen to withstand capture.” For decades, the United States government condemned Soviet, Egyptian, and Saudi torture. But interrogation systems designed to compel victims to sign false confessions now provide the model for protecting America in the new millennium.
In late 2005, Congress passed the McCain Detainee Treatment Act, which prohibited the U.S. government from using “cruel, inhumane, or degrading” interrogation methods. The Times revealed that the Justice Department responded to the new law with another secret memo declaring that all the techniques listed above were not “cruel, inhumane or degrading.” The secret torture memos, written by Steven Bradbury, the head of the Justice Department Office of Legal Counsel, relied on “a Supreme Court finding that only conduct that ‘shocks the conscience’” would go too far.
While Bush may believe he has sole discretion to define torture, CIA interrogators increasingly fear facing grand juries. The Times noted, “From the secret sites in Afghanistan, Thailand and Eastern Europe where C.I.A. teams held al-Qaeda terrorists, questions for the lawyers at C.I.A. headquarters arrived daily. Nervous interrogators wanted to know: Are we breaking the laws against torture?”
According to Joanne Mariner, a lawyer with Human Rights Watch, the purpose of the secret Justice Department memos was to “to immunize US officials from prosecution for abusive conduct. They were meant to facilitate abuses, not to prevent them.” The fact that the Justice Department officially blessed torturous methods makes it far more difficult to prosecute CIA and other interrogators for breaking the law.
As usual, the administration claimed it was doing Americans a favor by keeping them in the dark. White House Press Secretary Dana Perino declared, “It’s appropriate that applications of the laws and techniques are kept secret. And I don’t think that providing those to the American public would serve them well.” Yale law Professor Jack Balkin summed up the administration’s position: “I could tell you why what I’m doing is legal, but then I’d have to shoot you.”
As part of the procedure for establishing the “legal” limits of interrogation, last year’s Military Commission Act required the president to put in writing his definition of what constitutes “outrages upon personal dignity, in particular humiliating and degrading treatment.” The executive order that Bush finally issued on July 20 decreed that everything in CIA detention and interrogation programs was legal—even though the secret CIA prison sites scattered around the globe clearly violate the Geneva Conventions, which are binding under U.S. law.
Bush offered a “good intention” definition of non-torture. He stressed that interrogators were prohibited from “intentionally causing serious bodily injury” and “acts intended to denigrate the religion, religious practices, or religious objects of the individual.” He banned “willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person … would deem the acts to be beyond the bounds of human decency, such as sexual or sexually indecent acts undertaken for the purpose of humiliation…”
Former Marine Corps Commandant Paul X. Kelley condemned the new guidelines for encouraging abuses: “As long as the intent of the abuse is to gather intelligence or to prevent future attacks, and the abuse is not ‘done for the purpose of humiliating or degrading the individual’—even if that is an inevitable consequence—the president has given the CIA carte blanche to engage in ‘willful and outrageous acts of personal abuse.’” Georgetown University law Professor David Cole noted that Bush’s order “appears to permit cutting or bruising a suspect so long as the injury does not risk death, significant functional impairment or ‘extreme physical pain,’ an entirely subjective term.”
The key portion of the executive order—the list of approved techniques—was kept secret. Tom Malinowski of Human Rights Watch observed, “All the order really does is to have the president say, ‘Everything in that other document that I’m not showing you is legal — trust me.’”
To prevent detainees and former detainees from disclosing to their defense attorneys the specific extreme interrogation methods used against them, the Bush administration is using claims of “state secrets.” A Justice Department spokeswoman asserted that letting a former Maryland resident tell his lawyer the methods he suffered would be “inadequate to protect unique and potentially highly classified information that is vital to our country’s ability to fight terrorism.”
Unfortunately, the Supreme Court appears to be swallowing this argument. On Oct. 9, the Court refused to hear the case of Khaled el-Masri, a German of Lebanese descent who was kidnapped by the CIA during a 2003 vacation in Macedonia. He was stripped, beaten, shackled, and flown to a secret interrogation center in Afghanistan, where he was tortured for four months. The CIA eventually realized that they had the wrong guy, so Masri was flown to Albania and dumped on the side of the road.
German Chancellor Angela Merkel said that Secretary of State Condoleezza Rice admitted to her that the CIA had mistakenly grabbed Masri. The European Union confirmed Masri’s allegations, and the German government issued arrest warrants for 13 CIA agents earlier this year for their role in Masri’s kidnapping and torture. Masri’s story was all over Europe and he was interviewed by “60 Minutes” and other American media.
Masri sued CIA chief George Tenet, three private aviation companies, and 20 unnamed employees of the CIA and the companies. The ACLU, which represented him, declared that the Supreme Court should not allow the “government to engage in torture, declare it a state secret and … avoid any judicial accountability.”
But the Court accepted the Justice Department’s claims and banned Masri from American courtrooms. Apparently, as long as the U.S. government has not publicly confessed, then it is still a “state secret” that U.S. officials committed heinous crimes. (A similar case, involving an innocent Canadian who was seized at JFK International Airport and flown to Syria for torturing, continues to percolate in the U.S. courts.)
In his Oct. 5 statement, Bush declared, “the techniques that we use have been fully disclosed to appropriate members of the United States Congress.” But House Speaker Nancy Pelosi and Sen. Jay Rockefeller, the chairman of the Senate Intelligence Committee, angrily denied having been informed.
Not that they are doing much about it. Bush continues to benefit from a largely spineless Congress. Michael Ratner, president of the Center for Constitutional Rights, said, “Congress by its actions and inactions is the handmaiden of the torture program. Despite the publicly revealed memos authorizing torture and the testimony of its widespread use, Congress, even under the Democrats, has yet to hold even one hearing regarding the responsibility of high administration officials.” Congressional Democrats apparently believe that being criticized by Bush is a fate worse than torture. One exception is Sen. Ron Wyden of Oregon, who singlehandedly recently blocked the nomination of John Rizzo, who approved of the administration’s extreme definitions of torture, to be the general counsel of the CIA.
The Democrats initially indicated that they would refuse to hold confirmation hearings for Michael Mukasey, Bush’s nominee for attorney general, until they received the confidential legal rationales on interrogation policy and other matters. But fearing criticism, Democratic leaders dropped the demand.
There is little reason to expect that Mukasey, if confirmed, will rein in federal torture. According to Newsweek, he assured the Bush administration in private meetings that he “understood the need for the CIA to use enhanced interrogation methods” and that he did not support naming a special prosecutor for potential Bush administration crimes. In a 2004 speech, Mukasey declared, “the hidden message in the structure of the Constitution” is that the government is entitled to “the benefit of the doubt.” Does he believe government deserves a codified benefit of the doubt, regardless of perpetual misconduct or perfidy?
Still—gutless congressmen and compliant lawyers notwithstanding—the administration’s torture policy is under a Damocles Sword. The New York Times article caused a far greater splash than the Bush team expected. And if the memos themselves or Bush’s secret order to the CIA authorizing torture-like methods leak out, the White House could find itself in far more peril.
James Bovard is the author of Attention Deficit Democracy and eight other books.